1

California Wills and Trusts

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3
California Wills and Trusts
Cases, Statutes, Problems,
and Materials

Peter T. Wendel
PROFESSOR OF LAW
PEPPERDINE UNIVERSITY SCHOOL OF LAW

Robert G. Popovich
PROFESSOR OF LAW
PEPPERDINE UNIVERSITY SCHOOL OF LAW

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Copyright © 2017
Carolina Academic Press, LLC
All Rights Reserved

ISBN 978-1-61163-674-1
eISBN 978-1-5310-0840-6
LCCN 2015955457

Carolina Academic Press, LLC

700 Kent Street
Durham, North Carolina 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com

Printed in the United States of America

5
To the lovely Gerri—asking you to marry me was the best
question I've ever asked;
To my children (Carolyn, Paul, John, and Kristin) and
grandchildren
(Quinn and Ronan)—the pride and joy of my life; and
To my students—from whom I've learned so much.
Peter T. Wendel

To my two sons, Mark and Brian—you give me

immeasurable love and pride
To my students; past, present and future—
you are my family who gives me purpose in work
To my colleague and friend Peter—you gave me years of
friendship and
the chance to work with you on this book
Robert G. Popovich

6
Contents

Table of Cases
Table of Statutory Material
Preface

Chapter 1 · Introduction and the Wills & Trusts Landscape

I. The Subject of Wills and Trusts
II. Quick Overview: Probate versus Nonprobate
A. Probate Property
B. Nonprobate Property
III. An Estate Planning Perspective
Problems
In re Succession of Plummer
Notes
IV. Professional Responsibility—Ethical Issues
Lucas v. Hamm
Notes
V. A Brief Word about Estate Planning
VI. But What if ...

Chapter 2 · The California Intestate Scheme

I. Overview: What Is an Intestate Scheme?
II. The California Intestate Scheme: Who Takes How Much
III. The Decedent's Property
A. Overview
1. Single Individual: Separate Property
Assumption
2. Concurrent Estates
B. Marriage and Property Rights
1. The Non-Community Property Approach
2. The Community Property Approach

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 a. The Partnership Model
b. The Classification Process
c. Treatment at Death
IV. The Mechanics of the California Intestate Scheme
A. Calculating the Share of the Surviving Spouse
Problems
B. The In-Law Inheritance Statute
Problems
Note
V. The Survival Requirement
A. The California Survival Approach
Notes
Problems
VI. Calculating the Share of the Issue
A. The Simple End of the Spectrum: Children Only
1. Calculating One's Degree of Relationship
B. The First Variation: Children and Grandchildren
C. Second Variation: Taking by Representation
D. Third Variation: No Live Takers in the First Generation
E. Fourth Variation: The Shares for the Deceased
Parties Survived by Issue
Notes and Problems
F. Miscellaneous Doctrines Relating to Calculating
Shares of Issue
1. Half-Bloods
2. Inheriting through Two Lines
VII. Calculating the Share of the Next of Kin
A. The California Approach
Problem
Note

Chapter 3 · Who Qualifies as an Heir under the California

Intestate Scheme?
I. Overview
II. Spouse
A. Traditional Marriage
B. Same-Sex Couples

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 1. Registered Domestic Partners
2. Same-Sex Marriage
C. Putative Spouses
Notes
D. Cohabitants
Note
III. Issue
A. Introduction
B. The “Ideal” Nuclear Family
C. Natural Parents Married
D. Child Born Out of Wedlock
Estate of Griswold
Notes
E. Adoption
Estate of Dye
Notes and Problems
F. Intent to Adopt
1. Equitable Adoption
Estate of Ford
Notes
2. Attempted Adoption
Notes
Estate of Joseph
Notes
Problem
G. Child Born after Natural Parent's Death
1. Posthumously Born Child
Notes
2. Posthumously Conceived Child
Woodward v. Commissioner of Social Security
Notes

Chapter 4 · Miscellaneous Doctrines That May Affect an

Heir's Share
I. Overview
II. The Advancement Doctrine
Notes

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 Problems
III. The Slayer Doctrine
A. Introduction
In re Mahoney's Estate
B. The California Approach
Notes
IV. The Disclaimer Doctrine
Dyer v. Eckols
Notes
Problems

Chapter 5 · Testamentary Capacity

I. Overview
II. General Testamentary Capacity
Estate of Mann
Notes
Problems
III. Defects in Testamentary Capacity
A. Insane Delusions
In re Honigman's Will
Notes
Problems
B. Undue Influence
In re Estate of Henault
Notes
In re Moses' Will
Notes
C. Fraud
In re Bottger's Estate
Notes
Problem
D. Duress
E. Elder Abuse
In re Estate of Lowrie
F. Tortious/Intentional Interference with an Expectancy
Notes

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Chapter 6 · Wills Act Formalities
I. Introduction
II. Attested Wills
A. The Traditional Approach
In re Groffman
Notes
B. Response to Traditional Approach
Notes and Problems
Estate of Stoker
Estate of Ben-Ali
C. Continuing and Evolving Issues
1. The Writing Requirement
Problems
2. The Signature Requirement
Problems
3. The Witness Requirement
Problem
In re Tracy's Estate
Problems
D. The “Interested” Witness
Notes
Problem
E. “Swapped-Wills”
F. Real Life—Practice versus What Is Permitted by
Statutes and Courts
III. Holographic Wills
Estate of Billings
In re Estate of Williams
Notes
In re Estate of Johnson
Notes and Problems
Estate of Wong
Notes and Problems

Chapter 7 · Will Revocation

I. Introduction
A. The Traditional Approach

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 Thompson v. Royall
Notes
II. Express Revocation
A. Introduction
B. Revocation by Writing
1. Codicil versus Will
Problems
2. Revocation by Writing: Expressly versus by
Inconsistency
Problems
C. Revocation by Act
1. The Physical Act
Problems
III. Implied Revocation
A. Implied Revocation by Act
Estate of Obernolte
Notes
Problems
B. Implied Revocation by Operation of Law
1. Same-Sex Couples
Note
Problem
IV. Revival of Revoked Wills
In re Estate of Heibult
Notes
Problem
V. Dependent Relative Revocation (“DRR”)
Kroll v. Nehmer
Notes
Problems

Chapter 8 · Components of a Will

I. Introduction
II. Integration
A. Attested Will
B. Holographic Will
Notes

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 Problem
III. Republication by Codicil
In re McCauley's Estate
Notes
Problems
IV. Incorporation by Reference
A. Classic Incorporation by Reference
Simon v. Grayson
Notes
B. Modern Trend—Tangible Personal Property List
(Relaxation of Incorporation by Reference)
Problems
V. Acts of Independent Significance
In re Tipler
Problems
VI. Contracts Concerning Wills
Note

Chapter 9 · Construing Time of Death Gifts

I. Introduction
Mahoney v. Grainger
Fleming v. Morrison
Note
II. Extrinsic Evidence to Help Construe a Will
A. Drafting Mistakes
1. Common Law Approach
2. Modern Trend Approach
3. The California Approach
Estate of Taff
Notes
In re Estate of Duke
Notes
Problems
III. Types of Testamentary Gifts; Failure
A. Types of Testamentary Gifts
Problems
B. Failure of Testamentary Gift

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 In re Estate of McFarland
Note
Problem
IV. Change in Beneficiary—Default Construction Rules
A. Lapse
B. Anti-Lapse
Estate of Lensch
Notes
Problems
C. Class Gifts
Cain v. Dunn
Notes
Problems
V. Change in Testator/Transferor's Property—Default
Construction Rules
A. Ademption
1. Ademption by Extinction (“Ademption”)
Estate of Austin
Notes
Problems
2. Gifts of Stock
Problems
3. Ademption by Satisfaction (“Satisfaction”)
Notes and Problems
B. Exoneration
Problems
C. Abatement
Problem

Chapter 10 · Family Protection

I. Introduction
A. Marital Property and Spousal Protection at Time of
Death
B. Migrating Couples
C. Quasi-Community Property
Problems
II. Pretermitted Spouse

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 Estate of Shannon
Notes
Notes and Problems
III. Pretermitted Child/Accidentally Omitted Child
Estate of Mowry
Notes
Problems

Chapter 11 · Nonprobate Transfers

I. Overview
II. Life Insurance Contract Exception
A. Traditional Common Law Approach
Wilhoit v. Peoples Life Ins. Co.
B. Modern Trend Approach
In re Estate of Lahren
Notes
Problem
III. Joint Tenancy
A. Introduction
B. Creation—Real Property
Problems
C. Creation—Multiple-Party Financial Accounts
Problems
D. Marital Property: Taking Title as Community Property
versus Joint Tenancy
E. Community Property with Right of Survivorship
IV. Legal Life Estate and Remainders
A. Common Law Approach
Problem
Note
B. Modern Trend Approach
1. Transfer-on-Death Deed
In re Estate of Roloff
Sheils v. Wright
Notes
C. The California Approach
1. Background

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 2. Creation
3. Consequences of Recording
4. TOD Deed's Effect on Concurrent Estate
5. Revocation
6. Disqualification
7. Creditor's Rights
Problems
V. Inter Vivos Trusts
A. Inter Vivos Trust as a Will Substitute
B. Costs
C. Time
D. Control
E. Privacy
F. Out-of-State Real Property
G. Incapacity
1. Managing Assets
2. Health Care Decisions and End-of-Life
Instructions

Chapter 12 · Trusts: Creation and Revocability

I. Overview
A. Conceptual Understanding
1. Inter Vivos Gift—Outright Gift
2. Inter Vivos Gift in Trust
a. The Trust as a Bifurcated Gift
b. Requirements to Create a Trust
Hermann v. Brighton German Bank Co.
II. Trust Creation
A. Intent to Create a Trust
In re Kearns' Estate
Notes
Problems
B. Trust Funding
1. Third Party as Trustee
Uber v. Hoffmann
Note
2. Settlor as Trustee

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 Estate of Heggstad
Notes
Problems
C. Ascertainable Beneficiaries
1. “Ascertainable”
Armington v. Meyer
Notes
Problems
2. Honorary Trusts—Noncharitable Purpose
Trusts
In re Voorhis' Estate
Notes
Problem
D. Writing Requirement
1. Failed Inter Vivos Trust
Steinberger v. Steinberger
Notes
2. Failed Testamentary Trust
Pickelner v. Adler
Note
Problems
III. Trust Creation and Pour-Over Clauses
A. Introduction: Inter Vivos versus Testamentary Trusts
B. A Testamentary Pour-Over Provision
Notes and Problem
C. Uniform Testamentary Additions to Trusts Act
Clymer v. Mayo
Notes and Problems
IV. Trust Revocability
A. Default Rule
B. Mechanics of Revoking a Trust
Masry v. Masry
Notes
Problems

Chapter 13 · Trust Life: Beneficiary's Perspective

I. Scope of Beneficiary's Interest

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 A. Beneficiary's Interest: Mandatory versus Discretionary
Marsman v. Nasca
Notes
Problems
B. Scope of Discretion—Modern Trend
Strojek ex rel. Mills v. Hardin Cty. Bd. of
Supervisors
Notes
Problems
II. Creditor's Rights and Spendthrift Trusts
A. Third Party as Beneficiary
Duvall v. McGee
Notes
Problems
B. Self-Settled Trusts
Rush Univ. Med. Ctr. v. Sessions
Notes
Problems
III. Beneficiary-Compelled Termination of an Irrevocable Trust
In re Estate of Bonardi
Notes
Problem
IV. Modification of Irrevocable Trust
A. Modifying a Trust's Dispositive or Administrative
Terms
In re Riddell
Notes

Chapter 14 · Trust Life: Trustee's Perspective

I. Overview—A Historical Perspective
II. Trustee's Powers and Third-Party Liability for Transacting
with a Trustee
A. Common Law Approach
B. Modern Trend Approach
1. The Trustee's Powers
2. Protection for Third Parties Who Deal with a
Trustee

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 Problem
III. The Office of Trusteeship
A. General Duty to Administer the Trust
IV. The Core Duties
A. Duty of Loyalty
Wilkins v. Lasater
Fulton Nat'l Bank v. Tate
Notes
Problems
B. Duty to Be Impartial
Delaware Trust Co. v. Bradford
Notes
Hearst v. Ganzi
Notes
Problems
In re Heller
Note
Problem
C. Duty to Act Prudently
1. Articulating the Duty
2. Historical Evolution of the Investment Duties
3. The Prudent Man Approach
4. The Prudent Investor Approach
Estate of Collins
Notes
Problems
V. The Ancillary, Administrative Duties
A. Related to the Trust Property
1. Duty to Collect Trust Property
Problems
2. Duty to Segregate Trust Property
Matter of Goldstick
Notes
3. Duty to Properly Care for the Trust Property
Problem
B. Related to the Trust Beneficiaries
1. Duty to Inform Party of Beneficiary Status

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 2. Duty to Disclose Terms of the Trust
Fletcher v. Fletcher
Notes
3. Duty to Account for Trust's Administration
Cook v. Brateng
Notes
VI. To Whom Does the Trustee Owe These Fiduciary Duties?
A. Traditional Rule
B. Inter Vivos Revocable Trust
In re Estate of Giraldin
Problem

Chapter 15 · Charitable Trusts

I. Charitable Trust Creation
A. Charitable Purpose
Shenandoah Valley Nat'l Bank of Winchester v.
Taylor
Notes
Problems
B. Unascertainable Beneficiaries
In re McKenzie's Estate
Problem
II. Standing to Enforce
Patton v. Sherwood
Notes
III. Power to Modify—The Doctrine of Cy Pres
In re Elizabeth J.K.L. Lucas Charitable Gift
Notes
Problem

Chapter 16 · Powers of Appointment

I. Introduction
A. Conceptual Introduction
B. Terminology
C. Powers of Appointments—General versus Special
Jenkins v. United States
Notes

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 D. Standard Applicable to Exercise
II. Creation of a Power of Appointment
In re Kuttler's Estate
Notes
A. Special Power of Appointment
B. General Power of Appointment
Problems
III. Exercise of a Power of Appointment
A. Inter Vivos—Timing of Exercise
B. Testamentary Power—Timing of Exercise
Carmichael v. Heggie
Notes
Problem
C. Manner of Exercise
In re Passmore
Notes
Problem
D. Atypical Exercise Scenarios
1. Appointment in Trust; Creating a New Power of
Appointment
2. Appointee Dies before Appointment Effective:
Lapse and Anti-Lapse?
Dow v. Atwood
Notes
E. Flawed Blended Exercises
1. Selective Allocation
2. Capture
IV. Failure to Exercise a Power of Appointment
Crawford v. Crawford
Notes

Index

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Table of Cases

Andersen v. Hunt, 196 Cal. App. 4th 722 (2011), 116

Armelin v. Armelin, No. B161395, 2003 WL 22146528 (Cal. Ct.
App. Sept. 18, 2003), 439
Armington v. Meyer, 236 A.2d 450 (R.I. 1967), 419
Ashburner v. MacGuire, 2 Bro. C.C. 108 (Ch. 1786), 316
Attorney Grievance Comm'n of Maryland v. Sachse, 693 A.2d 806
(Md. Ct. App. 1997), 548

Bank of New York v. Black, 139 A.2d 393 (N.J. 1958), 677
Bank v. Bank Lumber Co., 543 P.2d 588 (Okla. Civ. App. 1975),
559
Beckwith v. Dahl, 205 Cal. App. 4th 1039 (Ct. App. 2012), 156
Benjamin v. Woodring, 268 Md. 593 (1973), 121
Board of Regents v. Davis, 14 Cal. 3d 333 (1975), 112
Brezinski v. Brezinski, 463 N.Y.S.2d 975 (1983), 372
Bridge v. Kedon, 163 Cal. 493 (1912), 42

Cain v. Dunn, 241 So. 2d 650 (Miss. 1970), 310

Carmichael v. Heggie, 506 S.E.2d 308 (S.C. 1998), 668
Clymer v. Mayo, 473 N.E.2d 1084 (Mass. 1985), 444
Cook v. Brateng, 262 P.3d 1228 (Wash. Ct. App. 2010), 587
Crawford v. Crawford, 296 A.2d 388 (Md. 1972), 689

Delaware Trust Co. v. Bradford, 59 A.2d 212 (Del. Ch. 1948), 550
DeMaris v. Asti, 426 So.2d 1153 (Fla. Dist. Ct. App. 1983), 21
Dickinson v. Wilmington Trust Co., 734 A.2d 605 (Del. Ch. 1999),
667
Dow v. Atwood, 260 A.2d 437 (Me. 1969), 682
Dunmore v. Dunmore, No. C063910, 2012 WL 267725 (Cal. Ct.
App. Jan. 30, 2012), 531
Duvall v. McGee, 826 A.2d 416 (Md. 2003), 483
Dyer v. Eckols, 808 S.W.2d 531 (Tex. App. 1991), 101

22
Elden v. Sheldon, 46 Cal. 3d 267 (1988), 58
Estate of Austin, 113 Cal. App. 3d 167 (Ct. App. 1980), 318
Estate of Ben-Ali, 216 Cal. App. 4th 1026 (2013), 172
Estate of Billings, 64 Cal. 427 (1884), 190
Estate of Buck, 29 Cal. App. 4th 1846 (Ct. App. 1994), 646
Estate of Cleveland, 17 Cal. App. 4th 1700 (1993), 82
Estate of Collins, 72 Cal. App. 3d 663 (1977), 567
Estate of Dye, 92 Cal. App. 4th 966 (2001), 71
Estate of England, 233 Cal. App. 3d 1 (Ct. App. 1991), 368
Estate of Ford, 82 P.3d 747 (Cal. 2004), 76, 288
Estate of Griswold, 24 P.3d 1191 (Cal. 2001), 65
Estate of Hafner, 184 Cal. App. 3d 1371 (1986), 56
Estate of Heggstad, 16 Cal. App. 4th 943 (1993), 414
Estate of Joseph, 949 P.2d 472 (Cal. 1998), 82
Estate of Lensch, 177 Cal. App. 4th 667 (Ct. App. 2009), 303
Estate of Leslie, 37 Cal. 3d 186 (1984), 56
Estate of Mann, 184 Cal. App. 3d 593 (1986), 108, 131
Estate of McCabe, 224 Cal. App. 3d 330 (Ct. App. 1990), 179
Estate of Mowry, 107 Cal. App. 4th 338 (Ct. App. 2003), 347
Estate of Obernolte, 91 Cal. App. 3d 124 (Ct. App. 1979), 225
Estate of Powell, 113 Cal.App. 670 (1931), 122, 459
Estate of Shannon, 224 Cal. App. 3d 1148 (Ct. App. 1990), 340
Estate of Southworth, 59 Cal. Rptr. 2d 272 (Ct. App. 1996), 211
Estate of Stevenson, 11 Cal. App. 4th 852 (1992), 82
Estate of Stoker, 193 Cal. App. 4th 236 (Ct. App. 2011), 170, 222
Estate of Taff, 63 Cal. App. 3d 319 (Ct. App. 1976), 280
Estate of Thornton, 1 Cal. 2d 1 (1934), 337
Estate of Vargas, 36 Cal. App. 3d 714 (1974), 57
Estate of Velarde, No. A133760, 2013 WL 364305 (Cal. Ct. App.
2013), 368
Estate of Wong, 40 Cal. App. 4th 1198 (Ct. App. 1995), 206
Estate of Wood, 32 Cal. App. 3d 862 (Ct. App. 1973), 681

Fabian v. Lindsay, 765 S.E.2d 132 (S.C. 2014), 21

Farmer's Bank of State of Del. v. Howard, 258 A.2d 299 (Del.
Chan. 1969), 372
Fiduciary Trust Co. v. First National Bank of Colorado Springs,
Colorado, 181 N.E.2d 6 (Mass. 1962), 687

23
First Nat. Bank of Birmingham v. Currie, 380 So. 2d 283 (Ala.
1980), 482
First Nat. Bank of Catawba Cty. v. Edens, 286 S.E.2d 818 (N.C.
Ct. App. 1982), 476
Flannery v. McNamara, 738 N.E.2d 739 (Mass. 2000), 294
Fleming v. Morrison, 72 N.E. 499 (Mass. 1904), 274
Fletcher v. Fletcher, 480 S.E.2d 488 (Va. 1997), 582
Fulton Nat'l Bank v. Tate, 363 F.2d 562 (5th Cir. 1966), 539

Ganier's Estate v. Ganier's Estate, 418 So. 2d 256 (Fla. 1982),

345
Garatie-Symons v. Levenson, No. B203156, 2009 WL 258102
(Cal. Ct. App. Aug. 24, 2009), 416
Golson v. Dunlap, 14 P. 576 (Cal. 1887), 549
Guest v. Frazier, No. B225938, 2011 WL 986200 (Cal. Ct. App.
Mar. 22, 2011), 576
Guy v. Liederbach, 459 A.2d 744 (Pa. 1983), 21

Hearst v. Ganzi, 145 Cal. App. 4th 1195 (2006), 553

Hermann v. Brighton German Bank Co., 16 Ohio N.P. (n.s.) 47
(1914), 400
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), 55
Holt v. College of Osteopathic Physicians and Surgeons, 61
Cal.2d 750 (1964), 629

In re Alegria's Estate, 87 Cal. App. 2d 645 (Ct. App. 1948), 122

In re Beldon's Estate, 71 P.2d 326 (Cal. Ct. App. 1937), 277
In re Bottger's Estate, 14 Wash. 2d 676 (1942), 148
In re Brown, No. O.C.NO.1435 IV, 2005 WL 3753142 (Pa. Com.
Pl. Dec. 29, 2005), 417
In re Buck's Estate, 196 P.2d 769 (Cal. 1948), 326
In re De Mars' Estate, 67 P. 374 (Cal. Ct. App. 1937), 619
In re Domestic Partnership of Ellis, 162 Cal. App. 4th 1000 (Ct.
App. 2008), 57
In re Elizabeth J.K.L. Lucas Charitable Gift, 261 P.3d 800 (Haw.
2011), 632
In re Estate of Bonardi, 871 A.2d 103 (N.J. Super. Ct. 2005), 508
In re Estate of Boyer, 868 P.2d 1299 (N.M. Ct. App. 1994), 421

24
In re Estate of Breeden, 208 Cal. App. 3d 981 (Ct. App. 1989),
619
In re Estate of Duke, 61 Cal. 4th 871 (2015), 285
In re Estate of Giraldin, 290 P.3d 199 (Cal. 2012), 595
In re Estate of Heibult, 653 N.W.2d 101 (S.D. 2002), 234
In re Estate of Henault, G025278, 2002 WL 1335602 (Cal. Ct.
App. June 19, 2002), 126
In re Estate of Johnson, 630 P.2d 1039 (Ariz. 1981), 201
In re Estate of Lahren, 886 P.2d 412 (Mont. 1994), 360, 371
In re Estate of Leleu, No. A092532, 2002 WL 1839249 (Cal. Ct.
App. 2002), 372
In re Estate of Lieberman, 909 N.E.2d 915 (Ill. App. Ct. 2009), 575
In re Estate of Lowrie, 118 Cal. App. 4th 220 (2004), 153
In re Estate of McCarty, 211 Cal. App. 2d 23 (Ct. App. 1962), 252
In re Estate of McFarland, 167 S.W.3d 299 (Tenn. 2005), 298
In re Estate of Peck, 335 P.2d 185 (Cal. Dist. Ct. App. 1959), 621
In re Estate of Peters, 526 A.2d 1005 (N.J. 1987), 181
In re Estate of Roloff, 143 P.3d 406 (Kan. Ct. App., 2006), 376
In re Estate of Rosasco, 927 N.Y.S.2d 819 (Sur. 2011), 132
In re Estate of Russell, 444 P.2d 353 (Cal. 1968), 282, 289, 305
In re Estate of Williams, 155 Cal. App. 4th 197 (2007), 191
In re Ferrall's Estate, 258 P.2d 1009 (Cal. 1953), 474
In re Groffman, 1 W.L.R. 733 (Probate Div. 1969), 162, 189
In re Guardianship of Eisenberg, 719 P.2d 187 (Wash. Ct. App.
1986), 547
In re Heller, 849 N.E.2d 262 (N.Y. 2006), 559
In re Honigman's Will, 168 N.E.2d 676 (N.Y. 1960), 118
In re Kearns' Estate, 225 P.2d 218 (Cal. 1950), 403
In re Kuttler's Estate, 325 P.2d 624 (Cal. Ct. App. 1958), 660
In re Latimer Trust, 78 A.3d 875 (Del. Ch. 2013), 625
In re Liapis' Estate, 88 Pa. D. & C. 303 (P. Orph. 1954), 619
In re Lyon's Estate, 67 Pa. D. & C.2d 474 (1974), 428
In re Mahoney's Estate, 126 Vt. 31, 220 A.2d 475 (1966), 96
In re Marriage Cases, 76 Cal. Rptr. 3d 683 (2008), 55
In re McCauley's Estate, 71 P. 512 (Cal. 1903), 254
In re McIntyre, 48 N.Y.S. 785 (1897), 577
In re McKenzie's Estate, 227 Cal. App. 2d 167 (Ct. App. 1964),
621
In re Moore's Estate, 92 Cal. App. 2d 120 (1949), 179

25
In re Moses' Will, 227 So. 2d 829 (Miss. 1969), 135
In re Passmore, 416 A.2d 991 (Pa. 1980), 671
In re Riddell, 157 P.3d 888 (Wash. Ct. App. 2007), 517
In re Robbins' Estate, 371 P.2d. 573 (Cal. 1962), 620
In re Succession of Plummer, 847 So.2d 185 (La. App. 2003), 10
In re Sutro's Estate, 102 P. 920 (Cal. 1909), 620
In re Tipler, 10 S.W.3d 244 (Tenn. App. 1998), 266
In re Tracy's Estate, 182 P.2d 336 (Cal. Ct. App. 1947), 183
In re Trust Created by Lottie P. Silliman, dated December 29,
1950, No. A10-590, 2010 WL 5071339 (Minn. Ct. App. Dec. 14,
2010), 475
In re Voorhis' Estate, 27 N.Y.S.2d 818 (1941), 422
In re Watson's Estate, 195 Cal. App. 2d 740 (Ct. App. 1961), 122
In re Will of Sackler, 548 N.Y.S.2d 866 (1989), 443
In re Wright's Estate, 7 Cal. 2d 348 (1936), 113
Ingalls v. Ingalls, 54 So. 2d 296 (Ala. 1951), 483

Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970), 653
Juran v. Epstein, 23 Cal.App.4th 882 (1994), 271

Kalloger v. Normart, No. F040048, 2002 WL 31402079 (Cal. Ct.

App. Oct. 25, 2002), 441
Kolb v. City of Storm Lake, 736 N.W.2d 546 (Iowa 2007), 647
Kroll v. Nehmer, 705 A.2d 716 (Md. 1997), 238
Kucher v. Kucher, 192 Cal. App. 4th 90 (2011), 418
Kunce v. Robinson, 469 So. 2d 874 (Fla. Dist. Ct. App. 1985), 421

L.B. Research & Education Foundation v. UCLA Foundation, 130

Cal. App. 4th 171 (Ct. App. 2005), 631
Larson v. Cty. of Monterey, No. H039029, 2015 WL 7185021 (Cal.
Ct. App. Nov. 16, 2015), 516
Latham v. Father Divine, 81 N.Y.S.2d 681 (1948), 160
Leach v. Hyatt, 423 S.E.2d 165 (Va. 1992), 667
Lintz v. Lintz, 222 Cal. App. 4th 1346 (2014), 116
Lucas v. Hamm, 56 Cal.2d 583 (1961), 15, 21
Lundgren v. Hoglund, 711 P.2d 809 (Mont. 1985), 498

Mahoney v. Grainger, 186 N.E. 86 (Mass. 1933), 273

Marriage of Lindsey, 101 Wash. 2d 299 (1984), 60

26
Marsman v. Nasca, 573 N.E.2d 1025 (Mass. App. Ct. 1991), 463
Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), 58
Masry v. Masry, 166 Cal. App. 4th 738 (2008), 455
Matter of Estate of Bolinger, 943 P.2d 981 (Mont. 1997), 408
Matter of Goldstick, 581 N.Y.S.2d 165 (1992), 578
McGinley v. Bank of Am., N.A., 109 P.3d 1146 (Kan. 2005), 575
Mears v. Mears, 180 Cal. App. 2d 484 (Ct. App. 1960), 32
Mieras v. DeBona, 550 N.W.2d 202 (Mich. 1996), 21
Miller v. Miller, No. H026719, 2004 WL 2601792 (Cal. Ct. App.
Nov. 16, 2004), 458
Moeller v. Superior Court, 16 Cal. 4th 1124 (1997), 577
Moxley v. Title Ins. & Trust Co., 165 P.2d 15 (Cal. 1946), 516
Murray v. Zajic, No. B203119, 2008 WL 4767354 (Cal. Ct. App.
Nov. 3, 2008), 581
Myers v. Kansas Dep't of Soc. & Rehab. Servs., 866 P.2d 1052
(Kan. 1994), 480

Nelson v. California Trust Co., 202 P.2d 1021 (Cal. 1949), 504

O'Neal v. Wilkes, 263 Ga. 850 (1994), 75

Obergefell v. Hodges, 135 S. Ct. 2584 (2015), 55
Old Colony Trust Co. v. Rodd, 254 N.E.2d 886 (Mass. 1970), 473
Olver v. Fowler, 168 P.3d 348 (Wash. 2007), 27

Paley v. Bank of America, 159 Cal. App. 2d 500 (Ct. App. 1958),
338
Patton v. Sherwood, 152 Cal. App. 4th 339 (Ct. App. 2007), 625
Peffley-Warner v. Bowen, 113 Wash. 2d 243 (1989), 60
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010),
55
Pickelner v. Adler, 229 S.W.3d 516 (Tex. App. 2007), 433
Prueter v. Bork, 435 N.E.2d 109 (Ill. Ct. App. 1981), 548

Rice v. Clark, 47 P.3d 300 (Cal. 2002), 145

Riegler v. Riegler, 553 S.W.2d 37 (Ark. Ct. App. 1977), 558
Rugo v. Rugo, 91 N.E.2d 826 (Mass. 1950), 408
Rush Univ. Med. Ctr. v. Sessions, 980 N.E.2d 45 (Ill. 2012), 499

San Francisco Foundation v. Superior Court, 37 Cal. 3d 285

(1984), 645

27
Schreiner v. Scoville, 410 N.W.2d 679 (Iowa 1987), 21
Sheils v. Wright, 357 P.3d 294 (Kan. Ct. App. 2015), 378
Shenandoah Valley Nat'l Bank of Winchester v. Taylor, 63 S.E.2d
786 (Va. 1951), 607
Shinn v. Phillips, 220 N.E.2d 674 (Ohio Ct. App. 1964), 237
Simon v. Grayson, 102 P.2d 1081 (Cal. 1940), 258
St. Matthews Bank v. De Charette, 83 S.W.2d 471 (Ky. 1935), 667
State Central Collection Unit v. Brent, 525 A.2d 241 (Md. 1987),
498
State v. Hawes, 564 N.Y.S.2d 637 (1991), 506
Steinberger v. Steinberger, 140 P.2d 31 (Cal. 1943), 429
Strauss v. Horton, 207 P.3d 48 (Cal. 2009), 55
Strojek ex rel. Mills v. Hardin Cty. Bd. of Supervisors, 602 N.W.2d
566 (Iowa Ct. App. 1999), 476

Tennant v. John Tennant Memorial Home, 167 Cal. 570 (1914),

375
Thompson v. Royall, 163 Va. 492 (1934), 215
Trimble v. Gordon, 430 U.S. 762 (1976), 64
Tseng v. Tseng, 352 P.3d 74 (Or. Ct. App. 2015), 606
Tutorow v. Gerber, No. B155752, 2002 WL 984777 (Cal. Ct. App.
2002), 419

Uber v. Hoffmann, No. D037208, 2002 WL 199735 (Cal. Ct. App.

Feb. 8, 2002), 409
Unum Life Insurance Company of America v. Craig, 200 Ariz. 327
(2001), 38

Wikman's Estate, 148 Cal. 642 (1906), 228

Wilhoit v. Peoples Life Ins. Co., 218 F.2d 887 (7th Cir. 1955), 355
Wilkins v. Lasater, 733 P.2d 221 (Wash. Ct. App. 1987), 534
Wilson v. Fritschy, 132 N.M. 785 (2002), 156
Wojtkowiak v. Wojtkowiak, 85 N.Y.S.2d 198 (1947), 409
Wood v. Am. Sec. & Trust Co., 253 F. Supp. 592 (D.D.C. 1966),
670
Woodward v. Commissioner of Social Security, 760 N.E.2d 257
(Mass. 2002), 87

Young v. Redmon's Trustee, 300 Ky. 418 (1945), 425

28
Table of Statutory Material

California Probate Code

Probate Code §24, 629
Probate Code §25, 259
Probate Code §62, 410, 413
Probate Code §66, 337
Probate Code §74, 183
Probate Code §101, 339
Probate Code §103, 41
Probate Code §105, 282–83, 322–23
Probate Code §106, 282–83
Probate Code §150, 270–71
Probate Code §201.5, 337–39
Probate Code §220, 40
Probate Code §223, 40–41
Probate Code §228, 281
Probate Code §229, 281
Probate Code §240, 47, 100, 105
Probate Code §245, 47–48
Probate Code §246, 48
Probate Code §247, 48
Probate Code §249.5, 91–92
Probate Code §250, 99, 100, 155
Probate Code §251, 99
Probate Code §252, 99
Probate Code §254, 99
Probate Code §257, 72
Probate Code §259, 152, 154–55
Probate Code §265, 103
Probate Code §275, 102
Probate Code §278, 103
Probate Code §279, 103

29
Probate Code §282, 102–04
Probate Code §283, 102
Probate Code §350 (repealed), 228
Probate Code §612, 652
Probate Code §630, 668, 675
Probate Code §631, 675–76
Probate Code §632, 676, 680
Probate Code §640, 677, 680
Probate Code §641, 677, 680
Probate Code §672, 688
Probate Code §673, 686
Probate Code §674, 686
Probate Code §681, 665
Probate Code §682, 666
Probate Code §852, 115
Probate Code §1870, 113
Probate Code §1872, 112–13
Probate Code §4125, 413
Probate Code §4401, 391
Probate Code §4512, 412
Probate Code §5000, 364, 375
Probate Code §5010, 384
Probate Code §5016, 364, 375
Probate Code §5042, 231
Probate Code §5203, 370–71
Probate Code §5301, 371
Probate Code §5600, 230, 381–82
Probate Code §5608, 382
Probate Code §5614, 382
Probate Code §5620, 382
Probate Code §5622, 382
Probate Code §5624, 382
Probate Code §5626, 382
Probate Code §5628, 382, 384
Probate Code §5630, 382
Probate Code §5650, 382
Probate Code §5652, 382
Probate Code §5660, 382–83

30
Probate Code §5664, 384
Probate Code §5666, 384
Probate Code §5670, 384
Probate Code §5690, 384
Probate Code §5696, 384
Probate Code §6100, 108
Probate Code §6100.5, 108, 115
Probate Code §6110, 168–69, 171, 174–75, 179–82, 289–90
Probate Code §6110 (1984), 167
Probate Code §6111, 191, 196, 205, 209, 289
Probate Code §6111.5, 191, 205
Probate Code §6112, 187
Probate Code §6120, 219, 221, 222
Probate Code §6122, 229–30, 232
Probate Code §6122.1, 231–32
Probate Code §6123, 234, 237
Probate Code §6124, 227–28
Probate Code §6130, 260
Probate Code §6131, 265
Probate Code §6132, 262–64
Probate Code §6162, 211
Probate Code §6240, 161, 176, 181–82, 221, 227
Probate Code §6300, 443–44
Probate Code §6400, 26, 33, 36
Probate Code §6401, 27, 33, 36
Probate Code §6402, 27–28, 33, 36, 52, 72
Probate Code §6402.5, 34–37
Probate Code §6403, 40
Probate Code §6406, 49, 86
Probate Code §6407, 86
Probate Code §6409, 95
Probate Code §6413, 49
Probate Code §6450, 64, 70
Probate Code §6451, 49, 70–72, 74
Probate Code §6452, 66–67, 69
Probate Code §6453, 65
Probate Code §6454, 81–85
Probate Code §6560, 341–43

31
Probate Code §6561, 341–43
Probate Code §8252, 123, 125, 128, 131
Probate Code §11604, 66
Probate Code §11700, 347
Probate Code §15002, 604–05
Probate Code §15200, 410, 415
Probate Code §§15201–05, 410, 414
Probate Code §15206, 412, 415
Probate Code §15211, 428, 617
Probate Code §15212, 428
Probate Code §15300–01, 496, 497
Probate Code §15302, 480–81
Probate Code §15303, 482, 497
Probate Code §15305, 496, 497
Probate Code §15305.5, 496, 497
Probate Code §15306, 496, 497
Probate Code §15306.5, 497
Probate Code §15401, 455–57, 459
Probate Code §15405, 512
Probate Code §15680, 532
Probate Code §15800, 598–605
Probate Code §15801, 599
Probate Code §15802, 599
Probate Code §16000, 555, 556
Probate Code §16002, 555
Probate Code §16003, 549, 555, 556
Probate Code §16004, 555
Probate Code §16006, 555
Probate Code §16009, 580
Probate Code §16014, 574
Probate Code §16040, 563
Probate Code §16060, 555, 582
Probate Code §16061.5, 587
Probate Code §16062, 594
Probate Code §16064, 594, 601
Probate Code §16068, 587
Probate Code §16069, 587, 594, 600–01
Probate Code §16200, 529

32
Probate Code §16336, 562
Probate Code §16336.4, 562
Probate Code §16336.5, 562
Probate Code §16336.6, 562
Probate Code §16336.7, 562
Probate Code §16420, 600
Probate Code §16460, 599
Probate Code §16462, 600
Probate Code §17200, 626, 628
Probate Code §17210, 628
Probate Code §18100, 530
Probate Code §18100.5, 390
Probate Code §21101, 301
Probate Code §21102, 291
Probate Code §21104, 301
Probate Code §21109, 40, 304–05
Probate Code §21110, 100, 302, 304–05, 309, 314
Probate Code §21111, 300
Probate Code §21117, 295
Probate Code §21120, 289
Probate Code §21131, 330
Probate Code §21132, 327
Probate Code §21133, 323
Probate Code §21134, 323–24
Probate Code §21135, 95, 328–29
Probate Code §21139, 324
Probate Code §21205, 616
Probate Code §21310, 134
Probate Code §21311, 134
Probate Code §21350, 146
Probate Code §21362, 147
Probate Code §21366, 146–47
Probate Code §21380, 59, 143, 145–46
Probate Code §21382, 143–44
Probate Code §21384, 144
Probate Code §21386, 144
Probate Code §21390, 144
Probate Code §21400, 332

33
 Probate Code §21402, 332
Probate Code §21601, 344
Probate Code §21610, 344, 346, 350
Probate Code §21611, 344, 346
Probate Code §21612, 345
Probate Code §21620, 347–48, 350–51
Probate Code §21621, 347–48, 351
Probate Code §21622, 348, 350–51
Probate Code §21623, 352
Probate Code §21700, 271–72

California Civil Code

Civil Code §682.1, 374
Civil Code §683, 366–67, 370
Civil Code §683.2, 367, 369
Civil Code §715.2 (former §§715.1 and 716), 16
Civil Code §1287, 254–56
Civil Code §1292, 256
Civil Code §1313 (repealed), 254–55
Civil Code §1321, 255
Civil Code §1559, 18
Civil Code §1624, 418
Civil Code §1708, 159
Civil Code §2261, 569, 571–72
Civil Code §§2290.1–2290.12, 569
Civil Code §3523, 159

Cal. Const. art. I, §7.5 (amended 2008), 55

California Evidence Code

Evid. Code §115, 226
Evid. Code §550, 226
Evid. Code §600, 226

California Family Code

Family Code §125, 337
Family Code §297, 54
Family Code §297.5, 54, 232
Family Code §300, 54

34
 Family Code §308, 55
Family Code §760, 31
Family Code §761, 456, 457, 459
Family Code §770, 31
Family Code §682.5, 32
Family Code §2251, 56
Family Code §6211, 59
Family Code §7540, 63–64
Family Code §7541, 63
Family Code §7611, 65, 86
Family Code §7612, 65
Family Code §8604, 82
Family Code §8617, 70

California Government Code

Gov.Code, §12598, 626

California Health & Safety Code

Cal. Health & Safety Code §8737, 428
California Uniform Commercial Code
California CC §§8401–07, 411–12

Uniform Probate Code of 1969, 167

Uniform Probate Code

UPC §1-201, 39
UPC §2-101, 74
UPC §2-104, 39
UPC §2-302, 349
UPC §2-502, 177
UPC §2-503, 168, 202–03
UPC §2-507, 223
UPC §2-513, 262
UPC §2-603, 308, 685–86
UPC §2-606, 299, 317
UPC §2-701, 39, 270
UPC §2-702, 39
UPC §2-907, 428, 616
UPC §6-201, 363–4

35
 UPC §7-303, 586

Uniform Trust Code

UTC §§303–304, 512
UTC §405, 631
UTC §409, 428, 616
UTC §410, 522, 645
UTC §411, 515
UTC §412, 521–22
UTC §413, 638, 643–45
UTC §414, 515
UTC §416, 525
UTC §501, 481, 493
UTC §502, 492–93
UTC §503, 494, 496
UTC §504, 495
UTC §602, 454–55
UTC §603, 605
UTC §708, 532
UTC §802, 545, 546–47
UTC §804, 563
UTC §810, 580
UTC §813, 587
UTC §815, 529
UTC §1012, 530

Uniform Prudent Investor Act

UPIA §1, 572
UPIA §2, 565
UPIA §3, 566
UPIA §7, 566–67
UPIA §9, 566, 574

Uniform Trust Act

UTA §503, 491

Uniform Trustees' Powers Act

UTPA §3, 529
UTPA §7, 530

36
Arizona Statutes
A.R.S. §14-2503, 202–03

Kansas Statutes
K.S.A. 59-1206, 376
K.S.A. 59-3501, 377, 380
K.S.A. 59-3503, 377, 379–80
K.S.A. 59-3504, 377, 379–80
K.S.A. 59-3507, 377

Maine Statutes
18 M.R.S.A. §1008, 684

Maryland Statutes
Estates and Trusts Article, §4-102, 238
Estates and Trusts Article, §4-105, 239

Massachusetts Statutes
G.L. c. 119, §1, 89
G.L. c. 119A, §1, 89
G.L. c. 190, §7, 90
G.L. c. 191, §9, 448–51
G.L. c. 203, §3B, 446–51
G.L. c. 209C, §1, 89

Mississippi Statutes
Miss.Code Ann. §91-9-503, 490

Montana Statutes
Section 1-4-105, 362
Section 28-3-205, 362
Section 70-1-307, 360–61
Section 70-1-314, 361
Section 72-1-110, 362–63
Section 72-6-111, 362–63
Section 72-6-211, 361–62
Section 72-6-213, 361–62

New York Statutes

EPTL §10-5.3, 671

37
 EPTL §11-2.3, 560–61
EPTL §11-2.4, 559–62

South Dakota Statutes

SDCL 29A-2-507, 236
SDCL 29A-2-509, 236

Tennessee Statutes
Tenn.Code Ann. §32-1-105, 267

Texas Statutes
Bus. & Com. Code Ann. §24.002, 102
Bus. & Com. Code Ann. §24.005, 101–02
Bus. & Com. Code Ann. §24.007, 102
Probate Code §37, 101–02
Probate Code §37A, 102

Virginia Statutes
Code §55-19.3, 584

Washington Statutes
RCW 11.96A.020, 519
RCW 11.106.020, 590
RCW 11.106.040, 590

English Statute of Distribution of 1670, 25

English Statute of Frauds, 161

English Wills Act of 1837, 161, 164, 216

Uniform Disposition of Community Property Rights at Death

Act §3, 339

Uniform Health Care Decision Act, 392

Uniform Parentage Act, 65

Uniform Real Property Transfer on Death Act, 381

Uniform Simultaneous Death Act §5 (1940), 39

38
Uniform Statutory Rule Against Perpetuities, 616

Uniform Supervision of Trustees For Charitable Purposes

Act, 626, 629–30

Uniform Testamentary Addition to Trusts Act, 443

Federal Statutes
42 U.S.C. §402, 88
42 U.S.C. §1396, 520–21

Internal Revenue Code

Section 2041, 654–56
Section 2518, 104

39
Preface

The study of Wills, Trusts, and Estates is a methodical, mostly

logical, and dare we say “fun” journey. The issue in the course
can be reduced to a simple question: “who gets your property
when you die?” The answer, like the answer to most questions in
law school, is “it depends.” What it depends on, and what it
should depend on, will take a whole semester to analyze. You will
learn the foundational rules to make sure that your client's
property goes where, and to whom, he or she wants. Sadly, many
of the cases one finds in Wills, Trust and Estates casebooks
provide illustrations on how not to do things. Learn from the
mistakes of others.
The Wills, Trusts & Estates course is an introductory course. If
you think you might be interested in practicing in this area of law,
there are a number of additional courses that you should take (if
you law school offers them). At a minimum, most scholars and
practitioners would recommend the Estate & Gift Tax course and
the Estate Planning course (so too Probate Administration, but
that course is not offered at many law schools these days). In
addition, it is probably a good idea to also take Family Law,
Community Property (if you plan on practicing in a community
property state), and Business Associations (to facilitate the estate
planning needs of clients who own small businesses and plan to
pass them on to family members). This course is not intended to
qualify you to practice in this area of law; it is merely the
introductory course. You would be well-advised to take at least
some of these additional courses if you are thinking about
practicing in this area of law.
There are a number of good Wills, Trusts & Estates casebooks
in the market already; why one more? Virtually all the other
casebooks are written for a national audience. Accordingly, the
books assume a non-community property approach and use the
Uniform Probate Code to teach the material. The problem is that

40
California is a community property state, and the law of wills and
intestacy are intensely state-specific areas of law. While one can
use any probate code to teach the issues and basic approach to
this area of law, inasmuch as most students who attend a
California law school plan on practicing in the state, we thought it
would be helpful to have a casebook that focuses on the
California Probate Code and the California approach to the
issues.1
There is no escaping the fact that this course deals primarily
with property issues relating to death. The authors apologize, in
advance, if any of the material in the book appears insensitive
with respect to the issues surrounding death. While one of our
goals was to make the course an enjoyable experience, we
realize that sooner or later the emotional, practical, and legal
issues surrounding death touch all of us. Life, unfortunately, is not
put on “pause” while in law school, and some of the topics
discussed in this course may “hit close to home.” Please know
that your professor grieves with you and never wishes to be
hurtful when discussing the scenarios, issues and doctrines faced
in a Wills, Trusts and Estates course.
We want to thank our research assistants over the years for
their invaluable help in the research and writing of the casebook:
Lauren Cleland, Katelin Eastman, Katherine, Kilmer, Danielle
Lewis, Chelsea McGrath, Edrina Nazaradeh, Kelley Owen,
Monica Paladini, Sara Puls, and Emily Speier. In addition, we
want to express our gratitude to the wonderful people at Carolina
Academic Press whose support, assistance and patience made
this book possible. In particular, we'd like to acknowledge Ryland
Bowman, Elisabeth (“Biz”) Ebben, Beth Hall, and Grace Pledger
for their help in the editing and production process; and a special
“shout-out” to Roberta O'Meara of Carolina Academic Press, our
long-time friend whose confidence in us paved the way for this
project.
PETER T. WENDEL
ROBERT G. POPOVICH

1. For a variety of reasons, however, we decided to adopt more of a generic

approach to trusts portion of the casebook.

41
Chapter 1

42
Introduction and the Wills &
Trusts Landscape

43
 I. The Subject of Wills and
Trusts
The study of wills, trusts, and other time-of-death transfers is a
methodical, mostly logical, and often interesting journey. The
primary question underlying the course is “Who gets your
property when you die?” Almost everyone agrees that the
decedent's wishes should control who gets the decedent's
property when he or she dies. The issue then becomes what
should a decedent have to do to properly express his or her
wishes to ensure that the law will honor those wishes upon his or
her death. As you will see, scholars and jurisdictions disagree on
the answer to that question.1

44
 II. Quick Overview:
Probate versus
Nonprobate
Historically, the most common instrument an individual used to
express their testamentary wishes was a last will and testament
(more commonly called, simply, “a will”). An individual who
executes a valid will is called a testator.2 A will, however, applies
only to a decedent's probate property. Probate property refers to
the decedent's property that passes by way of a state court
supervised “probate” procedure. It is also possible, however, for
one to hold nonprobate property. A decedent's nonprobate
property bypasses the probate process when it makes the journey
from the decedent to the intended recipients. Thus, classifying
property as “probate” versus “nonprobate” distinguishes how the
property will make its way, at time of death, from the decedent to
the intended beneficiaries. In addition, classifying property as
“probate” versus “non-probate” is important because different
rules often apply to the different types of property.

A. Probate Property
The probate process is the default system. Upon an individual's
death, all of his or her property will fall into probate unless the
person takes the necessary steps, while he or she is alive, to shift
the property from probate property to nonprobate property.
Because it is assumed that most people die with at least some
probate property, following a decedent's death the first step is to
“open” probate. Typically, a family member will take a copy of the
decedent's death certificate to the appropriate state court (usually
referred to as the probate court or the probate division of a
standard state civil court system). The probate court will then
appoint someone to administer the decedent's probate estate.
This appointed person essentially has three duties: (1) ascertain
the scope of the decedent's probate property (i.e., inventory the
decedent's property that will be passing through the probate
process); (2) give notice to the decedent's creditors to assert their

45
claims as part of the probate process3—and pay those claims that
are properly asserted; and (3) distribute the remaining probate
property to the parties who are entitled to receive it.
The official title of the person appointed by the probate court to
administer the decedent's probate property varies depending on
the jurisdiction and the circumstances. If the decedent dies
testate (i.e., with a valid will) and the will names the person to be
appointed, the person is typically called “the executor.” If the
decedent died intestate (i.e., without a valid will)—or if he or she
died testate but the will does not name a person to administer the
estate—the person appointed by the probate court is typically
called “the administrator.” The modern trend prefers to minimize
legalese—legal terminology that is confusing to laypeople.
Accordingly, the modern trend uses the term “personal
representative” to describe the person appointed by the probate
court to administer the decedent's probate estate regardless of
whether the decedent named the party or the probate court
selected the party.
Who is entitled to receive the decedent's probate property
depends on whether the decedent dies testate or intestate. The
primary purpose of a will is to express one's wishes with respect
to who should get one's probate property when the party dies. If a
person dies testate, the will directs to whom the decedent's
probate property should be distributed. Historically, a gift of real
property in a will was called a devise (it can also be used as a
verb—“the testator devised Greenacres to Gerri”). If the gift was
an item of personal property or money, historically it was called a
bequest or legacy (it can also be used as a verb—“the testator
bequeathed his stamp collection to Carolyn”). In the interest of
minimizing legalese, the modern trend uses the term “devise” to
describe a gift of any type of property, real or personal. If a person
dies intestate, the decedent's property will be distributed to his or
her heirs according to the state's statute of intestate succession.
A full discussion of a typical state probate process is well
beyond the scope of a basic wills and trusts course, but we would
be remiss if we did not discuss one more issue. Many people
have a negative view of probate. That view distorts the typical
layperson's view of probate. Many people believe that probate is
nothing more than an expensive, time-consuming form of state

46
interference with the transfer of the decedent's property. Not so.
Not all families and loved ones are as functional and/or honest as
the decedent may have assumed. Probate is a form of protection
for the decedent. The probate process ensures judicial
supervision over distribution of the decedent's property. The judge
serves as a disinterested third party who is there to ensure that
(a) creditor claims against the decedent are properly resolved, (b)
the estate's personal representative properly performs his or her
duties, and (c) the decedent's assets are distributed according to
the testator's wishes (as expressed in his or her will or as
presumed under the state's intestate succession laws).

B. Nonprobate Property
For a variety of reasons beyond the scope of this course
material, it has become generally accepted that probate is a “bad”
way of transferring one's assets at death (though that is not
always the case). The most common rationales for this view are
that probate is costly, too invasive, takes too long, and/or it delays
distribution of the decedent's assets.4 Individuals increasingly are
opting out of probate by putting their assets into nonprobate
arrangements. The four classic nonprobate arrangements that de
facto transfer property at time of death are (1) transferring the
property to an inter vivos trust, (2) putting the property into joint
tenancy, (3) purchasing a life insurance policy (where the time of
death benefits are paid to the policy beneficiary pursuant to the
terms of the insurance contract), and/or (4) creating a legal life
estate and remainder.
Of the four classic nonprobate arrangements, in recent
decades two have assumed an increasingly important role in
estate planning. The first is the “revocable living trust.” A
revocable living trust is functionally similar to a will (i.e., created
inter vivos, revocable until death, and transfers property to the
beneficiaries identified in the instrument at time of death), but it
accomplishes the time of death transfer via a different
mechanism. It is the paradigm “will substitute”: it functions like a
will in that for all practical purposes it transfers property at death,
but it is actually a will substitute because of its ability to avoid
probate. Each of the nonprobate arrangements constitutes a will

47
substitute, and collectively they are often referred to as “the will
substitutes.”
The second increasingly important nonprobate method of
transferring property at time of death is the contractual time of
death transfer. The modern trend takes the traditional nonprobate
exception that was limited to the life insurance contract and
expands it to include any and all contracts with a payment on
death clause. Increasingly, in many jurisdictions, bank accounts,
pension plans, and/or brokerage accounts now can be valid
nonprobate transfers simply by including in the contractual
agreement a payment on death clause that directs to whom the
funds should be paid at time of the party's death.
To the extent the overarching question in the course is “who
gets your property when you die?” one way to analyze this issue
is to focus on how the decedent holds the property. The decedent
may hold probate and nonprobate property, and how the
decedent holds the asset can affect who gets the asset. A table of
a decedent's possible assets, grouped by probate and
nonprobate arrangements, and how that affects who gets the
property might look like this:

Probate Property Nonprobate Property

A Will—Property Property passing by Operation of

passes to others Law—Joint tenancy property, with its
through the terms of the “right of survivorship” attribute, is the
decedent's will. traditional and most common
example of this type of property,5
where at death of the first cotenant,
his or her interest is extinguished and
the surviving cotenant(s)' shares are
re-calculated (or as some prefer to
think of it, the property “passes,” by
law, to the surviving cotenant(s)).

48
 Probate Property Nonprobate Property

No Will—Property Property passing by Contract—A

passes to others by life insurance policy is the traditional
intestacy. and most common example of this
type of property. In many jurisdictions
the modern trend is to expand this
exception to include other contractual
instruments with a named beneficiary
or beneficiaries. Common examples
include pension and retirement
plans, savings accounts, checking
accounts, and other payable on
death (POD) or transfer upon death
(TOD) type accounts.
Trusts—There are various forms of
trusts with the revocable living trust
being the most common (and acting
most like a will), where property
passes pursuant to the terms of the
trust instrument.

Nonprobate methods of transferring property at time of death

are explored in greater detail in Chapter 11. Each of the
nonprobate transfers has the practical effect of transferring a
property interest to another party at time of death. Thus,
laypeople perceive them as functioning very much like a will.
Some, but not all, nonprobate transfers occur more quickly (and
cheaper) than probate transfers. Hence the modern trend
“nonprobate revolution.” Today, more assets are transferred via
nonprobate instruments than through wills; however, the use of
wills continues to be an important vehicle for the disposition of
one's estate.

49
 III. An Estate Planning
Perspective
As most people age, they begin to contemplate the question
that is the focus of this course, though they phrase it a bit
differently: “Who should get my property when I die?”6 Most
individuals do not have much trouble answering that question. For
example, the person may decide: “I want $10,000 to go to Alice,
my house to Bob, my car to Carol, $15,000 to Children's Hospital,
and the rest of my assets to my children, in equal shares.”
Deciding who should get their property is generally not difficult for
the average individual. What is difficult, however, is knowing what
must be done to ensure that his or her wishes are given legal
effect.
Historically, most people would consult a lawyer7—ideally, one
who specializes in estate planning—for help with the time-of-
death transfer process. The client, of course, wants to decide who
gets the property—or “direct” his or her at-death distributions—
and that may be his or her sole focus (as least at first). There are,
however, many possible means of accomplishing the client's
wishes. The Probate Code tends to refer to the different means of
transferring property at death in terms of the probate versus
nonprobate process discussed above. Estate planners, on the
other hand, tend to think of the different means of transferring
property at death in terms of “directed” versus “non-directed”
means.
Using the same probate and nonprobate terms set forth in the
table above, a table of a decedent's assets grouped by directed
and non-directed means might look like this:

Directed Dispositions Non-Directed Dispositions

50
 Directed Dispositions Non-Directed Dispositions

A Will—Property passes to No Will or nonprobate

others through the decedent's instrument—Property passes
will. The decedent directs, via to others by intestacy (i.e.,
the will provisions, to whom there is no will or other
(along with when and how) his instrument disposing of
or her property passes to property).
others (the beneficiaries).

Property passing by
Contract—A life insurance
policy is the traditional and
most common example of this
type of property. In many
jurisdictions the modern trend
is to expand this exception to
include other contractual
instruments with a named
beneficiary or beneficiaries.
Common examples include
pension and retirement plans,
savings accounts, checking
accounts, and other payable
on death (POD) or transfer
upon death (TOD) type
accounts.

Trusts—There are various

forms of trusts, with the inter
vivos revocable living trust
being the most common (and
acting the most like a will),
where property passes
pursuant to the terms of the
trust instrument.

51
 Directed Dispositions Non-Directed Dispositions

Property Passing by
Operation of Law—Joint
tenancy property, with its “right
of survivorship” attribute, is the
traditional and most common
example of this type of
property,8 where at the death
of the first cotenant, his or her
interest is extinguished and
the surviving cotenant(s)'
shares are re-calculated (or as
some prefer to think of it, the
property “passes,” by law, to
the surviving cotenant(s)).9

This course will focus on covering the basics of the different

methods (or “vehicles”) that can be used to transfer one's
property at time of death, how to properly create them, and what
happens if a party fails to properly create them (i.e., does not
validly create one of the instruments listed in the directed
disposition column). Each of these transfer options is, in essence,
a tool that a good estate planner has at his or her disposal to
express a client's estate planning wishes. Which vehicle(s) should
be used, and why, is a more difficult question. The planning
professional's analysis involves a number of variables that are
beyond the scope of an introductory wills and trusts course.10
Which estate planning vehicle(s) is/are the most appropriate for
the disposition of the client's property at time of death is the focus
of the upper-level estate planning course.

Problems
Bob died earlier today. In each of the following scenarios, to
whom do the assets go? In particular, analyze which assets are
probate versus nonprobate assets, as well as which assets are
being disposed of by directed versus non-directed means. Do you
see a pattern of how the matrices overlap? Can you spot any
potential issues or problems?

52
1. Bob, a single individual, has a valid will and the will provisions
specify that at his death each student in his most recent “Wills
& Trusts” class is to receive $20,000 in cash. The will also
provides that his remaining assets are to be distributed,
outright and in equal shares, to his two sons, Mark and Brian.
2. Assume the same facts as Problem 1, except Bob also has a
$2 million life insurance policy (he is the insured) with his son,
Brian, as the named beneficiary.
3. Assume the same facts as Problem 2, except that the primary
beneficiary of Bob's life insurance policy is his father, George,
if living at Bob's death. If not, the policy lists “Bob's estate” as
the secondary, or contingent, beneficiary.
4. Assume the same facts as Problem 3, except that Bob
married Claudia over a recent holiday weekend. His will was
executed a year ago and prior to his marriage. Bob did not
have the time to amend his will or make a new one.
5. Assume the same facts as Problem 1, except that Bob's sons,
Mark and Brian, contest the will, claiming that the students in
his most recent “Wills & Trusts” class exerted undue influence
in the making of his will. The court agrees and sustains Mark
and Brian's assertion.
6. Bob and Hannah, who are unrelated, own a parcel of prime
beachfront land in Malibu as joint tenants. The land is worth
$10 million at Bob's death (Hannah survives Bob).

a. Bob's will does not address his interest in this land.

b. Bob's will states that his undivided one-half joint interest in
the Malibu land goes to his friend and colleague, Pete.

7. Bob does not have a will, but he established a revocable living

trust during his life. During his life, he transferred all of his
assets to the trust. Bob was the trustee of this trust, and his
sister, Marcee, is named as successor trustee. The trust
provides that at Bob's death, all of the trust property goes,
outright, to his two sons—Mark and Brian.
8. Assume the same facts as in Problem 7, except that during
his lifetime, Bob forgot about the 10,000 shares of ABC stock
that he owned and failed to transfer them to his trust. Would
there be a difference if the stocks were held in a

53
 brokerage/investment account with a transfer upon death
(TOD) provision? What if the account has a TOD provision,
but the individual named as beneficiary has predeceased
Bob?
9. Assume the same facts as Problem 7, except that Bob's other
sister, Melinda, files a lawsuit to set aside the trust claiming
that Bob was incompetent when he established the trust. The
court agrees, finding that Bob did not have the requisite
mental capacity when establishing the trust.
10. Assume the same facts as Problem 1, except that Bob's will
provides that the remainder of his assets (after the
bequests/devises to his Wills & Trusts students) be held in
trust with trust income payable to his two sons, Mark and
Brian, in equal shares for a period of 10 years. At the end of
10 years, the trust principal/corpus is to be distributed, outright
and in equal shares, to Mark and Brian.
If you find it helpful, the same probate versus nonprobate,
directed versus non-directed analytical approach can be applied
to cases:

In re Succession of Plummer
847 So.2d 185 (La. App. 2003)
KOSTELKA, Judge Pro Tempore.
In this disputed succession case, the brothers and sisters of the
decedent, Ronald R. Plummer, appeal the judgment of the trial
court holding that the document presented for probate is not a
valid olographic will.11 ...
FACTS
In 1999, Ronald R. Plummer (“Mr. Plummer”) attempted to
create an inter vivos trust for the management and distribution of
his assets using a printed form with the caption “Revocable One-
Party Living Trust”.... In one section of the trust instrument entitled
“Schedule of Beneficiaries and Distributive Shares,” handwritten
instructions designate the beneficiaries and direct the
management and division of the trust property upon his death. Mr.
Plummer was divorced with no children from the marriage. He
named his brothers and sisters, Carl Plummer, Donald Plummer,

54
Sheryl Plummer and Doris Plummer (“the appellants”), all of
whom live in Adams County, Mississippi, as beneficiaries to the
trust. The document is dated June 25, 1999 and signed “Ronald
R. Plummer.” Mr. Plummer died on April 9, 2000 without having
completed the inter vivos trust.12
Besides his brothers and sisters, Mr. Plummer was survived by
his ten-year-old daughter, Cheronda Leshay Thomas. On
September 4, 2001, Cheronda's mother, Cynthia Thomas
(“Thomas”), filed a petition on behalf of her daughter to open the
succession of Mr. Plummer and to have Mr. Plummer's
succession declared intestate. In response, the appellants filed a
“Petition to Probate Olographic Testament” on January 28, 2002
alleging that Mr. Plummer had a Last Will and Testament. The
alleged will consisted of two unusually numbered pages, K105-3
and K105-3-1, annexed to the petition. The “will” was, in fact, the
“Schedule of Beneficiaries and Distributive Shares” (hereinafter
“Exhibit A”) from the inter vivos trust instrument.
After an evidentiary hearing and argument on May 10, 2002
and a second oral argument on August 1, 2002, the court issued
its Ruling on September 4, 2002, holding that the document was
not a valid olographic will. The court specifically found that the
testamentary intent of the document was not “unmistakable,” and
that the signature to the document had not been proven
authentic.
The appellants filed ... [an] appeal....
DISCUSSION
...
There are two essential requirements for a valid will: the act
must be in valid form and the clauses it contains, or the manner in
which it is made must clearly establish that it is a disposition of
last will. Hendry v. Succession of Helms, 557 So.2d 427 (La.App.
3d Cir.02/07/90), writ denied, 560 So.2d 8 (La.1990).
Formal Requisites of an Olographic Testament
An olographic testament is that which is entirely written, dated,
and signed by the testator. The olographic testament is subject to
no other form. La. C.C. art. 1575. The olographic testament must

55
be proved by two credible witnesses testifying that the
handwriting on the instrument is that of the testator. La. C.C.P. art.
2883. Succession of Calhoun, 28,233 (La.App.2d Cir.04/03/96),
674 So.2d 989. The jurisprudence interpreting La. C.C.P. art.
2883 has held that the phrase “credible witness” includes
individuals who are familiar with the testator's handwriting, as well
as handwriting experts. In re Succession of Jones, 356 So.2d 80,
82 (La.App. 1st Cir.1978), writ denied, 357 So.2d 1168 (La.1978).
Thus, proof that an alleged olographic will was entirely written,
dated and signed in the testator's handwriting is not limited to
handwriting experts. A credible individual familiar with decedent's
handwriting is competent to serve as a credible witness pursuant
to La. C.C.P. art. 2833. Succession of Lirette, 5 So.2d 197
(La.App. 1st Cir.1941).
The courts, over the years, have lessened the formalities of
olographic wills, i.e., using slash dates instead of writing out the
date, Succession of Boyd, 306 So.2d 687 (La.1975); writing the
will in part pencil, part ink, Succession of Smart, 214 La. 63, 36
So.2d 639 (1948); and, in Oroszy v. Burkard, 158 So.2d 405
(La.App. 3d Cir.1963), the court held that an olographic will does
not, in its entirety, have to all be written on the same date.
Nevertheless, the basic formal requisites have remained in place,
i.e., a valid olographic testament must be written, dated and
signed in the handwriting of the testator.
In this case, the trial court concluded that Exhibit A does not
survive as an olographic will because the “testamentary intent is
not unmistakable,” citing Succession of Burke, 365 So.2d 858
(La.App. 4th Cir.1978). In Burke, supra, the court held that the
trial court did not err in finding a valid will, where the testamentary
intent was unmistakable in the words that the decedent wrote
using a printed will form in which he filled in the blanks in his own
handwriting, and the essential formalities of an olographic will
were present.
Appellants argue that Succession of Burke, supra requires the
court to disregard the printed form words in the document in
construing the will. If the printed language is ignored, appellants
argue, the type of printed form document used has no
significance for purposes of testamentary intent, and hence the
case sub judice is not distinguishable from Succession of Burke.

56
Therefore, if there is testamentary intent present in confecting the
document and such intent is demonstrated by the language
written by the testator, they argue the document survives as a will.
...
It is clear from ... [the] cases that the presence of extraneous
printed material such as a personal or business letterhead will not
defeat the formal requisites of an olographic will provided that the
testament itself is entirely written, dated and signed in the
handwriting of the testator. Thus, our courts have ignored those
printed words whose presence on the document is incidental. An
exception has evolved with respect to partially printed dates. In
those cases that have upheld the will in spite of the fact that a
portion of the date was printed, the rule is that the handwritten
portion of the date must be sufficient to be certain of the date
when the printed numbers are ignored. Succession of
Heinemann, supra. In other words, the ignored numerals are not
essential to a determination of the date.
In this instance, however, the complete inter vivos trust
instrument filled out by Mr. Plummer consists of several pages of
printed words that are an essential part of the trust instrument.
Exhibit A, the Schedule of Beneficiaries and Distributive Shares,
consisting of pages K105-3 and K105-3-1, is inseparable from
Exhibit J-1, consisting of pages K105-1A thorough D and K105-2,
and all pages are essential to the confection of the trust
document. Exhibit A was no doubt intended by Mr. Plummer to be
part of the overall trust document. Unlike the cases using mere
stationery or letterhead upon which a testament was written, we
cannot ignore the printed words on the trust document because
they are inextricably tied to and form an integral part of the entire
document, thus negating the formal requirement that the will be
entirely written in the hand of the testator. We, therefore, hold that
the trial court correctly concluded that the document did not
constitute a valid olographic will.
...
Testamentary Intent
The trial court recognized that Exhibit A was actually a part of
the main document entitled a “Revocable One-Party Living Trust,”

57
Exhibit J-1. This is plainly evidenced by the page numbering style
connecting the two documents. The trial court concluded that
when Exhibit A is taken into account with Exhibit J-1 and
Succession of Burke, supra, it cannot be said that the
testamentary intent is unmistakable. We interpret the court to
mean that when the trust instrument is considered as a whole,
testamentary intent is lacking. The trial court distinguished the
facts of Succession of Burke, supra, in which the decedent used a
printed statutory will form instead of a “Revocable One-Party
Living Trust” form as used in the case sub judice. The trial court
concluded that the nature of the printed form casts doubt as to the
testamentary intent of the document. We agree.
In Succession of Patterson, 188 La. 635, 177 So. 692, 694
(1937), our supreme court quoted approvingly from 28 Ruling
Case Law, §3, p. 59 as follows:
In the interpretation of acts of last will, the intention of the
testator must principally be endeavored to be ascertained,
without departing, however, from the proper signification of
the terms of the testament. Article 1712. But ...
Furthermore, the animus testandi must exist when the
instrument is executed or acknowledged, and the intent
must apply to the particular instrument produced as a will.
A paper is not established as a man's will merely by
proving that he intended to make a disposition of his
property similar to or even identically the same as that
contained in the paper. It must satisfactorily appear that he
intended the very paper to be his will.... (Emphasis ours.)
Here, the document submitted for probate contains no actual
bequests. Virtually all expressions or words by Mr. Plummer
regarding the disposition of his property involve directions for the
management of the trust property by his brothers and sisters. He
names them as the beneficiaries and to act on his behalf after he
has died. He directs them to sell the home, but does not bequeath
them the proceeds of the sale. He directs them to divide the
contents of the home among themselves, to use the $10,000 life
insurance policy for his funeral, and if the costs exceed the policy,
then to use money from his checking/savings account. He directs
them to take the remainder of the money and put it in a savings
account along with the money from the sale of the home. He

58
directs them to roll over the interest into the account. He grants
the beneficiaries the power to manage his debts and whatever
other finances he leaves upon his death. He then grants them “full
usage of the money” in the account “to solve what problems they
encounter.” Even with regard to his truck, he instructs his brothers
and sisters to decide who will receive it. Finally, Mr. Plummer
states that his daughter, Cheronda, will receive his retirement
pension from the City of Monroe. It is not clear if this is a bequest.
Even if we were to conclude that the document is in valid form,
being entirely written, dated and signed by the decedent, the
document fails as a valid will because it lacks the necessary
animus testandi. Despite the fact that the document contains
expressions which reflect Mr. Plummer's intention to direct the
division of his property upon his death, there are few words, if
any, signifying bequests. Accordingly, we conclude that the trial
court was correct in concluding that the document did not
evidence testamentary intent.
Signature of the Testator
The trial court concluded that the legal proof required to
authenticate Mr. Plummer's signature had not been met. Because
we have determined that the document presented for probate fails
as an olographic testament both in form and substance, it is
unnecessary to decide this issue.
CONCLUSION
Accordingly, the trial court did not err in concluding that the
document presented for probate did not constitute a valid
olographic will. The judgment of the trial court is affirmed at
appellants' costs.
—————

Notes
1. Probate versus nonprobate/directed versus non-directed:
Which type of disposition did Mr. Plummer apparently wish to
make, directed or non-directed? Which type of transfer would that
have been, probate or nonprobate? The bulk of the court's
analysis concerns itself with which type of transfer? Why?

59
Ultimately, how was Mr. Plummer's estate disposed? Why was
Mr. Plummer's apparent intent not honored?
2. Intent versus formalities: The study of wills and trusts is
primarily a study of the formalities the law requires before a
decedent's testamentary wishes will be honored. How high should
the “formalities” bar be set before the law will recognize a
decedent's wishes? In this book, we explore the foundational laws
and rules that are designed to ensure that a decedent's property
goes to whom he or she wishes. Nevertheless, this book is
replete with examples of people's intent not being honored
because of a mistake in the execution of the instrument that
purported to express the party's testamentary wishes. In many
instances, the mistake is one that easily could have been
avoided. The conflict between the decedent's intent and the
required formalities inevitably raises the issue of whether society
should lower the bar to make it easier for individuals to express
their testamentary wishes—or would lowering the bar create
problems in terms of increased potential for fraud and/or
increased litigation.

60
 IV. Professional
Responsibility—Ethical
Issues
Legal malpractice claims typically are based on either a breach
of contract claim or a negligence claim. Historically, the problem
with either approach is that in the estate planning field, the claims
did not fit very well. To maintain a breach of contract claim, the
plaintiff had to establish that he or she was in privity of contract
with the defendant. In the typical estate planning context, the
decedent is the party who was in privity of contract with the
attorney. Accordingly, only the decedent's estate (i.e., his or her
personal representative) had standing to maintain an action
against the drafting attorney. Similarly, if the plaintiff preferred a
torts-based approach and claimed negligence, the first
requirement is that the plaintiff must show that the defendant
owed the plaintiff a duty. Again, historically that posed problematic
when applied to the estate planning context. Virtually all courts
held that while the drafting attorney owed a duty to the client—the
testator/transferor—the drafting attorney did not owe a duty to any
other party. Under such an approach, only the decedent's
personal representative could bring a negligence claim on behalf
of the estate—no one else could.
While such a narrow approach might initially sound overly
protective of estate planners, the courts feared that if they were to
open the doors and grant standing to “any intended beneficiary,”
then anyone who knew the decedent and expected to receive a
gift when the decedent died but did not could come running into
court to assert a malpractice claim against the drafting attorney
(“The decedent told me he/she was going to leave me a gift, so
the only reason I wasn't mentioned in the decedent's estate plan
must be due to the attorney's malpractice!”). In balancing the
competing options and public policy concerns, the more
traditional approach clearly took a narrower approach to the issue
of standing, thereby granting generous protection to an estate

61
planner. Over time, however, that approach has come under
increasing attack.

Lucas v. Hamm
56 Cal.2d 583 (1961)
GIBSON, C. J.
Plaintiffs, who are some of the beneficiaries under the will of
Eugene H. Emmick, deceased, brought this action for damages
against defendant L. S. Hamm, an attorney at law who had been
engaged by the testator to prepare the will. They have appealed
from a judgment of dismissal entered after an order sustaining a
general demurrer to the second amended complaint without leave
to amend.
The allegations of the first and second causes of action are
summarized as follows: Defendant agreed with the testator, for a
consideration, to prepare a will and codicils thereto for him by
which plaintiffs were to be designated as beneficiaries of a trust
provided for by paragraph Eighth of the will and were to receive
15% of the residue as specified in that paragraph. Defendant, in
violation of instructions and in breach of his contract, negligently
prepared testamentary instruments containing phraseology that
was invalid by virtue of section 715.2 and former sections 715.1
and 716 of the Civil Code relating to restraints on alienation and
the rule against perpetuities. Paragraph Eighth of these
instruments “transmitted” the residual estate in trust and provided
that the “trust shall cease and terminate at 12 o'clock noon on a
day five years after the date upon which the order distributing the
trust property to the trustee is made by the Court having
jurisdiction over the probation of this will.” After the death of the
testator the instruments were admitted to probate. Subsequently
defendant, as draftsman of the instruments and as counsel of
record for the executors, advised plaintiffs in writing that the
residual trust provision was invalid and that plaintiffs would be
deprived of the entire amount to which they would have been
entitled if the provision had been valid unless they made a
settlement with the blood relatives of the testator under which
plaintiffs would receive a lesser amount than that provided for
them by the testator. As the direct and proximate result of the

62
negligence of defendant and his breach of contract in preparing
the testamentary instruments and the written advice referred to
above, plaintiffs were compelled to enter into a settlement under
which they received a share of the estate amounting to $75,000
less than the sum which they would have received pursuant to
testamentary instruments drafted in accordance with the
directions of the testator.
...
It was held in Buckley v. Gray, 110 Cal. 339, 42 P. 900, 31
L.R.A. 862, that an attorney who made a mistake in drafting a will
was not liable for negligence or breach of contract to a person
named in the will who was deprived of benefits as a result of the
error. The court stated that an attorney is liable to his client alone
with respect to actions based on negligence in the conduct of his
professional duties, and it was reasoned that there could be no
recovery for mere negligence where there was no privity by
contract or otherwise between the defendant and the person
injured. 110 Cal. at pages 342–343, 42 P. 900. The court further
concluded that there could be no recovery on the theory of a
contract for the benefit of a third person, because the contract
with the attorney was not expressly for the plaintiff's benefit and
the testatrix only remotely intended the plaintiff to be benefited as
a result of the contract. 110 Cal. at pages 346–347, 42 P. 900....
The reasoning underlying the denial of tort liability in the
Buckley case, i.e., the stringent privity test, was rejected in
Biakanja v. Irving, 49 Cal.2d 647, 648–650, 320 P.2d 16, 65
A.L.R.2d 1358, where we held that a notary public who, although
not authorized to practice law, prepared a will but negligently
failed to direct proper attestation was liable in tort to an intended
beneficiary who was damaged because of the invalidity of the
instrument. It was pointed out that since 1895, when Buckley was
decided, the rule that in the absence of privity there was no
liability for negligence committed in the performance of a contract
had been greatly liberalized. 49 Cal.2d at page 649, 320 P.2d 16.
In restating the rule it was said that the determination whether in a
specific case the defendant will be held liable to a third person not
in privity is a matter of policy and involves the balancing of
various factors, among which are the extent to which the
transaction was intended to affect the plaintiff, the foreseeability

63
of harm to him, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant's
conduct and the injury, and the policy of preventing future harm.
49 Cal.2d at page 650, 320 P.2d 16. The same general principle
must be applied in determining whether a beneficiary is entitled to
bring an action for negligence in the drafting of a will when the
instrument is drafted by an attorney rather than by a person not
authorized to practice law.
Many of the factors which led to the conclusion that the notary
public involved in Biakanja was liable are equally applicable here.
As in Biakanja, one of the main purposes which the transaction
between defendant and the testator intended to accomplish was
to provide for the transfer of property to plaintiffs; the damage to
plaintiffs in the event of invalidity of the bequest was clearly
foreseeable; it became certain, upon the death of the testator
without change of the will, that plaintiffs would have received the
intended benefits but for the asserted negligence of defendant;
and if persons such as plaintiffs are not permitted to recover for
the loss resulting from negligence of the draftsman, no one would
be able to do so, and the policy of prevent future harm would be
impaired.
Since defendant was authorized to practice the profession of an
attorney, we must consider an additional factor not present in
Biakanja, namely, whether the recognition of liability to
beneficiaries of wills negligently drawn by attorneys would impose
an undue burden on the profession. Although in some situations
liability could be large and unpredictable in amount, this is also
true of an attorney's liability to his client. We are of the view that
the extension of his liability to beneficiaries injured by a
negligently drawn will does not place an undue burden on the
profession, particularly when we take into consideration that a
contrary conclusion would cause the innocent beneficiary to bear
the loss. The fact that the notary public involved in Biakanja was
guilty of unauthorized practice of the law was only a minor factor
in determining that he was liable, and the absence of the factor in
the present case does not justify reaching a different result.
It follows that the lack of privity between plaintiffs and
defendant does not preclude plaintiffs from maintaining an action
in tort against defendant.

64
 Neither do we agree with the holding in Buckley that
beneficiaries damaged by an error in the drafting of a will cannot
recover from the draftsman on the theory that they are third-party
beneficiaries of the contract between him and the testator.
Obviously the main purpose of a contract for the drafting of a will
is to accomplish the future transfer of the estate of the testator to
the beneficiaries named in the will, and therefore it seems
improper to hold, as was done in Buckley, that the testator
intended only “remotely” to benefit those persons. It is true that
under a contract for the benefit of a third person performance is
usually to be rendered directly to the beneficiary, but this is not
necessarily the case. (See Rest., Contracts, §133, com. d; 2
Williston on Contracts (3rd ed.1959) 829.) For example, where a
life insurance policy lapsed because a bank failed to perform its
agreement to pay the premiums out of the insured's bank
account, it was held that after the insured's death the
beneficiaries could recover against the bank as third-party
beneficiaries. Walker Bank & Trust Co. v. First Security Corp., 9
Utah 2d 215, 341 P.2d 944, 945 et seq. Persons who had agreed
to procure liability insurance for the protection of the promisees
but did not do so were also held liable to injured persons who
would have been covered by the insurance, the courts stating that
all persons who might be injured were third-party beneficiaries of
the contracts to procure insurance. Johnson v. Holmes Tuttle
Lincoln-Merc., Inc., 160 Cal.App.2d 290, 296 et seq., 325 P.2d
193; James Stewart & Co. v. Law, 149 Tex. 392, 233 S.W.2d 558,
561–562, 22 A.L.R.2d 639. Since, in a situation like those
presented here and in the Buckley case, the main purpose of the
testator in making his agreement with the attorney is to benefit the
persons named in his will and this intent can be effectuated, in the
event of a breach by the attorney, only by giving the beneficiaries
a right of action, we should recognize, as a matter of policy, that
they are entitled to recover as third-party beneficiaries. See 2
Williston on Contracts (3rd ed. 1959) pp. 843–844; 4 Corbin on
Contracts (1951) pp. 8, 20.
Section 1559 of the Civil Code, which provides for enforcement
by a third person of a contract made “expressly” for his benefit,
does not preclude this result. The effect of the section is to
exclude enforcement by persons who are only incidentally or
remotely benefited. See Hartman Ranch Co. v. Associated Oil

65
Co., 10 Cal.2d 232, 244, 73 P.2d 1163; cf. 4 Corbin on Contracts
(1951) pp. 23–24. As we have seen, a contract for the drafting of
a will unmistakably shows the intent of the testator to benefit the
persons to be named in the will, and the attorney must
necessarily understand this.
Defendant relies on language in Smith v. Anglo-California Trust
Co., 205 Cal. 496, 502, 271 P. 898, and Fruitvale Canning Co. v.
Cotton, 115 Cal.App.2d 622, 625, 252 P.2d 953, that to permit a
third person to bring an action on a contract there must be “an
intent clearly manifested by the promisor” to secure some benefit
to the third person. This language, which was not necessary to
the decision in either of the cases, is unfortunate. Insofar as intent
to benefit a third person is important in determining his right to
bring an action under a contract, it is sufficient that the promisor
must have understood that the promisee had such intent. (Cf.
Rest., Contracts, §133, subds. 1(a) and 1(b); 4 Corbin on
Contracts (1951) pp. 16–18; 2 Williston on Contracts (3rd ed.
1959) pp. 836–839). No specific manifestation by the promisor of
an intent to benefit the third person is required. The language
relied on by defendant is disapproved to the extent that it is
inconsistent with these views.
We conclude that intended beneficiaries of a will who lose their
testamentary rights because of failure of the attorney who drew
the will to properly fulfill his obligations under his contract with the
testator may recover as third-party beneficiaries.
However, an attorney is not liable either to his client or to a
beneficiary under a will for errors of the kind alleged in the first
and second causes of action.
The general rule with respect to the liability of an attorney for
failure to properly perform his duties to his client is that the
attorney, by accepting employment to give legal advice or to
render other legal services, impliedly agrees to use such skill,
prudence, and diligence as lawyers of ordinary skill and capacity
commonly possess and exercise in the performance of the tasks
which they undertake. Estate of Kruger, 130 Cal. 621, 626, 63 P.
31; Moser v. Western Harness Racing Ass'n, 89 Cal.App.2d 1, 7,
200 P.2d 7; Armstrong v. Adams, 102 Cal.App. 677, 684, 283 P.
871; see Wade, The Attorney's Liability for Negligence (1959) 12

66
Vanderbilt Law Rev. 755, 762–765; 5 Am.Jur. 336. The attorney is
not liable for every mistake he may make in his practice; he is not,
in the absence of an express agreement, an insurer of the
soundness of his opinions or of the validity of an instrument that
he is engaged to draft; and he is not liable for being in error as to
a question of law on which reasonable doubt may be entertained
by well-informed lawyers. See Lally v. Kuster, 177 Cal. 783, 786,
171 P. 961; Savings Bank v. Ward, 100 U.S. 195, 198, 25 L.Ed.
621; 5 Am.Jur. 335; 7 C.J.S. Attorney and Client §143, p. 980.
These principles are equally applicable whether the plaintiff's
claim is based on tort or breach of contract.
The complaint, as we have seen, alleges that defendant drafted
the will in such a manner that the trust was invalid because it
violated the rules relating to perpetuities and restraints on
alienation. These closely akin subjects have long perplexed the
courts and the bar. Professor Gray, a leading authority in the field,
stated: “There is something in the subject which seems to
facilitate error. Perhaps it is because the mode of reasoning is
unlike that with which lawyers are most familiar. * * * A long list
might be formed of the demonstrable blunders with regard to its
questions made by eminent men, blunders which they themselves
have been sometimes the first to acknowledge; and there are few
lawyers of any practice in drawing wills and settlements who have
not at some time either fallen into the net which the Rule spreads
for the unwary, or at least shuddered to think how narrowly they
have escaped it.” Gray, The Rule Against Perpetuities (4th ed.
1942) p. xi; see also Leach, Perpetuities Legislation (1954) 67
Harv.L.Rev. 1349 (describing the rule as a “technicality-ridden
legal nightmare” and a “dangerous instrumentality in the hands of
most members of the bar”). Of the California law on perpetuities
and restraints it has been said that few, if any, areas of the law
have been fraught with more confusion or concealed more traps
for the unwary draftsman; that members of the bar, probate
courts, and title insurance companies make errors in these
matters; that the code provisions adopted in 1872 created a
situation worse than if the matter had been left to the common
law, and that the legislation adopted in 1951 (under which the will
involved here was drawn), despite the best of intentions, added
rurther complexities. (See 38 Cal.Jur.2d 443; Coil, Perpetuities

67
and Restraints; A Needed Reform (1955) 30 State Bar J. 87, 88–
90.)
In view of the state of the law relating to perpetuities and
restraints on alienation and the nature of the error, if any,
assertedly made by defendant in preparing the instrument, it
would not be proper to hold that defendant failed to use such skill,
prudence, and diligence as lawyers of ordinary skill and capacity
commonly exercise. The provision of the will quoted in the
complaint, namely, that the trust was to terminate five years after
the order of the probate court distributing the property to the
trustee, could cause the trust to be invalid only because of the
remote possibility that the order of distribution would be delayed
for a period longer than a life in being at the creation of the
interest plus 16 years (the 21-year statutory period less the five
years specified in the will). Although it has been held that a
possibility of this type could result in invalidity of a bequest
(Estate of Johnston, 47 Cal.2d 265, 269–270, 303 P.2d 1; Estate
of Campbell, 28 Cal.App.2d 102, 103 et seq., 82 P.2d 22), the
possible occurrence of such a delay was so remote and unlikely
that an attorney of ordinary skill acting under the same
circumstances might well have “fallen into the net which the Rule
spreads for the unwary” and failed to recognize the danger. We
need not decide whether the trust provision of the will was
actually invalid or whether, as defendant asserts, the complaint
fails to allege facts necessary to enable such a determination,
because we have concluded that in any event an error of the type
relied on by plaintiffs does not show negligence or breach of
contract on the part of defendant. It is apparent that plaintiffs have
not stated and cannot state causes of action with respect to the
first two counts, and the trial court did not abuse its discretion in
denying leave to amend as to these counts.
...
The judgment is affirmed.
—————

Notes
1. California's role in developing the modern trend approach:
California courts have played an important role in the modern

68
trend estate planning malpractice revolution. The traditional
common law privity requirement made it impossible for intended
beneficiaries to bring a claim against the testator's/transferor's
attorney despite how blatant the attorney's error was and no
matter how much they were damaged. With the Court's holding in
Lucas, California became the first state to abolish the privity
requirement, thereby permitting disappointed beneficiaries to
bring a malpractice claim against the decedent's estate planning
attorney. By the turn of the century only a handful of states still
followed the traditional common law rule that a lack of privity was
an absolute bar to intended beneficiaries being able to bring a
suit against the drafter.
2. The modern trend approach: While almost all states have
followed California's lead and have abolished the privity
requirement as it relates to standing to bring a cause of action for
malpractice against the decedent's attorney, not all jurisdictions
agree on what should be the new test. The California approach
may constitute the broadest approach. It grants standing to
virtually all third parties (so long as they can show they were an
“intended beneficiary”) who have been injured as a result of an
error committed by the decedent's attorney during the drafting
phase.
Some states, however, have expressed concerns about the
effect that such an approach would impose on the legal
profession, particularly on estate planners. Some courts and
scholars have expressed the concern that such an approach
would expose estate planners to an increased risk of malpractice
claims, thereby increasing the costs of their malpractice
insurance, which in turn will increase the costs of practicing estate
planning, which in turn will increase the costs of estate planning
legal services, which in the long run will hurt the consumer and
hurt society by increasing the number of people who die intestate
—which will increase administrative costs associated with the
probate process.
In response to these public policy concerns about the potential
increased costs of administration associated with the approach
California adopted, some courts have modified it slightly:

69
 An attorney preparing a will has a duty not only to the
testator-client, but also to the testator's intended
beneficiaries, who may maintain a legal malpractice action
against the attorney on theories of either tort (negligence)
or contract (third-party beneficiaries). However, liability to
the testamentary beneficiary can arise only if, due to the
attorney's professional negligence, the testamentary intent,
as expressed in the will, is frustrated, and the beneficiary's
legacy is lost or diminished as a direct result of that
negligence.
DeMaris v. Asti, 426 So.2d 1153, 1154 (Fla. Dist. Ct. App. 1983)
(emphasis in original; citations omitted); see also Schreiner v.
Scoville, 410 N.W.2d 679, 683 (Iowa 1987); Mieras v. DeBona,
550 N.W.2d 202 (Mich. 1996). Some courts have de facto
achieved the same result by adopting the third-party beneficiary
approach and limiting standing to third parties where the intent to
benefit the third party is “clear”—i.e., because the third party is
named in the testamentary instrument. See Guy v. Liederbach,
459 A.2d 744, 746 (Pa. 1983); Fabian v. Lindsay, 765 S.E.2d 132
(S.C. 2014)
3. Estate planning and tax liability: To re-emphasize the point,
an estate planner faces potential liability anytime he or she drafts
an estate planning instrument and an intended beneficiary does
not receive as much as he or she could have received without the
attorney's drafting error. In the Lucas case, the intended
beneficiaries claimed they were injured as a result of the
language the attorney included in the will with respect to when the
trust ended. The court ultimately held that the attorney was not
liable essentially because the Rule Against Perpetuities is so
difficult to understand that as a matter of law it is not malpractice
to misunderstand it. That part of the court's opinion, however, has
been criticized and other courts have declined to follow it (even if
the Rule Against Perpetuities is that difficult, most estate planning
instruments routinely include a “saving clause” that automatically
terminates the interest before it violates the Rule Against
Perpetuities just in case the attorney has made a mistake—so at
a minimum the attorney should have been liable for failing to
include a savings clause).

70
 More important, however, is the big picture. Beneficiaries under
an estate planning instrument typically receive their benefits only
after taxes are paid. Accordingly, the size of their gift is subject to
tax liability issues. If the decedent could have paid lower estate
and gift taxes, the beneficiaries could have received more. If the
failure to include appropriate tax avoidance clauses causes the
estate or decedent to incur greater tax liability, the beneficiaries
whose shares are reduced as a result of the increased taxes have
a malpractice claim against the drafting attorney. Drafting estate
planning documents without a comprehensive understanding of
estate and gift tax issues is a risky business that is generally not
recommended.
4. Other wills and trusts “ethical” issues: Throughout this book,
we will see many other areas where ethical issues come to light in
the context of an attorney's work in the area of wills and trusts
(commonly referred to as “estate planning”). Some of the more
common ethical issues that estate planners face include: (1) what
is the attorney's role is assessing the requisite cognitive capacity
of the client to execute the document; (2) can an attorney
represent both spouses and draft the corresponding testamentary
documents for both even though their dispositive wishes may be
in conflict; and (3) can an attorney draft a document in which he
or she is a beneficiary? These are but a handful of the interesting
yet complex ethical issues that can arise in the estate planning
field.

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 V. A Brief Word about
Estate Planning
Notwithstanding the ever-present shroud of death in the study
of wills and trusts, the subject can be a fascinating one. An
interest in the subject often leads to thoughts of possibly
practicing law in the area of estate planning. One's initial thoughts
of such practice are, perhaps, morbid and not very exciting. This
cannot be further from the truth. In the practice of estate planning,
the lawyer and client typically have a very close and rewarding
relationship. The client is meeting with you, typically
unaccompanied by his or her representatives, entourage, or
another attorney. It is just you and your client discussing “life-
important” matters. The estate planning lawyer is one part lawyer,
dealing with very complex legal matters, and one part counselor.
The best estate planners not only have the necessary technical
prowess, but they also have superb “people skills”—they are
adept at listening and being sensitive to what are often very
private and difficult real-life issues.
The personal and professional rewards from this area of
practice can be greater than in many other areas of legal practice.
Unfortunately, so can the pitfalls. There is a reason why
malpractice insurance rates for attorneys practicing estate
planning are among the highest in the legal profession. Simply
put, it is a complex area of practice and it is exceptionally easy to
make mistakes—far-reaching and very costly mistakes.
The core components of the material in this course are just the
beginning of what is necessary to practice in the area of estate
planning. An effective estate planning attorney, to avoid
malpractice, requires more. An absolutely integral part of estate
planning is an in-depth knowledge of federal estate and gift taxes
(including the very draconian and complex subject of “generation
skipping transfer taxes”), as well as federal income taxes (and
any corresponding state and local taxes). The typical law school
courses in federal estate and gift taxation and income taxation are
good starting points. A community property class is also essential
for an estate planning practice in California (or other community

72
property states). If available, an estate planning course would be
a great addition.

73
 VI. But What if ...
The primary focus of any Wills, Trusts, and Estates course is
on the different legal mechanisms that one can use to make a
valid disposition of his or her assets through one or more of the
methods listed in the directed distribution column. There is always
the risk, however, that one will fail to make a valid directed
disposition. What happens to one's property at death if there is no
will (or will substitute, or other form of nonprobate disposition)?
Recent surveys indicate that approximately 50–60 percent of
American adults do not have a will (or will substitute).13 In
addition, as you will see throughout this book, some of the people
who think they have a will (or trust or other nonprobate
instrument) will have it declared invalid (in whole or in part) for
one reason or another.
What if there is no will (or other dispositive vehicle)? Who gets
the decedent's assets?

1. Having said that, the material in this book will focus on how California
answers this question. To the extent the book covers other approaches, it does
so because either (1) the California approach to the particular issue is the
default approach, but a party can opt out of it with proper drafting so the “other”
approaches are viable options; or (2) knowing the historical evolution of the law
in the area and/or the different possible approaches will help you better
understand the California approach. With respect to how much of the non-
California law you are responsible for, take your cues from your professor.
2. At common law, if the decedent who died with a will was a female she was
called a testatrix. The modern trend uses the term testator to refer to a
decedent of either gender.
3. Creditors must assert their claims in a timely manner in probate court or
their claims can be extinguished.
4. In Chapter 11, we explore these common beliefs in more detail.
5. This can also include “Community Property with right of survivorship” as
well as certain property interests created with legal life/income and remainder
interests.
6. As the material progresses, we will ask you to think about the difference
between the original phrasing of the issue in the course and the client's
phrasing. Should the two be identical? To what extent should the law be
concerned with who should get the decedent's property? Should that be the
only public policy consideration underlying probate law? To what extent should

74
the law be willing to go to determine who should get the decedent's property?
Who should make that determination? What other public policy considerations
are relevant, and why? To the extent there are other public policy
considerations, are they all equal or should some be given greater weight than
others? How should the different policy considerations be balanced?
7. The terms lawyer and attorney are used interchangeably throughout the
book as they minimize legalese and are perceived to be synonymous to the
general public. As used historically, however, a lawyer was someone who had
studied the law (e.g., graduated from law school) but was not qualified to
practice law in that jurisdiction, while an attorney was a lawyer who had also
met the added requirements to practice law in a particular state (i.e., passed
the bar exam and met a state's licensing requirements).
8. This can also include “Community Property with right of survivorship” as
well as certain property interests created with legal life/income and remainder
interests.
9. See Chapter 11. Passing by operation of law can be viewed as a “directed”
form of distribution, but has more limitations than the other distribution methods
listed.
10. These variables include tax considerations, potential creditor(s)' claims,
family considerations (i.e., are there minor children or other dependents who
cannot/should not hold the property), and/or asset considerations (in what form
is the property currently held and whether that makes a difference—e.g., a
family farm or closely held business, out-of-state real property, etc.).
11. An olographic will is more commonly known as a holographic will. The
classic will is an attested will—one that is signed by the testator in the presence
of two witnesses who then sign the will as witnesses. The prototypical attested
will is prepared by an attorney who usually supervises the execution ceremony
(the ceremony where the testator and the witnesses sign the will). Some
jurisdictions also recognize holographic wills. A holographic will is essentially a
homemade will—a will that typically is created by the testator, without the help
of an attorney, and it does not require witnesses. While it does not have to be
witnessed to be valid, it typically has to be in the testator's handwriting to be
valid. The differences between attested wills and holographic wills are covered
in Chapter 6.
12. The court does not elaborate on what it means when it says that Mr.
Plummer did not “complete” the trust. One of the requirements for the creation
of a valid trust is that the settlor (the party creating the trust) must transfer
property to the trust. Apparently Mr. Plummer did not transfer any property to
the trust.
13. A 2013 Harris Poll conducted for Rocket Lawyer had the number at 61
percent, while a 2007 Harris Poll conducted by Martindale-Hubbell/LexisNexis
had the number at 55 percent.

75
Chapter 2

76
The California Intestate
Scheme

77
 I. Overview: What Is an
Intestate Scheme?
Who gets your property when you die? The prevailing answer is
“whoever you wish.” That answer (that the decedent's intent
should control), however, assumes that the decedent has properly
expressed his or her intent. What if the decedent did not properly
express his or her intent? Should the probate court hold a hearing
to determine the decedent's intent—or at least the decedent's
probable intent? Most scholars agree that doing so would be
prohibitively expensive and would open the probate process to
the potential for fraud.
When a decedent fails to properly express his or her
testamentary wishes with respect to the decedent's probate
property, the property passes pursuant to the state's statutes of
descent and distribution,1 more commonly known as the state's
“intestate succession laws” or the state's “intestate scheme” (the
phrases, and derivatives thereof, are used interchangeably). A
party dies intestate to the extent he or she dies with probate
property that passes through the state's intestacy scheme. The
most common example of this is when an individual dies without a
will.2
Inasmuch as a state's intestate scheme controls in the event a
decedent did not properly express his or her testamentary wishes,
what should be the approach of a state's intestate succession
laws? Should a state's intestate succession laws reflect the
presumed intent of a typical decedent, or does dying without a will
indicate that the decedent did not care who took his or her
property, thereby leaving the state free to dispose of the
decedent's property according to the state's preferred intent? If a
decedent fails to properly express his or her intent, should that
reduce the traditional notions of private property and support a
greater role for the notion of communal property?
Lastly, from an estate planning perspective, starting with the
intestate scheme is a bit odd. The job of an estate planner is to
avoid intestacy. An estate planner's job is to ascertain the client's

78
intent, properly draft the appropriate instruments to effectuate the
client's intent (i.e., will, non-probate instrument, or some
combination thereof), and ensure that the instruments are
properly executed. Nevertheless, inasmuch as the intestate
scheme is the default in the absence of proper estate planning,
and inasmuch as approximately 50 percent of all decedents die
intestate, the intestate scheme is the most logical place to start
one's study of this area of law.

79
 II. The California Intestate
Scheme: Who Takes How
Much3
Unlike most first-year courses, which are primarily common
law-based (judge-made law), Wills, Trusts, and Estates consists
primarily of statutory law. It is important to develop the skill of
reading and construing statutes. Nowhere is this truer than in the
intestate portion of the material. Read and outline the basic
intestate scheme set forth in the following core provisions of the
California Probate Code (hereinafter “CPC”4), sections 6400–
6402 below. When reading them, focus on: (1) the order of takers
(who takes when), and (2) how much each taker gets.

CPC §6400. Property subject to the intestacy provisions5

Any part of the estate of a decedent not effectively disposed
of by will passes to the decedent's heirs6 as prescribed in
this part.
CPC §6401. Surviving spouse's intestate share; calculating
size of share
(a) As to community property, the intestate share of the
surviving spouse is the one-half of the community property
that belongs to the decedent under Section 100.
(b) As to quasi-community property, the intestate share of
the surviving spouse is the one-half of the quasi-
community property that belongs to the decedent under
Section 101.
(c) As to separate property, the intestate share of the
surviving spouse is as follows:
(1) The entire intestate estate if the decedent did not
leave any surviving issue, parent, brother, sister, or
issue of a deceased brother or sister.
(2) One-half of the intestate estate in the following cases:

80
 (A) Where the decedent leaves only one child or the
issue7 of one deceased child.
(B) Where the decedent leaves no issue but leaves a
parent or parents or their issue or the issue of either
of them.
(3) One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue
of one or more deceased children.
(C) Where the decedent leaves issue of two or more
deceased children.
CPC §6402. Distribution of intestate estate not passing to
surviving spouse
Except as provided in Section 6402.5, the part of the
intestate estate not passing to the surviving spouse under
Section 6401, or the entire intestate estate if there is no
surviving spouse, passes as follows:
(a) To the issue of the decedent, the issue taking equally if
they are all of the same degree of kinship to the decedent,
but if of unequal degree those of more remote degree take
in the manner provided in Section 240.
(b) If there is no surviving issue, to the decedent's parent or
parents equally.
(c) If there is no surviving issue or parent, to the issue of the
parents or either of them, the issue taking equally if they
are all of the same degree of kinship to the decedent, but
if of unequal degree those of more remote degree take in
the manner provided in Section 240.
(d) If there is no surviving issue, parent or issue of a parent,
but the decedent is survived by one or more grandparents
or issue of grandparents, to the grandparent or
grandparents equally, or to the issue of those
grandparents if there is no surviving grandparent, the
issue taking equally if they are all of the same degree of
kinship to the decedent, but if of unequal degree those of

81
 more remote degree take in the manner provided in
Section 240.
(e) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, but the decedent is
survived by the issue of a predeceased spouse, to that
issue, the issue taking equally if they are all of the same
degree of kinship to the predeceased spouse, but if of
unequal degree those of more remote degree take in the
manner provided in Section 240.
(f) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, or issue of a
predeceased spouse, but the decedent is survived by next
of kin, to the next of kin in equal degree, but where there
are two or more collateral kindred in equal degree who
claim through different ancestors, those who claim through
the nearest ancestor are preferred to those claiming
through an ancestor more remote.
(g) If there is no surviving next of kin of the decedent and no
surviving issue of a predeceased spouse of the decedent,
but the decedent is survived by the parents of a
predeceased spouse or the issue of those parents, to the
parent or parents equally, or to the issue of those parents
if both are deceased, the issue taking equally if they are all
of the same degree of kinship to the predeceased spouse,
but if of unequal degree those of more remote degree take
in the manner provided in Section 240.

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 III. The Decedent's
Property
A. Overview
If the issue in the course is “who gets the decedent's property
when he or she dies,” one of the threshold questions is how does
the decedent hold the property? We saw in the introduction that
this is typically viewed in the light of whether it is probate property
or non-probate property or, in the alternative, if it is a directed or
non-directed disposition. Related to these issues, but distinct, is
the question of the scope of the decedent's property. Is it the
decedent's sole and separate property, or is it concurrently
owned, and if so, how should such property be treated? As the
Supreme Court of Washington stated in Olver v. Fowler, 168 P.3d
348, 356 (Wash. 2007):
[The argument that the state's intestate scheme alone
should control the distribution of the decedent's property]
fails to take into account our basic framework for property
distribution after death.... First, the decedent's property
must be inventoried; a personal representative must
determine what property belongs in the decedent's
[probate] estate.... Only after the contents of the estate are
established can the personal representative distribute the
contents of the estate according to a valid will or the rules
of intestacy. As the Court of Appeals aptly explained, “we
do not look to the intestacy statutes to determine what the
decedent owned.”

1. Single Individual: Separate Property

Assumption
From a Property law perspective, the starting assumption is
that whatever property an unmarried individual owns is held as
his or her separate property. Under the bundle of rights approach
to property rights, the individual as sole owner has the right to

83
possess the property, to use it, to exclude others from it, and the
right to transfer it. The right to transfer is not only inter vivos (i.e.,
during one's life), but also at time of death. If the owner dies
testate, he or she can devise the property to whomever he or she
wishes.8 If the owner dies intestate,9 the property passes
pursuant to the state's statute of descent and distribution (i.e., the
state's intestate scheme) to the decedent's heirs. Where the
property is the decedent's separate property, the starting
assumption is that all of the assets in question will be distributed
via intestate succession statutes unless the decedent has
provided otherwise (i.e., has “directed” the disposition via a valid
will or non-probate disposition). In the traditional law school view,
this will all be part of the decedent's probate estate (and,
additionally, will be controlled by the state's intestacy scheme)
unless the decedent took the appropriate steps to hold it as a
non-probate asset.

2. Concurrent Estates
In first-year property, you also learned that it is possible for an
individual to hold property concurrently with another person or
persons. The two most common examples of concurrently held
property are: (1) joint tenancy, and (2) tenancy in common. With
both forms of concurrent ownership, the parties own the property
in whole and in share—each party has the right to possess and
enjoy all the property in question (he or she owns it in whole), and
each party has the right to transfer, inter vivos, his or her share.
The key distinction between these two forms of concurrent
ownership is that a joint tenancy includes the right of survivorship
while the tenancy in common does not. The legal significance of
that distinction, for purposes of the question “Who gets your
property when you die?” is that under the right of survivorship
when one joint tenant dies, his or her share is extinguished and
the shares of the remaining joint tenants are re-calculated.
Because the share is extinguished, none of the property goes into
the decedent's probate estate. The decedent has no right to
transfer the interest to another at death.
The process of each joint tenant's interest being extinguished
upon his or her death continues until only one of the original joint

84
tenants survives. At that point, he or she owns the property as his
or her separate property. There is no other joint tenant, so the
property is no longer concurrently owned. For example, A and B
hold a parcel of real property as joint tenants. A dies and, by
operation of law, A's share of the parcel immediately goes to B. If
A has, for example, a will that states his or her interest in the
parcel goes to C, the traditional and still general rule is that this
“devise” is irrelevant—C gets no portion of the property as A's
share of the joint tenancy property has already been extinguished
(i.e., de facto passed to B). This is an example of a non-probate
asset and can, alternatively, be viewed as a “directed” disposition
(albeit semi-directed—A might have been able to select B as a
cotenant in the joint tenancy, thus determining its ultimate
disposition in the event that A dies before B; but, unlike a will or
most trusts, the selection of B as a recipient is not as easily
changed).
On the other hand, if the concurrent estate in question is a
tenancy in common, there is no right of survivorship. If there is no
right of survivorship, the share of each tenant in common is
transferable not only inter vivos, but also at time of death. When
one tenant in common dies, if he or she has not directed the
disposition of such share via a will substitute, such as a trust, then
his or her fractional share goes into his or her probate estate. If
the deceased tenant died testate, the decedent can devise the
property as he or she wishes. If the decedent died intestate, the
property will pass pursuant to the state's intestate scheme.
The bottom line is that, if an individual is not married and he or
she acquires a dollar, the default assumption is that the dollar is
the individual's separate property. Absent affirmative steps to
create a concurrent estate (a joint tenancy or a tenancy in
common), the dollar is the individual's separate property with all
rights to transfer it inter vivos or at death as the individual wishes.
What difference, if any, should it make if the individual is
married at the time he or she acquires a dollar? Should/does
marriage affect a spouse's property rights for purposes of
analyzing the scope of the spouse's property upon termination of
the marriage (death or divorce)? What is marriage? Is it solely an
emotional joining together of two individuals, or is it also a
property investment—an economic partnership? If it is a

85
partnership, what is the scope of the partnership? Does it include
all of their respective property, whenever and however acquired,
or is it limited to a narrower set of assets?

B. Marriage and Property Rights

1. The Non-Community Property Approach
Most of the states in the United States take the view that
marriage has no immediate effect on a spouse's property rights.
Just as a dollar acquired before marriage is that individual's
separate property, a dollar acquired after (during) marriage is that
spouse's separate property. Marriage has no immediate effect on
the classification of the asset when it is acquired, and at time of
acquisition the other spouse acquires no interest in the property.
That is not to say, however, that marriage has no effect upon a
spouse's property rights, it simply has no immediate effect. In
essence, non-community property states treat each spouse as a
separate individual with separate property interests for purposes
of allocating property interests to property acquired during the
marriage.

2. The Community Property Approach

a. The Partnership Model
In contrast, community property states adopt the “partnership
model” with respect to marriage. Under the partnership model,
marriage has immediate and important consequences with
respect to the scope of each spouse's property. Under the
partnership model, property acquired as a result of the
partnership should be held by the partnership as a form of
concurrently owned property, not as separate property. What
constitutes “property acquired as a result of the marital
partnership” varies from community property jurisdiction to
community property jurisdiction. In addition, while historically
community property was limited to spouses (which historically
was limited to heterosexual couples), community property rights
are increasingly being extended to same-sex couples in a legally

86
recognized relationship (marriage, registered domestic
partnership, or civil union, depending on the jurisdiction).10

California follows the community property approach to marital

property. California's approach to community property and
separate property is set forth in the California Family Code and is
the focus of the Community Property class. Obviously a detailed
examination of community property is beyond the scope of this
material, but a brief overview is necessary to help you understand
what constitutes the scope of the decedent's property if the
decedent is married (including same-sex marriages) or in a legally
recognized “domestic partnership.” Section 760 of the California
Family Code states: “Except as otherwise provided by statute, all
property, real or personal, wherever situated, acquired by a
married person during the marriage while domiciled in this state is
community property.” Section 770 of the California Family Code,
however, provides: “Separate property of a married person
includes all of the following: (1) All property owned by the person
before marriage. (2) All property acquired by the person after
marriage by gift, bequest, devise [under a will], or descent [under
the intestate scheme]....”11 The combined effect of the two
sections is to create a general presumption that any property
acquired during marriage by either spouse, other than by gift,
devise (under the terms of a will), or inheritance (under the
intestate scheme), is community property that is owned by the
community and held in undivided equal shares (50-50) by the
parties.12

b. The Classification Process

The process of classifying property as either separate or
community property is called the characterization of the property.
Property must be characterized as community property or
separate property to determine the rights and liabilities of the
parties with respect to a particular asset, and is particularly
important with respect to the treatment of the asset at death or
divorce of the parties. While there are a number of variables that
can affect the characterization of an asset, the three most
important factors are: (1) the time of acquisition, (2) the various
presumptions that can apply to the acquisition of an asset, and (3)

87
various means of rebutting such presumptions, including whether
the party or parties have validly changed (“transmuted”) the
characterization of the property in question.
Analytically, the threshold question in the characterization
process is “When was the property acquired?” “The character of
the property as separate or community is fixed as of the time it is
acquired; and the character so fixed continues until it is changed
in some manner recognized by law, as by agreement of the
parties.”13 If the asset was acquired during the marriage or
registered domestic partnership, the general presumption of
community property arises unless the asset was acquired by gift,
devise, or via intestacy.
Community property is a fascinating area of law that is complex
enough to warrant its own course. The coverage of community
property in this class is intended to give you just enough
understanding of the basics to understand the most common
overlaps between the two areas of law. For purposes of this
course, unless your professor tells you otherwise, assume that
the initial characterization of the property in question is also the
final characterization for death purposes (with the exception of
quasi-community property, covered later). A student interested in
estate planning as a career would be well advised to take a
community property class.

c. Treatment at Death
Community property is a form of marital concurrent ownership.
If it helps, think of community property as a concurrent estate
where both spouses own the property equally, 50-50. In that
respect, it is similar to the concurrent estates you studied in your
first-year Property class: joint tenancy and tenancy in common. At
time of death, however, community property is more like tenancy
in common because there is no right of survivorship.14 The
moment one spouse dies, the deceased spouse's half-interest in
each community property asset goes into probate (assuming it
has not been put into a valid non-probate arrangement). The
surviving spouse holds his or her half-interest in each community
property asset as his or her separate property (separate because

88
there is no longer a community—the other spouse is dead). The
default assumption and general rule is that the deceased
spouse's half-interest in each community property asset is a
probate asset.15

89
 IV. The Mechanics of the
California Intestate
Scheme
Above we asked you to read and outline the core provisions of
the California intestate scheme, sections 6400–6402, focusing on:
(1) the order of takers, and (2) the formula for determining how
much each party takes. Use your outline to analyze the following
problems.

A. Calculating the Share of the Surviving

Spouse
Problems
Hector and Wilma, a married couple, own the following assets:
A. Greenacre, worth $400,000, which was transferred “to
Hector and Wilma as joint tenants with right of survivorship
and not as tenants in common.”
B. Hector has $2,000 worth of miscellaneous tangible personal
property that he acquired before they were married.
C. Hector has $10,000 from earnings acquired during the
marriage in a certificate of deposit in his name alone.
D. Hector inherited $400,000 in Amgen stock after he married
Wilma.
E. Wilma has $15,000 worth of miscellaneous tangible
personal property that she acquired before they were
married.
F. Wilma has $100,000 from earnings acquired during the
marriage in a checking account in her name alone.
G. Wilma inherited $100,000 in IBM stock after she married
Hector.
Who takes Hector's property in the following scenarios?

90
1. Hector dies intestate, survived by Wilma, their son, Adan,
Adan's two children, Beth and Carl, and Hector's father,
Fernando. Who takes Hector's property? How much do they
receive?
2. Hector dies intestate, survived by Wilma, Beth, and Carl, the
two children of their predeceased son, Adan (who died with a
will giving all of his property to his alma mater, UC-Nirvana),
and Hector's mother, Maude. Who takes Hector's property?
How much do they receive?
3. Hector dies intestate, survived by Wilma, their two children,
Adan and Yolanda, Adan's two children, Beth and Carl,
Yolanda's child, Deirdre, and Hector's father, Fernando. Who
takes Hector's property? How much do they receive?
4. Hector dies intestate, survived by his wife, Wilma, and his
sister, Sally. Who takes Hector's property? How much do they
receive?
5. Hector and Wilma never married—why ruin a good relationship
with marriage—they just lived together. Hector dies intestate,
survived by Wilma, his son, Adan, Adan's two children, Beth
and Carl, and Hector's father, Fernando (in analyzing the scope
of Hector's property, replace all references to their “marriage” in
the above fact pattern with references to their “moving-in
together” because in this variation they never married—see
why that makes a difference in his property?). Who takes
Hector's property? How much do they receive?
6. New couple: Harry and Wanda. Harry and Wanda are married
with two children, Ali and Ben. Harry and Wanda own a
residence in their joint names as true joint tenants and not as
community property. Harry owns stock in X Corporation, worth
$10,000, that he acquired before they were married. Harry and
Wanda also purchased a boat worth $20,000 with Wanda's
earnings acquired during the marriage. Harry dies intestate.
What is Harry's property, and how will it most likely be
distributed?

B. The In-Law Inheritance Statute

While the base California intestate distribution scheme (CPC
sections 6400–6402) is similar to that of other community

91
property states, California has a unique statutory provision,
section 6402.5, that needs to be overlapped on the base intestate
scheme. Commonly known among practitioners as the “in-law”
inheritance statute, section 6402.5 can yield some very odd
results. It provides that, under certain circumstances, when a
surviving spouse dies, rather than giving all of a decedent's
property to his or her relatives, some of the decedent's property
should go to his or her former spouse's family (i.e., the decedent's
former in-laws). After reading the statute, see if you can
determine: (1) when the “in-law” inheritance statute applies; (2)
what property is subject to recapture for the in-laws; and (3) who
is to receive the recaptured property.
CPC §6402.5. Portion of decedent's estate attributable to
decedent's predeceased spouse; distribution to
predeceased spouse's relatives
(a) For purposes of distributing real property under this
section if the decedent had a predeceased spouse who
died not more than 15 years before the decedent and
there is no surviving spouse or issue of the decedent, the
portion of the decedent's estate attributable to the
decedent's predeceased spouse passes as follows:
(1) If the decedent is survived by issue of the
predeceased spouse, to the surviving issue of the
predeceased spouse; ... [the issue take equally as
provided in Section 240].
(2) If there is no surviving issue of the predeceased
spouse but the decedent is survived by a parent or
parents of the predeceased spouse, to the
predeceased spouse's surviving parent or parents
equally.
(3) If there is no surviving issue or parent of the
predeceased spouse but the decedent is survived by
issue of a parent of the predeceased spouse, to the
surviving issue of the parents of the predeceased
spouse or either of them, ... [the issue take equally as
provided in Section 240].
(4) If the decedent is not survived by issue, parent, or
issue of a parent of the predeceased spouse, to the

92
 next of kin of the decedent in the manner provided in
Section 6402.
...
(b) For purposes of distributing personal property under this
section if the decedent had a predeceased spouse who
died not more than five years before the decedent, and
there is no surviving spouse or issue of the decedent, the
portion of the decedent's estate attributable to the
decedent's predeceased spouse passes as follows:
(1) If the decedent is survived by issue of the
predeceased spouse, to the surviving issue of the
predeceased spouse; ... [the issue take equally as
provided in Section 240].
(2) If there is no surviving issue of the predeceased
spouse but the decedent is survived by a parent or
parents of the predeceased spouse, to the
predeceased spouse's surviving parent or parents
equally.
(3) If there is no surviving issue or parent of the
predeceased spouse but the decedent is survived by
issue of a parent of the predeceased spouse, to the
surviving issue of the parents of the predeceased
spouse or either of them, the issue ... [take equally as
provided in Section 240].
(4) If the decedent is not survived by issue, parent, or
issue of a parent of the predeceased spouse, to the
next of kin of the decedent in the manner provided in
Section 6402.
...
(e) For the purposes of disposing of property pursuant to
subdivision (b), “personal property” means that personal
property in which there is a written record of title or
ownership and the value of which in the aggregate is ten
thousand dollars ($10,000) or more.
(f) For the purposes of this section, the “portion of the
decedent's estate attributable to the decedent's

93
 predeceased spouse” means all of the following property
in the decedent's estate:
(1) One half of the community property in existence at the
time of the death of the predeceased spouse.
(2) One half of any community property, in existence at
the time of death of the predeceased spouse, which
was given to the decedent by the predeceased spouse
by way of gift, descent, or devise.
(3) That portion of any community property in which the
predeceased spouse had any incident of ownership
and which vested in the decedent upon the death of the
predeceased spouse by right of survivorship.
(4) Any separate property of the predeceased spouse
which came to the decedent by gift, descent, or devise
of the predeceased spouse or which vested in the
decedent upon the death of the predeceased spouse
by right of survivorship.
(g) For the purposes of this section, quasi-community
property shall be treated the same as community property.
Having outlined and analyzed the base California intestate
scheme (CPC sections 6400–6402), try to figure out how Section
6402.5 fits into the overall intestate scheme. First, conceptually,
what was the California legislature trying to achieve when it
adopted Section 6402.5? What is the purpose of the statute?
Once you understand the doctrine conceptually, shift your focus
to the mechanics of the doctrine. When does Section 6402.5
apply? What facts must be present for it to apply? If it applies,
what does Section 6402.5 say the probate court should do? The
“in-law inheritance” moniker is self-describing, but why do some
also use the term “the recapture doctrine” with respect to Section
6402.5? What is it trying to recapture, and why?
At first blush, most students find the in-law inheritance statute
strange and unusual (which it is). It is highly unlikely that you will
ever encounter a will that makes such gifts to former in-laws. If
that is true, why would the legislature include such a provision in
the intestate scheme if it does not reflect the intent of a typical
decedent? To the extent it is part of the California intestate

94
scheme but it arguably does not reflect the intent of a typical
decedent, it is another example of why “directing” where one's
property should go at time of death can be so important.

Problems
Assume the same married couple, Hector and Wilma, from the
Problem set above (see pages 33–34). Neither of them has any
children or issue (what is the difference?) and there has been no
change in the assets between their respective deaths.16 Who
takes their property in the following scenarios?
1. Hector dies intestate, survived by his father, Fernando. Twenty
years later, Wilma dies intestate, survived by her mother, Mia.
(Hector's father, Fernando, is still alive.) Who takes their
assets?
2. Hector dies intestate, survived by his father, Fernando. Ten
years later, Wilma dies intestate, survived by her mother, Mia.
(Hector's father, Fernando, is still alive.) Who takes their
assets?
3. Hector dies intestate, survived by his father, Fernando. Three
years later, Wilma dies intestate, survived by her mother, Mia.
Who takes their assets?
4. In addition to the property in the problem above, assume
Hector inherits a farm worth $1 million, which he puts in a trust
for his benefit while he is alive. Upon his death, all of the trust
property is to be distributed outright to Wilma. In addition,
assume Hector executes a will that gives all of his probate
property to Wilma. Thereafter, Hector dies, survived by his
father, Fernando, and Wilma. Three years later, Wilma dies
intestate, survived by her mother, Mia. (Hector's father,
Fernando, is still alive.) How will their assets be distributed?
5. How would your answers change, if at all, in problems 1–4 if
Wilma dies testate with a will leaving all of her property to her
mother, Mia?
6. How would your answers change, if at all, in problems 1–4 if
Wilma dies intestate, but she is survived by a son, Adan?
7. Hector dies intestate, survived by his father, Fernando. Three
days later, Wilma dies intestate, survived by her mother, Mia.

95
 Who takes their assets? Before you answer that question, you
might want to consider the survival material below. Is survival
purely a question of fact, or is it also a question of law?

Note
Assume that we have a situation where California Probate
Code section 6402.5 applies, and we have identified property that
is going back to the decedent's former in-laws. What, exactly, is
“the property” to be distributed pursuant to this section? Say that
an affected asset is stock that has appreciated significantly during
the period between the two spouses' deaths—is the entire
appreciated value recalled by this statute? Or is it the value of the
stock at the first spouse's death? What if the asset is a business
and, during the period between the two spouses' deaths, it has
appreciated significantly in value—what goes back to the former
in-laws? The affected asset is a house with a mortgage loan, and
during the intervening years between the two spouses' deaths,
the surviving spouse used his or her wages to make payments on
the mortgage, reducing its balance (and, at the same time, the
house has appreciated in value)—what is pulled back by section
6402.5? What if the asset coming from a predeceased spouse is
gone—it has been sold and converted to cash or the proceeds
have been used to buy another asset?17

96
 V. The Survival
Requirement
Should a party have to survive a decedent to take property from
the decedent?18 It is generally assumed that a decedent does not
want his or her probate property to go to somebody who is
already dead (i.e., one who has predeceased the decedent).
Accordingly, there is a general survival requirement placed on any
party who claims the right to receive some of the decedent's
property.19 But saying a party must “survive” the decedent begs
the question: what does it mean to “survive” the decedent? What
should be the survival requirement?
At early common law, before the advent of planes, trains, and
automobiles, the question of survival was fairly straightforward,
and rarely was at issue. Either the party survived the decedent or
the party did not. It was typically a question of pure fact that was
fairly easy to analyze. One claiming the right to share in the
distribution of the decedent's estate had the burden of proving
that he or she “survived” the decedent. Because probate is a
matter of civil law, the default burden of proof applied:
preponderance of the evidence. With respect to how long one
had to survive the decedent, a millisecond technically was
enough to support a claim of survival (if one could prove that).
The development of planes, trains, and automobiles, however,
led to an increasing number of scenarios involving simultaneous
or near-simultaneous deaths between family members. As tragic
as such scenarios may be, legally they create a perverse
economic incentive for surviving family members to sue each
other rather than console each other. In Unum Life Insurance
Company of America v. Craig, 200 Ariz. 327, 26 P.3d 510 (2001),
William and Diane Craig, husband and wife, were involved in a
head-on automobile accident. When the responding officer first
approached the car, “he was unable to detect any pulse or
respiration from William, but heard gurgling and moaning noises
from Diane.”20 After securing the accident scene, the officer
returned to the car but was unable to detect any signs of life from

97
Diane. The following day, the Medical Examiner who examined
the bodies indicated that both parties died at 3:35 p.m., the exact
same time. William had two life insurance policies that totaled
more than $650,000.00, both of which named Diane as the
beneficiary. William was survived by a daughter from a prior
marriage, and Diane was survived by two children from a prior
marriage. Instead of the respective families consoling each other
over the loss of their respective parents, the children ended up
fighting in court over whether there was sufficient evidence that
Diane survived William. The court noted that too often the
outcome of such cases turned:
... on fortuitous survival by a moment or two, testified to by
medical experts using sometimes gruesome medical
evidence to support non-simultaneous death claims. See,
e.g., In re Bucci's Will, 57 Misc.2d 1001, 293 N.Y.S.2d 994
(Surr.Ct.1968) (husband and wife found dead when
removed from wreckage of small airplane, which crashed
and burned after colliding with a large airplane; existence of
carbon monoxide in wife's blood was found sufficient
evidence to establish wife's survival of husband, whose
skull was fractured and in whose blood no carbon
monoxide was found); In re Estate of Rowley, 257
Cal.App.2d 324, 65 Cal.Rptr. 139 (1967) (period of claimed
survivorship was 1/150,000 of a second); ...
See Unum Life Insurance Company of America v. Craig, 200 Ariz.
at 331.
To counter such messy litigation, the Uniform Law Commission
addressed the issue in the Uniform Simultaneous Death Act
(“USDA”) and, later, the Uniform Probate Code (hereinafter
“UPC”).21 Unfortunately, the Uniform Law Commission's response
was far from uniform. The Commission has struggled with the
appropriate scope of the response, wrestling with the following
queries: (1) should the enhanced survival requirement apply only
to probate intestate property, to all probate property, or to all
probate and non-probate property? (2) what should be the
survival requirement (and should it be the same for all types of
property or should it vary based on the type of property)? and (3)
what should be the burden of proof? As a result, a series of
responses/approaches emerged over several decades. The first

98
approach applied only to life insurance policies where there was
no sufficient evidence that the beneficiary survived the
decedent.22 The second approach applied to all probate intestate
property, but not to any directed dispositions (wills or non-probate
instruments) and required the heir to prove by clear and
convincing evidence that he or she survived the decedent by 120
hours.23 The third approach applied the clear and convincing
evidence standard and 120-hour survival requirement to both
intestacy and any “governing instrument,” including wills, deeds,
trusts, and insurance policies.24 Depending on when a state's
legislature decided to address the issue, different states have
adopted different approaches. One must read each state's
simultaneous death statutes carefully to see which approach the
state has adopted—or if the state has created its own approach.
While the Uniform Law Commission has settled on the 120
hours survival requirement to minimize the incentive for litigation,
it is not uncommon for a well-drafted will to impose a much longer
survival requirement: six months or longer. The longer survival
requirement is not only to reduce the risk of simultaneous death
litigation, but also to reduce the risk of double probate and
promote the testator's intent. A testator's typical wish and
assumption is that a beneficiary will be alive when his or her
property is distributed so that the beneficiary will be able to use
and enjoy the property. Most testators would not want a
beneficiary to survive just long only enough to qualify to receive
the property but die before distribution. In such cases, de facto all
the beneficiary received was the power to redistribute the
property to someone else at his or her death. If given the choice,
most testators would prefer to be in charge of directing
distribution should a beneficiary survive the testator for only a
short period. The beneficiary should be alive at time of distribution
of the asset or the asset will simply pass from the testator's
probate estate to the beneficiary's probate estate, thereby
frustrating testator's intent and incurring all the expenses and
hassles of double probate. Accordingly, the longer survival
requirement is fairly common in most well-drafted estate planning
instruments. Should a similar, “longer” survival requirement be the
default statutory requirement?

99
 The practical effect of a survival requirement (either statutory or
within the directed instrument) is that a party claiming a right to
receive the property must prove that he or she not only factually
survived the decedent, but also that he or she legally survived the
decedent.

A. The California Survival Approach

The California statutes that address the question of
survivorship are set forth below. In analyzing them, keep in mind
the key variables: (1) the survival requirement; (2) the scope of
the survival requirement (i.e., is it the same for all types of
property—probate intestate, probate testate, and non-probate
transfers?); and (3) the burden of proof.
CPC §220. Disposition of property; insufficient evidence of
survivorship
Except as otherwise provided in this chapter, if the title to
property or the devolution of property depends upon priority
of death and it cannot be established by clear and
convincing evidence that one of the persons survived the
other, the property of each person shall be administered or
distributed, or otherwise dealt with, as if that person had
survived the other.
CPC Section 6403. Failure to survive decedent by 120 hours;
deemed predeceased
(a) A person who fails to survive the decedent by 120 hours
is deemed to have predeceased the decedent for the
purpose of intestate succession, and the heirs are
determined accordingly. If it cannot be established by clear
and convincing evidence that a person who would
otherwise be an heir has survived the decedent by 120
hours, it is deemed that the person failed to survive for the
required period. The requirement of this section that a
person who survives the decedent must survive the
decedent by 120 hours does not apply if the application of
the 120 hour survival requirement would result in the
escheat of property to the state.25

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CPC §21109. Transferees; failure to survive
(a) A transferee who fails to survive the transferor of an at-
death transfer or until any future time required by the
instrument does not take under the instrument.
(b) If it cannot be determined by clear and convincing
evidence that the transferee survived until a future time
required by the instrument, it is deemed that the transferee
did not survive until the required future time.
CPC §223. Joint tenants; “simultaneous death”
(a) As used in this section, “joint tenants” includes owners of
property held under circumstances that entitled one or
more to the whole of the property on the death of the other
or others.
(b) If property is held by two joint tenants and both of them
have died and it cannot be established by clear and
convincing evidence that one survived the other, the
property held in joint tenancy shall be administered or
distributed, or otherwise dealt with, one half as if one joint
tenant had survived and one half as if the other joint
tenant had survived.
(c) If property is held by more than two joint tenants and all
of them have died and it cannot be established by clear
and convincing evidence that any of them survived the
others, the property held in joint tenancy shall be divided
into as many portions as there are joint tenants and the
share of each joint tenant shall be administered or
distributed, or otherwise dealt with, as if that joint tenant
had survived the other joint tenants.
CPC §103. Community or quasi-community property;
“simultaneous death”
... [I]f a husband and wife die leaving community or quasi-
community property and it cannot be established by clear
and convincing evidence that one spouse survived the other:
(a) One-half of the community property and one-half of the
quasi-community property shall be administered or

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 distributed, or otherwise dealt with, as if one spouse had
survived and as if that half belonged to that spouse.
(b) The other half of the community property and the other
half of the quasi-community property shall be administered
or distributed, or otherwise dealt with, as if the other
spouse had survived and as if that half belonged to that
spouse.

Notes
1. Scope: Does the survival requirement apply only to the
surviving spouse or to all takers under the California intestate
scheme? Does it apply only to intestacy or does it apply to all
probate property, testate and intestate? Does it apply only to
probate property or does it apply to non-probate property as well?
2. Questions: How would the Craig case be decided using
California law? If you think the outcome is unclear, why? What
would the issue be?
In addition to the life insurance policy, assume William had
inherited $1 million one year before his death, which he put into a
certificate of deposit in his name alone. Assuming both William
and Diane died intestate, how would the life insurance policy
benefits and the $1 million be distributed under California law?
What if, instead of dying intestate, William died with a validly
executed will that left all of his property to his loving wife, Diane
(who died intestate)? How would the life insurance policy benefits
and the $1 million be distributed under California law?
3. Heir versus heir apparent; property interest versus
expectancy: One by-product of the survival requirement is that
technically it is inappropriate to speak of one's heirs while one is
still alive. We cannot determine who will qualify as one's heirs
until the person dies because to qualify as an heir, the party
claiming to be an heir must meet the survival requirement. Each
of us has “heirs apparent”—our family members whom we
assume will be our heirs because we assume they will survive us
—but technically we cannot determine a person's heirs until that
person dies.

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 Similarly, an heir apparent does not hold a property interest
while the person in question is still alive because as long as the
person is alive, the heir apparent's interest is not vested. An heir
apparent holds an expectancy (the heir apparent “expects” to
receive the inheritance, but there is no guarantee—it is not
vested). An expectancy is not a property interest. Similarly,
because a will is not effective until the testator dies, a beneficiary
under a will does not hold a property interest. While some refer to
a beneficiary's interest in a will as an expectancy (because of the
analogous nature of the non-vested interest), technically the term
should be used only in connection with an heir apparent.
Because an expectancy is not a property interest, the traditional
common law rule was that expectancies are non-transferable.
Over time, however, the courts of equity began to enforce
contracts that purported to assign an expectancy as long as the
contract was “fairly made and not against public policy.” California
recognizes the assignability of expectancies in equity. Bridge v.
Kedon, 163 Cal. 493 (1912).

Problems
Return to Hector, Wilma, and their property (see Problems
above, on pages 33 and 34).
1. Assume Hector dies intestate, survived by his father, Fernando,
and Wilma. Three days later, Wilma dies intestate, survived by
her mom, Mia. How will their assets be distributed?
2. Assume Hector and Wilma die in a plane crash. Their bodies
are burned beyond recognition. Hector dies intestate, survived
by his father, Fernando. Wilma dies intestate, survived by her
mom, Mia. How will their assets be distributed?
3. In addition to the property in the problem above, assume
Hector inherits $1 million, which he puts in a trust for his benefit
while he is alive. Upon his death, all of the trust property is to
be distributed outright to Wilma. In addition, assume Hector
executes a will that gives all of his probate property to Wilma.
Thereafter, Hector dies, survived by his father, Fernando, and
Wilma. Three days later, Wilma dies intestate, survived by her
mother, Mia. How will their assets be distributed?

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4. Assume the same facts as Problem 3, except this time assume
that Wilma dies testate, with a will leaving all of her property to
her mother, Mia.
5. While out jogging, H is hit by a car and dies intestate. H and W
were married. They owned a residence in their joint names as
true joint tenants and not as community property.26 H had stock
in the X corporation worth $10,000, and W has stock in the Y
corporation worth $10,000, both sets of stock being separate
property. H and W owned a boat worth $20,000 as community
property. Four days later, at the funeral, under the stress of the
situation, W has a heart attack and dies. W also died intestate.
H is survived by his father. W is survived by her mother. Under
the California Probate Code, what does W's mom receive?

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 VI. Calculating the Share
of the Issue
Most intestate schemes provide that if there is not a surviving
spouse, or if the surviving spouse does not receive all of the
decedent's property, the issue of the decedent take next, and they
take “equally.” Who qualifies as an issue will be explored in the
next chapter. For now, focus on what it means to say that the
issue will take “equally.” At one end of the spectrum of familial
scenarios, what it means to say that the issue take equally is as
simple and straightforward as it sounds. At the other end of the
spectrum of familial scenarios, what it means to say that the issue
take equally is much more challenging.

A. The Simple End of the Spectrum: Children

Only
Assume the decedent is survived by three children and no one
else:

Analyzing what it means to say that the issue take equally is

easy—each child receives one-third of the decedent's estate.
They receive equal shares not only because it is assumed that
the decedent loved each of his or her children equally, but also
because they are of the same degree of relationship to the
decedent.

1. Calculating One's Degree of Relationship

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 One's degree of relationship is calculated by counting the
“steps” in the family tree between the parties in question. The
simplest scenario for counting degrees of relationship is when the
parties are in a direct line. Each step occurs when moving from
one generation to the next in the family line. For example,
counting down from a parent to a child is one step; hence, the
parent-child relationship is a relationship within the first degree.
The grandparent-grandchild relationship is a relationship within
the second degree. In the simple example above, all the surviving
issue are of the same degree of relationship to the decedent.
There are no other issue, so all take equally, one-third each.

B. The First Variation: Children and

Grandchildren
The first variation assumes the same family tree as above, only
now assume A has one child, P; B has two children, Q and R; and
C has three children, S, T, and U. Assume the decedent dies
intestate. Who takes how much?

Assuming all of the children and grandchildren are alive, who

takes if the decedent dies intestate? Despite the commonly used
phrase “the issue take equally,” that is, technically, not completely
accurate. Once a lineal descendant of a decedent takes, the
other issue of that taker do not. Phrased differently, where there
are issue at different degrees of relationship to the decedent,
those in the more remote degree of relationship will take only if
their more immediate ancestors (in the closer degrees of
relationship) do not (i.e., if the issue in the closer degree of
relationship is dead or treated as if he or she were dead). Here,
because A, B, and C are all alive, only A, B, and C will take from

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the decedent—one-third each—and P, Q, R, S, T, and U will not
take at all.

C. Second Variation: Taking by Representation

The second variation assumes the same family tree as
immediately above: A has one child, P; B has two children, Q and
R; and C has three children, S, T, and U. Now assume A dies
first, and then the decedent dies intestate. Who takes how much?

Under the intestate principle of taking by representation, where

an issue who otherwise would take predeceases the decedent, if
the predeceased party is survived by issue, the issue will
represent the predeceased party and take in his or her place.
Here, inasmuch as A stood to inherit one-third of the decedent's
estate, P would take A's one-third under the principle of taking by
representation. Q and R, and S, T, and U are not entitled to take
under representation because B and C are alive and take. You
may have noticed that the principle of taking by right of
representation is the flip side of the principle above in that where
there are issue of different degrees of relationship, once a
member of a lineal line takes, the issue of that taker do not.
With those simple principles in mind, the legal issues that arise
with respect to issue taking are easier to understand.

D. Third Variation: No Live Takers in the First

Generation
The third variation assumes the same family tree as above: A
has one child, P; B has two children, Q and R; and C has three
children, S, T, and U. This time, assume all three children

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predecease the decedent. A, B, and C all die first, and then the
decedent dies intestate. Who takes how much?

Each 1/6

Where should the probate court make the first division in

dividing up the decedent's estate? First generation always or first
generation where there is a live taker?
Under the traditional or strict per stirpes approach, the first
division of a decedent's estate is always at the first generation,
regardless of whether anyone is alive at the generation. One
share is given to each person alive, and consistent with the
principle of taking by right of representation, one share is given to
each party in that generation who is dead but survived by issue.
The latter shares drop down by bloodline to his or her living issue
in the more remote generations.
Under the per capita by representation approach (or, as it is
often abbreviated, the per capita approach),27 the first division of
the decedent's property is made at the first generation where
there is a live taker. At that generation, one share is given to each
person who is alive, and consistent with the principle of taking by
right of representation, one share is given to each party at that
generation who is dead but survived by issue. The latter shares
drop down by bloodline to his or her living issue in the more
remote generations.
In the hypothetical above, how would the decedent's property
be distributed under the per stirpes approach? How would the
decedent's property be distributed under the per capita by
representation approach?

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E. Fourth Variation: The Shares for the
Deceased Parties Survived by Issue
The fourth variation assumes the same family tree as above: A
has one child, P; B has two children, Q and R; and C has three
children, S, T, and U. This time, assume only two of the children
predecease the decedent. A and C die first, and then the
decedent dies intestate. Who takes how much?

1/3

1/3
1/9

Under both the per stirpes and the per capita by representation
approaches, the first division of the decedent's estate should
occur at the first generation because there is a live taker at that
generation, B. Wherever the first division is made, the formula for
how many shares it should be divided into is the same: one share
is given to each person alive at that generation, and, consistent
with the principle of taking by right of representation, one share is
given to each party at that generation who is dead but survived by
issue. Here, the decedent's estate would be divided into three
shares. B receives a share because B is alive. A and C both
receive a share because, although each is dead, each is survived
by issue. The question that arises next is: How should the shares
for A and C be distributed? For centuries, there was general
agreement that the property should be distributed by bloodline:
that A's share should fall to A's issue, and that C's share should
fall to C's issue. P would take A's one-third, and S, T, and U would
take C's one-third. The problem with that approach is although P,
S, T, and U are all related to the decedent equally, they are not
taking equally. Would the decedent want all those who are equally
related to take equally?
In 1990, the Uniform Probate Code embraced the latter
position, adopting what is known as the per capita at each

109
generation approach. The first two words signify that the
approach adopts the per capita approach to where the first
division should be made: at the first generation where there is a
live taker. But the last three words of the approach signify that
where there is a share for a deceased party that falls to a lower
generation, the shares that fall should be “pooled” or combined
and re-distributed equally among all the eligible takers at the next
generation. In the hypothetical approach, how many shares are
falling to a lower generation? Two: A's and C's shares. “Pool” or
combine the two shares (1/3 + 1/3 = 2/3), and then divide that
pooled amount equally among the eligible takers at the next
generation. P, S, T, and U all are eligible takers (Q and R are not
because their ancestor has taken a share). Dividing the pooled
shares equally among the eligible takers (2/3 divided by 4 = 2/12
= 1/6) means P, S, T, and U would each take 1/6, taking equally
because each is of equal degree of relationship to the decedent.
Although the Uniform Probate Code has adopted the per capita
at each generation approach to distributing a decedent's intestate
property to his or her issue, the jurisdictions remain split, with
some still following the traditional per stirpes approach, some
following the per capita by representation approach, and some
following the UPC and applying the per capita at each generation
approach.

Notes and Problems

1. Assume the following family tree:

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 Assume A, B, C, D, H, and I die before the decedent, who dies
intestate. Who takes how much of the decedent's property (a)
under the per stirpes approach; (b) under the per capita by
representation approach; and (c) under the per capita at each
generation approach?
2. California approach: Which approach has California adopted
with respect to how a decedent's intestate property shall be
distributed among his or her issue?
CPC §240. “Equal shares” defined
If a statute calls for property to be distributed or taken in the
manner provided in this section, the property shall be divided
into as many equal shares as there are living members of
the nearest generation of issue then living and deceased
members of that generation who leave issue then living,
each living member of the nearest generation of issue then
living receiving one share and the share of each deceased
member of that generation who leaves issue then living
being divided in the same manner among his or her then
living issue.
CPC §245. Application of Section 240; express contrary
intent
(a) Where a will, trust, or other instrument calls for property
to be distributed or taken “in the manner provided in
Section 240 of the Probate Code,” or where a will, trust, or
other instrument that expresses no contrary intention
provides for issue or descendants to take without
specifying the manner, the property to be distributed shall
be distributed in the manner provided in Section 240.
(b) Use of the following words without more, as applied to
issue or descendants, is not an expression of contrary
intention:
(1) “Per capita” when living members of the designated
class are not all of the same generation.
(2) Contradictory wording, such as “per capita and per
stirpes” or “equally and by right of representation.”

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CPC §246. Distribution in manner provided in Section 246;
per stirpes; drafting language
(a) Where a will, trust, or other instrument calls for property
to be distributed or taken “in the manner provided in
Section 246 of the Probate Code,” the property to be
distributed shall be divided into as many equal shares as
there are living children of the designated ancestor, if any,
and deceased children who leave issue then living. Each
living child of the designated ancestor is allocated one
share, and the share of each deceased child who leaves
issue then living is divided in the same manner.
(b) Unless the will, trust, or other instrument expressly
provides otherwise, if an instrument ... calls for property to
be distributed or taken “per stirpes,” “by representation,” or
“by right of representation,” the property shall be
distributed in the manner provided in subdivision (a).
...
CPC §247. Distribution in manner provided in Section 247;
per capita at each generation
(a) Where a will, trust, or other instrument calls for property
to be distributed or taken “in the manner provided in
Section 247 of the Probate Code,” the property to be
distributed shall be divided into as many equal shares as
there are living members of the nearest generation of
issue then living and deceased members of that
generation who leave issue then living. Each living
member of the nearest generation of issue then living is
allocated one share, and the remaining shares, if any, are
combined and then divided and allocated in the same
manner among the remaining issue as if the issue already
allocated a share and their descendants were then
deceased.
(b) Unless the will, trust, or other instrument expressly
provides otherwise, if an instrument calls for property to be
distributed or taken “per capita at each generation,” the
property shall be distributed in the manner provided in
subdivision (a).

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 ...

F. Miscellaneous Doctrines Relating to

Calculating Shares of Issue
1. Half-Bloods
Hal and Wi are married and have two children, Aki and Bob.
Thereafter they divorce, Hal then marries Wendy, and they have a
child, Carl. Many years later, after Hal and Wi die, Aki dies
intestate with no surviving spouse or issue. How will his assets be
distributed?
The question inherent to the half-blood paradigm is: Where a
decedent dies intestate survived by both whole-blooded siblings
and half-blooded siblings, should the whole-blooded siblings
receive a larger share of the decedent's property or should half-
blooded siblings be entitled to an equal share?
CPC §6406. Relatives of half-blood
Except as provided in Section 6451 [the CPC section
addressing the inheritance rights of adopted individuals],
relatives of the halfblood inherit the same share they would
inherit if they were of the whole blood.

2. Inheriting through Two Lines

How can one be related to the decedent through two lines? In
the next chapter, you will learn that adoption creates a parent-
child relationship with the same inheritance rights as a biologically
created parent-child relationship. While the traditional rule is that
adoption severed the child's relationship with his or her biological
parents, that is not is not always the case today. If a young couple
were to die, survived by a child, and one set of grandparents
adopted the child, legally the child would be both a child and a
grandchild of the adopting parents. Assuming one is related to the
decedent through two lines, and there are other heirs in both lines
(in this hypo, other surviving children and grandchildren of the
adopting parent when he or she dies), should the heir be entitled
to take both shares?

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CPC §6413. Relation through two lines of relationships;
single share
A person who is related to the decedent through two lines of
relationship is entitled to only a single share based on the
relationship which would entitle the person to the larger
share.

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 VII. Calculating the Share
of the Next of Kin
Under the California intestate scheme, the order of takers is:
surviving spouse, issue, parents, issue of parents, grandparents,
issue of grandparents, issue of a predeceased spouse, and then
“next of kin.” Like virtually all intestate schemes, the California
intestate scheme starts with those family members assumed to
be close to the decedent and moves outward to those family
members more remotely associated with the decedent. The
scheme starts with what most people would consider one's most
immediate family: spouse and issue. Then it moves out to the
decedent's second most immediate family: parents and issue of
parents. Then it moves out to the next closest family:
grandparents and issue of grandparents. The California intestate
scheme then takes a turn that most do not—it includes non-blood-
related relatives (other than a spouse): issue of a predeceased
spouse (stepchildren). Putting aside that step, the California
intestate scheme, in its own way, goes by family unit. Instead of
continuing with this “parentelic”-like approach after grandparents
and issue of grandparents, however, it switches to “next of kin.”
What is the “next of kin” approach, and how does one calculate
who takes and their shares under it?
The following “Table of Consanguinity” may be helpful in
determining who is an “heir.” The table presents relationships
from the perspective of the individual who is typically our
decedent—indicated, on the chart, as the “Person.” In addition to
presenting a useful diagram of one's heirs, it also indicates
“degrees of relationship” to the “person” (typically, the decedent).
Plus, if you never understood who, exactly, is a “second cousin
twice removed,” the table of consanguinity will identify him or her.

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 At the national level, there are essentially three approaches to
“next of kin.” The first is called the parentelic approach. The
parentelic approach is based upon the notion that as one
ascends “up” a family tree, each ancestral parent is the head of a
family line that linearly consists of their issue. If the decedent was
married and had issue, the decedent and his or her spouse were
the head of their family; but, as one moves out from there, each
pair of ancestral parents (on both sides of the decedent) is the
head of a parentelic line that includes their issue. The decedent's
parents and their issue (the decedent's siblings) are the first
parentelic line. The second parentelic line consists of the
decedent's grandparents and their issue. The third parentelic line
consists of the decedent's great-grandparents and their issue.
And so on, line by line, moving out from the decedent with each
new set of “parents” constituting the head of a new parentelic line.
Under the parentelic approach to next of kin, one keeps going out
parentelic line by parentelic line until one finds a live taker in that
line. Once there is a live taker in a parentelic line, all of the
decedent's intestate property is distributed to the eligible takers in

116
that parentelic line. The parentelic approach is based upon the
assumption that those family members in a closer parentelic line
probably had a stronger relationship with the decedent compared
to those in a more remote parentelic line. It is therefore presumed
that the decedent would have wanted to leave his or her property
to those collateral relatives with whom he had a closer
relationship (those in the closer parentelic line).
The second approach to how to determine “next of kin” is
based on the degree of relationship approach. Once one reaches
the “next of kin” set of takers under the order of intestate takers,
one simply counts the degree of relationship between the
decedent and the heir to determine the party's degree of
relationship. Calculating degree of relationship is not as easy in
the next of kin context because it is typically not as linear in
nature as it was above. Instead, calculating degree of relationship
in the next of kin context is more collateral (or transverse).
Calculating degree of relationship in this scenario is more
complex because it involves counting in two directions, with the
key being switching directions at the closest common ancestor.
The closest common ancestor is the head of the parentelic line in
which the party claiming he or she has a right to take falls. The
closest common ancestor will always be some degree of
“grandparent, or great-grandparent, or ... etc.” You can count from
either direction, but it might be easier to determine the party's
degree of relationship by counting up from the decedent to the
closest common ancestor, and then down from the closest
common ancestor to the party claiming the right to take from the
decedent. The degree of relationship approach is based upon the
assumption that those family members with a lower degree of
relationship (regardless of his or her parentelic line) probably had
a stronger relationship with the decedent as compared to those
with a more remote degree of relationship. It is therefore
presumed that the decedent would have wanted to leave his or
her property to those collateral relatives with whom he had a
closer relationship (those in the closer degree of relationship with
the decedent).
The third “next of kin” approach is a blending of the two just
discussed. It is the degree of relationship approach with a
parentelic tiebreaker. Under this approach, first calculate the

117
degree of relationship with respect to all the parties claiming a
right to take from the decedent's intestate estate. Those with the
lower degree of relationship trump those with a higher degree of
relationship. If, however, there is more than one party with the
lowest degree of relationship, overlap the parentelic approach on
the degree of relationship approach. If the parties with the lowest
degree of relationship are in different parentelic lines, it is
assumed that those in the closer parentelic line had a stronger
relationship with the decedent as compared to those in the more
remote parentelic lines, and it is presumed that the decedent
would have wanted to leave his or her property to those collateral
relatives with whom he had a closer relationship (those in the
closer degree of relationship with the decedent and in the closer
parentelic line).

A. The California Approach

Based on a general understanding of the three different
approaches to determining who qualifies as a next-of-kin taker,
you should be able to analyze which approach California has
adopted. The California approach is set forth as part of the
California's basic intestate statute, Probate Code Section 6402,
subsection (f):
If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, or issue of a
predeceased spouse, but the decedent is survived by next
of kin, to the next of kin in equal degree, but where there
are two or more collateral kindred in equal degree who
claim through different ancestors, those who claim through
the nearest ancestor are preferred to those claiming
through an ancestor more remote.

Problem
Assume the following family tree (ancestors of the decedent).
Assume also (sadly) that the only parties who are alive are V, W,
X, and Z. Assume the decedent dies intestate. Who takes how
much under the California approach?

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 Note
While in theory it is possible to draft around the California
approach to the next of kin doctrine, in practice that would be
extremely unlikely. Most directed instruments assume that the
property being given will be taken well before one were to reach
the decedent's next of kin, and if a document were to cover such
a contingency, it invariably would simply adopt the California
approach. The likelihood that such a scenario would arise under a
directed instrument is so unlikely it would hardly be worth the cost
of educating the client as to his or her drafting options.

1. The phrase “descent and distribution” implicitly recognizes that at early

common law real property and personal property were treated differently. At
death, the decedent's real property was said to descend to the appropriate
takers under the canons of descent. Under the rule of primogeniture, real
property descended to the decedent's sons, who inherited before—and to the
exclusion of—the decedent's daughters; and if the decedent had more than
one son, the real property passed to the eldest son. In contrast, at very early
common law, the decedent's personal property was used by the administrator
to pay the decedent's debts, and then the administrator kept any personal
property left over. The English Statute of Distribution was adopted in 1670 to
rein in the abuses of the administrators. The Statute of Distribution granted a
right to family members to receive the personal property. The Statute of
Distribution has been called the “father”—or perhaps more appropriately, the
“grandfather”—of the typical American intestate scheme because the order of
who takes under most state intestate statutes these days is very similar to the
order under the Statute of Distribution. The principal change in the law is that
that the canons of descent have been abolished—folded into the statute of
distribution, in essence. Hence, today a decedent's real and personal property

119
passes under the state's statute of descent and distribution, but that statute is
based upon the English Statute of Distribution, not the canons of descent.
2. In later chapters we explore the application of intestate succession acting
as a “backstop” default for other situations. These scenarios include, among
others, a decedent dying with a will but a court finds it to be partially or wholly
invalid, or where the testator has a valid will but thereafter he or she marries, or
enters into a domestic partnership, or has a child, and the testator dies without
revising the will to reflect the change in family status.
3. This is merely the beginning of our trek through California's intestate
succession landscape. This chapter focuses on who takes and how much they
take. Chapter 3 focuses on who qualifies as an heir; i.e., who qualifies as a
spouse, as a parent, as issue, etc.
4. CPC is a commonly used abbreviation for California Probate Code.
5. All statutory provisions will be California Codes unless indicated otherwise.
6. Terminology: Notice that, if used properly, the term “heirs” should be used
to refer only to the people who have the right to share in the distribution of a
decedent's intestate estate. If you keep that in mind, it should help you analyze
the scope of other statutory sections. The terminology used in a statute can
help you analyze the scope of the statute.
7. Terminology: What is the difference between “child” and “issue”? Notice
the significance of that difference as used in this part of the intestate scheme.
8. Historically, the term “devise” applied only to real property being
transferred under a will to a “devisee.” A gift of personal property under a will is
a “bequest” or a “legacy” to a “legatee.” Increasingly, however, the term
“devise” is being used to describe any gift under a will, be it real or personal
property.
9. For purposes of this discussion, it might be easier to think of the
decedent's intestate estate as referring to the property for which the decedent
has not made a valid “directed” disposition—by will, or by non-probate
disposition. Look back at our tables in the introduction as to when “intestate
succession” statutes apply.
10. The inheritance rights of same-sex couples are examined in greater
detail in Chapter 3.
11. California Family Code (§770, subd. (a).)
12. This general presumption can be rebutted, however, by a number of
other doctrines and special presumptions. A common example of this is the
doctrine of tracing. Under tracing, the general presumption of community
property can be rebutted if the funds used to acquire the asset were separate
property funds. The details of tracing, and the other doctrines and special
presumptions that can rebut the general presumption of community property,
are best left to the Community Property class.
13. Mears v. Mears, 180 Cal. App. 2d 484 (Ct. App. 1960).
14. California Family Code §682.5 provides for a hybrid form of community
property: “Community Property with Right of Survivorship.” This is, essentially,
a marriage of community property and joint tenancy. It acts like joint tenancy

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vis-à-vis the right of survivorship, but retains a “community property” character
for certain advantageous federal income tax attributes.
15. Although for probate administration purposes California has a special
rule that permits universal succession under certain circumstances, that
doctrine—like most of probate administration—is beyond the scope of this
course.
16. Granted, that is a very artificial assumption. However, such assumptions
are common in law school (and on exams) to limit the nature of the issue(s)
that can be examined in the limited time in the class. In the real world, where
the assets change in nature, it can raise messy issues of tracing that are
beyond the scope of this course.
17. For a riveting analysis of these issues, see: Robert G. Popovich, It's All
Mine—Or at Least Part of It Is: A California Look at Property Apportionment
Between the Families of an Intestate and an Intestate's Predeceased Spouse,
16 PEPP. L. REV. 3 (1989).
18. If not, the property received by the predeceased party would pass into his
or her estate and pass accordingly. If the predeceased party died intestate, it
would pass to his or her heirs. If the predeceased party died testate, the
property would fall to the residuary clause in the will and pass pursuant to it.
19. Whether the survival requirement should apply to all non-probate
transfers as well is not as well accepted. In practice, survivorship requirements
are often controlled by the non-probate instrument. For example, a well-drafted
inter vivos trust (basically, a will substitute) will, undoubtedly, contain some form
of survivorship requirement clause.
20. Unum Life Ins. Co. of Am. v. Craig, 200 Ariz. 327, 328, 26 P.3d 510, 511
(2001).
21. UPC is a commonly used abbreviation for Uniform Probate Code.
22. Unif. Simultaneous Death Act §5 (1940).
23. UPC §2-104 cmt. (amended 1990), 8 (pt. I) U.L.A. 84 (1998).
24. See UPC §1-201(19) (revised 1990, amended 1991, 1993, and 1998), 2-
701 (amended 1991), 2-702 (amended 1991 and 1993), 8 (pt. I) U.L.A. 35, 181
–82 (1998 & Supp. 2001).
25. The 120-hour survival requirement is also applicable to a California
Statutory Will. See CPC §6211.
26. The “not as community property” portion is a reference to what is the
sometimes tricky California issue of whether or not property in joint tenancy is,
notwithstanding title, really community property. The nuances of this issue are
best left to a community property class.
27. Also known in some jurisdictions as the modern per stirpes because it is
more of an American doctrine than the traditional per stirpes, which is more of
an English doctrine.

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Chapter 3

122
Who Qualifies as an Heir
under the California Intestate
Scheme?

123
 I. Overview
At the beginning of the last chapter, the material asserted that
the logical answer to the question “Who gets your property when
you die?” is “Whoever you wish.” How does the typical intestate
scheme relate to a decedent's intent? Obviously, it is not the
decedent's express intent. Is it appropriate to say that it is the
decedent's implied or assumed intent? Implied or assumed based
on what? Is that an appropriate basis upon which to imply or
assume a decedent's intent? Should the probate court permit
evidence that the takers under the intestate scheme are
inconsistent with the decedent's intent? Assuming, arguendo, that
the probate court is not open to such evidence, is the intestate
scheme based more on the decedent's intent or on one's legal
status vis-à-vis the decedent (i.e., one's legal relationship to the
decedent typically based on blood or marriage)?
Most scholars would agree that the more traditional approach
to an intestate scheme focused more on status than intent. Is it
possible to shift the focus more to intent and still keep the
potential for fraud and the costs of administration low? “Legal
scholars such as Sir Henry Maine and Emile Durkheim viewed
legal development as a movement from the simple to the
complex, from relationships of status ... to relationships based on
contract [i.e., intent] or achievement.”1 In thinking about who
qualifies as an heir under the California intestate scheme, is it
based more on status or intent? Is the California approach
defensible or outdated?

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 II. Spouse
The first “taker” under virtually all intestate schemes, including
California's, is a “spouse.” But that begs the question: who
qualifies as a spouse?

A. Traditional Marriage
Historically, California law defined “marriage” as “a personal
relation arising out of a civil contract between a man and a
woman, to which the consent of the parties capable of making
that contract is necessary. Consent alone does not constitute
marriage. Consent must be followed by the issuance of a license
and solemnization as authorized by this division....” Cal. Fam.
Code §300 (2015). A legally married husband and wife are, of
course, “spouses” for purposes of the California intestate
succession statutes.

B. Same-Sex Couples
California, like much of the rest of the country, struggled with,
debated, fought over, and litigated the issue of whether the
institution of marriage (and/or marital status and spousal benefits)
should be extended to same-sex couples.

1. Registered Domestic Partners

California first extended some, but not all, spousal rights and
benefits to same-sex couples in 1999 when it permitted same-sex
couples to register as domestic partners.2 The right to inherit from
each other under the intestate scheme was granted to domestic
partners in 2003.3 It was not until 2005, with the enactment of the
California Domestic Partner Rights and Responsibilities Act, that
registered domestic partners were granted all the same rights,
duties and benefits as spouses under California law:
Family Code §297.5. Domestic partners; Rights, Benefits,
Duties, Status

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 (a) Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether
they derive from statutes, administrative regulations, court
rules, government policies, common law, or any other
provisions or sources of law, as are granted to and
imposed upon spouses.
The recognition of registered domestic partners and granting
them spousal status did little, however, to stem the same-sex
marriage movement.4

2. Same-Sex Marriage
In 2008, the California Supreme Court ruled that the statutory
language limiting marriage to “a man and a woman” violated the
privacy interests and equal protection rights of same-sex couples
and therefore was unconstitutional. In re Marriage Cases, 76 Cal.
Rptr. 3d 683, 183 P.3d 384 (2008). As a result, California began
issuing marriage licenses to same-sex couples on June 16, 2008.
In November 2008, California voters passed Proposition 8, which
amended the California constitution to provide that “only marriage
between a man and a woman is valid or recognized in
California.”5 The passage of Proposition 8 halted California same-
sex marriages on November 5, 2008. While the California
Supreme Court upheld the constitutionality of Proposition 8 in
2009,6 a subsequent federal district court case ruled the
proposition unconstitutional and directed that the state officials
who were named as defendants, and all persons who were under
their control or supervision, be permanently enjoined from
enforcing Proposition 8.7 When the public officials who were
enjoined declined to appeal the district court's opinion, the district
court permitted Proposition 8's official proponents to intervene
and defend it on appeal. The Ninth Circuit then affirmed the
district court and held that Proposition 8 was unconstitutional. In
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the U.S. Supreme
Court ruled that the petitioners did not have standing to pursue
the appeal, thereby vacating the Ninth Circuit's opinion and
reinstating the district court's opinion invalidating Proposition 8.

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 As a result of the above cases, same-sex marriage was once
again legal in California. Accordingly, the state began issuing
marriage licenses to same-sex couples on June 28, 2013.
Therefore, for intestacy and other statutory purposes, a “spouse”
is a “spouse” is a “spouse”—the distinction as to gender is, for the
most part, irrelevant.8
Same-sex marriages became legal nationwide following the
U.S. Supreme Court's June 26, 2015, decision in Obergefell v.
Hodges, 135 S. Ct. 2584. The Supreme Court held that states'
bans on same-sex marriages were unconstitutional, violating the
Due Process and Equal Protection clauses of the Fourteenth
Amendment.
Even though California, as well as the rest of the nation, now
recognizes same-sex marriages, registered domestic
partnerships still remain a legal option in California. Both
registered domestic partners and same-sex spouses have full
spousal status, including all spousal rights and benefits under the
Probate Code.

C. Putative Spouses
Although the details are best left to the Family Law course,
there are a surprising number of scenarios in which a couple
might truly believe they are married, but for some reason their
marriage is not valid.9 If the marriage is not valid, the couple
technically does not qualify as “spouses” in the true sense of the
term. Nevertheless, the courts—and to a lesser degree the
California legislature—have been moved by the equities of the
situation to grant some benefits to the couple under the “putative
spouse” doctrine:
Family Code §2251. Status of putative spouse; division of
quasi-marital property
(a) If a determination is made that a marriage is void or
voidable and the court finds that either party or both
parties believed in good faith that the marriage was valid,
the court shall:
(1) Declare the party or parties to have the status of a
putative spouse.

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 (2) If the division of property is in issue [for
dissolution/divorce purposes] that property acquired
during the union which would have been community
property or quasi-community property if the union had
not been void or voidable. This property is known as
“quasi-marital property”.
...
Note that the statutory putative spouse provision is limited to
cases where the marriage ends in divorce. Nevertheless, the
courts have extended the putative spouse doctrine to most time-
of-death property transfer issues. In Estate of Leslie, 37 Cal. 3d
186, 689, P.2d 133, 207 Cal. Rptr. 561 (1984), the California
Supreme Court ruled that where there is no competing legal
spouse in the picture, a surviving putative spouse steps into the
shoes of the legal spouse and receives the same legal rights and
benefits of a surviving legal spouse, including the right to inherit
the decedent's quasi-marital property and the right to inherit a
share of the decedent's separate property.

Notes
1. Bigamous putative spouse. The basic putative spouse
scenario for a typical wills and trusts course is simple, consisting
of just one “marriage.” While more complex familial situations
involving “bigamous” fact patterns are best left to a proper
Community Property class, they can generate fascinating life
situations as well as competing intestacy claims.
A “successive bigamous” fact pattern was at play in Estate of
Hafner, 184 Cal. App. 3d 1371, 229 Cal. Rptr. 676 (1986).
Charles married Joan, but the couple later separated (without
divorcing). When Charles subsequently “married” Helen, she had
no idea that he was still married to Joan. When Charles died
intestate, the issue was the characterization of the property
acquired during this second “marriage” with Helen. Helen,
deemed a putative spouse, correctly contended that from her
perspective: (1) the property in question was quasi-marital
property (essentially the same as community property; split 50-50
between the putative spouses); and (2) that as the surviving
“spouse” she was entitled to Charles's one-half share (via

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intestacy), along with her one-half share; or 100% of the property.
Joan, the surviving legal spouse, also correctly asserted that from
her perspective: (1) the property in question was Charles's
separate property (acquired after their separation); and (2) as the
surviving legal “spouse” she and Charles's four children were
entitled to receive intestate shares of one-third and two-thirds,
respectively. With both “camps” claiming 100 percent of the
property and both competitive claims in hopeless conflict, the
court reverted to principles of equity, effectively giving each party
one-half of what would have been their intestacy totals.
In contrast, a “concurrent bigamous” fact pattern was at play in
Estate of Vargas, 36 Cal. App. 3d 714 (1974). Soon after Juan
Vargas died intestate, it was discovered that he had been living a
double life as a father and “husband” in two different families—at
the same time, just 12 miles apart—for a staggering 24 years!
The decedent's intestate property was acquired while “married” to
both “spouses,” with its proper classification as community
property from the perspective of the legal spouse, Mildred, and
quasi-marital property from the perspective of the putative
spouse, Josephine. Both Mildred and Josephine, as legal and
putative spouses, respectively, would have been entitled to their
respective one-half share of the property (community and quasi-
marital property) and, pursuant to intestate succession as the
surviving “spouse,” Juan's one-half share of the property
(community and quasi-marital). From each “spouse's”
perspective, each should end up with 100 percent of the property.
Faced again with competing claims in hopeless conflict, the court
utilized equitable principles and divided the property in equal one-
half shares to each “spouse.”
2. Putative domestic partners. The applicable law for a putative
spouse is not limited to traditional marriage scenarios. Because
California's “domestic partnership” law effectively incorporates, by
reference, all provisions that are applicable to spouses, the
putative spouse doctrines apply equally to domestic partners.
California courts have, accordingly, recognized “putative domestic
partners”—treating them the same as actual domestic partners
who, in turn, are treated the same as spouses. See In re
Domestic Partnership of Ellis, 162 Cal. App. 4th 1000 (Ct. App.
2008).

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D. Cohabitants
What about unmarried cohabitants who know they are not
legally married yet live together and, perhaps, act as if they are
married? Should the law accord spousal benefits to such
individuals—at least time-of-death spousal benefits?
A number of states de facto accord spousal status to such
couples (including the right to inherit) through the common law
marriage doctrine. Common law marriage requires capacity,
agreement, cohabitation, and the parties have to hold themselves
out to the community as husband and wife so that others regard
them as husband and wife.10 California, however, does not
recognize common law marriage.
In Elden v. Sheldon, 46 Cal. 3d 267 (1988), Plaintiff asked the
California Supreme Court to grant spousal status to “de facto
spouses.” Richard Elden and Linda Ebeling shared an “unmarried
cohabitation relationship ... which [he alleged] was both stable
and significant and parallel to a marital relationship.” In 1982, they
were in a serious car accident. Ebeling was thrown from the car
and died a few hours later from her injuries. Elden sued Sheldon,
the driver of the other car, seeking to recover for negligent
infliction of emotional distress, which Elden claimed he suffered
as a result of witnessing the injuries to his “de facto spouse.” Prior
California case law limited standing to invoke the cause of action
to cases where the plaintiff and the injured are “closely related.”
The courts had declined to extend the rule to include “friends or
distant relatives of the injured person.” Elden claimed that
inasmuch as the injured was his “de facto” spouse, he had
standing to recover. Although the issue was whether a cohabitant
qualified as a spouse for purposes of the doctrine of negligent
infliction of emotional distress, the Court's comments speak to the
California courts' view of whether cohabitants qualify as spouses
for inheritance purposes:
We have no quarrel with the factual premise of plaintiff's
position. There can be no doubt that the last two decades
have seen a dramatic increase in the number of couples
who live together without formal marriage,11 that some of
these couples are bound by emotional ties as strong as
those that bind formally married partners, and that they

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may share financial resources and expenses in the same
manner as married couples. It may well be also that the
number of such households has increased to the point that
emotional trauma suffered by a partner in such an
arrangement from injury to his companion cannot be
characterized as “unexpected or remote.” Nevertheless, we
conclude, for the reasons stated below, that an unmarried
cohabitant may not recover damages for emotional distress
based on such injury.
...
There are several policy reasons to justify rejection of
plaintiff's claim that he should be allowed to recover
damages for emotional distress.
First, ... “spouses receive special consideration from the
state, ... Marriage is accorded this degree of dignity in
recognition that ‘[t]he joining of the man and woman in
marriage is at once the most socially productive and
individually fulfilling relationship that one can enjoy in the
course of a lifetime.’ [Citation.] Consonant therewith, the
state is most solicitous of the rights of spouses. [Citation.]
... Unmarried cohabitants receive no similar solicitous
statutory protection, nor should they; such would impede
the state's substantial interest in promoting and protecting
marriage.” (Nieto v. City of Los Angeles (1982) 138
Cal.App.3d 464, 470–471, 188 Cal.Rptr.31).
...
A second basis for our determination is that the allowance
of a cause of action in the circumstances of this case would
impose a difficult burden on the courts. It would require a
court to inquire into the relationship of the partners to
determine whether the “emotional attachments of the family
relationship” existed between the parties (Mobaldi, supra,
55 Cal.App.3d at p. 582, 127 Cal.Rptr. 720), and whether
the relationship was “stable and significant” (Butcher v.
Superior Court (1983) 139 Cal.App.3d 58, 70, 188 Cal.Rptr.
503). Butcher, ... suggested that the stability of a
cohabitation relationship could be established by evidence
of its duration, whether the parties had a contract, the
degree of economic cooperation, the exclusivity of sexual

131
 relationships, and whether the couple had children. In
Norman v. Unemployment Ins. Appeals Board, supra, 34
Cal.3d 1, 8–10, 192 Cal.Rptr. 134, 663 P.2d 904, we
commented on the “difficult problems of proof” involved in
determining whether a relationship is equivalent to a
marriage. Authorities in this state and elsewhere have
rejected the Butcher test as inviting “mischief and
inconsistent results.” ... [citations omitted].
...
We hold that plaintiff failed to state a cause of action for
negligent infliction of emotional distress and that, therefore,
the trial court did not err in sustaining the demurrer to the
second cause of action....

Note
With the extension of spousal status and spousal benefits to
same-sex couples now complete, will the next extension of
spousal status and benefits be to cohabiting couples in long-term,
committed relationships? Opponents to such extension typically
cite to the reasons recited by the Court in Elden: it would be
against public policy, and it would be too difficult administratively
to determine who qualifies as a de facto spouse. Yet California's
interested drafter statute, which voids gifts to an interested
drafter, recognizes an exception for “[a] donative transfer to a
person who is related by blood or affinity [i.e., marriage] ... to the
transferor or is the cohabitant of the transferor.” Cal. Prob. Code
§21380. Furthermore, the California Domestic Violence
Prevention Act defines “domestic abuse” as “abuse perpetrated
against any of the following persons: (a) A spouse or former
spouse. (b) A cohabitant or former cohabitant ....” Cal. Fam. Code
§6211. If cohabitants can be treated the same as spouses for
purposes of these other doctrines, would it really be that difficult
to treat cohabitants as spouses for purposes of the intestacy
scheme? Is recognition of spousal status for cohabitants just a
matter of time?12

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 III. Issue
A. Introduction
Inheritance rights go hand-in-hand with a legally recognized
parent-child relationship. What constitutes a legally recognized
parent-child relationship—and what should constitute a legally
recognized parent-child relationship—is primarily a question for
Family law. There is obviously quite a bit of overlap in this part of
the course between Family law and inheritance rights. An
exhaustive study of the issue should accordingly first examine the
Family law approach to what constitutes a parent-child
relationship, then turn to an exhaustive study of the issue under
the Probate Code, and finally conclude with a detailed
comparison of the two approaches. Unfortunately (or, perhaps,
from a student's perspective, fortunately), time constraints do not
permit such an exhaustive approach. References to Family law
will be minimized, but even with such minimal coverage most
students will see the natural overlap between the two areas of
law.13
The overlap between Family law and the law of inheritance
rights once again highlights the larger issue of whether an
intestate scheme should be based on more of an intent-based
approach or a status-based approach. To what extent should the
Family law basis for a legally recognized parent-child relationship
control what constitutes a parent-child relationship for the purpose
of succession law? Should the law of succession simply defer to
Family law for the answers, or should the Probate Code take its
own approach—and, if so, should it be narrower or broader than
the Family law basis for a legally recognized parent-child
relationship? You should keep these questions in the back of your
mind as you move through the material.
Historically, the general approach to inheritance rights reflected
more of a straight status-based approach. The modern trend has
not been so much to repudiate the status-based approach, but
rather to acknowledge that, increasingly, the American family
comes in different shapes and sizes, and the law should do more

133
to recognize these changes—i.e., the law should recognize
alternative ways of creating a legally recognized parent-child
relationship. Yet, instead of throwing down the gauntlet and taking
more of an intent-based functional approach to who qualifies as
being in a “parent-child” relationship, probate codes are
increasingly recognizing different ways in which a legally
recognized parent-child relationship can arise. In addition,
probate codes are increasingly recognizing different “types” of
families—families with more than two parents for certain
purposes. You should keep this historical backdrop and evolving
modern trend in mind as you study the different California Probate
Code provisions with respect to who qualifies as an issue for
purposes of recognizing inheritance rights between the parties.

B. The “Ideal” Nuclear Family

The Millennium issue of the well-respected magazine THE
ECONOMIST described the “ideal” nuclear family of northwestern
Europe and America as follows: “father at work, mother at home,
the pair married since their early 20s and for life, living only with
their joint children.”14 Putting aside the propriety of normatively
designating such a family as the “ideal nuclear family,” this view of
what constitutes the ideal family has influenced intestate schemes
in these countries as well. The general rule is the moment a child
is born to a married couple, the birth automatically establishes a
legally recognized parent-child relationship between the child and
both parents.15
Historically, once there was a legally recognized parent-child
relationship, inheritance rights automatically attached themselves
to the parties to the relationship. The default set of inheritance
rights grants the child the right to inherit “from and through” each
natural parent, and each natural parent has the right to inherit
“from and through” the child. To appreciate the scope of the
inheritance rights, one has to understand what it means to inherit
“from and through.” For example, if a natural parent were to die
intestate, the child could inherit from the parent; and if thereafter
the child's grandparent on that side of the family were to die (i.e.,
the deceased natural parent's parent), the child could inherit
through the deceased natural parent from the grandparent.

134
Conversely, though not the norm—and not what any parent would
want—the natural parent can inherit from and through the child.
The default set of inheritance rights is a full set of inheritance
rights—from and through—and the presumption is that these
default inheritance rights run in both directions. Although there
are countless other possible “from and through” permutations of
inheritance, real-life usually presents us with only a few.
The legally recognized parent-child relationship, and the
inheritance rights that flow from it, can be diagrammed. The
family can be diagrammed as follows:

The inheritance rights can be diagrammed as arrows flowing in

both directions. The direction of the arrow indicates the direction
the property is flowing (i.e., the party to whom the arrow is pointed
is the heir who has the right to inherit under the intestate
scheme). A “full” arrow indicates full inheritance rights: the right to
inherit from and through. Where the parents are married, a child
has the right to inherit from and through his or her natural parents.

Conversely, where the parents are married, the traditional and

general rule is that each natural parent has the right to inherit
from and through the child.

135
 Both biologically, and legally, the starting point for creating a
parent-child relationship is the contribution of the genetic material.
Under the traditional common law approach, the male who
contributed the sperm qualified as the natural father, and the
female who contributed the egg qualified as the natural mother.16
Where the natural father and the natural mother are married, the
moment the child is born alive a legally recognized parent-child
relationship arises. The moment you have a legally recognized
parent-child relationship, inheritance rights attach themselves to
that relationship.
While the “biological” approach to the parent-child relationship
is the starting point to analyze the parent-child relationship and its
concomitant inheritance rights, it is not the only consideration. A
plethora of other considerations can affect the parties' rights to
inherit from and through each other. Before we are done, you will
see that there are almost a dozen variations on the parent-child
relationship that might give rise to a legally recognized parent-
child relationship and, accordingly, give rise to some form of
inheritance rights.

C. Natural Parents Married

Historically, a key variable in evaluating inheritance rights
based on a parent-child relationship was whether the natural
parents were married when they had the child. Where a couple is
married, a natural presumption arises that the husband is the one
who contributed the sperm—but that is obviously not the only
possibility. If a third party claims that he is the one who
contributed the sperm, who legally should be considered the
natural father: the mother's husband or the party who contributed
the sperm? What constitutes a “qualifying” parent-child

136
relationship is not purely a question of reproductive biology; it is
also a cultural and public policy issue.17
Family Code §7540. Wife's child conclusively presumed
husband's
Except as provided in Section 7541,18 the child of a wife
cohabiting with her husband, who is not impotent or sterile,
is conclusively presumed to be a child of the marriage.
Because of this presumption in Family Code section 7540,
where a child is born to a married couple, a legally recognized
parent-child relationship immediately arises and full inheritance
rights immediately attach to the relationship. The child can inherit
from and through each natural parent, and each natural parent
can inherit from and through the child. Thus, for the parent-child
relationship to arise and for the inheritance rights to attach, none
of the parties has to prove anything other than the birth of the
child.
But what if Family Code section 7540 did not apply? What if the
natural mother is not married at the time of conception and
delivery? Should that affect the child's ability to claim inheritance
rights with either natural parent? Should that affect the scope of
the child's inheritance rights (i.e., should the inheritance rights be
“full” inheritance rights or something different)? Conversely,
should that affect either natural parent's ability to claim
inheritance rights—or the size of the inheritance rights—with
respect to the child?

D. Child Born Out of Wedlock

Legally, should the fact that a child is born out of wedlock affect
the child's ability to inherit from and through his or her natural
parents?
Historically, a child born out of wedlock was frowned upon
legally. At common law, an illegitimate child was treated as the
legal child of no one: “[A]n illegitimate child was filius nullius and
incapable of inheriting from anyone.”19 Many states, in an attempt
to ameliorate the harshness of the common law approach,
adopted statutes that permitted the child to inherit from and

137
through the natural mother, but nevertheless prohibited the child
from inheriting from and through the natural father. As recently as
the 1970s, these statutes were widely adopted and accepted. In
Trimble v. Gordon, however, the U.S. Supreme Court declared
these statutes unconstitutional because they violated the Equal
Protection Clause of the Fourteenth Amendment by invidiously
discriminating on the basis of illegitimacy.20 At the theoretical
level, therefore, the marital status of the natural parents is no
longer a variable in the child's right to inherit from and through his
or her natural parents.
CPC §6450. Parent-child relationship
Subject to the provisions of this chapter, a relationship of
parent and child exists for the purpose of determining
intestate succession by, through, or from a person in the
following circumstances:
(a) The relationship of parent and child exists between a
person and the person's natural parents, regardless of the
marital status of the natural parents.
Although the Supreme Court ruled in Trimble that statutes
denying children born out of wedlock the right to inherit are
unconstitutional, the Court's ruling did not unconditionally grant
children born out of wedlock the right to inherit because states
have the right to adopt rules setting forth what a child must prove
to establish his or her natural parents. Because the married
couple parent-child presumption under Family Code section 7540
does not apply to the child born out of wedlock, the parties must
prove a legally recognized parent-child relationship before
inheritance rights will attach between the parties. In the paradigm
“child born out of wedlock” scenario, it is fairly easy to determine
who is the natural mother, but determining who is the natural
father may not be as straightforward.21 Here, the California
Probate Code defers heavily to the Family Code. California
Probate Code section 6453 provides that a natural parent-child
relationship is established where the relationship is presumed,
and not rebutted, under the Uniform Parentage Act. This
presumption of a natural parent-child relationship can arise a
number of different ways.22 Those different ways, however, are
best left for the Family law course. In addition, for inheritance

138
purposes, a natural parent-child relationship may be established if
a court order declaring paternity was entered during the father's
lifetime (section 6453(b)) or if paternity is established by clear and
convincing evidence following the natural father's death (section
6453(c)). The heightened burden of proof under the latter
provision creates an incentive to bring paternity claims while the
alleged natural father is alive and has a chance to respond to the
claim.
Once the natural parents of a child born out of wedlock have
been established, the child has the right to inherit from and
through each natural parent. Should those inheritance rights be
reciprocal? Once the natural parent-child relationship is
established, should the natural parents have the right to inherit
from and through the out-of-wedlock child, or should the natural
parents have to prove something else as well?

Estate of Griswold
24 P.3d 1191 (Cal. 2001)
BAXTER, J.
...
[On July 12, 1941, in Ashland, Ohio, Betty Jane Morris gave
birth to Denis Howard Morris out-of-wedlock. The birth certificate
identified John Edward Draves of New London, Ohio, as the
father. A week after the birth, Morris filed a “bastardy complaint”23
and swore under oath that Draves was the child's father. Draves
“confessed in Court that the charge ... is true.”] The court
adjudged Draves to be the “reputed father” of the child, and
ordered Draves to pay medical expenses related to Morris's
pregnancy as well as $5 per week for child support and
maintenance. Draves complied, and for 18 years paid the court-
ordered support to the clerk of the Huron County court.
Morris married Fred Griswold in 1942 and moved to California.
She began to refer to her son as “Denis Howard Griswold,” a
name he used for the rest of his life. For many years, Griswold
believed Fred Griswold was his father. At some point in time,
either after his mother and Fred Griswold divorced in 1978 or
after his mother died in 1983, Griswold learned that Draves was

139
listed as his father on his birth certificate. So far as is known,
Griswold made no attempt to contact Draves or other members of
the Draves family.
Meanwhile, at some point after Griswold's birth, Draves married
in Ohio and had two children, Margaret and Daniel. Neither
Draves nor these two children had any communication with
Griswold, and the children did not know of Griswold's existence
until after Griswold's death in 1996. Draves died in 1993. His last
will and testament, dated July 22, 1991, made no mention of
Griswold by name or other reference. Huron County probate
documents identified Draves's surviving spouse and two children
—Margaret and Daniel—as the only heirs.
[Denis H. Griswold died intestate in 1996, survived by his wife,
Norma B. Doner-Griswold. Doner-Griswold petitioned for and
received letters of administration and authority to administer
Griswold's modest estate, consisting entirely of separate property.
In 1998, Doner-Griswold filed a petition for final distribution,
proposing a distribution of estate property, after payment of
attorney's fees and costs, to herself as the surviving spouse and
sole heir. Francis V. See, a self-described “forensic genealogist”
(heir hunter) who had obtained an assignment of partial interest in
the Griswold estate from Margaret Loera and Daniel Draves,24
objected to the petition for final distribution and filed a petition to
determine entitlement to distribution.
...
Section 6452 of the Probate Code25 (all statutory references
are to this code unless otherwise indicated) bars a “natural
parent” or a relative of that parent from inheriting through a child
born out of wedlock on the basis of the parent and child
relationship unless the parent or relative “acknowledged the child”
and “contributed to the support or the care of the child.” In this
case, we must determine whether section 6452 precludes the half
siblings of a child born out of wedlock from sharing in the child's
intestate estate where the record is undisputed that their father
appeared in an Ohio court, admitted paternity of the child, and
paid court-ordered child support until the child was 18 years old.
Although the father and the out-of-wedlock child apparently never
met or communicated, and the half siblings did not learn of the

140
child's existence until after both the child and the father died,
there is no indication that the father ever denied paternity or
knowledge of the out-of-wedlock child to persons who were aware
of the circumstances.]26
...
It is undisputed here that section 6452 governs the
determination whether Margaret, Daniel, and See (by
assignment) are entitled to inherit from Griswold. It is also
uncontroverted that Draves contributed court-ordered child
support for 18 years, thus satisfying subdivision (b) of section
6452 [the requirement that the natural parent or relative of that
parent contribute to the support or care of the child]. At issue,
however, is whether the record establishes all the remaining
requirements of section 6452 as a matter of law.... [D]id Draves
acknowledge Griswold within the meaning of section 6452,
subdivision (a)? ...
...
... On review, we must determine whether Draves
acknowledged Griswold within the contemplation of the statute by
confessing to paternity in court, where the record reflects no other
acts of acknowledgement, but no disavowals either.
...
Although no statutory definition appears, the common meaning
of “acknowledge” is “to admit to be true or as stated; confess.”
(Webster's New World Dict. (2d ed.1982) p. 12; see Webster's 3d
New Internat. Dict. (1981) p. 17 [“to show by word or act that one
has knowledge of and agrees to (a fact or truth) ... [or] concede to
be real or true ... [or] admit”].) Were we to ascribe this common
meaning to the statutory language, there could be no doubt that
section 6452's acknowledgement requirement is met here. As the
stipulated record reflects, Griswold's natural mother initiated a
bastardy proceeding in the Ohio juvenile court in 1941 in which
she alleged that Draves was the child's father. Draves appeared
in that proceeding and publicly “confessed” that the allegation
was true. There is no evidence indicating that Draves did not
confess knowingly and voluntarily, or that he later denied paternity
or knowledge of Griswold to those who were aware of the

141
circumstances. Although the record establishes that Draves did
not speak of Griswold to Margaret and Daniel, there is no
evidence suggesting he sought to actively conceal the facts from
them or anyone else. Under the plain terms of section 6452, the
only sustainable conclusion on this record is that Draves
acknowledged Griswold.
...
Doner-Griswold disputes whether the acknowledgement
required by Probate Code section 6452 may be met by a father's
single act of acknowledging a child in court. In her view, the
requirement contemplates a situation where the father establishes
an ongoing parental relationship with the child or otherwise
acknowledges the child's existence to his subsequent wife and
children....
...
Doner-Griswold's authorities do not persuade us that section
6452 should be read to require that a father have personal
contact with his out-of-wedlock child, that he make purchases for
the child, that he receive the child into his home and other family,
or that he treat the child as he does his other children....
...
DISPOSITION
“‘Succession to estates is purely a matter of statutory
regulation, which cannot be changed by the courts.’” (Estate of
De Cigaran, supra, 150 Cal. at p. 688, 89 P. 833.) We do not
disagree that a natural parent who does no more than openly
acknowledge a child in court and pay court-ordered child support
may not reflect a particularly worthy predicate for inheritance by
that parent's issue, but section 6452 provides in unmistakable
language that it shall be so. While the Legislature remains free to
reconsider the matter and may choose to change the rules of
succession at any time, this court will not do so under the
pretense of interpretation.
The judgment of the Court of Appeal is affirmed.
Concurring Opinion by BROWN, J.

142
 I reluctantly concur. The relevant case law strongly suggests
that a father who admits paternity in court with no subsequent
disclaimers “acknowledge[s] the child” within the meaning of
subdivision (a) of Probate Code section 6452. Moreover, neither
the statutory language nor the legislative history supports an
alternative interpretation. Accordingly, we must affirm the
judgment of the Court of Appeal.
Nonetheless, I believe our holding today contravenes the
overarching purpose behind our laws of intestate succession—to
carry out “the intent a decedent without a will is most likely to
have had.” (16 Cal. Law Revision Com. Rep. (1982) p. 2319.) I
doubt most children born out of wedlock would have wanted to
bequeath a share of their estate to a “father” who never contacted
them, never mentioned their existence to his family and friends,
and only paid court-ordered child support. I doubt even more that
these children would have wanted to bequeath a share of their
estate to that father's other offspring. Finally, I have no doubt that
most, if not all, children born out of wedlock would have balked at
bequeathing a share of their estate to a “forensic genealogist.”
To avoid such a dubious outcome in the future, I believe our
laws of intestate succession should allow a parent to inherit from
a child born out of wedlock only if the parent has some sort of
parental connection to that child. For example, requiring a parent
to treat a child born out of wedlock as the parent's own before the
parent may inherit from that child would prevent today's outcome.
(See, e.g., Bullock v. Thomas (Miss.1995) 659 So.2d 574, 577 [a
father must “openly treat” a child born out of wedlock “as his own”
in order to inherit from that child].) More importantly, such a
requirement would comport with the stated purpose behind our
laws of succession because that child likely would have wanted to
give a share of his estate to a parent that treated him as the
parent's own.
Of course, this court may not remedy this apparent defect in
our intestate succession statutes. Only the Legislature may make
the appropriate revisions. I urge it to do so here.
—————

Notes

143
 1. Epilogue: Based on the statutory language and the Court's
construction and application of it, did the Court take a status-
based approach or an intent-based approach to who qualifies as
an heir? Although the California legislature did not revisit Probate
Code section 6452 immediately following the Griswold opinion, it
finally did so in 2013. Did the legislature respond to the Court's
request? Would the Griswold case come out the same way
today?
CPC §6452. Conditions barring a parent from inheriting from
or through a child
(a) A parent does not inherit from or through a child on the
basis of the parent and child relationship if any of the
following apply:
(1) The parent's parental rights were terminated and the
parent-child relationship was not judicially
reestablished.
(2) The parent did not acknowledge the child.
(3) The parent left the child during the child's minority
without an effort to provide for the child's support or
without communication from the parent, for at least
seven consecutive years that continued until the end of
the child's minority, with the intent on the part of the
parent to abandon the child. The failure to provide
support or to communicate for the prescribed period is
presumptive evidence of an intent to abandon.
(b) A parent who does not inherit from or through the child as
provided in subdivision (a) shall be deemed to have
predeceased the child, and the intestate estate shall pass
as otherwise required under Section 6402.
2. Analyzing the statutory language: Compare the scope of the
“old” Probate Code section 6452 and the current Probate Code
section 6452. Is the new provision broader or narrower in scope?
Does it make it harder or easier for a court to bar a natural parent
from inheriting from his or her child?
3. Statutory conditions for legally recognized parent-child
relationship: In the “ideal” nuclear family paradigm scenario, a
parent-child relationship with full inheritance rights in both

144
directions automatically attaches to the parties the moment the
child is born. Every other legally recognized parent-child
relationship in California is a variation of that scenario. In each of
the other scenarios, however, the California statutory provision
that applies requires that some additional condition(s) be proved
before the law recognizes a parent-child relationship for
inheritance purposes.27 In each of the additional scenarios, read
the Probate Code section(s) in question carefully to see if you can
identify the additional requirement(s) that must be established.

E. Adoption
The general effect of a legal adoption is that it severs the
parent-child relationship between the child and his or her natural
parents. “The birth parents of an adopted child are, from the time
of the adoption, relieved of all parental duties towards, and all
responsibility for, the adopted child, and have no right over the
child.” Cal. Fam. Code §8617. To the extent a legal adoption
severs the parent-child relationship between the child and his or
her natural parents, should adoption also sever the child's
relationship with his or her natural parents for inheritance
purposes under the Probate Code?
CPC §6450. Parent-child relationship; inheritance rights
Subject to the provisions of this chapter, a relationship of
parent and child exists for the purpose of determining
intestate succession by, through, or from a person in the
following circumstances:
...
(b) The relationship of parent and child exists between an
adopted person and the person's adopting parent or
parents.
CPC §6451. Adoption
(a) An adoption severs the relationship of parent and child
between an adopted person and a natural parent of the
adopted person unless both of the following requirements
are satisfied:

145
 (1) The natural parent and the adopted person lived
together at any time as parent and child,....
(2) The adoption was by the spouse of either of the
natural parents or after the death of either of the natural
parents.
(b) Neither a natural parent nor a relative of a natural parent,
... inherits from or through the adopted person on the
basis of a parent and child relationship between the
adopted person and the natural parent that satisfies the
requirements of paragraphs (1) and (2) of subdivision (a),
unless the adoption is by the spouse or surviving spouse
of that parent.
LAW REVISION COMMISSION COMMENT
In case of an adoption coming within subdivision (a), the
adopted child may inherit from or through the adoptive
parent, and also from or through the natural parent who gave
up the child for adoption or through the natural parent who
died preceding the adoption. The following examples
indicate in various situations whether an adopted child or the
issue of an adopted child may inherit from or through the
child's natural parent.
Example 1. Child never lived with either mother or father.
Both parents relinquish child for adoption. The adopted
child's relationship with both natural parents' families is
severed. The requirements of subdivision (a)(1) are not
satisfied.
Example 2. Child's mother and father were married or
lived together as a family. Child lives with mother and father.
Father dies. Mother relinquishes child for adoption. For the
purpose of inheritance, the adopted child remains a member
of both the deceased father's family and of the relinquishing
mother's family. The requirement of subdivision (a) is
satisfied because the adoption was “after the death of either
of the natural parents.”
...
Under subdivision (a), a non-stepparent adoption severs
the relationship between the adopted person and his or her

146
 natural “parent.” Thus, for example, if a person is adopted by
only one adopting parent, that severs the parent-child
relationship between the adopted person and his or her
natural parent of the same gender as the adopting parent.
The parent-child relationship continues to exist between the
adopted person and his or her other natural parent.
In case of an adoption described in subdivision (b), the
natural relatives cannot inherit from the adopted child, even
though under Section 6450(a) the child could inherit from the
natural relatives.

Estate of Dye
92 Cal. App. 4th 966 (2001)
MORRISON, J.
This case illustrates the danger of using preprinted wills.
Decedent Haskell J. Dye had two natural sons who were adopted
away (with his consent) by his first wife's new husband (Arthur
Battles) in 1959. Under the law at that time, this cut off their right
to inherit from him. The law was changed, effective 1985, to
permit some adopted-out children to inherit from their natural
parents. In 1989 decedent and his second wife Eleanor signed
reciprocal form wills, leaving their property to each other. Eleanor
died in January, 1999. Decedent died on June 17, 1999.
Scott Dye, Eleanor's son who had been adopted by decedent,
petitioned to probate decedent's estate. Phillip Joe Battles, one of
decedent's adopted away natural sons, and some of the issue of
the deceased adopted away son (Jimmie Dean Battles) filed an
objection, seeking to share in decedent's estate....
DISCUSSION
I.
...
Adoption creates a legal relationship of parent and child, which
“implies that the natural relationship between the child and its
parents by blood is superseded. The duties of a child cannot be
owed to two fathers at the same time.” (Estate of Jobson (1912)
164 Cal. 312, 316–317, 128 P. 938.) The California Supreme

147
Court reasoned, “From the time of the adoption, the adopting
parent is, so far as concerns all legal rights and duties flowing
from the relation of parent and child, the parent of the adopted
child. From the same moment, the parent by blood ceases to be,
in a legal sense, the parent. His place has been taken by the
adopting parent.” (Id. at p. 317, 128 P. 938.)
...
For our purposes, it suffices to begin with former section 257 as
it read in 1959, after a 1955 amendment: “An adopted child shall
be deemed a descendant of one who has adopted him, the same
as a natural child, for all purposes of succession by, from or
through the adopting parent the same as a natural parent. An
adopted child does not succeed to the estate of a natural parent
when the relationship between them has been severed by
adoption, nor does such natural parent succeed to the estate of
such adopted child.” (Stats.1955, ch. 1478, §1, p. 2690.) This
legislation provided that the adopted child had rights of
inheritance in and only in the estate of the adoptive parents....
The parties agree that when decedent's sons were adopted by
their mother's new husband, this statute cut off their rights to
inherit under the intestacy laws at that time. (See Estate of Hart
(1984) 165 Cal.App.3d 392, 394, fn. 1, 209 Cal.Rptr. 272.)
This rule was changed by a new statute, effective January 1,
1985, which has gone through various amendments. (Former
§6408 Stats.1983, ch. 842, §§19, 55, pp. 3024, 3083.) In 1993
the language of the present section 6451 was adopted.
(Stats.1993, ch. 529, §5, p. 2715.) Now an adoption severs the
blood relationship “unless both of the following requirements are
satisfied: [¶] (1) The natural parent and the adopted person lived
together at any time as parent and child[.][¶] (2) The adoption was
by the spouse of either of the natural parents[.]” (§6451, subd.
(a).) California is not alone in providing by statute for adopted-out
children to inherit from their natural parents when the adoption
was by a stepparent. (See, e.g., Raley v. Spikes (Ala.1993) 614
So.2d 1017; Estate of Carlson (Minn.App. 1990) 457 N.W.2d
789.)
Before Jimmie Dean and Phillip Joe were adopted out,
decedent lived with them, and their adoption was by the new

148
husband of their mother, decedent's former wife. They satisfy the
new exception to the statute.
In 1989, after the change in the law, decedent and Eleanor
wrote their wills. Eleanor died in 1999, leaving her property to
decedent. He died later in 1999, leaving everything to Eleanor....
Where, as here, the decedent has no surviving spouse, the
estate passes “To the issue of the decedent, the issue taking
equally if they are all of the same degree of kinship to the
decedent, but if of unequal degree those of more remote degree
take in the manner provided in Section 240.” (§6402, subd. (a).)
...
...
II.
Scott asserts in his brief that decedent and Eleanor did not
consult a lawyer and thought he was their only lawful heir, and
that decedent never intended to benefit objectors, “some of whom
he never even met.” Scott urges the case should be remanded so
he can introduce evidence to establish decedent's intention
regarding the adopted-out children.
A.
Assuming Scott accurately sets forth decedent's wishes,
decedent could have expressed such intention by inserting into
the will “I disinherit Phillip Joe and Jimmie Dean,” or he could
have given them each “one dollar.” On Eleanor's death he could
have written a new will or a codicil naming Scott as sole
beneficiary. Decedent did none of these things.
Accordingly, like any other case of intestacy, the courts must
apply the default provisions of the intestacy rules set forth by the
Legislature. It is presumed citizens know the law, including the
intestacy laws, and it is up to any person who does not want
those laws applied to his or her estate to opt out by preparing a
will setting forth other dispositions. Decedent did not so provide
and therefore is presumed to endorse application of the default
intestacy laws. This accords with the general rule that the law
governing a will is measured as of the date of death, under the

149
fiction that until then, the decedent is presumed to know the law
and has the power to change his will....
Here, both the drafting of the will and death occurred after the
critical revision to the probate laws.
...
Accordingly, we presume decedent was aware of the state of
the law in 1989 and understood the possibility all of his natural
children would share in his estate. If he wanted to change this
result, he could easily have inserted a provision in his will to
disinherit any or all of his natural children. He did not....
3.
Scott concludes in part: “It would be a manifest injustice if
Haskell's estate were distributed in any part to the Battles when
he truly intended the exact opposite.” The intestacy laws by their
nature will defeat many “true” intentions. Decedent could have
prevented such “injustice,” if any, by making a new will, or by
including in the first will language stating his wishes if Eleanor
died first. The objectors have not caused an injustice by invoking
applicable law.
DISPOSITION
The order granting the heirship petition is affirmed.
—————

Notes and Problems

1. Intent versus status: Based on the court's ruling in Estate of
Dye, would you say inheritance rights following adoption are
based on intent or status? What is the logic behind permitting the
“new” statutory exceptions to the traditional rule that adoption
completely severs all inheritance rights between the child and the
natural parents?
2. Negative disinheritance: The court stated that if Haskell
wanted to disinherit an heir (i.e., bar the heir from taking what he
or she otherwise would receive under the laws of succession), all
the decedent had to do was expressly state as much in his will.
Would that have been enough to disinherit the heir?

150
 The traditional and general rule was that an heir could be
disinherited only if the decedent affirmatively gave away all of his
or her probate property so that none of it fell into probate. Any
property that fell into intestacy was disposed of pursuant to the
terms of the statutory intestate scheme.
The modern trend favors an intent-based approach to
disinheritance. The Uniform Probate Code expressly permits
negative disinheritance: “A decedent by will may expressly
exclude or limit the right of an individual or class to succeed to
property of the decedent passing by intestate succession.” UPC
§2-101. California has not expressly adopted such statutory
language, and while some California courts have expressed, in
dicta, an openness to negative disinheritance consistent with the
modern trend intent-based approach, other courts and
commentators believe California still follows the traditional
approach. There are no recent opinions on point.
3. Visualizing the inheritance rights: How would you diagram
the inheritance rights under CPC section 6451, indicating for each
of the following scenarios: (a) who can inherit from whom? (b) do
the inheritance rights flow in both directions or only one direction?
and (c) what, if anything, has to be proved for the inheritance
rights to attach to the parties? (Try to diagram the scenario and
diagram the inheritance rights.)

a. Pete and Gerri are married and have raised four children. To
their surprise, after one particularly passionate night, Gerri
learns she is pregnant. They decide to put the child up for
adoption. Henry and Wanda, a young couple looking to start a
family, adopt the child. Following the adoption, who can
inherit from and through whom?
b. Pete and Gerri are married. They have one child, Cici.
Tragically, Pete and Gerri are killed in a plane crash. Henry
and Wanda, a young couple looking to start a family, adopt
Cici. Following the adoption, who can inherit from and
through whom? What if only Gerri was killed in the plane
crash, but Pete decided raising a child as a single parent was
too much for him, so he put the child up for adoption and
Henry and Wanda adopted Cici? Would the result be any
different?

151
 c. Pete and Gerri are married. They have one child, Cici. Gerri
discovers that Pete is having an affair with Lulu, and she
divorces him. Thereafter Gerri marries Bob, and Bob adopts
Cici. Following the adoption, who can inherit from and
through whom?
d. Pete and Gerri are married. They have one child, Cici. Gerri
discovers that Pete is having an affair with Lulu, and she
divorces him. Thereafter Gerri moves in with Bob, but while
they do not marry, Bob adopts Cici. Following the adoption,
who can inherit from and through whom?

4. Same-sex couples: Would any of the four scenarios above

be analyzed differently if either the natural or adopting parent(s)
were same-sex parties?
5. Stepparent versus step-partner: Is the difference in
inheritance rights between the stepparent adoption scenario and
the step-partner adoption scenario defensible? Is it simply a
variation of the discrimination that once existed against
illegitimate children? See Peter Wendel, Inheritance Rights and
The Step-Partner Adoption Paradigm: Shades of the
Discrimination against Illegitimate Children, 34 HOFSTRA L. REV.
351 (Winter 2005).

F. Intent to Adopt
1. Equitable Adoption
For the most part, there are two ways to have a legally
recognized parent-child relationship, either naturally, based on
biology (who contributed the sperm or egg), or legally, based on
adoption. A majority of jurisdictions, however, also use the
doctrine of equitable adoption to recognize a parent-child
relationship where the parties intended to adopt but failed to do
so. Unlike most probate doctrines, it is not statutory but rather
judicial in nature. That is also the case in California. Yet because
the doctrine is judicial in nature, the exact scope and
requirements of the doctrine are not as well defined and accepted
as those based on statute.
The doctrine of equitable adoption suffers from something of an
identity crisis. Conceptually, as its name implies, the doctrine has

152
one leg firmly planted in equity. The doctrine is an outgrowth of
the equitable maxim: “[E]quity regards as done that which ought
to be done.” It applies where, even though there was no legal
adoption, the child ought to be considered adopted. But when
should that be the case? Doctrinally, the other leg is firmly planted
in contract law. Traditionally, the party invoking the doctrine must
prove that the elements of a contract to adopt were performed by
all parties except the decedent (who for whatever reason failed to
follow through and properly adopt the child), and that the
decedent died intestate. The remedy for this breach of contract
entitles the child to his or her intestate share of the decedent's
estate.
The doctrine's identity crisis is reflected in the court's opinion—
and the dissent—in O'Neal v. Wilkes, 263 Ga. 850, 439 S.E.2d
490 (1994). Hattie O'Neal was born in 1949. She was born out of
wedlock. She did not meet her natural father until she was 21
years old. Her natural mother raised her until she was eight years
old, at which time her mother died. Thereafter, Hattie was passed
around among several friends and family members until one day
she landed in the custody of Estelle Page, her natural father's
sister. Estelle heard that Roswell Cook and his wife wanted to
adopt a child. The Cooks and Estelle met to discuss the situation,
the Cooks agreed to adopt Hattie, and Estelle gave Hattie to the
Cooks. They raised her as their own. Roswell often referred to her
as his daughter and to her children as his grandchildren, but the
Cooks never legally adopted her. Roswell died intestate in 1991.
Hattie claimed his estate as his daughter under equitable
adoption.
The Georgia Supreme Court applied the traditional approach to
the doctrine. The Court's statement of the requirements reflects
the contracts-based approach:
Some showing of an agreement between the natural and
adoptive parents, performance by the natural parents of the
child in giving up custody, performance by the child by
living in the home of the adoptive parents, partial
performance by the foster parents in taking the child into
the home and treating [it] as their child, and ... the intestacy
of the foster parent.28

153
The Court emphasized that the agreement to adopt had to be
between parties who were “competent to contract for the
disposition of the child.”29 The Court noted that although Estelle
had physical custody of Hattie at the time the Cooks took her,
Estelle was not her legal custodian. As such, Estelle lacked legal
authority to enter into an adoption agreement. The Court ruled the
equitable adoption claim failed.
The dissent, authored by Justice Sears-Collins, criticized the
majority opinion on two principal grounds. First, she accused the
majority of misinterpreting and misapplying the doctrine. She
emphasized the doctrine's equitable side and argued that failing
to applying the doctrine due to a legal technicality over who had
authority to enter into the agreement made no sense. But Justice
Sears-Collins did not stop there. She argued that at the doctrinal
level the rule should reflect more of its equitable side. She argued
for more of an estoppel-based approach to the doctrine: the
doctrine should apply anytime a child was led to believe that he or
she was adopted. Although Justice Sears-Collins lost in the
Georgia Supreme Court that day, she arguably won in the court of
academic opinion. Quite a few law review articles were written
criticizing the majority's opinion and supporting Justice Sears-
Collins's opinion.
A decade later the issue presented itself to the California
Supreme Court in Estate of Ford.

Estate of Ford
82 P.3d 747 (Cal. 2004)
WERDEGAR, J.
Terrold Bean claims the right to inherit the intestate estate of
Arthur Patrick Ford as Ford's equitably adopted son....
1. FACTUAL AND PROCEDURAL BACKGROUND
Born in 1953, Bean was declared a ward of the court and
placed in the home of Ford and his wife, Kathleen Ford, as a
foster child in 1955. Bean never knew his natural father, whose
identity is uncertain, and he was declared free of his mother's
control in 1958, at the age of four. Bean lived continuously with
Mr. and Mrs. Ford and their natural daughter, Mary Catherine, for

154
about 18 years, until Mrs. Ford's death in 1973, then with Ford
and Mary Catherine for another two years, until 1975.
During part of the time Bean lived with the Fords, they cared for
other foster children and received a county stipend for doing so.
Although the Fords stopped taking in foster children after Mrs.
Ford became ill with cancer, they retained custody of Bean. The
last two other foster children left the home around the time of Mrs.
Ford's death, but Bean, who at 18 years of age could have left,
stayed with Ford and Mary Catherine.
Bean knew the Fords were not his natural parents, but as a
child he called them “Mommy” and “Daddy,” and later “Mom” and
“Dad.” Joan Malpassi, Mary Catherine's friend since childhood
and later administrator of Ford's estate, testified that Bean's
relationship with Mary Catherine was “as two siblings” and that
the Fords treated Bean “more like Mary rather than a foster son,
like a real son was my observation.” Mary Catherine later listed
Bean as her brother on a life insurance application.
Bean remained involved with Ford and Mary Catherine even
after leaving the Ford home and marrying....
The Fords never petitioned to adopt Bean. Mrs. Ford told
Barbara Carter, a family friend, that “they wanted to adopt Terry,”
but she was “under the impression that she could not put in for
adoption while he was in the home.” She worried that if Bean was
removed during the adoption process he might be put in “a foster
home that wasn't safe.”
Ford's nearest relatives at the time of his death were the two
children of his predeceased brother, nephew John J. Ford III and
niece Veronica Newbeck. Neither had had any contact with Ford
for about 15 years before his death, and neither attended his
funeral....
After trial, the superior court ruled against Bean.... The doctrine
of equitable adoption, the trial court found, was inapplicable
because “there is no evidence that [Ford] ever told [Bean] or
anyone else that he wanted to adopt him nor publicly told anyone
that [Bean] was his adopted son.” There was thus no clear and
convincing evidence of “an intent to adopt.”

155
 Bean appealed ... The Court of Appeal affirmed, agreeing with
the trial court that equitable adoption must be proven by clear and
convincing evidence....
We granted Bean's petition for review.
DISCUSSION
... We ... look to decisional law, rather than statute, for guidance
on the equitable adoption doctrine's proper scope and application.
I. Criteria for Equitable Adoption
In its essence, the doctrine of equitable adoption allows a
person who was accepted and treated as a natural or adopted
child, and as to whom adoption typically was promised or
contemplated but never performed, to share in inheritance of the
foster parents' property. “The parents of a child turn him over to
foster parents who agree to care for him as if he were their own
child. Perhaps they also agree to adopt him. They do care for
him, support him, educate him, and treat him in all respects as if
he were their child, but they never adopt him. Upon their death he
seeks to inherit their property on the theory that he should be
treated as if he had been adopted. Many courts would honor his
claim, at least under some circumstances, characterizing the case
as one of equitable adoption, or adoption by estoppel, or virtual
adoption, or specific enforcement of a contract to adopt.” (Clark,
The Law of Domestic Relations in the United States (2d ed.1988)
§20.9, p. 925.) The doctrine is widely applied to allow inheritance
from the adoptive parent: at least 27 jurisdictions have so applied
the doctrine, while only 10 have declined to recognize it in that
context. (Annot., Modern Status of Law as to Equitable Adoption
or Adoption by Estoppel (1980) 97 A.L.R.3d 347, §3.) ...
In Estate of Bauer (1980) 111 Cal.App.3d 554, 168 Cal.Rptr.
743, an inheritance tax case, the court ... aptly summarized the
doctrine as it had developed in California: “[E]quitable adoption
requires some form of agreement to adopt, coupled with
subsequent objective conduct indicating mutual recognition of an
adoptive parent and child relationship to such an extent that in
equity and good conscience an adoption should be deemed to
have taken place.” (Id. at p. 560, 168 Cal.Rptr. 743.)

156
 In Mingo v. Heckler (9th Cir.1984) 745 F.2d 537, the federal
court expanded on Bauer's agreement-plus-conduct analysis,
distilling from the California decisions factors tending to show
mutual recognition of a parent and child relationship: “[T]he
adoptee lived with the adoptive parent for a number of years; the
adoptee assumed the adoptive parent's surname; the adoptive
parent told the adoptee that he or she was adopted; the adoptive
parent publicly acknowledged the adoptee as his or her child; the
adoptee considered and conducted himself or herself as a natural
child; the adoptee worked or performed services for the adoptive
parent; and the adoptive parent attempted legally to adopt or
obtained guardianship papers for the child. Because the factors
are merely examples of the type of conduct demonstrating an
adoptive parent and child relationship, the claimant need not
demonstrate that she satisfies every factor.” (Id. at p. 539.) ...
As reflected in this summary, California decisions have
explained equitable adoption as the specific enforcement of a
contract to adopt. Yet it has long been clear that the doctrine,
even in California, rested less on ordinary rules of contract law
than on considerations of fairness and intent for, as Justice
Schauer put it, the child “should have been” adopted and would
have been but for the decedent's “inadvertence or fault.” ...
Bean urges that equitable adoption be viewed not as specific
enforcement of a contract to adopt, but as application of an
equitable, restitutionary remedy he has identified as quasi-
contract or, as his counsel emphasized at oral argument, as an
application of equitable estoppel principles. While we have found
no decisions articulating a quasi-contract theory, courts in several
states have, instead of or in addition to the contract rationale,
analyzed equitable adoption as arising from “a broader and
vaguer equitable principle of estoppel.” (Clark, The Law of
Domestic Relations in the United States, supra, at p. 926.) Bean
argues Mr. Ford's conduct toward him during their long and close
relationship estops Ford's estate or heirs at law from denying his
status as an equitably adopted child.
For several reasons, we conclude the California law of
equitable adoption, which has rested on contract principles, does
not recognize an estoppel arising merely from the existence of a
familial relationship between the decedent and the claimant. The

157
law of intestate succession is intended to carry out “‘the intent a
decedent without a will is most likely to have had.’” (Estate of
Griswold (2001) 25 Cal.4th 904, 912, 108 Cal.Rptr.2d 165, 24
P.3d 1191.) The existence of a mutually affectionate relationship,
without any direct expression by the decedent of an intent to
adopt the child or to have him or her treated as a legally adopted
child, sheds little light on the decedent's likely intent regarding
distribution of property. While a person with whom the decedent
had a close, caring and enduring relationship may often be seen
as more deserving of inheritance than the heir or heirs at law,
whose personal relationships with the decedent may have been,
as they were here, attenuated, equitable adoption in California is
neither a means of compensating the child for services rendered
to the parent nor a device to avoid the unjust enrichment of other,
more distant relatives who will succeed to the estate under the
intestacy statutes. Absent proof of an intent to adopt, we must
follow the statutory law of intestate succession.
In addition, a rule looking to the parties' overall relationship in
order to do equity in a given case, rather than to particular
expressions of intent to adopt, would necessarily be a vague and
subjective one, inconsistently applied, in an area of law where
“consistent, bright-line rules” (Estate of Furia, supra, 103
Cal.App.4th at p. 6, 126 Cal.Rptr.2d 384) are greatly needed.
Such a broad scope for equitable adoption would leave open to
competing claims the estate of any foster parent or stepparent
who treats a foster child or stepchild lovingly and on an equal
basis with his or her natural or legally adopted children....
While a California equitable adoption claimant need not prove
all the elements of an enforceable contract to adopt, therefore, we
conclude the claimant must demonstrate the existence of some
direct expression, on the decedent's part, of an intent to adopt the
claimant. This intent may be shown, of course, by proof of an
unperformed express agreement or promise to adopt. But it may
also be demonstrated by proof of other acts or statements directly
showing that the decedent intended the child to be, or to be
treated as, a legally adopted child, such as an invalid or
unconsummated attempt to adopt, the decedent's statement of
his or her intent to adopt the child, or the decedent's
representation to the claimant or to the community at large that

158
the claimant was the decedent's natural or legally adopted child.
(See, e.g., Estate of Rivolo, supra, 194 Cal.App.2d at p. 775, 15
Cal.Rptr. 268 [parents who orally promised child she would “be
their little girl” later told her and others they had adopted her];
Estate of Wilson, supra, 111 Cal.App.3d at p. 248, 168 Cal.Rptr.
533 [petition to adopt filed but dismissed for lack of natural
mother's consent]; Estate of Reid (1978) 80 Cal.App.3d 185, 188,
145 Cal.Rptr. 451 [written agreement with adult child].)
Thus, in California the doctrine of equitable adoption is a
relatively narrow one, applying only to those who “‘“though having
filled the place of a natural born child, through inadvertence or
fault [have] not been legally adopted,”’ [where] the evidence
establishes an intent to adopt.” (Estate of Furia, supra, 103
Cal.App.4th at p. 5, 126 Cal.Rptr.2d 384, italics added.) In
addition to a statement or act by the decedent unequivocally
evincing the decedent's intent to adopt, the claimant must show
the decedent acted consistently with that intent by forming with
the claimant a close and enduring familial relationship.30 That is,
in addition to a contract or other direct evidence of the intent to
adopt, the evidence must show “objective conduct indicating
mutual recognition of an adoptive parent and child relationship to
such an extent that in equity and good conscience an adoption
should be deemed to have taken place.” (Estate of Bauer, supra,
111 Cal.App.3d at p. 560, 168 Cal.Rptr. 743.)
II. Standard of Proof of Equitable Adoption
Bean also contends the lower courts erred in applying a
standard of clear and convincing proof to the equitable adoption
question. We disagree. Most courts that have considered the
question require at least clear and convincing evidence in order to
prove an equitable adoption. (See Clark, The Law of Domestic
Relations in the United States, supra, at p. 927; Rein, supra, 37
Vand. L.Rev. at p. 780.) Several good reasons support the rule.
First, the claimant in an equitable adoption case is seeking
inheritance outside the ordinary statutory course of intestate
succession and without the formalities required by the adoption
statutes....
Second, the claim involves a relationship with persons who
have died and who can, therefore, no longer testify to their intent.

159
As with an alleged contract to make a will (see Crail v. Blakely
(1973) 8 Cal.3d 744, 750, fn. 3, 106 Cal.Rptr. 187, 505 P.2d
1027), the law, in order to guard against fraudulent claims, should
require more than a bare preponderance of evidence. Where “the
lips of the alleged adopter have been sealed by death ... proof of
the facts essential to invoke the intervention of equity should be
clear, unequivocal and convincing.” (Cavanaugh v. Davis (1951)
149 Tex. 573, 235 S.W.2d 972, 978.)
Finally, too relaxed a standard could create the danger that “a
person could not help out a needy child without having a de facto
adoption foisted upon him after death.” (Rein, supra, 37 Vand.
L.Rev. at p. 782.) ...
CONCLUSION
Although the evidence showed the Fords and Bean enjoyed a
close and enduring familial relationship, evidence was totally
lacking that the Fords ever made an attempt to adopt Bean or
promised or stated their intent to do so; they neither held Bean
out to the world as their natural or adopted child (Bean, for
example, did not take the Ford name) nor represented to Bean
that he was their child. Mrs. Ford's single statement to Barbara
Carter was not clear and convincing evidence that Mr. Ford
intended Bean to be, or be treated as, his adopted son.
Substantial evidence thus supported the trial court, which heard
the testimony live and could best assess its credibility and
strength, in its finding that intent to adopt, and therefore Bean's
claim of equitable adoption, was unproven.
DISPOSITION
The judgment of the Court of Appeal is affirmed.
—————

Notes
1. The California approach: Did the California Supreme Court
follow the recommendations of the academic community and
adopt Justice Sears-Collins's equitable estoppel-based approach
to equitable adoption, or did the Court follow the lead of the
Georgia Supreme Court? How would the O'Neal case come out
under the California approach?

160
 2. Inheritance rights: Assuming, arguendo, one meets the
requirements for equitable adoption, equitable adoption does not
establish a full parent-child relationship. The equitably adopted
party is entitled to inherit only from, but not through, the equitably
adoptive parent (except, in many jurisdictions, from a full-blooded
sibling). To the extent the child is generally limited to inheriting
from the equitably adoptive parent, does the doctrine actually
establish a parent-child relationship or is the remedy more
consistent with damages for a breach of contract claim?
3. Visualizing the inheritance rights: How would you diagram
inheritance rights under the California Probate Code with respect
to the paradigm equitable adoption scenario? Assume the natural
parents are married.

2. Attempted Adoption
While most states require a legally recognized adoption before
creating a legally recognized parent-child relationship to which
inheritance rights can attach, California statutorily recognizes a
special parent-child relationship where there has been an
attempted, but not legally recognized, adoption.
CPC §6454. Foster parent or stepparent attempted adoption
For the purpose of determining intestate succession by a
person or the person's issue from or through a foster parent
or stepparent, the relationship of parent and child exists
between that person and the person's foster parent or
stepparent if both of the following requirements are satisfied:
(a) The relationship began during the person's minority and
continued throughout the joint lifetimes of the person and
the person's foster parent or stepparent.
(b) It is established by clear and convincing evidence that
the foster parent or stepparent would have adopted the
person but for a legal barrier.

Notes
1. Paradigm scenario: The paradigm scenario (but not the only
scenario) section 6454 was designed to address was the

161
stepparent attempted adoption scenario. For example, Pete and
Gerri are married and have one child, Cici. Gerri divorces Pete
and marries Bob. Bob wants to make the home environment as
close to “one big happy family” as he can, so he tries to adopt
Cici. Before the minor child can be adopted, the natural parent
whose parental rights will be affected must consent to the
adoption. Cal. Fam. Code §8604 (West 2013). Pete refuses to
consent to the proposed adoption. The overwhelming majority of
all adoptions and attempted adoptions occur when a child is a
minor. The most common legal barrier to an adoption is the
natural parent in question refuses to consent. While it is not the
only legal barrier, the other possible legal barriers are best left to
the Family law course.
2. Visualizing the inheritance rights: How would you diagram
the inheritance rights under the California Probate Code with
respect to the paradigm attempted adoption scenario (assume the
natural parents are married)?
3. Temporal limitation? What if a relationship begins between a
child and a foster parent/stepparent while the child is a minor, the
relationship continues throughout their joint lifetimes, and the
foster parent/stepparent attempts to adopt the child but the
natural parent in question refuses to consent. Twenty-five years
later, the foster parent/stepparent dies intestate. Can the child
inherit from and through the foster parent/stepparent? Must the
legal barrier exist only at the time of the attempted adoption, or
must it too continue throughout the joint lifetimes of the child and
the foster parent/stepparent?
That issue split the California Courts of Appeal. In Estate of
Stevenson, 11 Cal. App. 4th 852, 14 Cal. Rptr. 2d 250 (1992), the
Sixth Appellate District ruled that the legal barrier needed to exist
only at the time adoption was contemplated or attempted. In
Estate of Cleveland, 17 Cal. App. 4th 1700, 22 Cal. Rptr. 2d 590
(1993), the Second Appellate District ruled that section 6454
requires that the legal barrier or barriers to adoption must have
continued until death. The California Supreme Court took up the
issue in Estate of Joseph.

Estate of Joseph

162
 949 P.2d 472 (Cal. 1998)
MOSK, Justice.
...
Petitioner “was taken in by” decedent and his wife, who
predeceased him, “and [was] raised by them during the vast
period of her minority, from age three on. [They] assisted her after
her minority by financing her efforts at San Jose State University
and a local junior college. [Decedent] ‘gave’ [her] away at her
wedding. Certainly, the relationship between [decedent and his
wife and petitioner] satisfied the common law definition of ‘foster
child,’ at least during the minority and early adulthood of
[petitioner], which to simplistically recite [its] shorthand definition
means one whose well being is fostered by another person. For a
period, at the beginning of the relationship, and during her
minority both [decedent and his wife] would from time to time ask
[petitioner's] natural parents if they ... could adopt [her]. Each
such request was refused. After a while, but still during [her]
minority [they] discontinued asking.
...
“Factually, in this case [decedent], the last to die of the
[spouses], could have pursued an adult adoption had he really
wanted to establish a parent/child relationship with [petitioner].
Additionally, he could have written a will leaving his property to
[her] had he intended for her to succeed to his property. (He
clearly was aware of the benefits of the use of a will, as he used
the services of the [l]awyer who now represents [petitioner] to
write a will many years before his death.) We cannot know what
[decedent's] intentions were regarding the devolution of his
estate, except as he expressed them as to his predeceased
spouse when he wrote his will. Although it is not an insignificant
fact that he did not express any testamentary intent toward
[petitioner] as a successor beneficiary should, as actually
happened, his wife have predeceased him. Cleveland ...
envisioned just such a case as this when it recognized that any
number of reasons could exist for not wanting a ‘foster child’ to
succeed to one's property including loss of affection,
disappointment, favoring relatives, dissatisfaction with the choice
of the ‘foster child's’ spouse, to name but a few. In this case

163
[petitioner] obtained her majority age on October 15, 1974, some
twenty one years before [decedent's] death. Surely, that passage
of time cannot be ignored.... [Decedent and his wife] during their
life had ample opportunity to control the outcome and for what
ever [ sic ] reason chose not to. To conclude that [decedent]
wanted [petitioner] to inherit his property is presumptuous and not
consistent with the Legislature's reasons for enactment of §6454.”
...
Our reading of Probate Code section 6454 also suits the
purpose that underlies the code generally, that is, to pass the
estate of an intestate decedent in accordance with the “intent”
that he “is most likely to have had” at the time of death, and to do
so in an “efficient and expeditious” manner.
...
Our reading of Probate Code section 6454 also serves the
passing of the estate of an intestate foster parent or stepparent
efficiently and expeditiously. To quote the Cleveland court again, it
“injects a strong dose of certainty into” such matters. (Estate of
Cleveland, supra, 17 Cal.App.4th at p. 1712, 22 Cal.Rptr.2d 590.)
The provision's mandate that a legal barrier to adoption must
have continued until death, together with an intent to adopt,
eliminates, or at least reduces, marginal claims, whether genuine
or sham, based on little more than an assertion that such a barrier
existed only at a time at which adoption was contemplated or
attempted. Otherwise, as the Cleveland court explained, there
might be “claims by a stepchild or foster child if at any time during
his minority the stepparent [or foster parent] expressed a desire to
adopt but was denied the consent of the natural parent. Any such
child could claim an intestate share of the decedent's estate at his
death—no matter how many years elapsed after the removal of
the legal impediment. Operating from the stalest sort of evidence,
the probate court must then determine whether, “but for” that legal
impediment the decedent would have adopted the [child] during
his minority and must negate the existence of other reasons for
decedent's abandonment of the adoption. In such cases, of
course, the decedent is unavailable to rebut these claims
asserted by persons with a direct financial interest. Often, the only
corroborating testimony is from the nonconsenting [natural] parent

164
who may also be financially interested in the outcome. Typically,
there will be no other disinterested third parties to verify the
decedent's intent, since the subject matter is commonly
considered to be of a highly personal and private nature.” (Id. at
pp. 1710–1711, 22 Cal.Rptr.2d 590, fn. omitted.) ...
CHIN, Associate Justice, dissenting.
...
In disagreeing with the majority, I emphasize the narrowness of
the question before us: whether the absence of a legal barrier to
petitioner's adoption after she reached the age of majority
precludes her, as a matter of law, from establishing that decedent
would have adopted her “but for a legal barrier.” (§6454, subd.
(b).) By enacting section 6454, the Legislature indicated that the
probate court, as the fact finder, ordinarily should decide whether
a decedent would have adopted a foster child or stepchild but for
a legal barrier. Contrary to this intent, the majority removes this
question from the probate court's consideration in all but the rare
cases where both a continuous legal barrier to adoption and a
continuous intent to adopt existed. In so doing, the majority
weighs certain evidentiary factors in an attempt to make factual
determinations about a decedent's likely intent. In my view, this is
the function of the probate court considering the entire evidentiary
record in a given case, not of this court in the abstract. If the
evidence is weak, then the probate court may conclude as a
factual matter that the requirements of the statute have not been
met. That a legal barrier to adoption did not exist continuously
during adulthood is a circumstance for the probate court to weigh
in determining whether the foster parent or stepparent would have
adopted the child but for a legal barrier. It is not a basis for
completely removing the issue from the fact finder's
consideration.
...
Second, the majority overstates the extent to which the goal of
efficiency should guide our inquiry. By opening up a decedent's
estate to claims of foster children and stepchildren, and by
making these claims depend on proof of highly fact-specific
requirements, section 6454, by its very nature, is inconsistent with
the goal of efficiency. Had efficiency been the Legislature's sole

165
concern, it would not have enacted section 6454. Instead, it would
have left California law unchanged and in accord with that of
other states by simply omitting foster children and stepchildren
from the intestacy statutes. Thus, by enacting section 6454, the
Legislature demonstrated that, at least in this one area, it was not
primarily concerned about efficiency....
—————

Notes
1. Epilogue: During the appeal process, the California Law
Reform Commission initiated procedures to revise Probate Code
Section 6454 to reflect the approach adopted by the lower court in
Stevenson, i.e., that so long as there was clear and convincing
evidence that the stepparent or foster parent would have adopted
the child but for a legal barrier, the legal barrier did not have to be
present at the time the stepparent or foster parent died. The
California legislature failed to adopt the proposed amendment to
Probate Code Section 6454.
2. Status vs. intent: The dissent offered a series of arguments
for why efficiency in the distribution of a decedent's estate should
not be a relevant variable when considering claims by
stepchildren and foster children under Probate Code section
6454. Do you agree or disagree? In doing so, the dissent was
implicitly arguing that in adopting Probate Code section 6454 the
California legislature adopted which approach to what constitutes
a parent-child relationship, at least with respect to the attempted
adoption scenario—the status-based approach or the intent-
based approach? Do you agree? Does it make sense to apply it
only to this scenario and not the other possible parent-child
relationship scenarios?

Problem
Andy never married, but he fathered one child (Xavier) with
Betty, and two children (Yola and Zack) with Cindy. Andy
acknowledged all of his children, and supported them, but the two
different families did not know of each other. Thereafter Betty
died, then Andy died, and then Xavier died intestate, with no
surviving spouse and no surviving issue. Xavier was particularly

166
close to Andy's father, Frank, who had stepped in and raised
Xavier after Andy and Betty died. Frank claims Xavier's estate.
Only after Andy's death do Yola and Zack learn of their
relationship to Xavier. Who takes Xavier's estate, and why?

G. Child Born after Natural Parent's Death

1. Posthumously Born Child
A posthumously born child is a child who was conceived before
the natural parent's death but born after the natural parent's
death. For inheritance purposes, the common law has always
considered a posthumously born child as alive (“in being”) from
the moment of conception as long as the child is born alive. So
long as the child was born within 300 days of the decedent's
death, the common law treated the child as an heir of the
decedent for inheritance purposes.
California has basically codified the common law approach,
with a few extra features included:
Family Code §7611. Status as natural father; presumption;
conditions
A man is presumed to be the natural father of a child ... in
any of the following subdivisions:
(a) He and the child's natural mother are or have been
married to each other and the child is born during the
marriage, or within 300 days after the marriage is
terminated by death, annulment, declaration of invalidity,
or divorce, or after a judgment of separation is entered by
a court.
...
Probate Code §6407. Unborn relatives of decedent
Relatives of the decedent conceived before the decedent's
death but born thereafter inherit as if they had been born in
the lifetime of the decedent.

Notes

167
 1. Paradigm scenario: The paradigm scenario involving the
posthumously born child is one where the natural father dies after
the child is conceived but before the child is born. At common law,
the mother had to be married for the presumption to apply. What
was the common law logic behind limiting the doctrine to married
couples? Does California limit the doctrine to married couples?
2. Visualizing the inheritance rights: How would you diagram
the inheritance rights under the California Probate Code with
respect to the following paradigm posthumously born scenario?
Assume the natural parents are married.

2. Posthumously Conceived Child

While the posthumously born scenario is a relatively old
scenario, the posthumously conceived child is a relatively new
scenario. While the typical posthumously born scenario involves
natural insemination, the posthumously conceived scenario
involves artificial insemination. The first reported American case
of artificial insemination dates back to the late 1800s. A Quaker
couple having trouble conceiving a child met with Dr. William
Pancoast, a professor at the Jefferson Medical College in
Philadelphia. Dr. Pancoast diagnosed the problem, declaring the
husband sterile. Rather than telling the couple, however, he and
his six medical students decided “to help out” the couple. They
called the woman back in under the pretext of conducting one
more test. After anesthetizing her, and without informing the
couple or obtaining either party's consent, Dr. Pancoast artificially
inseminated the woman using sperm previously collected from
one of his students.31 After the woman became pregnant, the
doctor informed the husband how she was impregnated. The
husband was so pleased at the thought of having a child that he
approved of the procedure so long as they agreed not to tell his
wife. It was not until 1909, after Dr. Pancoast died, that one of his
students went public with the story.32
Artificial insemination using sperm donated by someone other
than a woman's husband raises many interesting medical, moral,
and legal issues. As one might expect with such a medical
breakthrough, the first official responses to the practice
condemned it. The Pope denounced the practice as sinful, an

168
English Parliamentary Commission that convened to study the
practice proposed it be made a crime, and in the United States
the initial response of the courts was that even if her husband
consented, a wife's use of someone else's sperm was “contrary to
public policy and good morals, and considered adultery on the
mother's part.... A child so conceived, was born out of wedlock,
and therefore illegitimate. As such, it is the child of the mother,
and the father has no rights or interest in said child.”33 Like many
medical advances, however, opposition waned with time. Yet just
as artificial insemination was gaining general social and legal
acceptance, another controversial form of reproductive
technology evolved: posthumous conception using frozen sperm.
The classic posthumous conception scenario involves the use
of a decedent's sperm to artificially inseminate a woman.
Posthumous conception necessarily involves artificial
insemination, but because sperm has such a short shelf life,
posthumous use of sperm was not feasible until the development
of cryopreservation—the ability to freeze human tissue and
genetic material and thaw it without causing damage. This
procedure was mastered in the late 1950s to preserve the sperm
of the early astronauts because of uncertainty surrounding the
effects of space travel on their health. One of the first publicly
covered cases of posthumous conception was in France.
Following the successful birth of the posthumously conceived
child, the French government called for a gathering of leading
experts in medicine, ethics, and reproductive technology. The
experts agreed that posthumous conception was against public
policy and should be banned—a recommendation the French
Parliament adopted that still applies today. In the United States no
such ban exists, but issues still remain with respect to the legal
status of such children.
Is the posthumously conceived scenario basically the
posthumously born scenario taken to the next level due to the
advancements in reproductive technology—so the issues and
doctrines should basically be the same—or are there meaningful
differences between the two scenarios that give rise to different
policy considerations, thereby resulting in different doctrines?

Woodward v. Commissioner of Social Security

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 760 N.E.2d 257 (Mass. 2002)
MARSHALL, C.J.
...
“If a married man and woman arrange for sperm to be
withdrawn from the husband for the purpose of artificially
impregnating the wife, and the woman is impregnated
with that sperm after the man, her husband, has died, will
children resulting from such pregnancy enjoy the
inheritance rights of natural children under
Massachusetts' law of intestate succession?”
I
The undisputed facts and relevant procedural history are as
follows. In January, 1993, about three and one-half years after
they were married, Lauren Woodward and Warren Woodward
were informed that the husband had leukemia. At the time, the
couple was childless. Advised that the husband's leukemia
treatment might leave him sterile, the Woodwards arranged for a
quantity of the husband's semen to be medically withdrawn and
preserved, in a process commonly known as “sperm banking.”
The husband then underwent a bone marrow transplant. The
treatment was not successful. The husband died in October,
1993, and the wife was appointed administratrix of his estate.
In October, 1995, the wife gave birth to twin girls. The children
were conceived through artificial insemination using the
husband's preserved semen. In January, 1996, the wife applied
for two forms of Social Security survivor benefits: “child's” benefits
under 42 U.S.C. §402(d)(1) (1994 & Supp. V 1999), and
“mother's” benefits under 42 U.S.C. §402(g)(1) (1994).
The Social Security Administration (SSA) rejected the wife's
claims on the ground that she had not established that the twins
were the husband's “children” within the meaning of the Act....
II
A
We have been asked to determine the inheritance rights under
Massachusetts law of children conceived from the gametes of a
deceased individual and his or her surviving spouse.

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 ... [T]he parties have articulated extreme positions. The wife's
principal argument is that, by virtue of their genetic connection
with the decedent, posthumously conceived children must always
be permitted to enjoy the inheritance rights of the deceased
parent's children under our law of intestate succession. The
government's principal argument is that, because posthumously
conceived children are not “in being” as of the date of the parent's
death, they are always barred from enjoying such inheritance
rights.
Neither party's position is tenable. In this developing and
relatively uncharted area of human relations, bright-line rules are
not favored unless the applicable statute requires them. The
Massachusetts intestacy statute does not.
B
... We must therefore determine whether, under our intestacy
law, there is any reason that children conceived after the
decedent's death who are the decedent's direct genetic
descendants—that is, children who “by consanguinity trace their
lineage to the designated ancestor”—may not enjoy the same
succession rights as children conceived before the decedent's
death who are the decedent's direct genetic descendants....
The question whether posthumously conceived genetic children
may enjoy inheritance rights under the intestacy statute implicates
three powerful State interests: the best interests of children, the
State's interest in the orderly administration of estates, and the
reproductive rights of the genetic parent. Our task is to balance
and harmonize these interests to effect the Legislature's over-all
purposes.
1. First and foremost we consider the overriding legislative
concern to promote the best interests of children. “The protection
of minor children, most especially those who may be stigmatized
by their ‘illegitimate’ status ... has been a hallmark of legislative
action and of the jurisprudence of this court.” L.W.K. v. E.R.C.,
432 Mass. 438, 447–448, 735 N.E.2d 359 (2000). Repeatedly,
forcefully, and unequivocally, the Legislature has expressed its
will that all children be “entitled to the same rights and protections
of the law” regardless of the accidents of their birth. G.L. c. 209C,
§1. See G.L. c. 119, §1 ... Among the many rights and protections

171
vouchsafed to all children are rights to financial support from their
parents and their parents' estates. See G.L. c. 119A, §1 (“It is the
public policy of this commonwealth that dependent children shall
be maintained, as completely as possible, from the resources of
their parents, thereby relieving or avoiding, at least in part, the
burden borne by the citizens of the commonwealth”);....
... Posthumously conceived children may not come into the
world the way the majority of children do. But they are children
nonetheless. We may assume that the Legislature intended that
such children be “entitled,” in so far as possible, “to the same
rights and protections of the law” as children conceived before
death. See G.L. c. 209C, §1.
2. However, in the context of our intestacy laws, the best
interests of the posthumously conceived child, while of great
importance, are not in themselves conclusive. They must be
balanced against other important State interests, not the least of
which is the protection of children who are alive or conceived
before the intestate parent's death....
The intestacy statute furthers the Legislature's administrative
goals in two principal ways: (1) by requiring certainty of filiation
between the decedent and his issue, and (2) by establishing
limitations periods for the commencement of claims against the
intestate estate. In answering the certified question, we must
consider each of these requirements of the intestacy statute in
turn.
First, ... [b]ecause death ends a marriage, see Callow v.
Thomas, 322 Mass. 550, 555, 78 N.E.2d 637 (1948); Rawson v.
Rawson, 156 Mass. 578, 580, 31 N.E. 653 (1892), posthumously
conceived children are always nonmarital children. And because
the parentage of such children can be neither acknowledged nor
adjudicated prior to the decedent's death, it follows that, under the
intestacy statute, posthumously conceived children must obtain a
judgment of paternity as a necessary prerequisite to enjoying
inheritance rights in the estate of the deceased genetic father....
We now turn to the second way in which the Legislature has
met its administrative goals: the establishment of a limitations
period for bringing paternity claims against the intestate estate....
[T]he limitations question is inextricably tied to consideration of

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the intestacy statute's administrative goals. In the case of
posthumously conceived children, the application of the one-year
limitations period of G.L. c. 190, §7 is not clear; it may pose
significant burdens on the surviving parent, and consequently on
the child. It requires, in effect, that the survivor make a decision to
bear children while in the freshness of grieving. It also requires
that attempts at conception succeed quickly. Cf. Commentary,
Modern Reproductive Technologies: Legal Issues Concerning
Cryopreservation and Posthumous Conception, 17 J. Legal Med.
547, 549 (1996) (“It takes an average of seven insemination
attempts over 4.4 menstrual cycles to establish pregnancy”).
Because the resolution of the time constraints question is not
required here, it must await the appropriate case, should one
arise.
3. Finally, the question certified to us implicates a third
important State interest: to honor the reproductive choices of
individuals. We need not address the wife's argument that her
reproductive rights would be infringed by denying succession
rights to her children under our intestacy law. Nothing in the
record even remotely suggests that she was prevented by the
State from choosing to conceive children using her deceased
husband's semen. The husband's reproductive rights are a more
complicated matter.
... [A] decedent's silence, or his equivocal indications of a
desire to parent posthumously, “ought not to be construed as
consent.” ... The prospective donor parent must clearly and
unequivocally consent not only to posthumous reproduction but
also to the support of any resulting child.... After the donor-
parent's death, the burden rests with the surviving parent, or the
posthumously conceived child's other legal representative, to
prove the deceased genetic parent's affirmative consent to both
requirements for posthumous parentage: posthumous
reproduction and the support of any resulting child.
...
... It will not always be the case that a person elects to have his
or her gametes medically preserved to create “issue”
posthumously. A man, for example, may preserve his semen for
myriad reasons, including, among others: to reproduce after

173
recovery from medical treatment, to reproduce after an event that
leaves him sterile, or to reproduce when his spouse has a genetic
disorder or otherwise cannot have or safely bear children. That a
man has medically preserved his gametes for use by his spouse
thus may indicate only that he wished to reproduce after some
contingency while he was alive, and not that he consented to the
different circumstance of creating a child after his death.
Uncertainty as to consent may be compounded by the fact that
medically preserved semen can remain viable for up to ten years
after it was first extracted, long after the original decision to
preserve the semen has passed and when such changed
circumstances as divorce, remarriage, and a second family may
have intervened. See Banks, Traditional Concepts and
Nontraditional Conceptions: Social Security Survivor's Benefits for
Posthumously Conceived Children, 32 Loy. L.A. L.Rev. 251, 270
(1999).
... Where two adults engage in the act of sexual intercourse, it
is a matter of common sense and logic, expressed in well-
established law, to charge them with parental responsibilities for
the child who is the natural, even if unintended, consequence of
their actions. Where conception results from a third-party medical
procedure using a deceased person's gametes, it is entirely
consistent with our laws on children, parentage, and reproductive
freedom to place the burden on the surviving parent (or the
posthumously conceived child's other legal representative) to
demonstrate the genetic relationship of the child to the decedent
and that the intestate consented both to reproduce posthumously
and to support any resulting child.
C
III
... In the absence of statutory directives ... we conclude that
limited circumstances may exist, consistent with the mandates of
our Legislature, in which posthumously conceived children may
enjoy the inheritance rights of “issue” under our intestacy law.
These limited circumstances exist where, as a threshold matter,
the surviving parent or the child's other legal representative
demonstrates a genetic relationship between the child and the
decedent. The survivor or representative must then establish both

174
that the decedent affirmatively consented to posthumous
conception and to the support of any resulting child. Even where
such circumstances exist, time limitations may preclude
commencing a claim for succession rights on behalf of a
posthumously conceived child. In any action brought to establish
such inheritance rights, notice must be given to all interested
parties.
—————

Notes
1. Posthumously conceived parent-child relationship: One of
the traditional maxims is that every child has one mother and one
father. Does that maxim automatically and always apply to a
posthumously conceived child? Should it? To the extent the child
does not meet the requirements as set forth by the
Massachusetts Supreme Court, is the child being punished
because of the “wrongful” conduct of one of the natural parents?
Is that right?
2. California approach: The California legislature responded to
the Woodward opinion and the resulting debate over the legal
status of a posthumously conceived child by adopting Probate
Code section 249.5. How did the California legislature respond to
the concerns raised by the Massachusetts Supreme Court? Did it
address all of them?
CPC §249.5. Posthumously conceived child
For purposes of determining rights to property to be
distributed upon the death of a decedent, a child of the
decedent conceived and born after the death of the
decedent shall be deemed to have been born in the lifetime
of the decedent, and after the execution of all of the
decedent's testamentary instruments, if the child or his or her
representative proves by clear and convincing evidence that
all of the following conditions are satisfied:
(a) The decedent, in writing, specifies that his or her genetic
material shall be used for the posthumous conception of a
child of the decedent, subject to the following:

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 (1) The specification shall be signed by the decedent and
dated.
(2) The specification may be revoked or amended only by
a writing, signed by the decedent and dated.
(3) A person is designated by the decedent to control the
use of the genetic material.
(b) The person designated by the decedent to control the
use of the genetic material has given written notice by
certified mail, return receipt requested, that the decedent's
genetic material was available for the purpose of
posthumous conception. The notice shall have been given
to a person who has the power to control the distribution of
either the decedent's property or death benefits payable
by reason of the decedent's death, within four months of
the date of issuance of a certificate of the decedent's
death or entry of a judgment determining the fact of the
decedent's death, whichever event occurs first.
(c) The child was in utero using the decedent's genetic
material and was in utero within two years of the date of
issuance of a certificate of the decedent's death or entry of
a judgment determining the fact of the decedent's death,
whichever event occurs first. This subdivision does not
apply to ... human cloning.
3. Visualizing the inheritance rights: How would you diagram
the inheritance rights under the California Probate Code with
respect to the paradigm posthumously conceived child scenario?
Assume the natural parents are married.

1. Barbara A. Lavin-McEleney, Criminality and Democracy in Ancient

Systems of Law, 44 CRIM. L. BULL. 6 (2008) (footnotes omitted).
2. 1999 Cal. Legis. Serv. Ch. 588 (A.B. 26) (West).
3. 2003 Cal. Legis. Serv. Ch. 447 (A.B. 2216) (West).
4. While same-sex couples represent the majority of domestic partnerships in
California, the law also grants domestic partnership status to certain
heterosexual couples. For such couples, the law generally requires that one of
the parties be at least 62 years of age. For various personal or religious
reasons, a widow or widower may wish to have a committed relationship, but is
uncomfortable with the thought of remarrying. California Family Code §297
establishes the criteria required to create a valid domestic partnership.

176
 5. CAL. CONST. art. I, §7.5 (amended 2008).
6. Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
7. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (N.D. Cal. 2010).
8. California also grants spousal status to same-sex couples who move to
California who were legally married in another state or country. See California
Family Code §308 (2015).
9. A marriage may be invalid for a number of reasons, including both
technical, filing, logistics-related and, more seriously, invalid due to such
matters as a bigamous marriage (often by accident). While we refer to the
“couple” here, inferring that both parties thought that they were married, the
concept of a “putative” spouse can refer to situations where only one “spouse”
is “innocent” and the other knows the marriage is not valid. This latter situation
is generally beyond the scope of this course and is typically covered in the
Community Property course.
10. Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common
Law Marriage, 75 OR. L. REV. 709, 712–13 (1996).
11. The incidence of cohabitation without marriage increased 800 percent
between 1960 and 1970 (see Marvin v. Marvin, 557 P.2d 106, 109 fn. 1 (Cal.
1976)), and the number of unmarried couple households almost tripled
between 1970 and 1984 (U.S. Dept. of Commerce, Current Population Reports
(1984) Population Characteristics, series P-20, No. 399, Marital Status and
Living Arrangements: Mar. 1984, at p. 7; see also Meade, Consortium Rights of
the Unmarried: Time for Reappraisal, 15 FAM. L.Q. 223, 224, fn. 6 (1981)).
12. Interestingly, the state of Washington, which does not recognize common
law marriage, recognizes the doctrine of meretricious partners. Where there
exists a long-term, stable, nonmarital family relationship, if the relationship
ends, “courts must ‘examine the [meretricious] relationship and the property
accumulations and make a just and equitable disposition of the property.’”
Marriage of Lindsey, 101 Wash. 2d 299, 304 (1984). Subsequently, however,
the Court clarified that the doctrine applied only if the meretricious relationship
ended in divorce, not death. Peffley-Warner v. Bowen, 113 Wash. 2d 243
(1989). Does that make any sense?
13. If you are considering a career in estate planning, you would be well-
advised to take Family Law.
14. Anti-nuclear Reaction, THE ECONOMIST, Dec. 23, 1999.
15. Who qualifies as a child, and whose child it is, are questions primarily for
Family Law. This material will cover the overlaps between these issues and
Wills, Trusts, and Estates only to the extent necessary for a basic
understanding of the issues. If you are interested in these issues, you are
encouraged to take the Family Law course. In addition, if you are thinking
about practicing estate planning Family Law is a course you should strongly
consider taking.
16. This approach was reinforced by the fact that, at common law, the party
who contributed the egg by definition also had to be the party who gave birth to
the child. Due to modern reproductive technology, this is not now always the

177
case. As one would expect, where the party who contributes the egg is not also
the party who gives birth to the child, parties argue as to whom should legally
be considered the natural parent.
17. By now you have probably begun to think about how modern
reproductive technology plays havoc with this simple nuclear family scenario.
No longer is the birthing mother necessarily the woman contributing the egg.
Where the two are different parties, which party should be the natural parent—
or should both be treated as the natural mother? Legally, should the child have
more than one mother? If the husband is infertile, his sperm may have been
“blended” with other sperm to increase the chances of conception. Should the
use of “blended” sperm call into question the presumption that the husband is
the natural father? In addition, California now grants same-sex registered
domestic partners the same legal rights as a heterosexual married couple. How
does the statutory provision in section 7540, that the presumption of
parenthood arises only if the other party “is not impotent or sterile,” apply to
registered domestic partners? A more detailed discussion of these and other
similar issues are best left for the Family Law course, but if you are interested
in these types of issues we recommend you start with the following articles:
Kristine S. Knaplund, Children of Assisted Reproduction, 45 U. MICH. J. L.
REFORM 899 (2012), and Kristine S. Knaplund, Legal Issues of Maternity and
Inheritance for the Biotech Child of the 21st Century, 43 REAL PROP. TR. &
EST. L.J. 393 (2008). Our introductory material will focus on the more
traditional and common scenarios—at least from a legal perspective—where
parent-child and inheritance issues arise.
18. Section 7541 recognizes a limited exception where the presumption can
be rebutted, but only if pursued within two years of the child's birth, and only if
by the husband or the wife. Michael H. v. Gerald D., 109 S. Ct. 2333, 491 U.S.
110, 105 L. Ed. 2d 91 (1989).
19. Trimble v. Gordon, 430 U.S. 762, 768 (1976).
20. Id. at 765–66.
21. Most state statutes are written generically such that proving who the
natural parents are applies to both natural parents, but as a practical matter
who is the natural mother is so rarely at issue the material will focus on the
paradigm issue—who is the natural father. Technically, though, the identity of
both natural parents is an issue.
22. California Family Code §§7611–12.
23. A “bastardy proceeding” is an archaic term for a paternity suit. BLACK'S
LAW DICTIONARY (7th ed. 1999) pp. 146, 1148.
24. California permits heirs to assign their interests in an estate, but such
assignments are subject to court scrutiny. (See [CPC] §11604.)
25. [Editors' footnote.] The statute at the time of the case provided as follows:
CPC §6452. Parent-child relationship of child born out of wedlock
If a child is born out of wedlock, neither a natural parent nor a
relative of that parent inherits from or through the child on the basis

178
 of the parent and child relationship between that parent and the
child unless both of the following requirements are satisfied:
(a) The parent or a relative of the parent acknowledged the child.
(b) The parent or a relative of the parent contributed to the support
or the care of the child.
26. [Editors' footnote.] The three paragraphs in this bracketed section of the
opinion are three of the opening paragraphs in the Court's opinion. The authors
of the casebook, however, used their editorial discretion to move these
paragraphs to the end of the Court's treatment of the facts to facilitate the
presentation of the material.
27. In the out-of-wedlock scenario, what does the child have to prove to
inherit from and through each natural parent? What does the natural parent (or
relative of a natural parent) have to prove?
28. Wilkes, 263 Ga. at 851–52.
29. Id. at 851.
30. A close familial relationship sufficient to support the decedent's intent to
adopt must persist up to, or at least not be repudiated by, the decedent before
the decedent's death.
31. Dr. Pancoast and the students agreed they should use the sperm of “the
best looking” student—it is not known how that was determined.
32. One of the students involved, Addison Davis Hard, wrote a “tell-all” letter
that was published in 1909 in the journal MEDICAL WORLD.
33. Doornbos v. Doornbos, 139 N.E.2d 844 (Ill. App. Ct. 1956).

179
Chapter 4

180
Miscellaneous Doctrines
That May Affect an Heir's
Share

181
 I. Overview
A state's intestate scheme functions as a default will. If a
decedent dies without properly executing his or her own valid will,
his or her probate property will pass pursuant to the state's
intestate scheme. While a valid will can override the intestate
scheme, even in the absence of a valid will there are a number of
miscellaneous doctrines that can alter or override how much an
heir would otherwise take under the intestate scheme.
To the extent the intestate scheme is supposed to reflect the
presumed intent of an average decedent, are these doctrines
similarly based on presumed intent, or is there something else
going on with respect to one or more of these doctrines? Related
to that question, some of these doctrines are not limited to heirs
and intestate property, but also apply to beneficiaries under a will
and/or nonprobate instrument. You should be mindful of the
scope of the different doctrines and how that interrelates with the
justification for each doctrine.

182
 II. The Advancement
Doctrine
The probate scheme provides that if a decedent dies intestate
with no surviving spouse, the decedent's property passes to his or
her issue equally. Why equally? No doubt part of the explanation
is because the law assumes the decedent loved his or her issue
equally. But how far should the “issue should take equally”
principle be taken? Should an inter vivos gift count against an
issue's time of death share?
The common law embraced the principle of equality and took it
to its logical extreme. In fact, the common law presumed that a
parent's inter vivos gifts to a child should count against that child's
share of the parent's estate. To the extent an inter vivos gift
counted against the child's share, the inter vivos gift basically
functioned as an advancement of the child's inheritance; hence
the doctrine of advancements. Mechanically, under the doctrine of
advancements, all inter vivos gifts to the decedent's children are
fictionally added back into the decedent's estate as an accounting
entry to create what is called “the hotchpot”—a fictional,
enhanced probate estate. The hotchpot is then divided equally
among the decedent's children. If a child has received an
advancement, the advancement is credited against that child's
share of the hotchpot to determine the child's actual share of the
decedent's actual probate estate. These calculations ensure that,
when all is said and done, the decedent's children take equally,
taking into consideration the inter vivos advancements.
For example, assume a single parent with two children. The
parent gives one child $200,000 to help with college and law
school expenses. Thereafter, the parent dies intestate with an
estate of $800,000. Under the common law approach, the
$200,000 given inter vivos to the one child is presumed an
advancement of that's child's share of the decedent's intestate
estate. To calculate the advancement's effect, add the inter vivos
gift back in to the probate estate (as an accounting entry only—
the child would not be required to pay any money back) to create
a “hotchpot” of $1,000,000 ($800,000 + $200,000). This fictional

183
hotchpot estate is then split equally among the decedent's two
children, one-half ($500,000) to each, but the advancement is
then credited against the one child's share. Therefore, the child
who received the $200,000 inter vivos gift would receive only
$300,000 ($500,000 – $200,000) from the actual probate estate,
and the other child would receive the remaining $500,000.
While the common law approach maximizes the principle that
children take equally from their parents, it also creates an
economic incentive for children to sue each other to increase their
own share of the decedent's estate. To the extent a child believes
his or her parent favored another child—as children are often
tempted to do—the doctrine of advancement gives them an
economic incentive to voice their childish claims in the interest of
increasing their own share of the parent's estate at the expense
of their siblings. The common law approach thus exacerbates
natural sibling rivalry. Instead of children consoling and supporting
each other following their parent's death, they have an economic
incentive to attack and sue each other—which includes high costs
of administration, and heightens the potential for fraudulent
claims.
The modern trend reverses the traditional approach and
arguably remedies most of its adverse consequences. Under the
modern trend, a decedent's inter vivos gifts to an heir are
presumed not to count against the heir's share of the decedent's
estate. The modern trend presumption is rebuttable. A writing is
required to rebut the presumption. Alleged oral declarations by
the decedent are not enough. As you might surmise, the modern
trend version of the doctrine of advancements drastically reduces
how often the doctrine is implicated in actual, real-life intestate
succession situations.
There is, however, something of a latent issue lurking in the
modern trend approach. What if the parent properly expresses
the intent that the inter vivos gift should count against the heir's
(e.g., the child's) time of death share, but the donee (the child)
predeceases the donor (the parent), and the donee's issue (the
grandchildren) are entitled to take the donee's (the child's) share
by representation. Should the inter vivos gift count against the
time of death share of the donee's issue (the grandchildren)?

184
 Does California still follow the common law approach, or does it
follow the modern trend? How would California answer the “latent
issue” above?
CPC §6409. Inter vivos gifts to decedent's heirs; when
constitute advancement against intestate share
(a) If a person dies intestate as to all or part of his or her
estate, property the decedent gave during lifetime to an
heir is treated as an advancement against that heir's share
of the intestate estate only if one of the following
conditions is satisfied:
(1) The decedent declares in a contemporaneous writing
that the gift is an advancement against the heir's share
of the estate or that its value is to be deducted from the
value of the heir's share of the estate.
(2) The heir acknowledges in writing that the gift is to be
so deducted or is an advancement or that its value is to
be deducted from the value of the heir's share of the
estate.
(b) Subject to subdivision (c), the property advanced is to be
valued as of the time the heir came into possession or
enjoyment of the property or as of the time of death of the
decedent, whichever occurs first.
...
(d) If the recipient of the property advanced fails to survive
the decedent, the property is not taken into account in
computing the intestate share to be received by the
recipient's issue unless the declaration or
acknowledgment provides otherwise.

Notes
1. The California approach: How does the California Probate
Code answer the question of whether an inter vivos gift should
affect the donee's time of death share if the donor dies intestate?
What is necessary for an inter vivos gift to count as an
advancement under the California approach? How is the
advancement treated if the donee predeceases the donor?

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 2. Predeceased donee: What if a parent properly expresses the
intent that the inter vivos gift should count against the heir's time
of death share, but the donee predeceases the donor, and the
donee's issue are entitled to take the donee's share by
representation. Should the inter vivos gift count against the time-
of-death share of the donee's issue?
3. Advancement versus satisfaction: The doctrine of
“advancements” and California Probate Code Section 6409 apply
exclusively to property passing by way of intestate succession. A
similar doctrine known as “satisfaction” (or “ademption by
satisfaction”) applies to directed distributions via will or will
substitute (the doctrine of satisfaction is set forth in California
Probate Code Section 21135 and discussed in Chapter 9).

Problems
1. Using the numbers from the above common law advancement
hypothetical ($200,000 given to one child for college and law
school costs, and the single parent's subsequent intestate
death with a probate estate of $800,000), how would the
decedent parent's estate be distributed pursuant to California
intestacy law in the following alternative scenarios?

1. Neither the parent nor the child made any oral or written
statements, comments, etc. at the time of the inter vivos gift,
or at any time thereafter, as to whether the $200,000 should
count against the recipient child's inheritance.
2. What if, at the time of the gift, the parent made a clear oral
statement that the $200,000 gift should count against the
recipient child's share of the parent's estate? This statement
was made in the presence of others who can corroborate it.
3. What if the parent expressed in writing that the $200,000 gift
should count against the recipient child's share of the parent's
estate? Does it matter when the parent creates the writing?
What if the parent expressed his or her intent orally (but not in
writing), but the recipient child expressed in writing her
understanding that the $200,000 gift should count against her
share of the parent's estate? Does it matter when the child
creates the writing?

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 4. What if, at the time of the gift, the parent's statements were
memorialized in a contemporaneous writing, but
subsequently—and tragically—the child predeceased the
parent. At the parent's death, however, there were living
grandchildren (children of the predeceased child). Does the
advancement count against the share going to the issue of
the predeceased child?

2. Deb wrote a letter to her nephew, Ned, in which Deb wrote: “I

have enclosed a check for $30,000 as a little down payment
toward your inheritance. There will be more for you in my
estate, but I know you can use this money now.” Deb died
intestate survived by Ned and two other nieces. Deb's probate
estate totals $15,000. How is the $15,000 most likely to be
distributed?

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 III. The Slayer Doctrine
A. Introduction
What difference, if any, should it make if a party otherwise
entitled to receive part of the decedent's estate is responsible for
the decedent's death? Aside from any criminal punishment that
may be imposed, should the slayer's right to receive some of the
decedent's property also be affected? Is it right to permit the
individual responsible for the decedent's death to receive some of
the decedent's property?

In re Mahoney's Estate
126 Vt. 31, 220 A.2d 475 (1966)
SMITH, Justice.
The decedent, Howard Mahoney, died intestate on May 6,
1961, of gunshot wounds. His wife, Charlotte Mahoney, the
appellant here, was tried for the murder of Howard Mahoney in
the Addison County Court and was convicted by jury of the crime
of manslaughter in March, 1962....
... The question submitted is whether a widow convicted of
manslaughter in connection with the death of her husband may
inherit from his estate.
... The question presented is one of first impression in this
jurisdiction.
In a number of jurisdictions, statutes have been enacted which
in certain instances, at least, prevent a person who has killed
another from taking by descent or distribution from the person he
has killed. 23 Am.Jur.2d Descent and Distribution, §98, p. 841. A
statute of this nature, carefully drawn, is considered by many
authorities to be the best solution to the problems presented. See
“Acquisition of property by wilfully killing another—a statutory
solution,” 49 Harvard Law Review 715 (1935–1936).
Courts in those states that have no statute preventing a slayer
from taking by descent or distribution from the estate of his victim,

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have followed three separate and different lines of decision.
(1) The legal title passed to the slayer and may be retained by
him in spite of his crime. The reasoning for so deciding is that
devolution of the property of a decedent is controlled entirely by
the statutes of descent and distribution; further, that denial of the
inheritance to the slayer because of his crime would be imposing
an additional punishment for his crime not provided by statute,
and would violate the constitutional provision against corruption of
blood. [Citations omitted.]
(2) The legal title will not pass to the slayer because of the
equitable principle that no one should be permitted to profit by his
own fraud, or take advantage and profit as a result of his own
wrong or crime. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188, 5
L.R.A. 340; Price v. Hitaffer, 164 Md. 505, 165 A. 470; Slocum v.
Metropolitan Life Ins. Co., 245 Mass. 565, 139 N.E. 816, 27
A.L.R. 1517. Decisions so holding have been criticized as
judicially engrafting an exception on the statute of descent and
distribution and being “unwarranted judicial legislation.” Wall v.
Pfanschmidt, supra.
(3) The legal title passes to the slayer but equity holds him to
be a constructive trustee for the heirs or next of kin of the
decedent. This disposition of the question presented avoids a
judicial engrafting on the statutory laws of descent and
distribution, for title passes to the slayer. But because of the
unconscionable mode by which the property is acquired by the
slayer, equity treats him as a constructive trustee and compels
him to convey the property to the heirs or next of kin of the
deceased.
The reasoning behind the adoption of this doctrine was well
expressed by Mr. Justice Cardozo in his lecture on “The Nature of
the Judicial Process.” “Consistency was preserved, logic received
its tribute, by holding that the legal title passed, but it was subject
to a constructive trust. A constructive trust is nothing but ‘the
formula through which the conscience of equity finds expression.’
Property is acquired in such circumstances that the holder of legal
title may not in good conscience retain the beneficial interest.
Equity, to express its disapproval of his conduct, converts him into
a trustee.” See 4 Scott on Trusts (2d ed. 1956) §402; Bogert,

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Trusts and Trustees, (2d ed. 1960), §478. See Miller v. Belville,
98 Vt. 243, 247, 126 A. 590.
The New Hampshire court was confronted with the same
problem of the rights to the benefits of an estate by one who had
slain the decedent, in the absence of a statute on the subject.
Kelley v. State, 105 N.H. 240, 196 A.2d 68. Speaking for an
unanimous court, Chief Justice Kenison said: “But, even in the
absence of statute, a court applying common law techniques can
reach a sensible solution by charging the spouse, heir or legatee
as a constructive trustee of the property where equity and justice
demand it.” Kelley v. State, supra, pp. 69, 70. We approve of the
doctrine so expressed.
However, the principle that one should not profit by his own
wrong must not be extended to every case where a killer acquires
property from his victim as a result of the killing. One who has
killed while insane is not chargeable as a constructive trustee, or
if the slayer had a vested interest in the property, it is property to
which he would have been entitled if no slaying had occurred.
The principle to be applied is that the slayer should not be
permitted to improve his position by the killing, but should not be
compelled to surrender property to which he would have been
entitled if there had been no killing. The doctrine of constructive
trust is involved to prevent the slayer from profiting from his crime,
but not as an added criminal penalty. Kelley v. State, supra, p. 70;
Restatement of Restitution, §187(2), comment a.
The appellant here was, as we have noted, convicted of
manslaughter and not of murder. She calls to our attention that
while the Restatement of Restitution, approves the application of
the constructive trust doctrine where a devisee or legatee
murders the testator, that such rules are not applicable where the
slayer was guilty of manslaughter. Restatement of Restitution,
§187, comment e.
The cases generally have not followed this limitation of the rule
but hold that the line should not be drawn between murder and
manslaughter, but between voluntary and involuntary
manslaughter. Kelley v. State, supra; Chase v. Jennifer, 219 Md.
564, 150 A.2d 251, 254.

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 We think that this is the proper rule to follow. Voluntary
manslaughter is an intentional and unlawful killing, with a real
design and purpose to kill, even if such killing be the result of
sudden passion or great provocation. Involuntary manslaughter is
caused by an unlawful act, but not accompanied with any
intention to take life. State v. McDonnell, 32 Vt. 491, 545. It is the
intent to kill, which when accomplished, leads to the profit of the
slayer that brings into play the constructive trust to prevent the
unjust enrichment of the slayer by reason of his intentional
killing....
Decree reversed and cause remanded ...
—————

B. The California Approach

As the Court in Mahoney's Estate noted, in “a number of
jurisdictions, statutes have been enacted which in certain
instances, at least, prevent a person who has killed another from
taking by descent or distribution from the person he has killed.”
California is one of those states. It has a rather detailed and
extensive approach to its slayer doctrine:
CPC Section 250. Person feloniously and intentionally kills
the decedent
(a) A person who feloniously and intentionally kills the
decedent is not entitled to any of the following:
(1) Any property, interest, or benefit under a will of the
decedent, or a trust created by or for the benefit of the
decedent or in which the decedent has an interest,
including any general or special power of appointment
conferred by the will or trust on the killer and any
nomination of the killer as executor, trustee, guardian,
or conservator or custodian made by the will or trust.
(2) Any property of the decedent by intestate succession.
(3) Any of the decedent's quasi-community property the
killer would otherwise acquire ... upon the death of the
decedent.
...

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 (b) In the cases covered by subdivision (a):
(1) The property interest or benefit referred to in
paragraph (1) of subdivision (a) passes as if the killer
had predeceased the decedent and Section 21110 does
not apply.
(2) Any property interest or benefit referred to in
paragraph (1) of subdivision (a) which passes under a
power of appointment and by reason of the death of the
decedent passes as if the killer had predeceased the
decedent, and Section 673 not apply.
(3) Any nomination in a will or trust of the killer as
executor, trustee, guardian, conservator, or custodian
which becomes effective as a result of the death of the
decedent shall be interpreted as if the killer had
predeceased the decedent.
CPC Section 251. Joint tenants; rights by survivorship
A joint tenant who feloniously and intentionally kills another
joint tenant thereby effects a severance of the interest of the
decedent so that the share of the decedent passes as the
decedent's property and the killer has no rights by
survivorship. This section applies to joint tenancies in real
and personal property, joint and multiple-party accounts in
financial institutions, and any other form of co-ownership
with survivorship incidents.
CPC Section 252. Named beneficiaries; felonious and
intentional killing of decedent
A named beneficiary of a bond, life insurance policy, or other
contractual arrangement who feloniously and intentionally
kills the principal obligee or the person upon whose life the
policy is issued is not entitled to any benefit under the bond,
policy, or other contractual arrangement, and it becomes
payable as though the killer had predeceased the decedent.
CPC Section 254. Judgment of conviction as conclusive;
preponderance of evidence
(a) A final judgment of conviction of felonious and intentional
killing is conclusive for purposes of this part.

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 (b) In the absence of a final judgment of conviction of
felonious and intentional killing, the court may determine
by a preponderance of evidence whether the killing was
felonious and intentional for purposes of this part. The
burden of proof is on the party seeking to establish that
the killing was felonious and intentional for the purposes of
this part.

Notes
1. Scope: These statutes are often collectively referred to as
the “slayer” or “killer” statutes. Note that their application is not
limited to the distribution of property under intestate succession.
This, like many other concepts, spans across both the directed
and non-directed spectrums of testamentary dispositions. While
we typically do not see the “slayer” statutes at work in movies and
television murder mysteries, we often see a basic component of
their underlying rationale: “He had a motive—he was the sole
beneficiary of the victim's will or life insurance policy.”
2. Should a slayer's children be permitted to take the slayer's
share? Under the California slayer doctrine, do we punish the
children for the sins of the parent?
a. If the decedent died intestate and the killer was one
of the decedent's children, do the killer's children take the
killer's share pursuant to CPC section 240's per capita by
representation?
b. What if, instead, the decedent died testate (with a
will leaving her property to her children equally), and the
killer was one of the testator's children and a beneficiary
under the will? If a will beneficiary is the killer (in our
example, the decedent's child), the statute states that the
court should treat the killer as if he or she predeceased
the decedent parent. Later in the course, in Chapter 9,
you will learn that when a named beneficiary fails to
survive the decedent, the devise/bequest fails—or, using
proper legal terminology, the gift “lapses.” Under
common law rules, and absent alternative disposition
directed by the will, the predeceased beneficiary's share
becomes part of the decedent's residuary estate. If,

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 however, the lapsed gift is to a family member who is
survived by issue, many states, including California, have
an “anti-lapse” statute that “saves” the otherwise failing
gift and gives it to the predeceased beneficiary's issue
(CPC §21110—to be covered in detail in Chapter 9).
Circling back to our question: If the killer is the
decedent's child, and the killer has issue, do the issue
take under anti-lapse, or does California punish the issue
for the sins of the parent?
3. Criminal vs. civil matter: We see from the statute (CPC
§250), that the right to take property terminates for any person
who feloniously and intentionally kills the decedent. Does this
section apply even if the claimant has not been convicted of, or
even charged with, a criminal offense? How so? If the person has
been acquitted, is it double jeopardy to raise the issue again?
Should the prior ruling have res judicata effect in the subsequent
case? What is the applicable burden of proof?

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 IV. The Disclaimer
Doctrine
As you may recall from your first-year Property course, an inter
vivos gift requires intent, delivery, and acceptance: (1) the donor
must intend to relinquish all dominion and control over the
property being gifted; (2) the property must be delivered; and (3)
the gift must be accepted. Traditional gift law presumes
acceptance, particularly where the gift is of value. Acceptance,
however, is a rebuttable presumption. That is where the law of
disclaimer comes into play.
An inheritance, or a devise under a will or a transfer under a
nonprobate instrument, is nothing more than a gift (a time-of-
death gift, but nevertheless, still a gift). No heir, devisee, or
transferee is required to accept property from a decedent at time
of the latter's death. The law cannot force someone to accept a
gift. A disclaimer is nothing more than a party's way of saying:
“No, thank you.” The law prefers of a more lawyerly and formal
way of saying that, hence the law of disclaimer.
Why would someone “disclaim” property that he or she is
entitled to receive? In Dyer v. Eckols, below, we see one possible
reason.

Dyer v. Eckols
808 S.W.2d 531 (Tex. App. 1991)
MURPHY, Justice.
This is a case of first impression in Texas. The issue is whether
the beneficiary of a will can effectively disclaim her inheritance
pursuant to §37A of the Texas Probate Code although disclaiming
would defeat the rights of a judgment creditor.
Appellant, Roland Edward Dyer, alleges that appellees
conspired to defraud him of the ability to satisfy a default
judgment of $1.08 million rendered against appellee Sara M.
Croom after Croom's car crashed into an automobile driven by
Dyer's mother, causing Mrs. Dyer to burn to death. Prior to being

195
served with citation of the damage suit, Croom, although
insolvent, attempted to disclaim a gift of $200,000 which she was
to inherit under the will of her recently deceased uncle. By
summary judgment, the trial court held as a matter of law that (1)
the beneficiary of an estate can defeat a creditor's claim by
executing a disclaimer under §37A of the Texas Probate Code,
and (2) Croom's disclaimer was not a “transfer” prohibited by the
Texas version of the Uniform Fraudulent Transfer Act, Tex. Bus. &
Com. Code Ann. §24.005(a)(1) (Vernon 1987).... [Dyer is
appealing the trial court's ruling.]
Croom's uncle died on November 3, 1987, some four months
after the accident in which appellant's mother was killed. In his
will, admitted to probate three weeks later, Croom's uncle left her
a one-tenth (1/10) share of his estate, valued at $2,013,135. She
concedes that “a potential tort claim obviously existed” when she
later attempted to disclaim the inheritance by executing an
Instrument of Disclaimer and Other Actions. Appellant contends
that, in order to prevent him from recovering on the default
judgment against her, Croom executed the disclaimer to cause
her share of the estate to pass to her uncle's remaining heirs.
Tate v. Siepielski, 740 S.W.2d 92, 93 (Tex.App.—Fort Worth 1987,
no writ). In return, appellant contends, the remaining heirs would
“take care” of her. A witness for the appellant testified by affidavit
that he confronted appellee Mariann C. Reynolds with this
scenario, and Reynolds replied, “You don't think we're going to
give our uncle's money to those slobs [the Dyer family], do you?”
Texas law provides that legal title vests in estate beneficiaries
immediately upon death of the donor. Welder v. Hitchcock, 617
S.W.2d 294, 297 (Tex.Civ.App.—Corpus Christi 1981, writ ref'd
n.r.e.). This rule of common law has been enacted into the Texas
Probate Code, which provides, in relevant part:
When a person dies, leaving a lawful will, all of his estate
devised or bequeathed by such will ... shall vest
immediately in the devisees or legatees of such estate ...
subject, however, to the payment of the debts of the
testator or intestate ...
Tex. Prob. Code Ann. §37 (Vernon Supp.1991). Upon this
principle has been “superimposed” the disclaimer statute of §37A.

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Welder, 617 S.W.2d at 297. It provides that a disclaimer, too, is
effective as of the death of the decedent:
Any person ... who may be entitled to receive any property
as a beneficiary and who intends to effect disclaimer
irrevocably ... of the whole or any part of such property
shall evidence same as herein provided. A disclaimer ...
shall be effective as of the death of the decedent and the
property ... shall pass as if the person disclaiming ... had
predeceased the decedent ...
(emphasis added.) Tex. Prob. Code Ann. §37A (Vernon
Supp.1991). This “relation back” doctrine is based on the principle
that a bequest or gift is nothing more than an offer which can be
accepted or rejected. Some form of the doctrine is found in all of
the 44 states which have enacted disclaimer statutes.1
Nevertheless, appellant contends that as a matter of law,
Croom's disclaimer was a “transfer” within the meaning of the
Texas fraudulent transfer act, which prohibits “every mode ... of
disposing of or parting with an asset or an interest in an asset”—
including a release—made with actual intent to hinder, delay, or
defraud a claimant. Tex. Bus. & Com. Code Ann. §§24.002(12)
(defining “transfer”), 24.005(a)(1) (Vernon 1987).
... However, implicit in the act of transferring property is the
requirement that the debtor possess the asset: one cannot
dispose of something one does not have. “[A] transfer is not made
until the debtor has acquired rights in the asset transferred[.]” Tex.
Bus. & Com. Code Ann. §24.007(4) (Vernon 1987). Because
disclaimed property passes as if the beneficiary predeceased the
testator, the beneficiary never possesses the property. By
direction of the legislature, acceptance of the inheritance occurs
“only if the person making such disclaimer has previously taken
possession or exercised dominion and control of such property in
the capacity of beneficiary.” Tex. Prob. Code Ann. §37A(f)
(Vernon Supp.1991)....
...
At least six states have legislatively barred, within their
disclaimer statutes, the right to disclaim when the rights of the
disclaimant's creditors are adversely affected.... California,
however, has passed legislation clarifying that “[a] disclaimer is

197
not a fraudulent transfer by the beneficiary.” Cal. Prob. Code §283
(West Supp. 1991). In enacting this provision, the California
legislature rejected the holding of In re Kalt's Estate, 16 Cal.2d
807, 108 P.2d 401 (1940), that a disclaimer of inherited property
could be a fraudulent conveyance....
Courts have generally taken the position that a creditor cannot
prevent a debtor from disclaiming an inheritance. Annotation,
Creditor's Right to Prevent Debtor's Renunciation of Benefit
Under Will or Debtor's Election to Take Under Will, 39 A.L.R. 633
(1985). We adopt the majority view and hold that the “relation
back” doctrine prevents a disclaimer from being treated as a
transfer under fraudulent transfer acts, absent an express
statutory provision to the contrary.
The judgment of the trial court is affirmed.
—————

Notes
1. California approach: Note that the Texas court cites and
discusses the California approach to the disclaimer doctrine.
California has a rather extensive and detailed statutory approach
to its disclaimer doctrine:
CPC Section 265. Disclaimer defined
“Disclaimer” means any writing which declines, refuses,
renounces, or disclaims any interest that would otherwise be
taken by a beneficiary.
CPC Section 278. Disclaimer form requirements
The disclaimer shall be in writing, shall be signed by the
disclaimant, and shall:
(a) Identify the creator of the interest.
(b) Describe the interest to be disclaimed.
(c) State the disclaimer and the extent of the disclaimer.
CPC Section 279. Disclaimer filing requirement
(a) A disclaimer to be effective shall be filed within a
reasonable time after the person able to disclaim acquires

198
 knowledge of the interest.
(b) ... [A] disclaimer is conclusively presumed to have been
filed within a reasonable time if it is filed within nine
months after the death of the creator of the interest or
within nine months after the interest becomes indefeasibly
vested, whichever occurs later ...
CPC Section 282. Disclaimant; how treated legally
(a) Unless the creator of the interest provides for a specific
disposition of the interest in the event of a disclaimer, the
interest disclaimed shall descend, go, be distributed, or
continue to be held ... as if the disclaimant had
predeceased the creator of the interest.... A disclaimer
relates back for all purposes to the date of the death of the
creator of the disclaimed interest....
(b) Notwithstanding subdivision (a), where the disclaimer is
filed on or after January 1, 1985:
(1) The beneficiary is not treated as having predeceased
the decedent for the purpose of determining the
generation at which the division of the estate is to be
made under Part 6 (commencing with Section 240) or
other provision of a will, trust, or other instrument.
(2) The beneficiary of a disclaimed interest is not treated
as having predeceased the decedent for the purpose of
applying subdivision (d) of Section 6409 or subdivision
(b) of Section 6410.
2. Looking a gift horse in the mouth? Why would anyone
(intestate or testate) decline property? We saw in Dyer that it may
be to prevent attachment by creditors. Can a disclaimer be used
for such a purpose in California?
3. Tax considerations: Do people actually use disclaimers in
real life? Is avoiding creditors the primary reason? Individuals do,
in fact, disclaim property. The most common reason for doing so
is for tax purposes (primarily federal income and estate and gift
taxes). Can you think of why this may be?
The details of tax-related disclaimers are complex and beyond
the scope of a typical Wills and Trusts course. The use of

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disclaimers is an integral part of estate planning and again points
to the importance of a comprehensive foundation in income tax,
estate and gift taxation, and estate planning to fully grasp their
use. Suffice it to say, the California “disclaimer” statutes, above,
are circumscribed by federal income tax provisions. Specifically,
I.R.C. section 2518 sets out the requirements for a “qualified”
disclaimer. Again, while beyond the scope of a Wills and Trusts
course, it is very important for a beneficiary's disclaimer to be
considered “qualified” for tax purposes; to be otherwise, even if
meeting California's statutory disclaimer requirements, can be
catastrophic for tax purposes and may expose a supervising
attorney to malpractice claims.
4. California disclaimer qualifiers: If the effect of a disclaimer is
essentially to treat the disclaiming party as if he or she
predeceased the decedent, why is the California statute on the
effect of a disclaimer so complicated? In particular, what is the
purpose of subsection 282(b)(1)? What was the legislature
worried about? How did it deal with the concern? What is the
purpose of subsection 282(b)(2)? What was the legislature
worried about? How did it deal with the concern?

Problems
Below are the family trees of two different California domiciled
decedents depicting living and predeceased (crossed-out)
descendants.

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1. In each of the above scenarios, assume that Decedent died
intestate and no persons have made any valid disclaimers
(pursuant to the probate code). Who takes what share of
Decedent's property?
2. In each of the above scenarios, assume that Decedent died
intestate. For this question only, however, assume that B has,
pursuant to the California Probate Code, validly disclaimed any
rights to Decedent's property. Who takes what share of
Decedent's property?
3. Same as question 2, above (B disclaimed any rights to
Decedent's property) but for this question only assume that
Decedent died testate, with a valid will leaving all of his or her
property to A and B. In addition, the will specifically provides
that should A or B (either or both of them) predecease the
Decedent, distribution should be made to Decedent's issue by
right of representation utilizing a strict per stirpes method of
division. Who takes what share of Decedent's property? Would
your answer change if Decedent's will directed that distribution
to issue be made on a per capita basis consistent with that in
California Probate Code Section 240?
4. In each of the above scenarios, assume that Decedent died
intestate. Also assume that B has, pursuant to the California
Probate Code, validly disclaimed any rights to Decedent's
property. Also assume, for this question, that Decedent made
an inter vivos gift to B and that such gift constituted a valid
advancement under California law. Who takes what share of
Decedent's property?

1. [Included within the string cite to the different jurisdictions was a cite to
California law: Cal. Prob. Code §§275, 282(a) (West 1991).]

201
Chapter 5

202
Testamentary Capacity

203
 I. Overview
Who gets the decedent's property when he or she dies? Whoever
the decedent wishes. The intestate scheme applies if a decedent has
not properly expressed his or her intent. If one does not like the
intestate scheme, the traditional way of opting out was to execute a
will. Increasingly, however, more and more individuals are opting out
by executing “will substitutes,” the most common being inter vivos
trusts,1 life insurance contracts, and/or joint tenancies. Opting out of
intestacy requires us to enter the world of “directed dispositions.”2
Directed dispositions give an individual the option of exercising
testamentary freedom:3 “the ability of a decedent to control the
disposition of his property at death.”4 Testamentary freedom is one of
the hallmarks of American Wills, Trusts, and Estates law. The testator
is free to give his or her property to whomever he or she wishes. At
the same time, it is generally accepted that a person should have a
certain level of capacity before giving legal effect to his or her actions.
To the extent the law requires a person to have capacity before
recognizing the validity of his or her will (or will substitute), does that
requirement conflict with testamentary freedom? Is there a risk that
juries and/or courts will manipulate the capacity doctrines to invalidate
a will if the jury/court does not like the intent expressed in the will?5
Does a decedent really only have as much testamentary freedom as
the reviewing jury or court grants? To the extent testamentary
freedom and testamentary capacity are circles that overlap, how
much overlap should there be, and how should the overlapping lines
be articulated to regulate the overlap?

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 II. General Testamentary
Capacity
It arguably is self-evident that the law should require a certain
degree of legal capacity before holding an individual accountable for
his or her actions, or before giving legal effect to those actions. The
more challenging aspects of instituting a legal capacity requirement
are: (1) setting the requisite standard of legal capacity, and (2)
articulating that standard in a way that is workable in application for a
trial court. We have statutes that set forth the broad parameters of
testamentary capacity, but they generally do not contain clear
definitions or directions for how they apply to particular fact patterns;
but, based on the underlying nature of the subject (one's state of
mind), this would be difficult to codify. Accordingly, a good portion of
the law in this area appears to be case-derived and case-driven. Is
that good or bad? Is it inevitable?
CPC §6100. Persons qualified to make will
(a) An individual 18 or more years of age who is of sound mind
may make a will.
(b) A conservator may make a will for the conservatee if the
conservator has been so authorized by a court order ...
CPC §6100.5. Persons not mentally competent to make a will;
specified circumstances
(a) An individual is not mentally competent to make a will if at the
time of making the will either of the following is true:
(1) The individual does not have sufficient mental capacity to
be able to (A) understand the nature of the testamentary
act, (B) understand and recollect the nature and situation of
the individual's property, or (C) remember and understand
the individual's relations to living descendants, spouse, and
parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental disorder with
symptoms including delusions or hallucinations, which
delusions or hallucinations result in the individual's devising
property in a way which, except for the existence of the
delusions or hallucinations, the individual would not have
done.

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 ...

Estate of Mann
184 Cal. App. 3d 593 (1986)
KLINE, Presiding Justice.
FACTS
Hazel Mann, a resident of Mill Valley, California, died on March 22,
1981, at the age of 94 years. At the time of her death, her closest
relatives were two nephews, appellant Smith and respondent Van
Gorp, who lived in Mill Valley and Missouri, respectively.
Appellant and decedent had a close relationship throughout his life.
During his childhood and adolescence appellant lived either with his
mother in San Francisco or in foster homes in the San Francisco Bay
Area and saw decedent frequently. Beginning with a tour of duty in the
Coast Guard in 1960, appellant spent a number of years in Hawaii,
corresponding with his aunt by letter and phone. After returning to Mill
Valley in 1967, appellant served in the Merchant Marine for several
years, staying either with his aunt or with friends when he was not at
sea. Thereafter, appellant resided in Marin County and saw decedent
on a daily or weekly basis. Appellant testified that his aunt was as
close or closer than his mother; a letter from appellant's mother to
decedent referred to appellant as “our son.” Respondent stipulated
that decedent helped raise appellant and that they were very close.
Decedent also had a close and warm relationship with respondent,
although she saw him less regularly. Decedent and respondent's
mother, Pearl, corresponded almost weekly. In 1926, when
respondent was five years old, he spent six months with his mother
living in an apartment building in San Francisco owned by decedent
and her husband. Other visits occurred in 1940, 1968, 1969, 1972,
1974, and 1978, and respondent telephoned decedent periodically
during the 1970s.
In November 1975, appellant became conservator of decedent's
person and estate. Appellant testified that he sought the
conservatorship on the advice of a social worker and decedent's
physician, Dr. Lee; Dr. Lee corroborated this testimony. Respondent
also testified that he believed the conservatorship was a good idea.
The factors which led to the conservatorship involved decedent's
inability to care for herself both financially and personally.... Others
testified that prior to the conservatorship decedent was not eating or

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caring for herself properly; that she was unclean and smelled of urine;
that her home was unkempt and her bed filthy; that she did not seem
to know how to order the right food from a store; and that she
described a toy doll as “me” and seemed “kind of dreamy.”
Dr. Lee's notes indicated that in 1979 decedent suffered from
senility secondary to arteriosclerosis. He described senile dementia
as a gradual progressive disorder with three stages, loss of recent
memory, confusion, and dementia or unreality, and placed decedent
in the second stage in 1975–1976. According to Dr. Lee, the process
occurring during these years was the cause of what he described as
decedent's confusion and variable mental state at that time, such as
occasionally forgetting dates, the time of year, and what she was
doing or eating.
In a declaration filed in the conservatorship proceeding, Lee stated
his medical opinion that because of decedent's “present state of
mental weakness” she was “unable to rationally and intelligently
handle her own affairs.” He testified that at this time decedent would
sometimes appear extremely senile, sometimes better and more
oriented....
Respondent testified that decedent did not recognize him on the
phone in mid-1975, and had forgotten that his mother, her sister
Pearl, had died two years previously.
On the other hand, several other witnesses testified that decedent
was mentally competent and able to carry on a coherent conversation
during the 1975–77 time period. John Finn, an accountant with the
Internal Revenue Service who helped prepare her annual tax returns,
first met decedent in 1960. Finn testified that in 1974 and 1975
decedent had a “pretty good grasp of her financial situation”, although
he was upset that she left a lot of cash laying around. He also stated
that he found decedent's mental condition “considerably improved”
after appellant became her conservator.
... Vonnie Adcock, who became decedent's live-in housekeeper a
few months prior to the signing of the will, testified that decedent ...
spent her time sitting at the dining room table looking at the yard,
rearranging pictures or watching TV. She had been a poet earlier in
life, but no longer read. She did not initiate other activities, and did not
like to leave the house. She wanted constant company. She was
pleased to have visitors, and tended to be a little flirtatious. Dr. Lee
described her as having a characteristic mannerism of pretending not
to know people as a means of expressing displeasure with them.

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 Decedent's will was executed on July 17, 1976. The will was drawn
by attorney Robert Williams, a friend of appellant's....
... Appellant brought decedent to Williams' office on what appeared
to Williams to be a usual social visit following decedent's appointment
at the beauty salon next door. Appellant told Williams decedent had
mentioned her need for a will, and Williams agreed to help. The
contents of the will were first discussed in a meeting at decedent's
home sometime within the next month. Appellant was on the premises
but not present for this discussion, during which decedent indicated
her desire to give the bulk of her property to appellant.
The subscribing witnesses to the will were Williams, Dr. Lee, and
Vonnie Adcock. All testified decedent was alert and knew she was
signing a will. Only Dr. Lee specifically remembered decedent
discussing the terms of the will. Williams testified that he probably
asked decedent to acknowledge that she knew the nature of her
estate. Adcock did not remember the will being discussed, but only
general conversation and decedent “being pleased that there were
men people coming to visit her.” ...
DISCUSSION
I.
Testamentary Capacity
[The] determinants of testamentary capacity are whether the
individual “has sufficient mental capacity to be able to understand the
nature of the act he is doing, and to understand and recollect the
nature and situation of his property and to remember, and understand
his relations to, the persons who have claims upon his bounty and
whose interests are affected by the provisions of the instrument.”
(citations omitted) Testamentary capacity must be determined at the
time of execution of the will. (citations omitted) Incompetency on a
given day may, however, be established by proof of incompetency at
prior and subsequent times. (Estate of Fosselman (1957) 48 Cal.2d
179, 185, 308 P.2d 336.) Where testamentary incompetence is
caused by senil dementia at one point in time, there is a strong
inference, if not a legal presumption, that the incompetence continues
at other times, because the mental disorder is a continuous one which
becomes progressively worse. (Estate of Fosselman, supra, 48
Cal.2d 179, 186, 308 P.2d 336.)
The burden is on the contestant to overcome the presumption that
a testator is sane and competent. (Fritschi, supra, 60 Cal.2d at p. 372,

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33 Cal.Rptr. 264, 384 P.2d 656.) ...
It is well established that “old age or forgetfulness, eccentricities or
mental feebleness or confusion at various times of a party making a
will are not enough in themselves to warrant a holding that the
testator lacked testamentary capacity.” (citations omitted) “It has been
held over and over in this state that old age, feebleness,
forgetfulness, filthy personal habits, personal eccentricities, failure to
recognize old friends or relatives, physical disability, absent-
mindedness and mental confusion do not furnish grounds for holding
that a testator lacked testamentary capacity.” (Estate of Selb (1948)
84 Cal.App.2d 46, 49, 190 P.2d 277.) Nor does the mere fact that the
testator is under a guardianship support a finding of lack of
testamentary capacity without evidence that the incompetence
continues at the time of the will's execution. (citations omitted)
It must be remembered, in this connection, that “[w]hen one has a
mental disorder in which there are lucid periods, it is presumed that
his will has been made during a time of lucidity.” (Estate of Goetz
(1967) 253 Cal.App.2d 107, 114, 61 Cal.Rptr. 181.) Dr. Lee testified
that decedent's mental state fluctuated and that the conservatorship
was established to protect her from the “worst times.” Vonnie Adcock
testified that even in late 1977 decedent had periods of alertness, as
John Finn, decedent's tax accountant, also testified. Thus a finding of
lack of testamentary capacity can be supported only if the
presumption of execution during a lucid period is overcome.
The witnesses to execution of the will all testified decedent was
aware of what she was doing at the time, and that they would not
have signed the will if this had not been true. While the jury was free
to disbelieve this testimony, “[d]isbelief does not create affirmative
evidence to the contrary of that which is discarded.” (citations omitted)
The only evidence suggestive of decedent's incapacity at the time the
will was executed is in fact evidence of her condition at other times.
That is, the only bases for the conclusion she lacked capacity at the
time of execution would be inferences that the factors leading to the
conservatorship rendered her incapable of comprehending the extent
of her property and continued to so affect her at the time of the will's
execution, and that her senility caused faulty recollection at this time.
There are several problems in the indulging of such inferences.
First, the fact that a testator has been placed under a guardianship
does not in itself establish testamentary incapacity. (Estate of Nelson,
supra, 227 Cal.App.2d 42, 55–56, 38 Cal.Rptr. 459; see also, Note,
Effect of Adjudication of Mental Incompetency on Power to Make a

209
Will (1943) 16 So.Cal.L.Rev. 355.) Since a conservatorship, unlike a
guardianship, does not involve a declaration of incompetence (Estate
of Wochos, supra, 23 Cal.App.3d 47, 54, 99 Cal.Rptr. 782), a
conservatorship raises an even weaker inference of testamentary
incapacity.
...
Finally, while advanced senility which interferes with the ability to
understand the nature of the testamentary act, the extent of one's
property and one's relations to those interested in it is sufficient
evidence of testamentary incapacity (citations omitted), the evidence
in this case is of a much lesser degree of senility at the time of
execution. Indeed, the only evidence was of a degree of senility which
did not preclude mental alertness, and Dr. Lee, the only witness who
testified decedent was medically senile, also stated she was alert
when the will was executed and understood the nature and
implications of her act. Dr. Lee had known decedent longer than two
years at the time the will was executed. His testimony was
uncontroverted, and is especially significant as he appears to be one
of the few witnesses not aligned with either side to the controversy.
In sum, the evidence of incompetence in this case is much weaker
than that held insufficient to justify the setting aside of wills in
numerous other cases ... and is simply not enough to overcome the
presumption that the testator was sane and competent at the time of
the will's execution. (citation omitted).
...
For the foregoing reasons, the judgment is reversed. Each party to
bear its own costs on appeal.
—————

Notes
1. Doctrinal questions: At what point in time is testamentary
capacity assessed? What evidence is relevant to the question of
testamentary capacity? Who bears the burden of proof with respect to
testamentary capacity?
Because of California's presumption of testamentary capacity, a will
proponent need not prove capacity—all that needs to be proved is
due execution. A standard and completed attestation clause
constitutes a prima facie case of due execution. If a party contests the

210
will on lack of capacity grounds (complete incapacity or due to a
defect in capacity), the contestant bears the burden of proof.
2. Different capacity thresholds: Most law students are first
introduced to the notion of legal capacity in their first year Contracts
course. Just as an individual must have capacity to enter into a valid
contract, he or she must have capacity to execute a valid will. That
admission, however, begs the question: what should be the standard
for testamentary capacity? Should it be the same as contractual
capacity? Should it be higher or lower, and why?
First, a few points about contractual capacity as it relates to
guardianship and conservatorship. In Board of Regents v. Davis, 14
Cal. 3d 333, 120 Cal. Rptr. 407, 410, 414 (1975), the California
Supreme Court stated: “A ward under a guardianship lacks the
capacity to enter into a contract.” California Probate Code Section
1872 states: “[T]he appointment of a conservator of the estate is an
adjudication that the conservatee lacks the legal capacity to enter into
or make any transaction that binds or obligates the conservatorship
estate.” Probate Code Section 1870 defines a “transaction” as
including making a contract or gift. Based on the court's discussion of
guardianships and conservatorships in Mann, would you say
testamentary capacity is higher or lower than contractual capacity?
Does that make sense?
Another important standard of capacity is the capacity required to
enter into a marriage. Marriage is an important institution that has
many important legal consequences. Should the capacity to enter into
a marriage be higher or lower than testamentary capacity? Why would
that be the case?
3. Judicial approach: Because the test for testamentary capacity is
rather soft and fact sensitive, it can be difficult to apply in certain
factual settings. For the most part, the strong presumption of
testamentary capacity coupled with the relatively low threshold for
testamentary capacity has resulted in rather restrained use of the
doctrine to invalidate a will.
One of the more well-known California cases in this area is In re
Wright's Estate, 7 Cal. 2d 348 (1936). Decedent died at the age of 69.
His wife predeceased him. His closest living relative was his only
daughter. He owned two houses in Venice, California, land in Salt
Lake City, Utah, and minimal personal property. He executed the
document that was offered as his will just over one year before his
death. In the will, he gave one house to his daughter, the other house

211
to a “friend,” 50-year-old Charlotte Josephine Hindmarch, the land in
Utah to his granddaughter, and $1.00 to several of his other relatives.
“The drawer of the will, a notary public and realtor, and the two
subscribing witnesses ... [testified] that they were of the opinion that
the testator was of unsound mind.” Moreover, each of the several
witnesses who testified at trial testified that they believed the testator
was of unsound mind. The following is representative of the testimony
given by the different witnesses:
Mrs. Brem had known testator for sixteen years ... she was sure
from the way he lived alone in his little shack, with all the dirt
and junk he had, that he was not right; he once gave her a fish
(he spent much time in fishing) which he said he had caught
and she found it had been soaked in kerosene and when he
asked her how she liked it he laughed and said he had put the
kerosene on it before he brought it to her; ....
Mrs. Daisy Smith, a cousin not named in the will, testified that
she believed him to be unsound in mind. Her reasons were that
he drank and was drunk much of the time since his wife died;
that some years ago he suffered an injury to his head and
several stitches were required to close the wound; that the
injury seemed to change him; ... on one or more occasions he
ran out of the house only partly dressed and they had to follow
him and had difficulty in getting him back to bed; that he picked
up silverware and other articles from the garbage cans and hid
these things around the house; that he picked up paper flowers
from the garbage cans, and waste, and pinned them on rose
bushes in his yard and took the witness to look at his roses;....
Hariett E. McClelland said she had known testator for a number
of years. She believed him to be of unsound mind. She testified
that she had been closely associated with him and that ... he
told her about a number of houses that he had at Salt Lake
City, his former home and where she had known testator, but
she knew that he did not own them; he collected paper flowers
from the garbage cans and pinned them on the bushes in his
yard and laughingly said to her that he would fool the people as
they would think the flowers were blooming; that one time he
told the witness in the presence of her mother that she was his
natural daughter. The mother became exceedingly angry at him
and it does not appear that he ever repeated the statement.
The witness related an ailment which the testator had while
living at her house during which he would be prone, hold his
breath and appear to be dead; that when she returned from her

212
 quest for help she would find him up and walking about; that he
said he did this to scare his neighbors and make them think he
was dead.
Nevertheless, after reviewing all the evidence, the California
Supreme Court ruled there was not enough evidence to establish the
testator lacked testamentary capacity:
Testamentary capacity cannot be destroyed by showing a few
isolated acts, foibles, idiosyncrasies, moral or mental
irregularities or departures from the normal unless they directly
bear upon and have influenced the testamentary act. No
medical testimony as to the extent of any injury the testator had
received or its effect upon him either physically or mentally was
introduced in the case. The burden was upon contestant
throughout the case. Taking all the evidence adduced by
contestant as true, it falls far below the requirements of the law
as constituting satisfactory rebuttal of the inference of
testamentary capacity.... He went alone to the scrivener's with a
list of beneficiaries prepared by himself, giving his daughter one
piece of improved real property and Charlotte Josephine
Hindmarch, whom he designated as his friend, the other....
There is no evidence that he did not appreciate his relations
and obligations to others, or that he was not mindful of the
property which he possessed. The opinions or beliefs of those
who testified that he was not of sound mind rest upon testimony
of the most trivial character and do not establish testamentary
incapacity at the time he executed his will.
4. Attorney's duty to determine capacity: What exactly is the
attorney's role in determining a client's capacity? Should an attorney
have an ethical duty to draft an instrument only for a client that the
attorney believes has capacity to execute it? This is a complex
question and an in-depth exploration of the subject is well beyond the
scope of this course. Clearly, an attorney cannot draft a testamentary-
related document when it is clear that, sadly, the client lacks any
degree of understanding of their surroundings and what is transpiring.
The majority of situations in which capacity may be at issue, however,
can be more difficult; aberrant behavior being less pronounced or
conspicuous. During the course of a typical client interview, the
attorney usually gets some idea of the client's cognition vis-à-vis the
three basic components enumerated in California Probate Code
Section 6100.5(a)(2): (1) the client's understanding of the nature of
the testamentary act he or she is performing; (2) the client's

213
understanding and recollection of the nature and situation of their
property; and (3) the client's ability to remember and understand their
relations to living descendants, spouse, parents and those whose
interests are affected by the will.
While it is not uncommon for a client to have some lapses in
memory or be a bit “hazy” with respect to some matters, this does not
necessarily preclude the drafting and execution of a will (or other
testamentary document). Even where the attorney believes the client
meets the threshold level of competency, if the dispositive provisions
of the document are such that “eyebrows may be raised” and there is
a risk that others may ultimately assert that the testator lacked
capacity, measures may be taken to provide some degree of
evidential support. The estate planning attorney's contact list often
includes a psychiatrist or other medical professional who is familiar
with testamentary thresholds for competency and who can provide, at
the attorney's request (with consent of the client), a geriatric
evaluation. Some estate planning attorneys routinely call upon
someone in the medical profession (often a local psychiatrist or
physician) to act as a witness in the execution of the testamentary
document—in effect, providing an immediate, albeit limited,
evaluation.
5. Will versus will substitute capacity standards: The three most
common will substitutes are: (1) joint tenancies, (2) life insurance
contracts, and (3) revocable living trusts (the latter being the closest
to a will vis-à-vis function and content). One of the traditional
explanations for why these will substitutes qualify as nonprobate
transfers, and why they are subject to a different capacity
requirement, is that technically they are inter vivos transfers, not
testamentary transfers. A joint tenancy immediately conveys a
present interest in the property to the other co-tenant. That interest is
created and transferred the moment the joint tenancy is created inter
vivos. A trust is a form of a gift. The trust beneficiaries who hold the
future interest may not fully enjoy that interest until after the life
tenant's death, but the future interest is a property interest. The future
interest is created and transferred the moment the trust is created
inter vivos. A life insurance contract is a contract that conveys a
present benefit to the beneficiary of the contract—the rights under the
contract. That interest is created and transferred the moment the
contract is executed inter vivos.
Because all three of these nonprobate transfers involve the present
transfer of a present interest, historically the assumption was that a

214
higher standard of capacity should apply because of the inter vivos
consequences of the instrument. In contrast, a will transfers no
present property rights or interest to the will beneficiaries. Nothing
passes until the testator dies. A will is purely testamentary in nature,
hence the lower level of capacity: testamentary capacity. Consistent
with that logic, California Probate Code section 852 sets forth the
general capacity standard for the nonprobate instruments. That
standard is often referred to as “contractual capacity.”6 Bottom line,
the higher capacity requirement for the nonprobate instruments has
guided some estate planners to draft a will for clients who meet the
relatively low wills standard but whose capacity may be at issue for
purposes of a revocable living trust or other nonprobate instrument.
That bottom line, however, may have to be reassessed in light of
the ruling in Andersen v. Hunt, 196 Cal. App. 4th 722 (2011). The
court ruled that the lower standard, testamentary capacity, applied to
the question of whether the settlor had the requisite capacity to
execute amendments to a revocable living trust. That a court would
apply testamentary capacity—and not contractual capacity—to a
nonprobate trust amendment is potentially a landmark decision and
has been the talk of the estate planning community. Some estate
planners argue that the court's ruling appears to be based on the
perceived complexity of the trust amendments: simple trust
amendments require the lower wills standard (testamentary capacity),
while more complex trust amendments require the higher nonprobate
standard (contractual capacity). Other estate planners argue the
distinguishing variable is whether the trust amendment has inter vivos
significance (in which case the higher contractual capacity standard
should apply) or whether the trust amendment has only testamentary
significance (in which case the lower testamentary capacity standard
should apply).
In 2014, in Lintz v. Lintz, 222 Cal. App. 4th 1346 (2014), the court
agreed with the decision in Andersen and held that the distinguishing
variable was the complexity of the trust and trust amendments—that a
complexity-dependent “sliding contract scale” standard for capacity
should be the default rule for trusts (and trust amendments).
Both the Andersen and Lintz cases have the estate planning
community debating the future course of the law vis-à-vis
testamentary capacity for all forms of testamentary documents.
Legally and historically, the lower capacity standard for wills is not a
sliding scale, unlike what appears to be the new sliding-scale
contract-based capacity standard for trusts. If the distinguishing factor

215
for applying lower or higher standards for capacity is the complexity of
the underlying document, however, then it can be argued that the
same sliding-scale standard of capacity should apply across the
board to all testamentary documents. The notion that the general
nature and complexity of a living trust (the typical will substitute) and
its dispositive provisions are inherently more complex than that of a
will is somewhat specious. The complexity spectrum of wills (from
simple to exceptionally complex with embedded testamentary trusts,
and a plethora of tax-sensitive provisions, including marital deduction
clauses, “unified credit” trusts and “generation skipping transfer tax”
clauses) is, for all intents and purposes, the same as for those in a
living trust (the typical will substitute). Can differing standards for
capacity for wills versus trusts be defensible? Should they be
different?
6. Aging population: Historically the courts were rather restrained in
their use of general testamentary capacity to invalidate a will. It
remains to be seen, however, whether they will maintain this
approach as life expectancies continue to increase. In 1900, the life
expectancy for someone born that year was 46 years for men, 48
years for women. By 1950, life expectancies had jumped to 65 years
and 71 years, respectively; by 2007, to 75 and 80 years. Dementia,
Alzheimer's, and other ailments of the mind are strongly correlated
with age. Should the courts be more aggressive in analyzing whether
an individual has testamentary capacity to help protect our
increasingly aging population? Or would that wrongfully deprive the
elderly of their testamentary freedom?

Problems
1. “On the morning of March 2, 1944, decedent Maude R. Rich, then
66 years of age, executed an holographic will by the terms of which
her entire estate was bequeathed to Mrs. Clara Wills, who had
been legally adopted when she was seven years of age, by
decedent's mother. This holographic will was placed by decedent in
her safety deposit box at the Bank of America at San Pedro,
California, at 10 o'clock on the morning of the same day it was
executed. Shortly thereafter the testatrix boarded a train at San
Pedro, bound for Los Angeles, where at about noon of the same
day she committed suicide by jumping out the 8th story window of
an office building in downtown Los Angeles.”
What relevance, if any, should the fact that the testator committed
suicide shortly after executing the will have on the issue of whether

216
 the testator had the requisite testamentary capacity? See In re
Rich's Estate, 179 P.2d 373 (Cal. Ct. App. 1947); In re Card's Will,
8 N.Y.S. 297, 297 (1889) (“Suicide is competent evidence upon the
issue of insanity, but only as a circumstance in connection with
others, and is not presumptive evidence of it.”).
2. Cases involving testamentary capacity are often messy, fact-
sensitive cases that arguably could go either way. For example,
Charles P. Galatis, unmarried and with no children, suffered from a
number of ailments. His medical problems included diabetes,
hyperkalemia (excess potassium in the blood), and major
depression. His 12 medications included antidepressants and
narcotics for pain relief. On January 15, 2000, he was diagnosed
with stage IV lung cancer and admitted to the hospital. His dosages
for both the antidepressants and the painkillers were “aggressively”
increased. On February 8, he had an adverse reaction to one of his
medications; and, as a result, developed facial droop, slurred
speech, increased drowsiness, inability to pay attention, and
required constant stimulation to be able to generate answers to
questions. As a result of this incident, he was diagnosed with
encephalopathy (a brain disorder) and prescribed yet more
medications that helped with these new physical symptoms. The
following day, February 9, several nurses and friends interacted
with Galatis (all of whom gave differing accounts with respect to his
mental condition). An attorney stopped by and had him execute a
will (leaving most of his estate—real estate in Greece—to the town
of Skiathos, Greece).
He died February 25, 2000. Two of his cousins contested the will,
claiming he lacked testamentary capacity. The trial court made 559
factual findings that totaled 71 pages. See In re Estate of Galatis,
36 N.E.3d 1247 (Mass. App. Ct. 2015). How would you rule on the
issue of his testamentary capacity?

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 III. Defects in Testamentary
Capacity
Even though a testator may have general testamentary capacity, a
testator may suffer from a defect in capacity that may invalidate part
or all of a will.

A. Insane Delusions
The first possible defect, insane delusion, is based on the premise
that an individual can develop a delusion that is so strong, and held
so passionately and stubbornly, that it overpowers the testator's ability
to think rationally with respect to that particular belief or issue (i.e., the
person is just “crazy” on that issue). If the delusion becomes that
strong and it causes the testator to dispose of his or her property in a
way that he or she would not have otherwise, for all practical
purposes the testator lacks testamentary capacity to that limited
extent. The testator may have general testamentary capacity, but he
or she may suffer from a defect in capacity that may invalidate all or
part of the will. At an abstract, academic level the doctrine makes
sense.
On the other hand, a delusion is analogous to a mistake, and the
traditional and still general rule is that courts should not correct
mistakes. If courts were to correct mistakes, that would open the door
to fraud and increase costs of administration. Where does the law
draw the line—and how does it articulate the line—between a
delusion/mistake and an insane delusion? Is that a defensible line, or
does it permit the jury/court to strike down a gift or will that the
jury/court thinks is indefensible? Is the doctrine of insane delusion
compatible with testamentary freedom?

In re Honigman's Will
168 N.E.2d 676 (N.Y. 1960)
DYE, Judge.
Frank Honigman died May 4, 1956, survived by his wife, Florence.
By a purported last will and testament, executed April 3, 1956, just
one month before his death, he gave $5,000 to each of three named
grandnieces, and cut off his wife with a life use of her minimum

218
statutory share plus $2,500, with direction to pay the principal upon
her death to his surviving brothers and sisters and to the descendants
of any predeceased brother or sister, per stirpes. The remaining one
half of his estate was bequeathed in equal shares to his surviving
brothers and sisters and to the descendants of any predeceased
brother or sister, per stirpes, some of whom resided in Germany.
When the will was offered for probate in Surrogate's Court, Queens
County, the widow Florence filed objections. A trial was had on
framed issues, only one of which survived for determination by the
jury, namely: “At the time of the execution of the paper offered for
probate was the said Frank Honigman of sound and disposing mind
and memory?” The jury answered in the negative, and the Surrogate
then made a decree denying probate to the will. [The New York
Supreme Court, Appellate Division, held Mr. Honigman's belief was
not an insane delusion, that there was not sufficient evidence to
submit the question to the jury, and the court ordered the will admitted
to probate.]
We read this record as containing more than enough competent
proof to warrant submitting to the jury the issue of decedent's
testamentary capacity. By the same token the proof amply supports
the jury findings, implicit in the verdict, that the testator, at the time he
made his will, was suffering from an unwarranted and insane delusion
that his wife was unfaithful to him, which condition affected the
disposition made in the will. The record is replete with testimony,
supplied by a large number of disinterested persons, that for quite
some time before his death the testator had publicly and repeatedly
told friends and strangers alike that he believed his wife was
unfaithful, often using obscene and abusive language. Such
manifestations of suspicion were quite unaccountable, coming as they
did after nearly 40 years of a childless yet, to all outward
appearances, a congenial and harmonious marriage, which had
begun in 1916. During the intervening time they had worked together
in the successful management, operation and ownership of various
restaurants, bars and grills and, by their joint efforts of thrift and
industry, had accumulated the substantial fortune now at stake.
The decedent and his wife retired from business in 1945 because of
decedent's failing health. In the few years that followed he underwent
a number of operations, including a prostatectomy in 1951, and an
operation for cancer of the large bowel in 1954, when decedent was
approximately 70 years of age.

219
 From about this time, he began volubly to express his belief that
Mrs. Honigman was unfaithful to him. This suspicion became an
obsession with him, although all of the witnesses agreed that the
deceased was normal and rational in other respects. Seemingly
aware of his mental state, he once mentioned that he was “sick in the
head” (“Mich krank gelassen in den Kopf”), and that “I know there is
something wrong with me” in response to a light reference to his
mental condition. In December, 1955 he went to Europe, a trip Mrs.
Honigman learned of in a letter sent from Idlewild Airport after he had
departed, and while there he visited a doctor. Upon his return he went
to a psychiatrist who Mr. Honigman said “could not help” him. Finally,
he went to a chiropractor with whom he was extremely satisfied.
On March 21, 1956, shortly after his return from Europe, Mr.
Honigman instructed his attorney to prepare the will in question. He
never again joined Mrs. Honigman in the marital home.
To offset and contradict this showing of irrational obsession the
proponents adduced proof which, it is said, furnished a reasonable
basis for decedent's belief, and which, when taken with other factors,
made his testamentary disposition understandable. Briefly, this proof
related to four incidents. One concerned an anniversary card sent by
Mr. Krauss, a mutual acquaintance and friend of many years, bearing
a printed message of congratulation in sweetly sentimental
phraseology. Because it was addressed to the wife alone and not
received on the anniversary date, Mr. Honigman viewed it as
confirmatory of his suspicion. Then there was the reference to a letter
which it is claimed contained prejudicial matter but just what it was is
not before us, because the letter was not produced in evidence and
its contents were not established. There was also proof to show that
whenever the house telephone rang Mrs. Honigman would answer it.
From this Mr. Honigman drew added support for his suspicion that
she was having an affair with Mr. Krauss. Mr. Honigman became so
upset about it that for the last two years of their marriage he positively
forbade her to answer the telephone. Another allegedly significant
happening was an occasion when Mrs. Honigman asked the
decedent as he was leaving the house what time she might expect
him to return. This aroused his suspicion. He secreted himself at a
vantage point in a nearby park and watched his home. He saw Mr.
Krauss enter and, later, when he confronted his wife with knowledge
of this incident, she allegedly asked him for a divorce. This incident
was taken entirely from a statement made by Mr. Honigman to one of
the witnesses. Mrs. Honigman flatly denied all of it. Their verdict
shows that the jury evidently believed the objectant. Under the

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circumstances, we cannot say that this was wrong. The jury had the
right to disregard the proponents' proof, or to go so far as to hold that
such trivia afforded even additional grounds for decedent's irrational
and unwarranted belief. The issue we must bear in mind is not
whether Mrs. Honigman was unfaithful, but whether Mr. Honigman
had any reasonable basis for believing that she was.
In a very early case we defined the applicable test as follows: “If a
person persistently believes supposed facts, which have no real
existence except in his perverted imagination, and against all
evidence and probability, and conducts himself, however logically,
upon the assumption of their existence, he is, so far as they are
concerned, under a morbid delusion; and delusion in that sense is
insanity. Such a person is essentially mad or insane on those
subjects, though on other subjects he may reason, act and speak like
a sensible man.” (American Seamen's Friend Soc. v. Hopper, 33 N.Y.
619, 624–625.)
... When, in the light of all the circumstances surrounding a long
and happy marriage such as this, the husband publicly and repeatedly
expresses suspicions of his wife's unfaithfulness; of misbehaving
herself in a most unseemly fashion, by hiding male callers in the cellar
of her own home, in various closets, and under the bed; of hauling
men from the street up to her second-story bedroom by use of bed
sheets; of making contacts over the household telephone; and of
passing a clandestine note through the fence on her brother's
property and when he claims to have heard noises which he believed
to be men running about his home, but which he had not investigated,
and which he could not verify the courts should have no hesitation in
placing the issue of sanity in the jury's hands. To hold to the contrary
would be to take from the jury its traditional function of passing on the
facts....
The proponents argue that, even if decedent was indeed laboring
under a delusion, the existence of other reasons for the disposition he
chose is enough to support the validity of the instrument as a will. The
other reasons are, first, the size of Mrs. Honigman's independent
fortune, and, second, the financial need of his residuary legatees.
These reasons, as well as his belief in his wife's infidelity, decedent
expressed to his own attorney. We dispelled a similar contention in
American Seamen's Friend Soc. v. Hopper, supra, 33 N.Y. at page
625, where we held that a will was bad when its “dispository
provisions were or might have been caused or affected by the
delusion” (emphasis supplied)....

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 The order appealed from should be reversed and a new trial
granted, with costs to abide the event.
FULD, Judge (dissenting).
I am willing to assume that the proof demonstrates that the
testator's belief that his wife was unfaithful was completely groundless
and unjust. However, that is not enough; it does not follow from this
fact that the testator suffered from such a delusion as to stamp him
mentally defective or as lacking in capacity to make a will. “To sustain
the allegation,” this court wrote in the Clapp case, 34 N.Y. 190, 197, “it
is not sufficient to show that his suspicion in this respect was not well
founded. It is quite apparent, from the evidence, that his distrust of the
fidelity of his wife was really groundless and unjust; but it does not
follow that his doubts evince a condition of lunacy. The right of a
testator to dispose of his estate, depends neither on the justice of his
prejudices nor the soundness of his reasoning. He may do what he
will with his own; and if there be no defect of testamentary capacity,
and no undue influence or fraud, the law gives effect to his will,
though its provisions are unreasonable and unjust.” ...
Moreover, I share the Appellate Division's view that other and
sound reasons, quite apart from the alleged decision, existed for the
disposition made by the testator. Indeed, he himself had declared that
his wife had enough money and he wanted to take care of his
brothers and sisters living in Europe.
In short, the evidence adduced utterly failed to prove that the
testator was suffering from an insane delusion or lacked testamentary
capacity. The Appellate Division was eminently correct in concluding
that there was no issue of fact for the jury's consideration and in
directing the entry of a decree admitting the will to probate. Its order
should be affirmed.
—————

Notes
1. Doctrinal split: Jurisdictions are split over how best to articulate a
workable standard for the insane delusion doctrine. One school of
thought borrows from the torts notion of “the average reasonable
person” but with a testamentary spin on the fictional legal character:
An insane delusion, in the legal sense, is “a belief in things
impossible, or a belief in things possible, but so improbable
under the surrounding circumstances that no man of sound

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 mind could give them credence,” ... [citation omitted], otherwise
defined, an insane delusion is “a false belief, for which there is
no reasonable foundation, and which would be incredible under
similar circumstances to the same person if he were of sound
mind, and concerning which his mind is not open to permanent
correction through argument or evidence,” ... [citation omitted].
Benjamin v. Woodring, 268 Md. 593, 601 (1973) (emphasis
added).
A second approach to the doctrine focuses on the evidentiary support
for the testator's belief/conclusion in question:
If there are any facts, however little evidential force they may
possess, upon which the testator may in reason have based his
belief, it will not be an insane delusion, though on a
consideration of other facts themselves his belief may seem
illogical or foundationless to the court; for a will, it is obvious, is
not to be overturned [merely] because the testator has not
reasoned correctly. In re Solomon's Estate, 334 Mich. 17, 27–
28 (1952) (quoting 1 UNDERHILL ON WILLS §94).
Which approach is better: the “no person of sound mind could have
reached that conclusion” approach or the “no factual basis to support
the belief” approach? Which approach is more protective of a
testator's intent (i.e., under which approach is it more difficult for a jury
to substitute its belief/conclusion in place of the testator's
belief/conclusion)?
Which approach did the court apply in Honigman? Did Mr.
Honigman suffer from an insane delusion or just a delusion—a
mistake? Or might Mrs. Honigman simply have been the second
coming of the Wife of Bath from Chaucer's Canterbury Tales (five
times widowed, she admits to a voracious sexual appetite that her
older husbands could not satisfy)?
2. California approach: Unfortunately, the California courts have
been a bit too loose in their phrasing of what constitutes an insane
delusion to definitely state the California approach. One court held:
“One cannot be said to act under an insane delusion if his
condition of mind results from a belief or inference, however
irrational or unfounded, drawn from facts which are shown to
exist.” Estate of Scott, 128 Cal. 57, 62, 60 P. 527, 529; Estate of
Shay, 196 Cal. 355, 237 P. 1079; Estate of Perkins, 195 Cal.
699, 235 P. 45; Estate of Powell, 113 Cal.App. 670, 299 P.
108....” If the belief or opinion has no basis in reason or

223
 probability, and is without any evidence in its support, but exists
without any process of reasoning, or is the spontaneous
offspring of a perverted imagination, and is adhered to against
all evidence and argument, the delusion may be truly called
insane; but if there is any evidence, however slight or
inconclusive, which might have a tendency to create the belief,
it cannot be said to be a delusion.” * * * “It must be a delusion of
such character that no evidence or argument will have the
slightest effect to remove.” ... If there is any evidence, however
slight or inconclusive, which might have a tendency to create a
belief such belief is not a delusion. (57 Am.Jur. 92, sec. 82.)
In re Alegria's Estate, 87 Cal. App. 2d 645, 654 (Ct. App. 1948).
Based on that quote, California seems rather solidly in the camp that
if there is any factual basis to support the belief, it is not an insane
delusion. But then, in In re Watson's Estate, the court, in dicta, had
the following to say about the In re Alegria's Estate approach: “We
agree fully with the definition of insane delusion there given, requiring
that such a delusion be the product of a disordered mind, and that it
be one which cannot be accounted for upon any reasonable
hypothesis.” In re Watson's Estate, 195 Cal. App. 2d 740, 743 (Ct.
App. 1961) (emphasis added). Reconciling these two descriptions of
the insane delusion doctrine in California is tough. On balance,
however, it would appear that if there is any evidence to support the
belief, it is not an insane delusion.
3. Unnatural dispositions: While testamentary freedom is one of the
hallmarks of the American legal system, that claim is a bit of an
overstatement. In non-community property states, it is impossible to
disinherit one's spouse. A surviving spouse has a statutory right to
come into probate court and force the testator's estate to give him or
her a statutory share of the estate (typically one-third of the estate). In
Honigman, note the court's statement in the opening paragraph that
the will “cut off his wife with a life use of her minimum statutory share
plus $2,500” (emphasis added). For all practical purposes Mr.
Honigman was doing his best, to the extent permitted by law, to
disinherit his wife of nearly 40 years. Is that right? Is that natural? If
you were on the jury in the case, would Mrs. Honigman's equitable
claim that she deserved more trump Mr. Honigman's testamentary
freedom?
Where family members are disinherited (either completely, for all
practical purposes, or to the extent permitted by law), they usually
challenge the will on one or more of the capacity grounds. Studies

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have repeatedly found that where family members are disinherited
and the will is challenged on capacity grounds, juries
disproportionately find for the disinherited family members, only to
have the court of appeals reverse in more than 50 percent of the
cases. Note, Will Contests on Trial, 6 STAN. L. REV. 91, 92 (1953) (a
study of California cases between 1892 and 1953 where a will was
challenged on capacity grounds found that 77 percent of the trial court
proceedings ended in favor of the contestant; but of those appealed,
62 percent were reversed). In light of the high costs of administration
inherent in such a scheme, can we do better, or is this simply the cost
of having a capacity requirement? In response to what some viewed
as a jury's decision often being based on “fairness” as opposed to the
proper application of the law, California was among a number of
states that eventually eliminated the right to a jury trial in most probate
and probate-related matters.7 Do you think trial judges are more likely
to “get it right”?
In many countries, it is virtually impossible to disinherit family
members. The courts often have broad powers to override the terms
of the will to ensure that the probate process adequately provides for
family members. Spouses and children (dependent or not) are given
substantial rights in the decedent's estate, leaving relatively little for
the testator to dispose of as he or she wishes. Many scholars argue
that if the United States granted greater protection to family members
there would be less abuse and manipulation of the capacity material
—that the latter is our indirect way of trying to protect family members
where we think the testator has wronged his or her family. See
Melanie Leslie, The Myth of Testamentary Freedom, 38 ARIZ. L. REV.
235 (1996). Do you agree? Should we grant greater protection to
family members to ensure that they receive a fair and equitable share
of the testator's estate?

Problems
1. Heath and Winnie are married and expecting their first child,
Charlotte. Tragically, Winnie dies during childbirth and Heath is
traumatized by the loss of the love of his life. He hires a nanny to
raise Charlotte and sends her away to boarding school.
As a child, Charlotte developed a condition similar to eczema
(itchy, dry, red skin). When someone mentioned the condition was
“gross,” Heath went on a tirade, insisting on several different
occasions that the daughter was “gross” in every way. By the time
his daughter was eight or nine years old, Heath “spoke of her only

225
 as wicked, having vices not possible of a girl that young, depraved
in spirit, vile, of unequaled depravity, deceitful, and violent in
temper. He told others that she was a child of the devil and a
‘special property of Satan.’”
Although everyone else considered Charlotte well-behaved, sweet
and docile, when she moved back home as a grown daughter,
Heath treated her as a servant and physically tortured her at home,
while boasting to others that he lavished her with love and gifts
when nothing could have been further from the truth.
A few years before he died, while his behavior was usual in all
other respects, Heath executed a will that disinherited Charlotte.
Following his death, Charlotte challenged his will.
Does Heath have general testamentary capacity? Is Heath
suffering from an insane delusion? Should the will be declared
invalid? See Dougherty v. Rubenstein, 914 A.2d 184, 186 (Md.
App. 2007) (discussing Dew v. Clark, 162 Eng. Rep. 410 (Prerog.
1826) (this latter case is generally recognized as the first case to
recognize the insane delusion doctrine)).
2. Louisa F. Strittmater was born in 1896. She never married. She
lived with her parents until they died in 1928. She died testate in
1944, with a will that left all her property to the National Women's
Party—an organization for which she had worked as a volunteer
one day a week from 1939 to 1941.
At the time of her parents' deaths, all indications were that Louisa
and her parents had a normal, loving relationship. Starting in 1935
she began to write comments and memorandum evidencing a
change in her attitude. In 1938, she wrote: “My father was a
corrupt, vicious, and unintelligent savage, a typical specimen of the
majority of his sex. Blast his wormstinking carcass and his whole
damn breed.” Her cousins, whom she saw very little of during the
last few years of her life, challenged her will.
The New Jersey Appeals court had the following to say about her:
The Master who heard the case in the court below, found
that the proofs demonstrated ‘incontrovertably her morbid
aversion to men’ and ‘feminism to a neurotic extreme.’
This characterization seems to me not strong enough.
She regarded men as a class with an insane hatred. She
looked forward to the day when women would bear
children without the aid of men, and all males would be
put to death at birth. Decedent's inward life, disclosed by
what she wrote, found an occasional outlet such as the

226
 incident of the smashing of the clock, the killing of the pet
kitten, vile language, etc. On the other hand—and I
suppose this is the split personality—Miss Strittmater, in
her dealings with her lawyer, Mr. Semel, over a period of
several years, and with her bank, to cite only two
examples, was entirely reasonable and normal.
Does Louisa have general testamentary capacity? Is Louisa
suffering from an insane delusion—or is she just a feminist ahead
of her time, and the court cannot accept her political views? Should
the will be declared invalid? See In re Strittmater's Estate, 53 A.2d
205 (N.J. 1947) (it should be noted that the court's opinion has
been heavily criticized—why?).

B. Undue Influence
Undue influence is a tough doctrine. At the conceptual level it is
fairly easy to state and understand. Undue influence occurs when a
party unduly influences the testator to substitute the undue
influencer's intent for the testator's intent. It makes sense that a party
who used undue influence to secure a testamentary gift should not
benefit from his or her wrongdoing. The doctrine of undue influence
goes hand in hand with testamentary freedom in that it protects
testamentary freedom—it protects the testator's intent from others
who wish to substitute their intent for the testator's intent.
At the doctrinal level, however, it is difficult to articulate what
constitutes undue influence in a way that does not open the door to
the trier of fact, in the name of protecting the testator's intent, from
substituting its intent for the decedent's intent. Not surprising, legal
scholars disagree on how the law should approach the doctrine of
undue influence. At one end of the spectrum are scholars who argue
that undue influence is coercion, and that absent coercion a trier of
fact should not substitute its view of what is right for the decedent's
expressed testamentary intent. At the other end of the spectrum are
scholars who argue that undue influence is simply inappropriate
influence. Although the underlying theme for both ends of the
spectrum is inappropriate persuasion, there are subtle, but important,
distinctions between the two. Notice the different thresholds a will
contestant would have to meet under the conflicting views of the
doctrine: coercion versus inappropriate influence. If you were invoking
the doctrine in an attempt to invalidate a will, which approach to
undue influence would you prefer the jurisdiction held? Under which

227
approach is it easier for a party contesting a will to show undue
influence?
Finally, undue influence typically occurs behind closed doors.
Rarely is there direct evidence of the misconduct. Instead, undue
influence typically is inferred from circumstantial evidence. Because a
properly executed will gives rise to a presumption of validity, the party
claiming undue influence has the burden of proof. CPC §8252. What
type of circumstantial evidence will permit inferring undue influence
varies from jurisdiction to jurisdiction. The RESTATEMENT THIRD OF
PROPERTY (Wills & Donative Transfers) sets forth the most generally
accepted statement:
In the absence of direct evidence of undue influence,
circumstantial evidence is sufficient to raise an inference of
undue influence if the contestant proves that (1) the donor was
susceptible to undue influence, (2) the alleged wrongdoer had
an opportunity to exert undue influence, (3) the alleged
wrongdoer had a disposition to exert undue influence, and (4)
there was a result appearing to be the effect of the undue
influence.
In addition to this “indicia of undue influence” approach where the
contestant bears the burden of proof, almost all jurisdictions also have
a “presumption of undue influence” approach where, if the contestant
can meet the elements of the presumption approach, a presumption
of undue influence arises and the burden shifts to the accused party
to rebut the presumption.
The California approaches to the indicia of undue influence
doctrine, and to the presumption of undue influence doctrine, are a bit
different from the general approaches. Both of the California doctrines
are set forth and discussed in the case below. Note that because
undue influence is a rather fact-sensitive doctrine, it tends to result in
fact-intensive opinions.

In re Estate of Henault
G025278, 2002 WL 1335602 (Cal. Ct. App. June 19, 2002)
FYBEL, J.
FACTS
The Parties
Decedent [Eric W. Henault] died July 20, 1996, at the age of 48 of
liver failure. He was HIV positive and an alcoholic. He left no surviving

228
spouse, issue, or parents. For many years before his death, Decedent
had close personal relationships with the Castagnas. Decedent had
been a hairdresser for and friend of Lori Castagna since
approximately 1972. [Charles Castagna II (“Castagna”)] had known
Decedent since the early 1980's and had been a general handyman
for Decedent since approximately 1990. During the last months of
Decedent's life, the Castagnas spent a significant amount of time with
him, and more time than any other person. Castagna is the proponent
of the will at issue.
Decedent's siblings and his friend Jan Atkinson jointly contested the
will....
Decedent's Will, Estate Plan, and Other Transfers of Property
On May 29, 1996, Decedent executed a partly printed and partly
typewritten, two-sided, single-page will, witnessed by two impartial
witnesses (a third witness, Lori Castagna, is Castagna's wife and
therefore not an impartial witness). The will execution took place at
the Castagnas' home; Castagna had picked Decedent up and brought
him to his home that day for a barbecue. Whether Castagna was
physically present when Decedent signed the will was disputed. The
witnesses testified Decedent knew he was signing his will, was in
control of his faculties, and generally knew what he was doing.
Decedent's name is spelled correctly in the title and three times in
the typewritten portions of the will, but is twice spelled incorrectly in
the typewritten portions, and Jan Atkinson's married name is spelled
incorrectly. (Atkinson testified, however, that she still used her maiden
name and that Decedent knew her by her maiden name.)
The will is entitled “Last Will and Testament of Ernest William
Henault.” On the front page, Castagna is named as executor, and the
following paragraphs are typewritten:
“I Ernest W. Henault being of sound mind, give my property
located at 4201 Dana Road, in the City of Newport Beach, to
Charles L. Castagna, who has been a dear and trusted friend
for so many years. He has for years helped me care for and
maintain the property and I want him to have it.
“I Ernist [sic ] W. Henault being of sound mind request that the
remainder of my personal belongings, financial assets, and any
additional items of value be divided as follows between:
“1) Charles Castagna 50%
of Huntington Beach.

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 2) Jan Hensin [sic] of 10%
Foster City California.
3) James Henault of 40%
Massachusetts.
“I Ernest W. Henault being of sound mind leave any of the
remaining members of my immediate family the sum of $1.00
(one dollar). Although I have always love [sic ] my family, I have
been deeply hurt by the way they have shunned me because I
chose to live an alternate lifestyle. I wish them well.”
The back page of the will contains the dated signatures of Decedent
and the witnesses.
The day after the will was executed, Decedent executed a durable
power of attorney prepared by Castagna, naming Castagna as his
attorney-in-fact. On June 13, 1996, Decedent signed a durable power
of attorney for health care, giving Castagna the ability to make his
health care decisions. Castagna was present at the hospital when
Decedent signed the power of attorney for health care.
On June 7, 1996, Decedent executed a grant deed transferring title
to the real property in Newport Beach from Decedent as sole owner to
Decedent and Castagna as joint tenants. That was the same property
that had been bequeathed to Castagna in Decedent's will only 10
days earlier and was also the subject of a purported written
agreement between Decedent and Castagna in 1993, in which
Decedent allegedly agreed to give the property to Castagna.
At some time during this period, Decedent also designated
Castagna as the beneficiary of his IRA.
Decedent's Life and Lifestyle
As would be expected in a will contest case, a significant portion of
the testimony at trial focused on Decedent's personality, habits, and
lifestyle. Much of the testimony was conflicting, requiring the trial court
to weigh the evidence and make determinations as to the witnesses'
credibility....
DISCUSSION
...
B. The will was not the product of undue influence.
The trial court also found Decedent's will was the product of the
undue influence of Castagna. As the will contestants, the Henaults
had the burden of proof of undue influence. (Prob.Code §8252, subd.

230
(a).) A strong showing is necessary to establish undue influence to
invalidate a properly executed will. “Clear and convincing proof is
required.” “In an action to set aside a will of a deceased person on the
ground of undue influence, it is necessary to show that the influence
was such as, in effect, to destroy the testator's free agency and
substitute for his own another person's will. Evidence must be
produced that pressure was brought to bear directly upon the
testamentary act. Mere general influence, however strong and
controlling, not brought to bear upon the testamentary act, is not
enough; it must be influence used directly to procure the will, and
must amount to coercion destroying free agency on the part of the
testator. It is further held that mere opportunity to influence the mind
of the testator, even coupled with an interest or a motive to do so, is
not sufficient.” ([O]riginal italics.) “The unbroken rule in this state is
that the courts must refuse to set aside the solemnly executed will of
a deceased person upon the ground of undue influence unless there
be proof of ‘a pressure which overpowered the mind and bore down
the volition of the testator at the very time the will was made.’”
“[U]ndue influence can be established by circumstantial evidence
so long as the evidence raises more than a mere suspicion that
undue influence was used; the circumstances proven must be
inconsistent with the claim that the will was the spontaneous act of the
testator.”
Undue influence can be established in two ways. First, “When a
confidential relationship exists between the decedent and the
beneficiary, and the beneficiary both actively participates in procuring
the execution of the will and unduly profits by it, a presumption of
undue influence arises and places on the beneficiary the burden to
show that the will was freely made.” Second, when no presumption
arises, sufficient indicia of undue influence may still be proven....
1. The evidence does not support a finding of a presumption of
undue influence.
For the presumption to arise, all three elements—confidential
relationship, active participation in will procurement, and undue
benefit—must be present. The absence of any one element prevents
the court from applying the presumption, no matter how strong the
evidence of the others may be.
We begin by considering whether there was substantial evidence of
a confidential relationship between Decedent and Castagna. As noted
above, Castagna did not become Decedent's fiduciary until after the

231
will was executed, and the trial court therefore erred by presuming
that a confidential relationship existed.
A confidential relationship arises when one party places his
confidence in the integrity of another, and that person voluntarily
accepts that confidence. Whether such a relationship exists is a highly
fact-driven determination.... We look to the factual underpinnings of
the cases that have considered the existence of a confidential
relationship (or lack thereof) to guide our analysis.
A close friendship, even one that extends over many years, in
which one party provides physical and emotional care for another,
does not create a confidential relationship without something more....
What constitutes that something more differs from case to case.
One fact that frequently appears in the cases finding a confidential
relationship is the beneficiary's handling of the decedent's business
affairs....
Other determining factors include whether the beneficiary actually
drafted the will [citation omitted] and whether the beneficiary
exercised physical control over the decedent and prevented him or
her from communicating or interacting with others.
In light of the facts of the foregoing cases, where along the
spectrum does the present case fall? With respect to the issue of
undue influence, the evidence at trial established the following:
Decedent and the Castagnas had been friends for many years;
Castagna provided services as a handyman for Decedent without
remuneration since the early 1990's; neither of the Castagnas
provided health care or nursing services to Decedent, although Lori
Castagna spent time with Decedent and cared for his home during the
last two or three months of his life; and Decedent was able to care for
himself, go shopping, cut his customers' hair in his home, and do
some gardening until a couple of weeks before his death. There was
no testimony Decedent ever lived with the Castagnas. Friends and
hospice workers visited Decedent, both before and after the will was
executed, and Decedent had a full-time, live-in caregiver the last few
weeks of his life.
Castagna became a fiduciary by means of a power of attorney and
started paying Decedent's bills after the durable power of attorney
was executed on May 30, 1996. There was no testimony Castagna
had anything to do with Decedent's finances or business affairs at any
time before the will was executed, other than performing work as a

232
handyman on Decedent's property and purportedly entering into the
questionable 1993 contract regarding the property.
Lori Castagna testified Decedent depended on Castagna and
placed his trust in him; no testimony was elicited as to when or how
Decedent placed his trust in Castagna, and no other witness was
questioned on the subject.
As to the issue of Castagna's influence over the execution of the
will, testimony was adduced as follows: Castagna took Decedent to
Staples, where Decedent typed up his will; Castagna brought
Decedent to the Castagnas' home the day the will was signed;
Castagna's wife obtained the witnesses to the will execution and
those witnesses knew Decedent prior to that date; the witnesses
testified Decedent knew what he was doing when he executed his
will; and Castagna may or may not have been in the room at the time
Decedent executed the will.
Based on all the evidence at trial, there was not substantial
evidence to support a finding that a confidential relationship existed
between Decedent and Castagna on May 29, 1996. True, Decedent
considered Castagna a friend and Castagna and his wife took care of
Decedent and his property. But the evidence does not support a
finding Castagna was Decedent's fiduciary before the will was
executed, prevented Decedent from having visitors or communicating
with friends, or exercised physical or mental control over Decedent.
The testimony that Decedent trusted Castagna, without any indication
as to when he placed his trust in Castagna, or whether Castagna
accepted Decedent's trust, cannot, standing alone, meet the high
standard of proof by clear and convincing evidence. On this record,
we find no confidential relationship between Castagna and Decedent
as of May 29, 1996.... The Henaults were not entitled to a
presumption of undue influence to assist them in contesting the will.
2. The evidence does not support a finding of undue influence by
Castagna sufficient to subvert the testamentary capacity of
Decedent.
Even when no presumption arises, undue influence may still be
found. There are several nonexclusive questions to be considered in
determining whether the beneficiary exercised undue influence in the
procurement of a will: “1. Does the will cut off the natural objects of
the decedent's bounty, and unduly benefit the proponent? [¶]2. Is
there a variance between the terms of the will and the expressed
intentions of the testatrix? [¶]3. Was there an opportunity afforded by

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the legatee's relationship to the decedent to influence the testatrix?
[¶]4. Was the decedent's mental and physical condition such as to
permit a subversion of her freedom of will? [¶]5. Was the beneficiary
active in procuring the execution of the will?” [Citation omitted.] These
factors must be considered in combination. (12 Witkin, Summary of
Cal. Law (9th ed. 1990) Wills and Probate, §189.)
Although the trial court did not make any findings as to the
existence or nonexistence of any of the foregoing factors, we have
reviewed the record and have determined there was not substantial
evidence to support a finding of undue influence. While Castagna was
benefited in the sense that he would receive the largest share of
Decedent's estate under the will, the siblings who were cut off by the
will were not the “‘natural ... objects of [decedent's] bounty.’” [siblings,
nieces and nephews are not the natural objects of one's bounty, as
are spouses, children and parents].) ...
No party offered evidence of any previous wills, which would be
indicative of a change in the Decedent's expressed intentions as to
the disposition of his estate.... No testimony was offered to indicate
that Decedent tried to change the will, or even stated that he
disavowed the will or wanted to bequeath his property to anyone else
during the almost two months between the date the will was signed
and the date of his death. On the whole, we do not find the foregoing
is sufficient evidence that the terms of the will were contrary to
Decedent's expressed intentions.
The record provides substantial evidence that the relationship
between Decedent and Castagna afforded Castagna at best the
opportunity to influence Decedent. Without more, however, the mere
opportunity to exercise undue influence cannot support a finding
Castagna did in fact do so.
While there was substantial evidence Decedent was very ill at the
time he executed his will, the testimony showed that on the day the
will was executed, Decedent was not too ill to understand what he
was doing.
Next, we consider whether there was substantial evidence
Castagna actively procured the will. Several witnesses testified
Castagna stated he took Decedent to Staples to have the will typed
up. This testimony alone does not establish Castagna actively
procured the will. The activity we are concerned with is activity “‘in the
... preparation of the will.’” ... see Estate of Mann, supra, 184
Cal.App.3d 593, 608, 229 Cal.Rptr. 225 [urging decedent to make a

234
will, taking her to an attorney, and being present when will was
executed does not constitute procurement]; Estate of Evans, supra,
274 Cal.App.2d 203 at pp. 211–212, 79 Cal.Rptr. 1 [procurement
found when beneficiary had will typed and brought it to decedent's
hospital room, where he read it to her, obtained witnesses, and
remained while will was executed].) There was no testimony
Castagna himself drafted or typed up the will.
When all is said and done, the evidence before the trial court did
not support a finding of undue influence by Castagna in the execution
of Decedent's will.
—————

Notes
1. Indicia versus presumption of undue influence: In California,
there is a real tendency for the case law to rely more on the
presumption of undue influence doctrine than the indicia of undue
influence doctrine. Because of the way California has articulated each
doctrine, there is a heavier than usual overlap between the two
doctrines, so much so that if one can show the indicia of undue
influence one typically can show the elements of the presumption of
undue influence. Accordingly, it is rare to find a California case that
leads with the indicia of undue influence. Lead with the presumption
doctrine.
2. Burden of proof: There appears to be some confusion in the
California case law as to the proper burden of proof for a claim of
undue influence. Some courts, like the court in the Henault, require
clear and convincing evidence of undue influence. Other courts
require only a preponderance of the evidence. See Estate of
Gelonese, 36 Cal. App. 3d 854, 111 Cal. Rptr. 833 (1974). A majority
of the courts appear to adopt the latter position, an approach implicitly
supported by Section 8252 of the California Probate Code. Section
8252 provides as follows:
(a) At the trial, the proponents of the will have the burden
of proof of due execution. The contestants of the will have
the burden of proof of lack of testamentary intent or capacity,
undue influence, fraud, duress, mistake, or revocation.
The failure of Section 8252 to require clear and convincing evidence
supports the view that the default burden of proof, preponderance of
the evidence, should apply.

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 3. Unduly benefits: The final requirement of the presumption of
undue influence doctrine is that the will contestant must show that the
alleged undue influencer “unduly benefits” under the terms of the
instrument. In assessing what constitutes undue influence, should the
courts take more of a quantitative approach to the element (how much
would the beneficiary take if the instrument were not valid) or should
the courts take more of a qualitative approach (assess the gift in light
of the relationship between the parties)? See Estate of Sarabia, 221
Cal. App. 3d 599, 604 (1990).
4. Nuanced nature of undue influence: Undue influence is one of
the toughest, most fact-sensitive doctrines in the law. In In re Estate of
Rosasco, 927 N.Y.S.2d 819 (Sur. 2011), Judge Kristin Booth Glen of
the New York Surrogate's Court had this to say about the doctrine:
Courts have long wrestled with the concept of undue influence.
In the nineteenth century, the Court of Appeals noted:
It is impossible to define or describe with precision and
exactness what is undue influence; what the quality and the
extent of the power of one mind over another must be to
make it undue, in the sense of the law, when exerted in
making a will. Like the question of insanity, it is to some
degree open and vague, and must be decided by the
application of sound principles and good sense to the facts of
each given case. [Citation omitted.] But the influence
exercised over a testator which the law regards as undue or
illegal, must be such as to destroy his free agency; but no
matter how little the influence, if the free agency is destroyed
it vitiates the act which is the result of it. In 1 Jarman on Wills,
36, it is said: “That the amount of undue influences which will
be sufficient to invalidate a will must of course vary with the
strength or weakness of the mind of the testator; and the
influence which would subdue and control a mind naturally
weak, or one which had become impaired by age, sickness,
disease, intemperance, or any other cause, might have no
effect to overcome or mislead a mind naturally strong and
unimpaired.”
The undue influence is not often the subject of direct proof. It
can be shown by all the facts and circumstances surrounding
the testator, the nature of the will, his family relations, the
condition of his health and mind, his dependency upon and
subjection to the control of the person supposed to have
wielded the influences, the opportunity and disposition of the

236
 person to wield it, and the acts and declarations of such
person. [Citations omitted.] Rollwagen v. Rollwagen, 63 N.Y.
504, 519 (1876).
Note that the court acknowledges that the amount of influence
necessary to overcome a testator's free will varies with the testator's
mental strength or weakness. Accordingly, where there are issues
concerning a testator's general testamentary capacity, it is not
uncommon for there to be issues—or at least claims—of undue
influence.
5. No contest clauses in testamentary instruments: If Eric W.
Henault had gone to an attorney to have his will prepared, no doubt
the attorney would have considered including a no contest clause.
Virtually every testamentary document (e.g., a will or will substitute)
contains a no contest clause (also known as an “In Terrorem” clause).
The idea is to create a disincentive for will beneficiaries to contest the
document, say by claiming that the testator lacked the requisite
mental capacity or was subject to undue influence. The typical no
contest clause is simple: if a beneficiary brings suit contesting the
document or the estate plan reflected in the document, then he or she
runs the risk of losing his or her right to take under the instrument.
(Note that for a no-contest clause to be effective, the person must be
a beneficiary under the instrument so he or she has something to lose
if he or she sues.) It is as if the testator/settlor/transferor is saying “If
you want to challenge this, then be prepared to forfeit what is being
given to you under this will.” Of course, if there is a challenge, and it is
successful, and the document is deemed invalid (say by reason of
undue influence or lack of capacity), then the clause typically has no
relevance because the testamentary document is gone and
disposition of the decedent's property falls back to the statutory
intestate succession scheme.8 But if the challenger is unsuccessful,
the testamentary document stands and, pursuant to the no contest
clause, the challenger should forfeit what he or she would have
otherwise received.
Enforcement of such clauses has been the source of much
controversy over the years. A no contest clause presents an
interesting dilemma for courts. On the one hand, no contest clauses
are good because they help to protect the testator's intent and reduce
the risk of spurious litigation. On the other hand, no contest clauses
are contrary to public policy because they may deter interested
parties from bringing appropriate challenges out of fear of losing their
gifts, thereby shielding a wrongdoer's actions.

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 Courts have responded to these conflicting public policy
considerations by: (1) adopting the general rule that no contest
clauses are valid; (2) construing no contest clauses narrowly; and (3)
recognizing exceptions to enforcement of no contest clauses where
the challenge in question is deemed meritorious. What constitutes a
meritorious challenge varies from jurisdiction to jurisdiction.
In 2010, California statutorily overhauled its approach to the validity
and enforcement of no contest clauses. Prior law generally
recognized no contest clauses as valid, but a plethora of exceptions
to their enforcement existed (and procedurally, one could file a
petition seeking the court's determination of whether the
contemplated challenge would violate the no contest clause). A
beneficiary who was considering filing a claim would typically petition
the court for guidance with respect to whether the claim would trigger
the no contest clause, leading to increased litigation. While the new
statutory approach continues to recognize the validity of no contest
clauses, it addresses more clearly and directly which challenges fall
within the scope of a standard no contest clause, and it explicitly
abolishes a beneficiary's ability to petition the court for guidance as to
whether a claim would violate the no contest clause.
CPC §21311. Enforcement of Clause
(a) A no contest clause shall only be enforced against the
following types of contests:
(1) A direct contest that is brought without probable cause.
(2) A pleading to challenge a transfer of property on the
grounds that it was not the transferor's property at the time
of the transfer. A no contest clause shall only be enforced
under this paragraph if the no contest clause expressly
provides for that application.
(3) The filing of a creditor's claim or prosecution of an action
based on it. A no contest clause shall only be enforced
under this paragraph if the no contest clause expressly
provides for that application.
(b) For the purposes of this section, probable cause exists if, at
the time of filing a contest, the facts known to the contestant
would cause a reasonable person to believe that there is a
reasonable likelihood that the requested relief will be granted
after an opportunity for further investigation or discovery.

238
 California Probate Code Section 21311(a)(1) provides that a no
contest clause applies to a “direct contest” brought without probable
cause. California Probate Code Section 21310 defines a “direct
contest” to include, among other items, actions alleging lack of
capacity, undue influence, and fraud. Of important note in the new no
contest enforcement statute is the use of the “probable cause”
standard to articulate the scope of the exception to the enforcement of
a no contest clause. This approach applies to anyone who challenges
the validity of a document on, for example, the grounds of lack of
capacity or undue influence (a direct contest). Of course, the new
statute changes nothing if the challenge is successful and the
testamentary document is deemed invalid (which, in the typical
setting, will result in the property passing through the intestate
succession scheme). If, however, a challenger's direct contest fails
(i.e., the court does not find there to be a lack of capacity, undue
influence, etc.), the no contest clause would still be unenforceable if
the challenger could prove that he or she had “probable cause” to
bring the claim—i.e., that at the time the challenge was filed, the facts
known to the contestant “would cause a reasonable person to believe
that there was a reasonable likelihood” that the contestant would
prevail following further investigation. If the court finds probable cause
existed to support the challenge, then the no contest clause would not
be enforceable and the challenger would not forfeit gifts or property to
be received under the document. If, however, the court does not find
that probable cause exists to support the claim, then the no contest
clause would apply, and the challenger would take nothing.
6. Relevance of “nontraditional” relationships: Do certain
relationships, typically those outside of one's family, provide fertile
ground for the seeds of undue influence? The more “nontraditional”
the relationship the more likely the claim of undue influence? Is it
appropriate to take the “nontraditional” nature of the relationship into
consideration when analyzing whether a party exercised undue
influence, or does that reflect a weakness in the system? Another
scenario that has proved a fertile source of undue influence claims
has been gifts to the decedent's attorney. If the attorney who drafted
the will is a primary beneficiary thereof, does this pass the “smell”
test?

In re Moses' Will
227 So. 2d 829 (Miss. 1969)
SMITH, Justice:

239
 Mrs. Fannie Traylor Moses died on February 6, 1967. An
instrument, dated December 23, 1957 and purporting to be her last
will and testament, was duly admitted to probate in common form in
the Chancery Court of the First Judicial District of Hinds County.
Thereafter, on February 14, 1967, appellant, Clarence H. Holland, an
attorney at law, not related to Mrs. Moses, filed a petition in that court
tendering for probate in solemn form, as the true last will and
testament of Mrs. Moses, a document dated May 26, 1964, under the
terms of which he would take virtually her entire estate. This
document contained a clause revoking former wills and Holland's
petition prayed that the earlier probate of the 1957 will be set aside.
The beneficiaries under the 1957 will (the principal beneficiary was
an elder sister of Mrs. Moses) responded to Holland's petition, denied
that the document tendered by him was Mrs. Moses' will, and
asserted, among other things, that it was (1) the product of Holland's
undue influence upon her, (2) that at the time of its signing, Mrs.
Moses lacked testamentary capacity, and, (3) that the 1957 will was
Mrs. Moses' true last will and testament and its probate should be
confirmed. By cross bill, respondents prayed that Holland's apparent
ownership of an interest in certain real estate had been procured by
undue influence and that it should be cancelled as a cloud upon the
title of Mrs. Moses, the true owner.
By agreement, the case was heard by the chancellor without a jury.
After hearing and considering a great deal of evidence, oral and
documentary, together with briefs of counsel, the chancellor, in a
carefully considered opinion, found that (1) the 1964 document,
tendered for probate by Holland, was the product of undue influence
and was not entitled to be admitted to probate, (2) the earlier probate
of the 1957 will should be confirmed and, (3) Mrs. Moses had been
the true owner of the interest claimed by Holland in the real estate
and his claim of ownership should be cancelled as a cloud upon the
title of Mrs. Moses.
Holland's appeal is from the decree entered denying probate to the
1964 document and cancelling his claim to an undivided one-half
interest in the real estate....
A brief summary of facts found by the chancellor and upon which
he based his conclusion that the presumption was not overcome,
follows:
Mrs. Moses died at the age of 57 years, leaving an estate valued at
$125,000. She had lost three husbands in less than 20 years.

240
Throughout the latter years of her life her health became seriously
impaired. She suffered from serious heart trouble and cancer had
required the surgical removal of one of her breasts. For 6 or 7 years
preceding her death she was an alcoholic.
On several occasions Mrs. Moses had declared her intention of
making an elder sister her testamentary beneficiary. She had once
lived with this sister and was grateful for the many kindnesses shown
her. Mrs. Moses' will of December 23, 1957 did, in fact, bequeath the
bulk of her estate to this sister.
The exact date on which Holland entered Mrs. Moses' life is
unclear. There is a suggestion that she had met him as early as 1951.
Their personal relationship became what the chancellor, somewhat
inaccurately, characterized, as one of ‘dubious’ morality. The record,
however, leaves no doubt as to its nature. Soon after the death of
Mrs. Moses' last husband, Holland, although 15 years her junior,
began seeing Mrs. Moses with marked regularity, there having been
testimony to the effect that he attended her almost daily. Holland was
an attorney and in that capacity represented Mrs. Moses. She
declared that he was not only her attorney but her ‘boyfriend’ as well.
On August 22, 1961, a date during the period in which the evidence
shows that Holland was Mrs. Moses' attorney, she executed a
document purporting to be her will. This instrument was drawn by an
attorney with whom Holland was then associated and shared offices,
and was typed by a secretary who served them both. It was witnessed
by Holland's associate and their secretary. In addition to other
testamentary dispositions, this document undertook to bequeath to
Holland ‘my wedding ring, my diamond solitaire ring and my three
gold bracelets containing twenty-five (25) pearls each.’ In it Holland is
referred to as ‘my good friend.’ The validity of this document is not an
issue in the present case.
After Mrs. Moses died, the 1964 will was brought forward by
another attorney, also an associate of Holland, who said that it had
been entrusted to him by Mrs. Moses, together with other papers, for
safekeeping. He distinguished his relation with Holland from that of a
partner, saying that he and Holland only occupied offices together and
shared facilities and expenses in the practice of law. He also stated
that he saw Mrs. Moses on an ‘average’ of once a week, most often in
the company of Holland.
Throughout this period, Mrs. Moses was a frequent visitor at
Holland's office, and there is ample evidence to support the

241
chancellor's finding that there existed a continuing fiduciary
relationship between Mrs. Moses and Holland, as her attorney.
In May, 1962, Holland and the husband of Holland's first cousin,
one Gibson, had contracted to buy 480 acres of land for $36,000.
Mrs. Moses was not, it appears, originally a party to the contract.... At
the time, Mrs. Moses had annuity contracts with a total maturity value
of some $40,000 on which she obtained $31,341.11. This sum was
deposited in a bank account called ‘Cedar Hills Ranch.’ She gave
Holland authority to check on this account, as well as upon her
personal account.... At closing, the persons present, in addition to the
grantors and their agents and attorney, were Mrs. Moses and Holland,
her attorney. Mrs. Moses had no other counsel. Holland issued a
check on the Cedar Hills Ranch account (in which only Mrs. Moses
had any money) for the $31,000 balance. Although none of the
consideration was paid by Holland, the deed from the owners
purported to convey the land to Holland and Mrs. Moses in equal
shares, as tenants in common. On the day following, Holland issued
another check on the Cedar Hills Ranch account (in which he still had
deposited no money) for $835.00 purportedly in payment for a tractor.
This check was issued by Holland to his brother. Eight days later
Holland drew another check on this account for $2,100.00 purportedly
for an undisclosed number of cattle. This check was issued to
Holland's father.
The evidence supports the chancellor's finding that the confidential
or fiduciary relationship which existed between Mrs. Moses and
Holland, her attorney, was a subsisting and continuing relationship,
having begun before the making by Mrs. Moses of the will of August
22, 1961, under the terms of which her jewelry had been bequeathed
to Holland, and having ended only with Mrs. Moses' death. Moreover,
its effect was enhanced by the fact that throughout this period,
Holland was in almost daily attendance upon Mrs. Moses on terms of
the utmost intimacy. There was strong evidence that this aging
woman, seriously ill, disfigured by surgery, and hopelessly addicted to
alcoholic excesses, was completely bemused by the constant and
amorous attentions of Holland, a man 15 years her junior. There was
testimony too indicating that she entertained the pathetic hope that he
might marry her. Although the evidence was not without conflict and
was, in some of its aspects, circumstantial, it was sufficient to support
the finding that the relationship existed on May 26, 1964, the date of
the will tendered for probate by Holland.

242
 ... Moreover, he [the chancellor] was correct in his conclusion of law
that such relationship gave rise to a presumption of undue influence
which could be overcome only by evidence that, in making the 1964
will, Mrs. Moses had acted upon the independent advice and counsel
of one entirely devoted to her interest.
Appellant takes the position that there was undisputed evidence
that Mrs. Moses, in making the 1964 will, did, in fact, have such
advice and counsel. He relies upon the testimony of the attorney in
whose office that document was prepared to support his assertion.
This attorney was and is a reputable and respected member of the
bar, who had no prior connection with Holland and no knowledge of
Mrs. Moses' relationship with him. He had never seen nor
represented Mrs. Moses previously and never represented her
afterward. He was acquainted with Holland and was aware that
Holland was a lawyer.
A brief summary of his testimony, with respect to the writing of the
will, follows:
Mrs. Moses had telephoned him for an appointment and had come
alone to his office on March 31, 1964. She was not intoxicated and in
his opinion knew what she was doing. He asked her about her
property and ‘marital background.’ He did this in order, he said, to
advise her as to possible renunciation by a husband. She was also
asked if she had children in order to determine whether she wished to
‘pretermit them.’ As she had neither husband nor children this subject
was pursued no further. He asked as to the values of various items of
property in order to consider possible tax problems. He told her it
would be better if she had more accurate descriptions of the several
items of real and personal property comprising her estate. No further
‘advice or counsel’ was given her.
On some later date, Mrs. Moses sent in (the attorney did not think
she came personally and in any event he did not see her), some tax
receipts for purposes of supplying property descriptions. He prepared
the will and mailed a draft to her.... On the one occasion when he saw
Mrs. Moses, there were no questions and no discussion of any kind
as to Holland being preferred to the exclusion of her blood relatives.
Nor was there any inquiry or discussion as to a possible client-
attorney relationship with Holland. The attorney-draftsman wrote the
will according to Mrs. Moses' instructions and said that he had ‘no
interest in’ how she disposed of her property. He testified ‘I try to draw
the will to suit their purposes and if she (Mrs. Moses) wanted to leave

243
him (Holland) everything she had, that was her business as far as I
was concerned. I was trying to represent her in putting on paper in her
will her desires, and it didn't matter to me to whom she left it ... I
couldn't have cared less.’
When Mrs. Moses returned to the office to execute the will, the
attorney was not there and it was witnessed by two secretaries. One
of these secretaries, coincidentally, had written and witnessed the
1961 will when working for Holland and his associate.
The attorney's testimony supports the chancellor's finding that
nowhere in the conversations with Mrs. Moses was there touched
upon in any way the proposed testamentary disposition whereby
preference was to be given a nonrelative to the exclusion of her blood
relatives. There was no discussion of her relationship with Holland,
nor as to who her legal heirs might be, nor as to their relationship to
her, after it was discovered that she had neither a husband nor
children.
It is clear from his own testimony that, in writing the will, the
attorney-draftsman, did no more than write down, according to the
forms of law, what Mrs. Moses told him. There was no meaningful
independent advice or counsel touching upon the area in question
and it is manifest that the role of the attorney in writing the will, as it
relates to the present issue, was little more than that of scrivener. The
chancellor was justified in holding that this did not meet the burden
nor overcome the presumption.
In Croft v. Alder, 237 Miss. 713, 724, 115 So.2d 683, 686 (1959)
there was an extensive review of the authorities relating to the
question here under consideration. This Court said:
Meek v. Perry, 1858, 36 Miss. 190, 243, 244, 252, 259, is
perhaps the leading case. It involved a will by a ward leaving
a substantial amount of her property to her guardian. The
Court held that the presumption of invalidity applies to wills
as well as deeds. It was said the law watches with the
greatest jealously transactions between persons in
confidential relations and will not permit them to stand,
unless the circumstances demonstrate the fullest deliberation
on the part of the testator and the most abundant good faith
on the part of the beneficiary. Hence the law presumes the
existence of undue influence, and such dealings are prima
facie void, and will be so held ‘unless the guardian show by
clearest proof’ that he took no advantage over the testator,

244
 and the cestui's act was a result of his own volition and upon
the fullest deliberation....
... In Jamison v. Jamison, 1909, 96 Miss. 288, 298, 51 So.
130, 131, it was said: “The difficulty is also enhanced by the
fact, universally recognized, that he who seeks to use undue
influence does so in privacy. He seldom uses brute force or
open threats to terrorize his intended victim, and if he does
he is careful that no witnesses are about to take note of and
testify to the fact. He observes, too, the same precautions if
he seeks by cajolery, flattery, or other methods to obtain
power and control over the will of another, and direct it
improperly to the accomplishment of the purpose which he
desires. Subscribing witnesses are called to attest the
execution of wills, and testify as to the testamentary capacity
of the testator, and the circumstances attending the
immediate execution of the instrument; but they are not
called upon to testify as to the antecedent agencies by which
the execution of the paper was secured, even if they had any
knowledge of them, which they seldom have.” In re Coins'
Will (Fortner v. Coins), 1959, (237 Miss. 322) 114 So.2d 759.
We do not think that the testimony of the attorney who
attested the will, as to his observations at that particular time,
can suffice to rebut the already existing presumption. As
stated in Jamison, he naturally would have had no
knowledge of any precedent activities ...
...
Holland, of course, did not personally participate in the actual
preparation or execution of the will. If he had, under the
circumstances in evidence, unquestionably the will could not stand. It
may be assumed that Holland, as a lawyer, knew this.
In Croft, supra, this Court said that the presumption of undue
influence in the production of a will may arise from ‘antecedent
circumstances’ about which its draftsman and the witnesses knew
nothing. The rule, as stated in that case, is that undue influence will
be presumed where the beneficiary ‘has been actively concerned in
some way with the preparation or execution of the will, or where the
relationship is coupled with some suspicious circumstances, such as
mental infirmity of the testator.’ (emphasis added).
Undue influence operates upon the will as well as upon the mind. It
is not dependent upon a lack of testamentary capacity.

245
 The chancellor's finding that the will was the product of Holland's
undue influence is not inconsistent with his conclusion that ‘Her (Mrs.
Moses) mind was capable of understanding the essential matters
necessary to the execution of her will on May 26, 1964, at the time of
such execution.’ A weak or infirm mind may, of course, be more easily
over persuaded. In the case under review, Mrs. Moses was in ill
health, she was an alcoholic, and was an aging woman infatuated
with a young lover, 15 years her junior, who was also her lawyer. If
this combination of circumstances cannot be said to support the view
that Mrs. Moses suffered from a ‘weakness or infirmity’ of mind, vis-a-
vis Holland, it was hardly calculated to enhance her power of will
where he was concerned. Circumstances in evidence, both
antecedent and subsequent to the making of the will, tend to accord
with that conclusion.
The sexual morality of the personal relationship is not an issue.
However, the intimate nature of this relationship is relevant to the
present inquiry to the extent that its existence, under the
circumstances, warranted an inference of undue influence, extending
and augmenting that which flowed from the attorney-client
relationship. Particularly is this true when viewed in the light of
evidence indicating its employment for the personal aggrandizement
of Holland. For that purpose, it was properly taken into consideration
by the chancellor....
As stated in Croft, supra, the rule that a presumption of undue
influence arises when a fiduciary relationship is established applies
with even greater stringency in cases of transactions inter vivos. In
the land transaction, Holland attended as Mrs. Moses' attorney. She
had no other advice or counsel. The chancellor correctly held that,
under the circumstances, Holland, as her attorney, could take no
interest adverse to Mrs. Moses in the land purchased by her. He took
title to the half interest in the land as trustee for Mrs. Moses and not
otherwise. His apparent claim of ownership of a half interest was
properly cancelled and removed as a cloud upon the title of Mrs.
Moses to the complete fee. Johnson v. Outlaw, 56 Miss. 541 (1879)
and Cameron v. Lewis, 56 Miss. 601 (1879). See also Sojourner v.
Sojourner, 247 Miss. 342, 153 So.2d 803, 156 So.2d 579 (1963) and
Smith v. Dean, 240 S.W.2d 789 (Tex. Civ. App.) (1951).
For the foregoing reasons, the petition for rehearing is sustained,
the original majority opinion is withdrawn, this opinion will be that of
the Court, and the decree of the chancery court will be affirmed.

246
 Petition for rehearing sustained, original opinion withdrawn, and
decree of chancery court affirmed.
ROBERTSON, Justice (dissenting):
I am unable to agree with the majority of the Court that Mrs. Moses
should not be allowed to dispose of her property as she so clearly
intended....
Mrs. Fannie T. Moses was 54 years of age when she executed her
last will and testament on May 26, 1964, leaving most of her
considerable estate to Clarence H. Holland, her good friend, but a
man fifteen years her junior. She had been married three times, and
each of these marriages was dissolved by the death of her husband.
Holland's friendship with Mrs. Moses dated back to the days of her
second husband, Robert L. Dickson. He was also a friend of her third
husband, Walter Moses.
She was the active manager of commercial property in the heart of
Jackson, four apartment buildings containing ten rental units, and a
480-acre farm until the day of her death. All of the witnesses
conceded that she was a good businesswoman, maintaining and
repairing her properties with promptness and dispatch, and paying her
bills promptly so that she would get the cash discount. She was a
strong personality and pursued her own course, even though her
manner of living did at times embarrass her sisters and estranged her
from them....
There is no proof in this voluminous record that Holland ever did or
said anything to Mrs. Moses about devising her property to anybody,
much less him. It is conceded that in the absence of the presumption
of undue influence that there is no basis to support a finding that
Holland exercised undue influence over Mrs. Moses. This being true,
the first question to be decided is whether the presumption of undue
influence arises under the circumstances of this case.
It is my opinion that the presumption did not arise. The fact, alone,
that a confidential relationship existed between Holland and Mrs.
Moses is not sufficient to give rise to the presumption of undue
influence in a will case....
It was not contended in this case that Holland was in any way
actively concerned with the preparation or execution of the will.
Appellees rely solely upon the finding of the chancellor that there
were suspicious circumstances. However, the suspicious
circumstances listed by the chancellor in his opinion had nothing

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whatsoever to do with the preparation or execution of the will. These
were remote antecedent circumstances having to do with the
meretricious relationship of the parties, and the fact that at times Mrs.
Moses drank to excess and could be termed an alcoholic, but there is
no proof in this long record that her use of alcohol affected her will
power or her ability to look after her extensive real estate holdings. It
is common knowledge that many persons who could be termed
alcoholics, own, operate and manage large business enterprises with
success. The fact that she chose to leave most of her property to the
man she loved in preference to her sisters and brother is not such an
unnatural disposition of her property as to render it invalid.
In this case, there were no suspicious circumstances surrounding
the preparation or execution of the will, and in my opinion the
chancellor was wrong in so holding. However, even if it be conceded
that the presumption of undue influence did arise, this presumption
was overcome by clear and convincing evidence of good faith, full
knowledge and independent consent and advice.
—————

Notes
1. Gifts from a client to his or her attorney—the California approach:
Notice that while gifts to one's attorney do not pass most people's
“smell” test, these gifts are not per se invalid under either the indicia
of undue influence doctrine or the presumption of undue influence
doctrine. As recently as 1992 California did not have a rule prohibiting
an attorney from accepting gifts from his or her client—that is, until the
questionable nature of a particular attorney's practice came to the
attention of the media and, ultimately, the legislature.
The attorney in question opened his office next to Leisure World, a
gated retirement community in Orange County. By 1992, with more
than 21,000 retired residents, Leisure World had grown into the
country's largest gated retirement community. The attorney's practice
grew with Leisure World, and by 1992 he was involved in the drafting
of thousands of wills and trusts in which he was also often a
beneficiary. One of the more egregious gifts was a will and trust that
the attorney arranged to have drafted and executed for a 98-year-old
blind and bedridden client just six weeks before he died. The
documents reportedly: (1) left the attorney $3.5 million in assets; (2)
made the other beneficiaries under the instruments liable for the $2

248
million in estate taxes on his gifts; and (3) included a no contest
clause to deter the other beneficiaries from suing.
Over the course of three decades the attorney in question received
millions of dollars in questionable “gifts” until the LOS ANGELES TIMES
wrote an expose about his practice.9 The public outcry was heard all
the way up in Sacramento, where the legislature responded by
enacting the California Interested Drafter statutes. The legislative
history behind the California Interested Drafter statutes includes the
following description of the attorney's practice:
Reportedly, [the attorney in question] has engaged in a series
of highly questionable, if not, arguably, illegal acts, which may
be characterized in the following manner:

Drafting wills which name [the attorney in question] as a major (or

exclusive) beneficiary of large estates, to the exclusion of more
natural beneficiaries, including immediate family members.
Drafting trust documents, in which [the attorney in question] is
named the exclusive trustee of large, discretionary estates.
As trustee, authorizing payment of large sums of money to his law
partners for legal services.
As trustee, expending money in a manner contrary to the
instructions of the settlor and in a manner that benefited
businesses or charities in which [the attorney in question] had
significant and, perhaps, controlling, interest.
Having himself named as conservator of a client and,
subsequently, authorizing payment of large sums of money to his
law partners for legal services ... [or] drafting wills naming [the
attorney in question] as a primary, if not exclusive, beneficiary.
Investing trust assets in financial institutions owned, or controlled,
by [the attorney in question].
Currently, [the attorney in question] is the subject of an
investigation by the State Bar. The Orange County Sheriff has
established a hotline in its fraud unit to collect information about
possible criminal conduct by [the attorney in question].
Additionally, the chief probate judge of Orange County has
initiated a review of all matters handled by [the attorney in
question].

California Bill Analysis, Assembly Committee, 1993–1994 Regular

Session, Assembly Bill 21 (February 10, 1993).

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 California's statutory response to the issue of undue influence in
“suspect” relationships was Probate Code Sections 21350 through
21356, which were later repealed and replaced in 2010 with the
following sections. The principal response of the former sections is
carried over to the new provisions, with relatively minor changes.
CPC §21380. Prohibited transferees; definitions
(a) A provision of an instrument making a donative transfer to
any of the following persons is presumed to be the product of
fraud or undue influence:
(1) The person who drafted the instrument.
(2) A person in a fiduciary relationship with the transferor who
transcribed the instrument or caused it to be transcribed.
(3) A care custodian of a transferor who is a dependent adult,
but only if the instrument was executed during the period in
which the care custodian provided services to the
transferor, or within 90 days before or after that period.
(4) A person who is related by blood or affinity, within the third
degree, to any person described in paragraphs (1) to (3),
inclusive.
(5) A cohabitant or employee of any person described in
paragraphs (1) to (3), inclusive.
(6) A partner, shareholder, or employee of a law firm in which
a person described in paragraph (1) or (2) has an
ownership interest.
(b) The presumption created by this section is a presumption
affecting the burden of proof. The presumption may be
rebutted by proving, by clear and convincing evidence, that the
donative transfer was not the product of fraud or undue
influence.
(c) Notwithstanding subdivision (b), with respect to a donative
transfer to the person who drafted the donative instrument, or
to a person who is related to, or associated with, the drafter as
described in paragraph (4), (5), or (6) of subdivision (a), the
presumption created by this section is conclusive.
(d) If a beneficiary is unsuccessful in rebutting the presumption,
the beneficiary shall bear all costs of the proceeding, including
reasonable attorney's fees.
CPC §21382. Exclusions from presumption

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 Section 21380 does not apply to any of the following instruments
or transfers:
(a) A donative transfer to a person who is related by blood or
affinity, within the fourth degree, to the transferor or is the
cohabitant of the transferor.
(b) An instrument that is drafted or transcribed by a person who
is related by blood or affinity, within the fourth degree, to the
transferor or is the cohabitant of the transferor.
...
(d) A donative transfer to a federal, state, or local public entity, an
entity that qualifies for an exemption from taxation under
Section 501(c)(3) or 501(c)(19) of the Internal Revenue Code,
or a trust holding the transferred property for the entity.
(e) A donative transfer of property valued at five thousand dollars
($5,000) or less, if the total value of the transferor's estate
equals or exceeds the amount stated in Section 13100
[$150,000].
(f) An instrument executed outside of California by a transferor
who was not a resident of California when the instrument was
executed.
CPC §21384. Certificate of independent review
(a) A gift is not subject to Section 21380 if the instrument is
reviewed by an independent attorney who counsels the
transferor, out of the presence of any heir or proposed
beneficiary, about the nature and consequences of the
intended transfer, including the effect of the intended transfer
on the transferor's heirs and on any beneficiary of a prior
donative instrument, attempts to determine if the intended
transfer is the result of fraud or undue influence, and signs and
delivers to the transferor an original certificate in substantially
the following form:
CERTIFICATE OF INDEPENDENT REVIEW

251
 ...
CPC §21386. Treatment of gifts that failed under this part
If a gift fails under this part, the instrument making the gift shall
operate as if the beneficiary had predeceased the transferor
without spouse, domestic partner, or issue.
CPC §21390. Contrary provision in instrument; application of
part
This part applies notwithstanding a contrary provision in an
instrument.
2. Epilogue: The attorney whose questionable practice contributed
to the adoption of California's prohibited transferee statutes above
resigned from the practice of law and surrendered his license in 1994
with ethical charges pending against him. There is no record of how
much, if any, of the “gifted” property he received from his clients was
returned. How would his questionable actvities be analyzed today in
California? How would the Moses case be analyzed in California
today?
3. Caused to be transcribed: In Rice v. Clark, 47 P.3d 300 (Cal.
2002), the California Supreme Court was called upon to construe the
then-current statutory provision (similar to the provision in the current
statutes, above) that the interested drafter doctrine applies to “[a]

252
person in a fiduciary relationship with the transferor who transcribed
the instrument or caused it to be transcribed” (emphasis added). In
Rice, Cecilia Clare's husband died in 1988 when she was 76 years
old. They had no children. She hired Richard Clark, a handyman, to
make some repairs to her house and some income-producing
property she owned. By 1994, Clark was handling almost every
aspect of the property management of the properties, as well as
helping Clare with an increasing number of personal chores, such as
taking her to the store and the bank several times a week.
Between 1992 and 1995 Clare executed a number of donative and
testamentary instruments that increasingly gave her property to Clark.
Clark encouraged Clare to see an attorney to deal with the
testamentary instruments. In fact, he drove her to the meetings,
sometimes he sat in on the meetings, and sometimes he provided a
list of relevant assets to the attorneys. At least once he talked her into
executing a set of instruments that she initially expressed misgivings
about, arguing that it would only cost her more money to have another
attorney re-do them. A beneficiary under one of Clare's prior
testamentary instruments sued, asserting that Clark constituted an
interested drafter under Section 21380 because he was “[a] person in
a fiduciary relationship with the transferor who ... caused it [the
testamentary instrument in question] to be transcribed.” The pertinent
part of the court's opinion is set forth below:
Here, the lower courts construed “cause to be transcribed” as
limited to direct involvement in the instrument's transcription, as
by ordering another person to transcribe a document. This was
in accord with the Swetmann court, which concluded that “a
person who causes the document to be transcribed is one who
directs the drafted document to be written out in its final form
and, like the transcriber, is in a position to subvert the true
intent of the testator.” (Swetmann, supra, 85 Cal.App.4th at pp.
819–820, 102 Cal.Rptr.2d 457.) Rice, on the other hand,
argues that a person causes an instrument's transcription if he
“makes use of other persons to draft and transcribe the
instruments, and ... then persuades the testator to execute
them.” In short, Rice argues, Swetmann's interpretation was too
narrow: the presumption of disqualification should apply to any
fiduciary “whose conduct is a substantial factor in the creation
or execution of the donative instruments.”
...

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 Because of the ambiguity inherent in the term “causes,” neither
party's construction of the statute can be absolutely excluded
by the plain language. Our interpretation must in addition be
guided by an understanding of the legislative purposes and
history. (Swetmann, supra, 85 Cal.App.4th at p. 818, 102
Cal.Rptr.2d 457.)
In light of those purposes and that history, we agree with the
Swetmann court's analysis of section 21350 [now, in essence
CPC §21380].
...
Clark did not direct or oversee, or otherwise participate directly
in, the will's or trust's transcription. Both instruments were
transcribed by Hardy's secretary at Hardy's direction. Clark
facilitated the instruments' preparation and execution by giving
Hardy's office a list of Clare's assets that were to be placed in
the trust, and by arranging appointments for Clare and driving
her to them. He urged Hardy's secretary to prepare the
documents promptly after the May 4, 1995, meeting. He
encouraged Clare to execute the will and trust after she initially
balked at doing so on June 14, 1995. Clark was present at
meetings where the disposition of Clare's estate was
discussed, but he did not direct Hardy, or anyone else, to
include any particular gifts or other provisions in the
instruments. In short, Clark materially assisted Clare to dictate
the contents of her will and trust to an attorney and to execute
the instruments drafted by the attorney, but did not himself
directly participate in transcribing the instruments. For this
reason, as the lower courts concluded, he did not “cause[ ] [the
instruments] to be transcribed” within the meaning of section
21350, subdivision (a)(4).
The judgment of the Court of Appeal was affirmed.
4. The care custodian doctrine: Subsection (a)(3) of Probate Code
Section 21380 creates a rebuttable presumption of wrongful conduct
when an instrument makes a donative transfer to a “care custodian of
a transferor who is a dependent adult, ...” Section 21366 elaborates
on who qualifies as a dependent adult:
“Dependent adult” means a person who, at the time of
executing the instrument at issue under this part, was a person
described in either of the following:
(a) The person was 65 years of age or older and satisfied one
or both of the following criteria:

254
 (1) The person was unable to provide properly for his or her
personal needs for physical health, food, clothing, or shelter.
(2) Due to one or more deficits in the mental functions listed
in paragraphs (1) to (4), inclusive, of subdivision (a) of
Section 811, the person had difficulty managing his or her
own financial resources or resisting fraud or undue influence.
(b) The person was 18 years of age or older and satisfied one
or both of the following criteria:
(1) The person was unable to provide properly for his or her
personal needs for physical health, food, clothing, or shelter.
(2) Due to one or more deficits in the mental functions ... the
person had substantial difficulty managing his or her own
financial resources or resisting fraud or undue influence.
Section 21362 elaborates on the term “care custodian” as follows:
(a) “Care custodian” means a person who provides health or
social services to a dependent adult, except that “care
custodian” does not include a person who provided services
without remuneration if the person had a personal relationship
with the dependent adult (1) at least 90 days before providing
those services, (2) at least six months before the dependent
adult's death, and (3) before the dependant adult was admitted
to hospice care, if the dependent adult was admitted to hospice
care. As used in this subdivision, “remuneration” does not
include the donative transfer at issue under this chapter or the
reimbursement of expenses.
(b) For the purposes of this section, “health and social services”
means services provided to a dependent adult because of the
person's dependent condition, including, but not limited to, the
administration of medicine, medical testing, wound care,
assistance with hygiene, companionship, housekeeping,
shopping, cooking, and assistance with finances.
The courts have struggled with how apply the relevant terms, finding
that the decedent had to qualify as a dependent adult before a
defendant can be a care custodian. See Estate of Shinkle, 97 Cal.
App. 4th 990 (Ct. App. 2002) (where the court found that a long-term-
care ombudsman at the facility where the settlor resided for a period
of time qualified as a care custodian because of the personal and
financial information the ombudsman acquired concerning the
resident); Conservatorship of Davidson, 113 Cal. App. 4th 1035 (Ct.
App. 2003) (neighbor who stepped in to help testator and took care of
her not care custodian); and Bernard v. Foley, 139 P.3d 1196 (Cal.

255
2006) (where the California Supreme Court held neighbors who took
settlor in and cared for her for the two months “provided substantial,
ongoing health services to decedent while, at the end of her life, she
was residing in their home” and therefore were care custodians for
purposes of trust amendments made three days before she died that
made donative transfers to them).
5. Certificate of Independent Review: The above statutory scheme
provides the mechanism for a “certificate of independent review” to
address otherwise prohibited transfers. As an attorney being asked to
prepare such a certificate, would you prepare one? Why would most
established estate planning attorneys probably answer: “No, I would
never prepare a certificate of independent review!” Why not? What
are his or her concerns?

C. Fraud
Fraud is a concept that appears in many areas of law and, as a
student, you have probably encountered it before in at least one of
your law school courses. The classic statement is easy to formulate—
an intentional misrepresentation made with the intent to affect
someone's actions, and causing such actions—and is easy to apply to
a testator. Although fraud and undue influence can sometimes appear
to overlap, the law prefers to think of them as distinct and separate
wrongful acts.

In re Bottger's Estate
14 Wash. 2d 676, 685, 129 P.2d 518 (1942)
STEINERT, Justice.
...
[Ida Bottger was married to John Bottger, a farmer, and they had
nine children. After her husband died their son Jesse, who owned and
occupied a farm not too far from his mother's house, took on the job
of helping his mother. He took good care of her, and although she
loved all of her children and grandchildren, they acknowledged that
Jesse was her favorite. In 1922, Jesse hired an unmarried woman,
Charlotte, to work for him in his “traveling cookhouse” which he used
during harvesting season. When not working for Jesse, he had her
help out with domestic chores for mother Ida. Although Charlotte
worked primary for Jesse and Ida, she got to know the rest of the
family, and in 1938 she married Jesse's brother Harry.

256
 Tragically, Jesse died intestate in 1939. His brothers and sisters
thought they would inherit Jesse's property, but when one of the
children consulted an attorney, Clyde Belknap, he informed them that
Ida was Jesse's sole heir. Ida was 92 years old at the time of Jesse's
death. The day after Jesse's death Ida asked Charlotte to move in
with her to help her, which Charlotte did, and Charlotte lived with Ida
until her death. Charlotte never received any pay for helping Ida, but
Ida conveyed her farmland and the farmland she inherited from Jesse
to Charlotte's husband, Harry, to the exclusion of the other kids. (The
attorney, Mr. Belknap advised Ida to wait until her death to transfer the
farmland to Harry, but she insisted on transferring it to him
immediately.)
A few months later, on February 5, 1940, Ida executed a will
bequeathing $10 to each of her children other than Harry, and leaving
all the rest of her property to Harry. Unbeknownst to Ida, three days
before she executed the will, all of the other children signed a petition
to have a guardian of her estate appointed on the grounds that she
was no longer competent to manage her own property. She was
served with notice of the petition February 17, 1940. At the time the
children were executing and filing the petition to have a guardian
appointed for Ida, they did not know she was drafting and executing
the will.
When Ida learned of the petition for appointment of a guardian for
her she was livid and initially vowed to fight it. As the date for the trial
on the petition drew closer, however, Ida became more and more
distressed about the situation. The day before the hearing, she
instructed Mr. Belknap to settle the matter, telling him: “I would rather
die than go in there and go through with this proceeding, to have my
own children in there trying to make out that I am crazy.” Although the
attorney tried to explain to her what it meant to be declared
incompetent to manage her estate, her response was ‘incompetent is
just a lawyer's word for crazy.’ After some negotiations among the
parties concerned, the matter was settled and Mr. Belknap and the
attorney for the children were appointed to act jointly the guardian. Ida
died a little less than year later, on January 2, 1941. The children who
for all practical purposes were disinherited under the will challenged
the validity of the will on the basis of lack of capacity, in particular due
to undue influence and fraud by Harry and his wife Charlotte.]
The respondents' second ground of attack upon the will was that it
was executed as the result of undue influence exerted upon the
testatrix by Harry Bottger and Charlotte Bottger, his wife....

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[R]espondents alleged that Harry and Charlotte, by blandishments
and promises, obtained controlling influence over the testatrix, at a
time when she was weakened in body and mind, and were thereby
enabled to dictate to her what she should do with respect to her
property. They further charged that Harry and Charlotte, by entreaty,
undue persuasion, blandishment, promises, threats, and untrue and
improper statements poisoning Mrs. Bottger's mind against her other
heirs, prevailed upon her to such an extent that against her true
wishes she executed, in form but really at their dictation, the will here
in question, which she never would have done had it not been for the
domination and control exercised by Harry and his wife....
It will be noted that these allegations include charges of both undue
influence and fraud. While some of our decisions have referred to
both these elements as though they were merely different aspects of
the same thing, and while, of course, they are closely related, there is
nevertheless a distinction between them which we think should be
recognized.
It is the universal rule that a will procured by undue influence is
invalid, but the courts have always recognized that a will cannot be
overthrown upon this ground unless the influence complained of was,
in fact, undue influence....
... [T]he person accused of ... [undue influence] must have imposed
his wishes upon the ... [testator], not by persuasion directed to his
intellect or by appeal to sentiment, but by coercion of his mind by
threats, force, or unbearable insistence, so that the testament, though
in form that of the testator, is in fact that of another who has
established ascendency over the mind of the former.
On the other hand, a will can also be invalidated, either in whole or
in part, on the ground of fraud, whether it be fraud in the execution or
fraud in the inducement. In this case, there is no claim of fraud in the
execution of the will, so we are concerned only with the doctrine that a
will can be avoided for fraud in its inducement.
In a case where a will is attacked because allegedly induced by
fraud, it may be avoided, not because the testator's mind was
coerced, but because his mind was deceived. The will is actually the
free and voluntary act of the testator and expresses his wishes at the
time, but it is subject to attack on the ground that his disposition of his
estate was based upon false data as the result of fraudulent
representations made by, or on behalf of, the person or persons
benefiting from his will as made. There is thus a real distinction

258
between fraud and undue influence. Atkinson, Wills (1937) 218, §97;
68 C.J. 740, Wills, §433; Note (1934) 28 A.L.R. 787, 792. In 1 Page,
Wills, Lifetime Ed.1941, 353, §179, this type of fraud is defined as
follows:
“Fraud in the inducement consists of wilfully false statements of fact
other than those relating to the nature of contents of the instrument,
made by a beneficiary under the will which is thus induced, which are
intended to deceive testator, which do deceive him, which induce him
to make a will, and without which he would not have made such will.”
Expressed otherwise, the representations must be with reference to
extrinsic facts, and must be made to the testator by, or on behalf of, a
person benefiting under the will; the statements must be false and
must be known to be so by the person making them (although in
some circumstances mere suppression of the facts may be sufficient
to constitute fraud); and the facts misrepresented must be material
and must induce the making of the will in question See Atkinson, Wills
(1937) 221, §99....
We have already expressed our conviction that Ida Bottger's mind
was not overcome nor her volition impaired at the time she executed
her will. It remains to be determined whether she was induced to
make that will by fraudulent misrepresentations as to any pertinent
extrinsic fact.
Her principal reason for leaving all her property to Harry seems to
have been that he and Charlotte were good to her, while her other
children and her grandchildren neglected and quarreled with her.
These are all facts clearly established by the record in this
proceeding, and of course Mrs. Bottger was aware of them without
being told. There is no evidence that Harry or Charlotte ever made
any effort to prevent the others from seeing the testatrix, and Mr.
Belknap actually tried to persuade Herman and Bill to visit their
mother. There can be no doubt but that Mrs. Bottger was deeply hurt
by the attitude of respondents.
In the second place, the testatrix was incensed by the fact that
some of the children were planning to institute proceedings for the
appointment of a guardian of her estate or person.... There is nothing
to indicate that Harry or Charlotte ever told Mrs. Bottger anything
about a contemplated guardianship, but even if they had done so,
their statement would have been true, and therefore not fraudulent.
A guardianship proceeding was subsequently instituted, as related
above, and Mrs. Bottger felt very bitter about it....

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 In cases of this sort, the suspicion of fraud is sometimes difficult to
overcome entirely. We are convinced, however, that respondents
have failed to sustain the burden of proof on this issue, as they were
required to do, and that appellant more than met any presumption of
fraud or undue influence which may have arisen because she and
Harry had the opportunity of influencing the testatrix and because the
latter actually left the bulk of her estate to Harry.
We believe that Ida Bottger actually wished to dispose of her
property exactly as provided in her will and that her reasons for doing
so were not the result of fraudulent misrepresentations. It is not our
function to assess the soundness of those reasons, for the law
permits one to dispose of his property by will in any lawful manner he
may wish, and it would be without precedent or reason to hold that a
will may be invalidated simply because it is unusual or even unjust. In
re Patterson's Estate, supra. On all the facts in this case, we conclude
that Ida Bottger executed her will freely and voluntarily, and not
through fraud or undue influence....
The judgment is reversed with direction to dismiss the contest
proceeding.
—————

Notes
1. Fraud in the inducement versus fraud in the execution: As the
court in Bottger noted, there are two types of fraud: fraud in the
inducement and fraud in the execution. The allegation in Bottger
involved fraud in the inducement. What is fraud in the execution?
What is the classic example of fraud in the execution?
2. Fraud versus undue influence: Some courts have stated that
fraud, at a theoretical level, is a form of undue influence. How so?
Other courts have argued that such a characterization is not helpful
(so if conceptually that statement does not help you, do not force it—a
number of judges agree with you).

Problem
1. H is married to W. Nevertheless, H tells F that he is not married,
never has been married, and that he loves her. H proposes, F
accepts, and they go through a marriage ceremony that is legally
invalid (because H is still married to W). In good faith, F believes
the marriage is valid. A month after the wedding, F executes a will

260
 devising a number of small gifts to friends and family members, and
the rest of her estate, the bulk of her estate, to “my husband, H.”
One year later, F dies. F's heirs contest the validity of the will on the
basis of H's alleged fraud.
Which type of fraud will they invoke? What arguments would you
make if you represented F's heirs? What arguments, if any, would
you make if you represented H? Assuming, arguendo, the court
finds there was fraud, what is the appropriate remedy? See In re
Carson's Estate, 184 Cal. 437, 194 P. 5 (1920).

D. Duress
Some jurisdictions recognize duress as a distinct defect in capacity
that can be pleaded and proved to invalidate a will. Other jurisdictions
tend to see it more as a subset of undue influence (undue influence
with a physical component or a threat of force component). The case
law in California reflects that while claims of “duress, threat and
menace” are often thrown in a case as part of a party's pleading along
with undue influence and/or fraud, rarely is there separate analysis of
the duress claim. Instead, it is probably best to think of it as a subset
of undue influence (substituted intent) via a physical component (or
threat of a physical component).

E. Elder Abuse
Unfortunately, with advancing age often comes increased
vulnerability to some form of elder abuse. According to the National
Institute of Justice (the U.S. Department of Justice's research,
development, and evaluation agency), one in ten older Americans is
believed to experience some form of abuse each year. Obviously, this
is an important topic that deserves attention for a number of legal,
ethical, and policy reasons. Addressing some of the more salient legal
issues, the State Bar of California has produced an excellent
pamphlet addressing the logistical aspects of elder abuse: what it is,
what to do if one suspects a loved one is the victim of elder abuse,
reporting guidelines and instructions, etc. It is available at:
http://www.calbar.ca.gov/Public/Pamphlets/ElderAbuse.aspx#2.
While elder abuse is an issue of great import to our loved ones and
to society as a whole, we turn our attention to the aspect of elder
abuse that most directly relates to wills and trusts: where elder abuse
is used to secure a testamentary gift, should the abuser be permitted
to take. Phrased that way, the issue is similar to the slayer material

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covered in Chapter 4. Organizationally, we could have included this
material in that chapter, but elder abuse overlaps so heavily with the
doctrines of capacity, undue influence, and/or fraud, we thought it best
to place it with those doctrines. The California legislature relatively
recently adopted California Probate Code Section 259 to address the
problem.
CPC §259. Elder Abuse
(a) Any person shall be deemed to have predeceased a
decedent to the extent provided in subdivision (c) where all of
the following apply:
(1) It has been proven by clear and convincing evidence that
the person is liable for physical abuse, neglect, or fiduciary
abuse of the decedent, who was an elder or dependent
adult.
(2) The person is found to have acted in bad faith.
(3) The person has been found to have been reckless,
oppressive, fraudulent, or malicious in the commission of
any of these acts upon the decedent.
(4) The decedent, at the time those acts occurred and
thereafter until the time of his or her death, has been found
to have been substantially unable to manage his or her
financial resources or to resist fraud or undue influence.
...
(d) For purposes of this section, the following definitions apply:
[Physical abuse, neglect, financial abuse as defined in
sections of the Welfare and Institutions Code, and false
imprisonment as defined in the Penal Code]
...
A detailed analysis of the problem of elder abuse, and the statutory
response, is best left to an elder law course. But we would be remiss
if we did not take a quick look at the potential significance of the
doctrine here. To the extent this is a relatively new doctrine, how
would you proceed if, as a practicing attorney, a client complained to
you that another had committed elder abuse against someone close
to your client. Would you proceed on the more traditional doctrines of
undue influence and/or fraud, or would you proceed on the newer
doctrine of elder abuse? In reading the Lowrie case below, pay
particular attention to the remedy the court awarded.

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 In re Estate of Lowrie
118 Cal. App. 4th 220, 12 Cal. Rptr. 3d 828 (2004)
ALDRICH, J.
INTRODUCTION
In this case, a granddaughter accuses her uncle of financial abuse,
isolation, and neglect constituting elder abuse of her grandmother....
Laura Marie Lowrie (decedent) had three children, all of whom are
still living: Norma Goodreau, Alan Lowrie, and appellant Sheldon
Lawrence Lowrie (Sheldon). Decedent had six grandchildren,
including respondent Lynelle L. Goodreau (Lynelle) who is the eldest
daughter of Norma Goodreau.
Decedent's husband died in 1986, leaving to decedent gold coins,
cash in bank accounts, a number of pieces of commercial property,
and two single family residences located in Burbank, California.
Decedent's husband also left to decedent an airplane parts business,
SAL Instruments (SAL), located in Burbank. Decedent lived in the
residence located on Kenwood Street. The second residence, on
Edison Boulevard, was the house where Lynelle had lived with her
grandparents when Lynelle was an infant. During this time, Lynelle
and decedent developed a special bond.
After his father died, Sheldon started to run SAL. Alan assisted by
doing the bookkeeping.
Decedent executed a will in 1988 and a revised will in January
1989. On March 20, 1989, decedent reformulated her estate plan and
executed a will (pour over) and a trust, the effect of which placed most
of her real and personal property in trust. On March 19, 1992,
decedent, amended the trust.
In the March 1989, estate documents, Sheldon was named as the
executor, Lynelle was designated as the successor executor,
decedent was designated as the trustee, Sheldon was designated as
the first successor trustee, and Lynelle was designated as the second
successor trustee. Additionally, Alan Lowrie and Norma Goodreau
each were bequeathed the sum of $10,000 and Lynelle was to
receive the Edison Boulevard residence. Sheldon was bequeathed
the remainder of the estate (which would be the bulk of the property),
and if Sheldon did not survive decedent, Lynelle was to receive the
remainder. The 1992 trust amendment was a one-page document

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which deleted the bequest to Lynelle of the house and replaced it with
a monetary bequest of $10,000.
Unbeknown to others, decedent transferred the Edison Boulevard
residence and the Kenwood Street residence to Sheldon in 1993 and
1995, respectively. In 1993, decedent transferred all of her personal
property to Sheldon.
In August 1997, decedent resigned as trustee of her trust and
Sheldon became trustee.
Decedent died on August 13, 1999, at the age of 89. At the time of
her death, decedent's estate was worth approximately $1 million....
On November 1, 2000, Lynelle filed a multiple-part petition (No.
BP064664) challenging the March 19, 1992, trust amendment,
seeking findings and damages for elder abuse, and requesting an
order pursuant to Probate Code section 259 disinheriting Sheldon.
Lynelle contended, among other allegations, that Sheldon exploited
his relationship with decedent, and through manipulation, fraud and
undue influence enticed decedent to gift him property and to change
her estate plan so Sheldon would receive substantially all of
decedent's assets. Further, Sheldon abused decedent physically and
financially, and intentionally isolated decedent. Lynelle alleged that
over the years, “Sheldon isolated Decedent from her two other
children, her five grandchildren and from most of the outside world.
Sheldon intentionally prevented Decedent from seeing or speaking
with family members and other people and denied family members
and others access to Decedent's house by among others: duct taping
her telephones so that she could not receive or make telephone calls;
by locking her metal security door from the outside so that decedent
could not open her front door to leave the house and so that she
could not allow in visitors such as family members; and by affixing a
sign to her door which stated: ‘DAY SLEEPER, DO NOT DISTURB!!
NO SOCIAL WORKERS. NO PEDDLERS. WILL NOT ANSWER
DOOR.’” The complaint also alleged that Sheldon denied and delayed
medical care to decedent and failed to assist her with personal
hygiene.
Among other relief, Lynelle sought to void the 1992 trust
amendment, to set aside the transfer of real property, compensatory
and punitive damages, a finding pursuant to Probate Code section
259 that Sheldon was deemed to have predeceased decedent and
thus was not entitled to inherit the remainder of decedent's estate,
imposition of a constructive trust, attorney fees, and costs....

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 Prior to trial, the trial court rejected Sheldon's argument that Lynelle
had no standing to bring this case for elder abuse.
A bifurcated trial was held before the court. At the end of the first
phase of the trial, the court found, by clear and convincing evidence,
that Sheldon was guilty of elder abuse by reason of neglect, isolation,
and financial abuse. In that Sheldon was found to be liable for elder
abuse, the trial court found that Sheldon was disinherited from
decedent's estate (Prob.Code §259). The trial court made a specific
finding that Sheldon acted with recklessness, oppression, fraud and
malice, entitling Lynelle to attorney fees and punitive damages. (Welf.
& Inst.Code §15657; Civ.Code §3294.) Damages were awarded to
Lynelle as follows: $250,000 for pain and suffering; $665,623 for
financial abuse; attorney fees to be determined upon written motion;
and punitive damages to be based upon proof of Sheldon's net worth.
Thereafter, a hearing before the court was held on the issues of
attorney fees, costs, and punitive damages. The trial court found that
“during the pendency of this action, [Sheldon] intentionally and
systematically liquidated virtually all of his assets and the assets of
the trust (of which [Sheldon] was the sole beneficiary) prior to
completion of this trial ... so that his assets would be unavailable for
execution by [Lynelle] as a potential judgment creditor of [Sheldon].”
The trial court awarded Lynelle $392,621.20 in attorney fees,
$32,406.37, in costs, and $50,000 for punitive damages.
A judgment was entered awarding $665,623 for financial abuse,
$250,000 for pain and suffering, $392,621.20 in attorney fees,
$32,406.37 in costs, and $50,000 for punitive damages, disinheriting
Sheldon from decedent's trust (Prob.Code, §259), and other relief.
Sheldon appeals....
The purpose of Probate Code section 259 was to deter the abuse
of elders by prohibiting abusers from benefiting from the abuse. (Note,
Extinguishing Inheritance Rights: California Breaks New Ground in
the Fight Against Elder Abuse But Fails to Build an Effective
Foundation (2001) 52 Hastings L.J. 537, 569; Civ.Code §3517 [“No
one can take advantage of his own wrong.”]; cf. Prob.Code, §250
[killer of decedent not entitled to benefit under decedent's will or
trust].) Probate Code section 259 was enacted, like other forfeiture
statutes, to produce a fair and just result. By enacting this statute, the
Legislature hoped that the threat of extinguishing inheritance rights,
and the financial incentive to others to report abuse, would deter
abuse. (Moskowitz, Golden Age in the Golden State: Contemporary
Legal Developments in Elder Abuse and Neglect, supra, 36 Loyola

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L.A. L.Rev. at pp. 653–656; Note, supra, 2 Hastings L.J. at pp. 572–
573.)
DISPOSITION
The judgment is affirmed. Sheldon Lowrie is to pay all costs on
appeal.
—————

F. Tortious/Intentional Interference with an

Expectancy
About half of the states recognize a tort doctrine known as tortious
interference with an expectancy. The RESTATEMENT SECOND OF TORTS
describes the doctrine as follows: “One who by fraud, duress or other
tortious means intentionally prevents another from receiving from a
third person an inheritance or gift that he would otherwise have
received is subject to liability to the other for loss of the inheritance or
gift.” RESTATEMENT (SECOND) OF TORTS, §774B.
Recently a California court made the following observations about
the doctrine:
In general, most states recognizing the tort adopt it with the
following elements: (1) an expectation of receiving an
inheritance; (2) intentional interference with that expectancy by
a third party; (3) the interference was independently wrongful or
tortious; (4) there was a reasonable certainty that, but for the
interference, the plaintiff would have received the inheritance;
and (5) damages. (See, e.g., Fell v. Rambo (Tenn.Ct.App.2000)
36 S.W.3d 837, 849.) Most states prohibit an interference
action when the plaintiff already has an adequate probate
remedy. (See, e.g., Minton v. Sackett (Ind.Ct.App.1996) 671
N.E.2d 160, 162–163 (Minton).
Beckwith v. Dahl, 205 Cal. App. 4th 1039, 1050 (Ct. App. 2012).
Inasmuch as the doctrine overlaps heavily with the traditional
probate doctrines of fraud, duress and/or undue influence, opponents
of the doctrine argue that the doctrine should not be recognized
because such claims should be brought in probate as part of the
probate process. Even states that recognize the doctrine typically
prohibit the claim if the party already has adequate relief in probate.
Nevertheless, the doctrine's proponents argue that it should be

266
recognized because there are wrongs where the probate system does
not offer an adequate remedy.
The tort claim of tortious interference with an expectancy is widely
considered to have a number of benefits over a claim in probate: (1)
as a tort claim it is not subject to the shorter statute of limitations
usually associated with probate; (2) as a tort claim a prevailing party
is entitled to greater damages, including potentially punitive damages;
and (3) as a tort claim it would not trigger a no contest clause if the
instrument in question has one.
Twice within the last five years the same California Court of Appeal
has had the opportunity to consider whether California should
recognize the tort doctrine. In Munn v. Briggs, the Court of Appeal for
the Fourth District, Division 1, quoted extensively from the opinion in
Wilson v. Fritschy, 132 N.M. 785 (2002) in considering the issue:
Noting that inheritance laws are “purely a creature of statute”
(as is true in California (see In re Darling (1916) 173 Cal. 221,
223, 159 P. 606)), the court in Wilson refused to allow niece
and nephew to circumvent the probate code by “calling a will
contest an action in tort.” Wilson explained: “We feel compelled
to protect the jurisdictional space carved out by our legislature
when it enacted the Probate Code and created remedies, such
as a will contest, designed exclusively for probate. We note that
a will contest in probate requires a greater burden of
persuasion than an independent action in tort. A presumption of
due execution normally attaches to a testamentary instrument
administered in probate, but not necessarily in tort. If we were
to permit, much less encourage, dual litigation tracks for
disgruntled heirs, we would risk destabilizing the law of probate
and creating uncertainty and inconsistency in its place. We
would risk undermining the legislative intent inherent in creating
the Probate Code as the preferable, if not exclusive, remedy for
disputes over testamentary documents.” (Ibid.)
Based in large part on these arguments, and in light of the fact that:
(1) the legislature had just recently overhauled California's approach
to no contest clauses, and (2) the legislature had not recognized the
tort, the court in Munn declined to recognize the tort doctrine.
Just two years later, in Beckwith v. Dahl, 205 Cal. App. 4th 1039
(Ct. App. 2012) the Court of Appeal for the Fourth District, Division 3,
declined to follow the reasoning in Munn. The court in Beckwith

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recognized the cause of action. The facts of the Beckwith case are
particularly compelling:
1. Marc Christian MacGinnis
[Brent] Beckwith and his partner, Marc Christian
MacGinnis (MacGinnis), were in a long-term, committed
relationship for almost 10 years.... MacGinnis had no children
and his parents were deceased. His sister, Susan Dahl, with
whom he had an estranged relationship, was his only other
living family. At some point during their relationship,
MacGinnis showed Beckwith a will he had saved on his
computer. The will stated that upon MacGinnis's death, his
estate was to be divided equally between Beckwith and Dahl.
MacGinnis never printed or signed the will.
In May 2009, MacGinnis's health began to decline. On
May 25, 2009, MacGinnis was in the hospital awaiting
surgery to repair holes in his lungs. He asked Beckwith to
locate and print the will so he could sign it. Beckwith went to
their home and looked for the will, but he could not find it.
When Beckwith told MacGinnis that he could not locate the
will, MacGinnis asked Beckwith to create a new will so he
could sign it the next day. That night, Beckwith created a new
will for MacGinnis using forms downloaded from the Internet.
The will stated: “‘I [MacGinnis] give all the rest, residue and
remainder of my property and estate, both real and personal,
of whatever kind and wherever located, that I own or to which
I shall be in any manner entitled at the time of my death
(collectively referred to as my “residuary estate”), as follows:
(a) If Brent Beckwith and Susan Dahl survive me, to those
named in clause (a) who survive me in equal shares.’”
Before Beckwith presented the will to MacGinnis, he called
Dahl to tell her about the will and e-mailed her a copy. Later
that night, Dahl responded to Beckwith's e-mail stating: “‘I
really think we should look into a Trust for [MacGinnis]. There
are far less regulations and it does not go through probate.
The house and all property would be in our names and if
something should happen to [MacGinnis] we could make
decisions without it going to probate and the taxes are less
on a trust rather than the normal inheritance tax. I have [two]
very good friends [who] are attorneys and I will call them
tonight.’ [Emphasis added.]” After receiving the e-mail,
Beckwith called Dahl to discuss the details of the living trust.

268
Dahl told Beckwith not to present the will to MacGinnis for
signature because one of her friends would prepare the trust
documents for MacGinnis to sign “in the next couple [of]
days.” Beckwith did not present the will to MacGinnis.
Two days later, on May 27, MacGinnis had surgery on his
lungs. Although the doctors informed Dahl there was a
chance MacGinnis would not survive the surgery, the doctors
could not discuss the matter with Beckwith since he was not
a family member under the law. Nor did Dahl tell Beckwith
about the risks associated with the surgery. Dahl never gave
MacGinnis any trust documents to sign. After the surgery,
MacGinnis was placed on a ventilator and his prognosis
worsened. Six days later, Dahl, following the doctors'
recommendations, removed MacGinnis from the ventilator.
On June 2, 2009, MacGinnis died intestate. He left an estate
worth over $1 million.
2. The Probate Proceedings
Following MacGinnis's death, Beckwith and Dahl met to
discuss the disposition of MacGinnis's personal property.
After Beckwith suggested they find the will that MacGinnis
prepared, Dahl told Beckwith “we don't need a will.” Two
weeks after MacGinnis' death, on June 17, 2009, Dahl
opened probate in Los Angeles Superior Court. Dahl verbally
informed Beckwith that she had opened probate, but she did
not send him any copies of the probate filings. In the filing,
she did not identify Beckwith as an interested party. Dahl also
applied to become the administrator of the estate.
In September 2009, Beckwith began to ask Dahl for details
of the probate case. Dahl informed Beckwith that she had not
had any contact with the probate attorney so she did not
know anything. [Beckwith e-mailed Dahl several times over
the course of the next two years with questions about the
probate process and offers to help, but Dahl never
responded.] ... Beckwith e-mailed Dahl again on December
18, 2009, asking about the probate proceedings. This time
Dahl responded by e-mail, stating: “‘Because [MacGinnis]
died without a will, and the estate went into probate, I was
made executor of his estate. The court then declared that his
assets would go to his only surviving family member which is
me.’” A few weeks later, in January 2010, Dahl filed a petition
with the probate court for final distribution of the estate.

269
 Beckwith filed an opposition to Dahl's petition in March 2010.
After a hearing, at which Beckwith was present in pro se, the
probate judge found that Beckwith had no standing because
he was “not a creditor of the estate” and he had “no intestate
rights” with regard to MacGinnis's estate.
3. The Civil Action and Demurrer
On July 30, 2010, while the probate case was still pending,
Beckwith filed the instant civil action against Dahl alleging
IIEI, deceit by false promise, and negligence. In the
complaint, Beckwith asserted Dahl interfered with his
expected inheritance of one half of MacGinnis's estate by
lying to him about her intention to prepare a living trust for
MacGinnis to sign. Beckwith further alleged Dahl made these
false promises in order to “caus[e] a sufficient delay to
prevent [MacGinnis] from signing his will before his surgery”
because she knew that if MacGinnis died without a will, she
would inherit the entire estate. Finally, Beckwith claimed that
as a result of his reliance on Dahl's promises, “he was
deprived of his ... share of [MacGinnis's] estate,” and
because he had no standing in probate court, a civil action
against Dahl was his only remedy.
Dahl demurred to all three causes of action. As to the IIEI
cause of action, she argued the “claim fails on its face”
because “California does not recognize a cause of action for
‘interference with inheritance.’” ...
At the hearing on the demurrer, the trial court stated, it was
not “in a position to recognize” a new tort for IIEI because
“that really is an appellate decision.” ... Beckwith timely
appealed the order sustaining the demurrer....
The court was moved by the allegations:
The tort of IIEI [Intentional Interference with an Expected
Inheritance—the California term for the doctrine] developed
under the “general principle of law that whenever the law
prohibits an injury it will also afford a remedy.” (Citations
omitted.) Similarly, it is a maxim of California jurisprudence
that, “[f]or every wrong there is a remedy.” (Civ.Code, §3523.)
In addition, in California, “[e]very person is bound, without
contract, to abstain from injuring the person or property of
another, or infringing upon any of his or her rights.”
(Civ.Code, §1708.) “[W]e cannot let the difficulties of

270
 adjudication frustrate the principle that there be a remedy for
every substantial wrong.” (Dillon v. Legg (1968) 68 Cal.2d
728, 739, 69 Cal.Rptr. 72, 441 P.2d 912 (Dillon); see also
Lucas v. Hamm (1961) 56 Cal.2d 583, 589, 15 Cal.Rptr. 821,
364 P.2d 685 [holding that intended beneficiaries of wills can
recover in tort against a negligent draftsman even though
there was a lack of privity because if such plaintiffs were
precluded from bringing a tort claim, “no one would be able to
do so and the policy of preventing future harm would be
impaired”].) Recognition of the IIEI tort in California is
consistent with and advances these basic principles.
Although the court recognized the claim, the court noted that
Beckwith's complaint still had hurdles to clear:
Having decided we can recognize a cause of action for
IIEI, we turn to whether Beckwith sufficiently stated the cause
of action in his complaint....
... [A]n IIEI defendant must direct the independently
tortious conduct at someone other than the plaintiff. The
cases firmly indicate a requirement that “[t]he fraud, duress,
undue influence, or other independent tortious conduct
required for this tort is directed at the testator. The
beneficiary is not directly defrauded or unduly influenced; the
testator is.” (Whalen v. Prosser (Fla.Dist.Ct.App 1998) 719
So.2d 2, 6, (Whalen), italics added.) In other words, the
defendant's tortious conduct must have induced or caused
the testator to take some action that deprives the plaintiff of
his expected inheritance. (Citations omitted.) ...
Here, Beckwith alleged he had an expectancy in
MacGinnis's estate that would have been realized but for
Dahl's intentional interference. However, Beckwith did not
allege Dahl directed any independently tortious conduct at
MacGinnis. The only wrongful conduct alleged in Beckwith's
complaint was Dahl's false promise to him. Accordingly,
Beckwith's complaint failed to sufficiently allege the IIEI tort.
The court remanded the matter back to the trial court level to see if
Beckwith could amend his petition to state a claim.

Notes
1. Tort committed against whom? What if Dahl's conversation with
Beckwith in which she stated “I have [two] very good friends [who] are

271
attorneys and I will call them tonight” had been with her brother
instead of with Beckwith. Assuming Dahl did not follow up on that
statement (and did not intend to do so when she made the
statement), who would have a claim then, and for what? What is the
classic remedy for that claim? What other remedy, if any, might the
court apply in such a case?
2. Probate remedy? If Dahl's conversation had been with her
brother before he died, would Beckwith have a remedy in probate?
Would this moot the question of intentional interference with an
expected inheritance? If the probate court finds that this conversation
actually occurred and gave effect to it, would the court de facto be
giving effect to the draft will on Dahl's computer that he never
executed? Is that appropriate? Are you comfortable with courts giving
effect to wills that were never signed?
3. In Latham v. Father Divine, 81 N.Y.S.2d 681 (1948), the
decedent's first cousins—who were not the heirs who would take
under decedent's intestate distribution—alleged that the decedent
wanted to revoke her will and execute a new will leaving them the
property, but that she was prevented from doing so because of the
wrongful acts of Father Divine's followers. The court ruled that if the
first cousins could prove their allegations, it had the equitable power
to impose a constructive trust in their favor. Would giving effect to the
unexecuted draft of the brother's will on the computer be that different
from the court giving effect to the unexecuted will in the Father Divine
case?

1. Inter vivos trusts can be either revocable or irrevocable. Assuming they are
revocable, they are more commonly known as revocable living trusts or just living
trusts.
2. The first requirement to having a valid directed disposition is that the person in
question had the requisite capacity to execute the particular instrument involved.
The material in this chapter will examine the doctrines related to the requisite
capacity. While many of the capacity-related doctrines covered in this chapter apply
to the non-probate will substitute instruments, the introductory course focuses on
capacity as it relates to the traditional method of opting out of intestacy: the will. For
the most part, the nuanced differences between a will and a will substitute as they
relate to the capacity requirements, and which capacity doctrines should be revised
to reflect these differences, are best left to the advanced estate-planning course.
3. Most estate planners cling to that phrase with the same passion as Mel Gibson
when he cried out at the end of Braveheart.
4. Bradley E.S. Fogel, The Completely Insane Law of Partial Insanity: The Impact
of Monomania on Testamentary Capacity, 42 REAL PROP. PROB. & TR. J. 67, 72
(2007).

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 5. Beginning in 1989, California law eliminated the availability of jury trials in will
contests. See infra note 7 and accompanying text.
6. Whether that is exactly the same as the contractual capacity you learned in
your Contracts course is beyond the scope of this course. For purposes of this
course, you can assume it is.
7. See CPC §8252. Enacted in 1988 and effective in 1989, jury trials for probate
code matters (other than certain unrelated conservatorship matters) were
eliminated. Oddly, and with no explanation, the 2009 will contest case of Monier
Kilgore v. Flores (Cal. App. 3d Dist.) was decided by a jury.
8. Where there is a claim of defect in capacity, the remedy typically is to strike as
much of the instrument as was affected by the defect. That may be all of the will, in
which case the probate estate likely will fall to intestacy (unless there is a prior will
that would now dispose of the property)—or it may mean that only part of the will is
invalidated (say a specific or general gift), and so long as the will's residuary clause
is still valid, the property will not pass via intestacy. See Chapter 7 for further
discussion of the effect of a failed gift without a will.
9. The full article is well worth reading: http://articles.latimes.com/1992-11-
22/news/mn-2315_1_leisure-world.

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Chapter 6

274
Wills Act Formalities

275
 I. Introduction
A testator's will is a document or instrument for directed disposition
of one's assets at death. A will, by its nature, is an ambulatory
document1 that takes effect upon the decedent's death. The will, of
course, must be properly executed during the decedent's lifetime.
Whether a will has been properly executed depends on which type of
will it is. Historically, and generally speaking, there are two types of
wills: attested wills and holographic wills. An attested will typically
appears in typed or “drafted” form2 and is also referred to as a
“traditional will,” “formal will” or “witnessed will.” A holographic will,
legal in California (but not in all states), typically refers to a document
that is in the testator's handwriting and is generally not signed by any
witnesses. If a person refers to a “will,” without specifying which type
of will, the assumption is he or she is referring to a traditional attested
will.
The statutory requirements or “execution formalities” necessary to
properly execute a valid will are set forth in a state's Wills Act. The
Wills Act formalities vary from state to state, and the requirements
also depend on which type of will it is: a traditional attested will or a
holographic will. The “Wills Act formalities” evolved initially, for the
most part, out of the Statute of Frauds, though some states copied
more from England's original Wills Act of 1837. Over the years,
however, the American Wills Act has developed into a doctrine with a
life of its own that bears little resemblance to the parent doctrines.

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 II. Attested Wills
The Wills Act formalities have evolved over time, and they are still
evolving. Having a sense of that evolution is important to
understanding the current approach—and the debate about the
current approach. The English case of In re Groffman typifies the
traditional approach to whether a document constituted a validly
executed will under the jurisdiction's Wills Act.

A. The Traditional Approach

In re Groffman
1 W.L.R. 733 (Probate Div. 1969)
SIR JOCELYN SIMON P.
In this case the executors of a will dated September 1, 1964,
propound it in solemn form of law. The will is of the late Mr. Charles
Groffman, who died on April 11, 1967. The first plaintiff, being the first
executor named, is the son of the deceased testator. The second
plaintiff, Mr. Block, is the second executor named and is the solicitor
who prepared the will.... The estate consists partly of what was the
matrimonial home (as to just over half the total estate). That house
belonged to the deceased. There was also a building society account
held by the deceased; ...
The defendant was the second wife of the deceased. They married
about 1948, the deceased being a widower and the defendant a
widow. The marriage was childless; but the deceased had two
children, the first plaintiff and a daughter who is in America....
Most of the relevant events took place in 1964; and I do not think
any witness can really be expected to remember the details, even Mr.
Block the solicitor who prepared the will. Indeed. I think that many of
the witnesses now think that they can remember more than they
actually can. But the rough outline of events was this.
Sometime in the summer of 1964, the deceased went to Mr. Block,
the solicitor. He was senior partner in the firm of Maxwell and Lawson.
The deceased was not a regular client of his, but had been
recommended to him by another client. He gave instructions for a will
and the instructions were put into a draft, ... That appointed the

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executors and trustees; it devises the house to the trustees on trust to
allow the defendant to have the use and enjoyment of this during her
lifetime. It also bequeaths all chattels to her for use during her life.
Then the residue—what was not disposed by the dispositions I have
referred to—was disposed of in this way. It was to be divided between
the first plaintiff, the daughter in America, and the stepdaughter, Miss
Berenson.... That draft was handed ... to the deceased, who took it
away to discuss it with his son, the first plaintiff. As a result of that
discussion, ... some nine corrections were made.... The document as
amended was then typed out, engrossed ready for execution.
The second plaintiff told the deceased very generally what was the
right method of execution; but realising that the deceased was an
intelligent man relied in the main on the attestation clause to be a
guide to the deceased. That was in the usual form, and it seems to
me to have been a perfectly reasonable course for the second plaintiff
to have taken.
The deceased and his wife were close family friends of a Mr. and
Mrs. David Block and a Mr. and Mrs. Julius Leigh. They spent at least
the summer holidays of 1964 together, and it was their custom to
meet alternately at their respective houses, generally on a Tuesday
night. This was because Mr. Leigh was a taxi driver and the Tuesday
was his free evening. On a number of occasions after the engrossed
document was handed to the deceased, he mentioned the matter to
Mr. David Block, saying that he would like Mr. Block and Mr. Leigh to
be witnesses to his will. Mr. Block, in a very usual reaction, said:
“There's no hurry about that; there's plenty of time to be thinking
about that sort of thing”—or words to that effect.
The parties met on a Tuesday evening in September, 1964. That
may have been September 1, which is the date that the will bears.
They met at the house of Mr. and Mrs. David Block, and the will
purports to have been executed that evening in circumstances to
which I shall have to refer. It is sufficient to say that, as I have already
indicated, the attestation clause is the normal one, and Mr. Block and
Mr. Leigh signed as attesting witnesses. The document also bears
what is admittedly the signature of the deceased, and the date,
September 1, 1964.
I am perfectly satisfied that that document was intended by the
deceased to be executed as his will and that its contents represent his
testamentary intentions.

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 After he had obtained the signatures of his friends, he took the will
and handed it to his son, the first plaintiff. He appears to have referred
to it to Mr. Block on a number of occasions thereafter; but nothing
turns on that, since the only question that arises in this suit is as to the
execution of the document.
The deceased died, as I have said, on April 11, 1967. The funeral
was on April 13, and thereafter the widow and the first plaintiff
observed a period of ritual mourning, during which there was no
discussion of any testamentary instrument or disposition....
Some time shortly thereafter there was another meeting, as I have
indicated, and the defendant showed considerable dissatisfaction with
the dispositions in the purported will. She used the words, “My Charlie
wouldn't have done that to me.” ...
As I have said, the only question that arises for the determination of
the court is whether this will was duly executed. That takes me back
to the occasion in September, 1964, which may have been
September 1—the episode at the house of Mr. and Mrs. David
Block....
I think that what happened on the evening in question was this. I
have already said that the deceased had previously indicated to Mr.
David Block that he would like him and Mr. Leigh to witness his will.
On the evening in question, which was in all probability a Tuesday
and possibly September 1, 1964, the deceased and the defendant,
Mr. and Mrs. David Block and Mr. and Mrs. Julius Leigh, were all
together in the lounge of the Blocks' house. Mr. Block's son, Stewart,
was also in the house, though not in the lounge at the
commencement of the transaction to which I refer.
During the course of the evening, when the coffee table, the only
available table, was laden with coffee cups and cakes, the deceased
said words to this effect, which he addressed to Mr. David Block and
Mr. Julius Leigh: “I should like you now to witness my will.” I think he
may well have gestured towards his coat. The will in question as
engrossed was of the usual double foolscap folded in two and then in
four, so as to be a convenient size for putting in an inside pocket of a
coat. That is where it was on this occasion. However, it was not taken
out by the deceased in the lounge. At the most, he gestured towards
the pocket where it was. There seems to me to be an overwhelming
inference that his signature was on the document at that time. There
being no convenient space for the execution in the lounge, Mr. Block
led the deceased into the adjacent dining room. That was just across

279
a small hall. There the deceased took the document from his pocket,
unfolded it, and asked Mr. Block to sign, giving his occupation and
address. The signature, as I have already said, was on the document
at the time and was visible to Mr. Block at the time; indeed, he noted
this. Mr. Leigh, who seems to have been somewhat cumbrous in his
movements, was left behind. He was not there when Mr. Block signed
his name. Mr. Block then returned to the lounge, leaving the deceased
in the dining room. He said to Mr. Leigh words to this effect: “It is your
turn now, don't keep him waiting, it's cold in there.” Mr. Leigh then
went into the dining room and, according to his statement, and as is
indeed borne out by the form of the document that we now have,
signed his name beneath that of Mr. David Block. In the meantime Mr.
Block had remained in the lounge.
In other words, we are left with this situation—that the signature of
the deceased was on the document before he asked either Mr. Block
or Mr. Leigh to act as his witnesses; that Mr. Block signed his name in
the presence of the deceased but not in the presence of Mr. Leigh;
and that Mr. Leigh signed his name in the presence of the deceased
but not in the presence of Mr. Block. The deceased did not sign in the
presence of either of them; and the question is whether he
acknowledged his signature in the presence of both of them.
As must appear from the fact that I have been satisfied that the
document does represent the testamentary intentions of the
deceased, I would very gladly find in its favour; but I am bound to
apply the statute, which has been enacted by Parliament for good
reason. The provision with which I am concerned is section 9 of the
Wills Act, 1837. That reads:
“... no will shall be valid unless it shall be in writing and
executed in manner hereinafter mentioned; (that is to say,) it
shall be signed at the foot or end thereof by the testator, or by
some other person in his presence and by his direction; and
such signature shall be made or acknowledged by the testator
in the presence of two or more witnesses present at the same
time, and such witnesses shall attest and shall subscribe the
will in the presence of the testator, but no form of attestation
shall be necessary.”
The question, as I have indicated, is whether the testator
acknowledged his signature in the presence of Mr. Block and Mr.
Leigh, those two witnesses being present at the same time. The
matter has been considered by a number of eminent judges, starting
with Dr. Lushington, and followed by the members of the Court of

280
Appeal in Blake v. Blake (1882) 7 P.D. 102 and Daintree v. Butcher
and Fasulo (1888) 13 P.D. 102. It seems presumptious to say that I
agree with their construction of the statute; but it appears to me to be
clear. In any event I am bound by what was decided by the Court of
Appeal, even if I were to disagree with it, which I do not. It seems to
me that the authorities establish that the signature of the testator must
be on the document at the time of acknowledgment (as I think it was),
and that the witnesses saw or had an opportunity of seeing the
signature at that time, in other words, at the time of
acknowledgment....
... In my view, Daintree v. Butcher and Fasulo, 13 P.D. 102, bears
out what I have described from Blake v. Blake, 7 P.D. 102, namely,
that if there is to be an acknowledgment within the statute the
attesting witnesses must either see or be capable of seeing the
signature; or at the very least must see or be capable of seeing a will
on which there is a signature. In the present case, none of those
conditions was satisfied.
...
There is, however, one final argument. Having submitted originally
that there was a sufficient acknowledgment to satisfy the statute in
what happened in the lounge, when admittedly both attesting
witnesses were present, Mr. Craig puts his argument alternatively in
this way. He says that what happened was all part of one res gestae
—there was no break in the continuity of the transaction. Both
attesting witnesses had an opportunity of seeing the signature at the
time they signed the will, which was within a matter of seconds of
each other and within a matter of seconds of being asked to witness
it. On that argument the acknowledgment started in the lounge but
ended in the dining room. Now, it seems to me that there is one fatal
flaw in that argument; namely, that if the acknowledgment was not
completed until the dining room, then there was no completed
acknowledgment in the presence of both attesting witnesses being
present at the same time.
In the end, therefore, although I would gladly accede to the
arguments for the plaintiffs if I could consistently with my judicial duty,
in my view there was no acknowledgment or signature by the testator
in the presence of two or more witnesses present at the same time;
and I am bound to pronounce against this will.
The defendant has succeeded in this action, but the plaintiffs are
executors of a will which is apparently valid on the face of it. They

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acted reasonably in my view in propounding it in solemn form once a
caveat had been entered. The fact that there has been litigation is due
to the unfortunate error in execution committed by the deceased, and
in the exercise of my discretion I order that the costs of all parties
should come out of the estate.
—————

Notes
1. Functions underlying the Wills Act: Most scholars acknowledge
that the traditional Wills Act formalities serve a number of important
functions:
a. Evidentiary: The Wills Act formalities serve an
evidentiary function by ensuring that the document offered for
probate truly reflects the testator's last wishes as to who
should take his or her property.
b. Protective: The Wills Act formalities serve a protective
function by making it more difficult to bring fraudulent claims
and by protecting the testator's intent as expressed in the
properly executed will.
c. Ritualistic: The Wills Act formalities serve a ritualistic
function by impressing upon the testator the importance and
finality of the act being performed.
d. Channeling: The cumulative effect of the Wills Act
formalities serve a channeling function by encouraging
individuals to consult an attorney to draft and supervise the
execution of their wills, thereby facilitating the probating of
the will and decreasing administrative costs.
The core requirements for an attested will are that it must be in
writing, signed, and witnessed. To some degree each of these core
requirements serves all of the functions, yet one can argue that each
requirement primarily serves one of the functions. Which function is
primarily served by each of the requirements?
2. Modern trend: Take a closer look at the Wills Act involved in the
Groffman case. What happened to the three core requirements in the
attested Wills Act? How many requirements are there in the statute? If
you do not think the outcome in Groffman is defensible, what could
the law do to remedy the situation?
3. Degree of compliance with Wills Act formalities: Judge Simon
wrote “I am perfectly satisfied that that document was intended by the

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deceased to be executed as his will and that its contents represent his
testamentary intentions.” Then why did he invalidate the will? We
opened the course by saying that the prevailing answer to the
question “who gets your property when you die?” is “whomever you
wish”—what happened to decedent's intent? Is the court looking for a
way to uphold it or to invalidate it? Does that make any sense? How
would you describe how the court applied the Wills Act formalities?
What degree of compliance did it insist on? If you do not think the
outcome in Groffman is defensible, what could you do to remedy the
situation?
4. Malpractice liability: Should the attorney in Groffman be liable for
failing to supervise the will execution ceremony? Should an attorney
be liable to the named beneficiaries where an attorney properly drafts
a will, gives it to the client for review, but fails to follow up to see if the
client executes or wants to execute the draft? See Radovich v. Locke-
Paddon, 35 Cal. 4th 946 (1995).

B. Response to Traditional Approach

As the Wills Act in Groffman evidences, historically a Wills Act
typically required a good number of formalities to properly execute a
will, including, but not limited to, the following:

1. A writing;
2. Signed by the testator (or signed for the testator by another
person at the testator's direction and in the testator's presence);
3. With the testator's signature at the end or foot of the document;
4. Signed in the presence of all attesting witnesses;
5. “Published” by the testator (he or she declares or otherwise
communicates to the witnesses that they are witnessing the
testator's will and not some other legal document);
6. That there are two (or more) attesting witnesses;
7. That the testator requested the witnesses to sign as witnesses;
and
8. Signed by the witnesses at the end of the will, in the testator's
presence, as well as in the presence of each other, all at the
same time—at the same sitting.

Moreover, as the Groffman case shows, traditionally, not only were

there a myriad of statutory requirements, but courts required strict,
i.e., “absolute,” compliance. Any deficiency in the execution procedure
resulted in an invalid will. Improper execution meant no will,

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regardless of how confident the court was that the document reflected
the testator's intent.
With time scholarly criticism grew that this traditional approach was
needlessly formalistic, exulting formalism at the expense of the
testator's intent. The first attempt at ameliorating the effects of this
traditional approach was to re-examine each of the Wills Act
formalities, asking if there might not be some that could be eliminated,
thereby reducing the risk that a testator might accidentally trip up on a
formality. The 1969 Uniform Probate Code adopted this approach.
The 1969 UPC Wills Act requires only the following formalities:

1. A writing
2. Signed by the testator (or signed for the testator by another
person at the testator's direction and in the testator's presence);
3. Signed in the presence of all attesting witnesses;
4. That there are two (or more) attesting witnesses; and
5. That the witnesses sign the will.

California was a bit slow in following the UPC lead, not revising its
Wills Act until 1984. Compared to the Wills Act in the Groffman case,
the 1984 California Wills Act is significantly more streamlined:
1984 Version of CPC §6110. Requirements for valid will
(a) Except as provided in this part, a will shall be in writing and
satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator's name by some other person in the
testator's presence and by the testator's direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) The will shall be witnessed by being signed by at least two
persons each of whom (1) being present at the same time,
witnessed either the signing of the will or the testator's
acknowledgment of the signature or of the will and (2)
understand that the instrument they sign is the testator's will.
Other than the additional express requirement that the witnesses
understand that the instrument is the testator's will, does the 1984
version of the California Wills Act reduce the number of requirements
to the 1969 UPC list set forth above?

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 Even with the “leaner” Wills Acts, scholarly criticism continued to
grow with respect to whether the judicial approach was still needlessly
formalistic. In 1975 Professor John Langbein, one of the
acknowledged leaders in the field, openly called for the courts to
abandon strict compliance and to adopt substantial compliance: even
if a will was not properly executed it could nevertheless be probated
as long as there was: (1) clear and convincing evidence the decedent
intended the document to be his or her will, and (2) clear and
convincing evidence the decedent substantially complied with the
Wills Act formalities. The state of Queensland, Australia, essentially
adopted Professor Langbein's substantial compliance proposal, but
the state of South Australia adopted a dispensing power approach
that authorized the courts to dispense with the defective Wills Act
formalities as long as the court was “satisfied that there can be no
reasonable doubt that the deceased intended the document to
constitute his will.”3 After studying how the courts interpreted and
applied the two approaches, Professor Langbein concluded that the
dispensing power approach was better. He modified the doctrine
slightly to better fit the American legal system and re-named it the
harmless error doctrine.
In 1990 the Uniform Probate Code adopted the harmless error
approach:
UPC §2-503. Harmless error doctrine
Although a document or writing added upon a document was not
executed in compliance with Section 2-502 [the UPC provision
that sets forth the requirements for a validly executed will—
attested or holographic], the document or writing is treated as if it
had been executed in compliance with that section if the
proponent of the document or writing establishes by clear and
convincing evidence that the decedent intended the document or
writing to constitute (i) the decedent's will, (ii) a partial or
complete revocation of the will, (iii) an addition to or an alteration
of the will, or (iv) a partial or complete revival of his [or her]
formerly revoked will or of a formerly revoked portion of the will.
The harmless error proposal has been met with mixed results.
Some states have adopted it as is, some states have adopted a more
“limited” version of the doctrine, and a majority of the states have
declined to adopt it. California was in the latter camp until 2008 when
the legislature amended the Wills Act to include its “limited” harmless
error doctrine:

285
CPC §6110. Necessity of writing; other requirements (2008
Revised Version)
(a) Except as provided in this part, a will shall be in writing and
satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator's name by some other person in the
testator's presence and by the testator's direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be
witnessed by being signed, during the testator's lifetime, by
at least two persons each of whom (A) being present at the
same time, witnessed either the signing of the will or the
testator's acknowledgment of the signature or of the will
and (B) understand that the instrument they sign is the
testator's will.
(2) If a will was not executed in compliance with paragraph
(1), the will shall be treated as if it was executed in
compliance with that paragraph if the proponent of the will
establishes by clear and convincing evidence that, at the
time the testator signed the will, the testator intended the
will to constitute the testator's will.

Notes and Problems

1. California versus UPC harmless error doctrine: Has California
adopted the “harmless error” approach championed by the UPC?
How would you describe the California approach? Does California
still follow strict compliance? Does it apply substantial compliance?
Does it apply harmless error? Does it apply some hybrid version of
the above?
2. Witnesses must sign during testator's lifetime: Note that subsection
(c)(2) is not the only revision to section 6110. The legislature also
revised section (c)(1) to require that the witnesses sign the will
“during the testator's lifetime.” In light of subsection(c)(2), how
important is that amendment?
3. Requirement versus “strongly recommended”: Circling back for a
moment to the discussion of the reduced number of Wills Act
formalities under the 1969 UPC approach, after California adopted

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 its limited “harmless error” doctrine, how many items on that list are
still “requirements” and how many are de facto “recommendations”
that can be waived under the harmless error doctrine?
4. Evidentiary burden: What constitutes “clear and convincing
evidence that, at the time the testator signed the will, the testator
intended the will to constitute the testator's will”?
5. Practitioner's perspective: Notwithstanding the UPC's version of the
“harmless error” doctrine, or the more limited California version, in
practice, the doctrine is never viewed as default law or one on
which a practitioner would rely for drafting purposes. Why is this the
case? Why would a practitioner not factor in the harmless error
doctrine to his or her approach to his or her will execution
ceremony? Perhaps the word “harmless” is not the most accurate
description of the doctrine. In the practitioner's world, any idea of
equating “harmless error” to something akin to “no harm, no foul,” is
absurd. An attorney drafting a testamentary document who is
somehow relying on “harmless error” to validate it is not only
inviting a will contest (never the goal of an estate planner) but is
also opening up the door to a malpractice lawsuit. A tarnished or
ruined career is strong incentive to avoid any necessity of reliance
on “harmless error.” It is no surprise that estate planning attorneys
continue to comply with the “old-fashioned,” traditional requirements
for executing a will (see, infra page 189).

Estate of Stoker
193 Cal. App. 4th 236 (Ct. App. 2011)
GILBERT, P.J.
At one time the Probate Code appeared to refute the dictum,
“Nothing endures but change.” Not anymore.
...
Destiny Gularte, Donald Karotick and Robert Rodriguez
(appellants) appeal a judgment that denied a petition to probate a
1997 will and a trust of Steven Wayne Stoker (decedent), and granted
the petition of Danine Pradia and Darrin Stoker (respondents) to
probate decedent's 2005 will....
FACTS
On May 22, 1997, decedent executed a will and nominated Gularte
to be the executor of his estate. In Article Two of the will, he listed
Karotick and Gularte as the beneficiaries of gifts of personal property.

287
In Article Three, he stated, “I give the residue of my estate to the
trustee of the 1997 Steven Wayne Stoker Revocable Trust, created
under the declaration of trust executed on the same date as, but
immediately before, the execution of this will....” Gularte was listed as
the successor trustee of that trust. Decedent died on February 27,
2008.
...
On April 28, respondents filed a petition to probate a handwritten
will signed by their father on August 28, 2005. The will provides, “To
Whom It May Concern: I, Steve Stoker revoke my 1997 trust as of
August 28, 2005. Destiny Gularte and Judy Stoker to get nothing.
Everything is to go to my kids Darin [sic ] and Danene [sic ] Stoker.
Darin [sic ] and Danene [sic ] are to have power of attorney over
everything I own.” The will contained no witnesses' signatures.
At trial, Anne Marie Meier testified that she was a very close friend
of decedent. One night in 2005, decedent was discussing “estate
planning,” and he asked Meier to “get a piece of paper and a pen.” He
then dictated the terms of the 2005 will. Meier wrote that document in
her handwriting “word for word” from decedent's dictation. She
handed it to him, “he looked at it and he signed it.” Decedent told
Meier that this was his last will and testament. Moreover, in front of
the witnesses, he urinated on the original copy of the 1997 will and
then burned it.
Homer Johns, a friend of decedent's, testified that he saw decedent
sign the 2005 will.
The trial court found that respondents “established that the 2005
document was created at Decedent Stoker's direction and that he
signed it,” and that there was clear and convincing evidence that the
2005 will “evinces Decedent Stoker's intent.” The court ruled that
“[s]ince the 2005 will has been accepted for probate by this Court, the
1997 will has been revoked by operation of law.”
DISCUSSION
...
The Validity of the 2005 Will
Appellants claim that the will does not meet the requirements for a
“[f]ormal [w]itnessed [w]ill,” and therefore the trial court erred by
admitting it to probate. A will must be signed by the testator and at
least two witnesses. (§6110, subds. (b)(1) & (c)(1).) (Here the 2005
will is signed by decedent, but it contains no witnesses' signatures.

288
Two witnesses, however, saw decedent sign it, and they testified in
court to verify that this will was genuine.
Respondents note that the Probate Code contains a provision that
allows wills that are defective in form to be admitted to probate if they
are consistent with the testator's intent. Section 6110, subdivision (c)
(2) provides, “If a will was not executed in compliance with paragraph
(1), the will shall be treated as if it was executed in compliance with
that paragraph if the proponent of the will establishes by clear and
convincing evidence that, at the time the testator signed the will, the
testator intended the will to constitute the testator's will.” Here the trial
court found that the 2005 document constituted decedent's last will.
Appellants argue that the Legislature never intended this provision
to apply to cases involving handwritten documents. We disagree. “‘“It
is a prime rule of construction that the legislative intent underlying a
statute ... must be ascertained from its language; if the language is
clear, there can be no room for interpretation, and effect must be
given to its plain meaning.”’” (citations omitted). Where the statute is
inclusive, containing no limiting or qualifying language to exclude
persons from its scope, the words the legislators used should control.
Here the statutory language is clear and broad, and there is no
language to support the limitation appellants propose. This statute
applies to wills that are “in writing” and signed by the testator. (§6110,
subd. (a); id., subd. (b)(1).) The 2005 document is a written will signed
by decedent. The statute contains no language to indicate that the
wills covered by this section are limited to typewritten wills.
Consequently, handwritten non-holographic wills are not excluded
from the scope of this statute.
Moreover, statutes “should be given a construction consistent with
the legislative purpose....” (citations omitted.) Remedial statutes
should be broadly and liberally construed to promote the underlying
legislative goals. (citations omitted.) The broad and remedial goal of
this provision is to give preference to the testator's intent instead of
invalidating wills because of procedural deficiencies or mistakes.
Including the 2005 will within the purview of this statute is consistent
with that purpose.
Retroactivity
[The new subdivision (c)(2) of CPC §6110 effective January 1, 2009
was held to be retroactive in application—here to a document made
prior to the effective date of the statute.]

289
 ...
Substantial Evidence
Appellants contend there is no evidence to show that the 2005
document was intended to be decedent's will. They claim it does not
contain “testamentary language,” does not use the word will or make
reference to death.
The document is certainly not a model will. But “[n]o particular
words are necessary to show a testamentary intent” as long as the
record demonstrates that the decedent intended the document to be
his or her last will and testament (citation omitted).
Here decedent's testamentary intent is evident. The document
provides that all of decedent's property will go to his children—the
respondents, that the 1997 trust is revoked, that Gularte will receive
“nothing,” and that his children will have power of attorney “over
everything.”
Moreover, even if the document is ambiguous, the trial court
properly admitted extrinsic evidence. (citation omitted.) That evidence
confirmed decedent's testamentary intent. Meier testified that
decedent told her the document was “my last will and testament,” and
“[t]hese are my wishes.” Johns testified that decedent told him that the
will represented “his final wishes.”
...
The judgment is affirmed. Costs on appeal are awarded in favor of
respondents.
—————

Estate of Ben-Ali
216 Cal. App. 4th 1026 (2013)
Margulies, Acting P.J.
The intestate heirs of decedent Taruk Joseph Ben-Ali appeal from a
judgment admitting the decedent's will to probate. Appellants contend
there was insufficient evidence of due execution under Probate Code
section 6110....
A. The Parties
Taruk, born in 1968, was the only biological child of Hassan Ben-Ali
and Ann Jackson.... According to Hassan's attorney, respondent Ivan
Golde, Hassan was a very shrewd and savvy real estate investor who

290
had owned a lot of properties over the years and had also gone
through financial problems, including tax problems. One of Hassan's
properties was an apartment building at 2235 Ashby Avenue in
Berkeley (hereafter Ashby property or Ashby building), which Hassan
had transferred to Taruk in approximately 1993, perhaps to avoid
losing the property to the IRS.
In 1995, Jackson moved into an apartment in the Ashby building.
Hassan lived in the building on and off during that time period and,
according to Jackson, continued to handle all aspects of managing
the property despite title being in their son's name. On August 3,
2002, Taruk married appellant Wendelyn Wilburn. According to
Wilburn, Hassan opposed the marriage, believed Wilburn just wanted
to obtain a portion of the Ashby property, and persisted in trying to talk
Taruk out of marrying her down to the day of their wedding.... Wilburn
was aware when she married Taruk that he had spent time in prison
and had a history of drug problems. According to Wilburn, drugs were
not an issue for Taruk during their relationship and marriage until
sometime in early 2004, when he relapsed into using drugs.
B. Decedent's Disappearance and Death
Wilburn was on a business trip in Las Vegas on June 8, 2004, when
she communicated with Taruk by telephone for the last time. Over the
next two days, Wilburn repeatedly tried to call Taruk from Las Vegas,
but got no answer. When she returned from her trip, she called
Hassan to find out if he knew where Taruk was. Hassan told her Taruk
had decided to leave her and start a new life somewhere else. He told
similar stories to Jackson and others who inquired about Taruk's
whereabouts. Wilburn testified she did not believe Hassan, and made
attempts to locate Taruk, but neither Wilburn nor anyone else reported
Taruk's disappearance to the police. Between June 2004 and
December 2008, Hassan continued to manage Taruk's apartment
building in Taruk's name, collected rents, forged Taruk's name on
checks drawn against Taruk's bank accounts, and refinanced the
property in the amount of $600,000 by forging Taruk's signature and
the signature of a notary.
In November 2008, Hassan called Golde and asked to meet with
him. Hassan informed Golde that Taruk had in fact died in 2004.
Hassan explained he had found Taruk dead of a drug overdose in a
hotel room. Not wanting to report the death for fear of losing the
Ashby property, he had taken Taruk's body to the property and hidden
it in the wall of a storage area of the building. Hassan further informed
Golde that a person who had assisted him in the removal and

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concealment of Taruk's body was extorting substantial sums of money
from him by threatening to reveal what had happened.
Hassan committed suicide on December 15, 2008, while Berkeley
police officers were visiting the property. Two days later, Taruk's body
was discovered on the premises. Police believed Taruk had died four
and half years earlier, in June 2004. Hassan left a will, not contested
in this proceeding, in which he named his former spouse, Ann
Jackson, as the sole beneficiary of his estate.
C. Decedent's Will
Among Hassan's possessions, police found a purported will of
Taruk, bearing the apparent signatures of Taruk and two attesting
witnesses. The typewritten document was dated August 16, 2002, two
weeks after Taruk and Wilburn were married, and the day before they
were to leave town for a honeymoon in Hawaii. It recited that Taruk
had one living child, Brittany Desmond. The document provided
Taruk's “wife,” who was the only person not referred to by name in it,
was to receive all of Taruk's personal property, and his father, Hassan
Ben-Ali, was to receive all other assets. It further stated Desmond
“has been provided for by a life insurance policy on my life, which is
held in trust for her by my father, Hassan Ben-Ali.” Hassan was
identified as executor of the estate in the document, and “Attorney
Ivan Gold” was named as the alternate executor.
The purported will contained an attestation clause stating it was
signed by Taruk in the presence of two witnesses who also signed in
the presence of each other and that Taruk declared to them the
document was his “Last Will and Testament.” One of the witness
signatures was of “Wendy Ben-Ali” with an address of “2235 Ashby #
201 Berkeley, Ca.” The handwritten name and address of the second
purported witness were illegible, and the identity of that person has
never been determined.
D. Probate Court Proceedings
[Both sides hired forensic document experts who testified as to the
authenticity of the signatures on the will. Respondent's expert testified
that he believed with a “high degree of certainty” that Taruk's
signature was authentic and that Wilburn's signature was “probably”
genuine. Appellants' expert opined that it was “highly probable” both
signatures were not genuine. The Probate Court accepted the
testimony of Respondent's expert and held the regular and complete
attestation clause on the signature page of the will constituted prima

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facie evidence of the validity of the unknown witness signature and of
the will's due execution.
The appellate court agreed that “proof of the signatures of the
decedent and the witnesses makes out a prima facie case of due
execution.” (Emphasis added.) “Proof of the signature of the decedent
and of only one of the witnesses does not.” (Emphasis added.) The
appellate court went on to find that “No ... [authenticating] evidence
was produced in this case regarding the signature of the unidentified
purported witness.” Accordingly, the appellate court ruled the will
could not be admitted to probate as a validly executed will under
section 6110, subdivision (c)(1).]
...
C. Evidence of Testator's Intent
A will not executed in compliance with section 6110, subdivision (c)
(1) may nonetheless be admitted to probate if the proponent
establishes by clear and convincing evidence the testator intended
the instrument to constitute his will at the time he signed it. (§6110,
subd. (c)(2).) The clear and convincing standard “‘requires a finding of
high probability....” ‘so clear as to leave no substantial doubt’;
‘sufficiently strong to command the unhesitating assent of every
reasonable mind.’”’” (Lackner v. North (2006) 135 Cal.App.4th 1188,
1211–1212, 37 Cal.Rptr.3d 863.) In our view, no reasonable trier of
fact could find that standard has been reached on the record before
us.
Taruk was only 34 years old when he allegedly executed his will. No
witness in this case knew anything about the will or the circumstances
of its execution. There was no evidence Taruk had spoken about his
testamentary intentions with anyone, or that Wilburn ever mentioned
the will to anyone between 2002 and its discovery in 2008—despite
the fact that her husband's decision not to provide for her in his will
would presumably have been a topic of some interest to her. There
was also no testimony as to how the typewritten will had been
prepared, who had drafted it, or who Taruk might have consulted
about its terms or phrasing. Significantly, no original or copy of the will
was found at Taruk's residence or among his belongings. The will was
found among the belongings of Taruk's father, Hassan. The evidence
showed Hassan was a man willing to go to extremes of fraud and
dishonesty in order to protect his financial interests and, in particular,
to retain control of the Ashby property—which was both his residence
and a major source of his income. Before taking his own life, Hassan

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had hidden his son's body behind a wall, perpetrated a callous fraud
on Taruk's mother, spouse, and friends about Taruk's fate, and had
impersonated Taruk and forged his name to multiple documents, all
apparently for financial reasons connected to the property. At the
same time, no convincing theory was offered to explain how Hassan's
decision to conceal the death for financial reasons was consistent
with the existence of a valid will passing Taruk's property to him.
There was vague testimony about possible tax concerns, but no
competent evidence of Hassan's tax situation in 2004 was admitted.
On the other hand, Hassan would have had an obvious financial
motive for concealing Taruk's death if a will leaving the building to
Hassan did not in fact exist when Taruk died. The will document itself
was far from self-authenticating. In the will, Taruk referred to Wilburn
as “my wife” rather than mentioning her by name, even though they
had just been married two weeks earlier. Whoever signed Wilburn's
name used the Ashby property as her address even though Wilburn
had never lived there. Both the signature and address of the second
witness were completely indecipherable. The life insurance policy for
Brittany Desmond referenced in the will has never been found, and no
evidence was produced of any premiums paid for such a policy.
Taruk's signature on the will—the only real evidence of Taruk's intent
to make a will—was primarily authenticated by the proponents'
document examiner who was not told about or shown any of the
known documents on which Hassan had forged Taruk's signature.
By highlighting circumstances casting doubt on the will's
provenance, we do not discount the other circumstances and
evidence that persuaded the trial court Taruk did in fact sign the
document in issue, and intend it as his will. But in light of the many
unusual events surrounding the document, and the paucity of
evidence Taruk had discussed his testamentary intent with others, we
do not believe a reasonable fact finder could conclude those facts
were proven by clear and convincing evidence.
Accordingly, we reverse the judgment and remand for further
proceedings consistent with the views expressed herein....
III. DISPOSITION
The judgment is reversed and the matter is remanded to the
probate court for the entry of a new judgment upholding appellants'
contest of the will based on insufficient evidence of due execution,
denying admission of the will to probate, and providing for the
administration of the estate in a manner consistent with those
determinations.

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 —————

C. Continuing and Evolving Issues

Notwithstanding that California, like most states, has modified its
Wills Act, for attested wills the three core requirements still remain:
the will must be in writing, it must be signed, and it must be witnessed
(maybe). As the material above reflects, what constitutes compliance
with these components is evolving, with different jurisdictions taking
different approaches. What follows is an attempt at delineating these
three core requirements, but such an attempt often ends up raising
more questions than providing answers.

1. The Writing Requirement

This “writing” requirement sounds rather simple and, in practice, it is
usually not the source of problems. While this section of the book is
focused on attested wills, we shall see that a holographic will also
requires a writing. Does this writing requirement preclude oral wills?
Some states do allow oral wills (officially known as “nuncupative”
wills), but where valid, their use is typically severely limited (for
example, permitted only in emergency situations or where dealing
with property of limited value). At one time, California accorded limited
validity to nuncupative wills, but that era is long gone and, while
interesting, has no significance today.
So what qualifies as a writing? Wills that are typed, computer
printed, or pre-printed4 obviously qualify. Handwritten wills (either by
the testator or transcribed by another5) also meet this requirement.
Must a writing be on paper? Paper is, by far, the most common and
recommended medium of compliance, but a testator can use
parchment, canvas (written in “paint”), and the like. The more
traditional and tangible the medium, the more likely it is to be
accepted as a writing even if it is not on paper.

Problems
1. A Farmer is out riding his tractor when he gets down off the tractor
to adjust something on it. Tragically, the tractor shifts into reverse,
pinning him beneath it. Unable to free himself and bleeding badly,
he uses his pocketknife to scratch the following into the tractor's
fender: “In case I die in this mess, I leave all to the wife. Cecil Geo
Harris.” Sadly, he dies from the injuries he sustained. Assuming the

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 other Wills Act formalities are satisfied, if the fender was removed
from the tractor and submitted for probate, does the scratching on
the fender constitute “a writing” for purposes of the Wills Act
formalities? Should it? See Jim D. Sarlis, From Tractor Fenders to
Iphones, Holographic Wills, 86 N.Y. ST. B.J. 10 (2014).
2. The decedent was found dead on his couch, his testamentary
wishes written on his shirt. Assuming the other Wills Act formalities
are satisfied, does the shirt constitute “a writing” for purposes of the
Wills Act formalities? Should it? See Jim D. Sarlis, From Tractor
Fenders to Iphones, Holographic Wills, 86 N.Y. ST. B.J. 10 (2014).
3. Maggie Nothe enjoyed cooking. She has a recipe book in which
she writes out her favorite recipes. One day she makes the
following entry in her own handwriting:
4 quarts of ripe tomatoes, 4 small onions, 4 green peppers,
2 teacups of sugar, 2 quarts of cider vinegar, 2 ounces
ground allspice, 2 ounces cloves, 2 ounces cinnamon, 12
teaspoonfuls salt. Chop tomatoes, onions and peppers fine,
add the rest mixed together and bottle cold. Measure
tomatoes when peeled. In case I die before my husband I
leave everything to him. Maggie Nothe
Assuming the other Wills Act formalities are satisfied, does the
entry in the recipe book constitute “a writing” for purposes of the
Wills Act formalities? Should it? See ROBERT MENCHIN, WHERE
THERE'S A WILL 81 (1980).
4. Beth Bear is blind. She picks up a pen, handwrites out who should
get what when she dies, using language that clearly expresses her
testamentary intent, signs the document, folds it up and puts it in an
envelope. Sadly, because she is devoid of sight, Beth did not
realize that the pen she was using was out of ink. Following her
death, a handwriting expert testifies she can make out the words on
the blank pages from the indentations made by the pen. Assuming
the other Wills Act formalities are satisfied, do the “blank pages”
constitute “a writing” for purposes of the Wills Act formalities?
Should they? Id.
5. Andrew Komlody and his wife have a volatile relationship. He often
gets jealous and upset at her, sometimes so much so that she has
to call the police. Andrew, who eventually is incarcerated, is so
distraught that he hangs himself with strips of material torn from his
prison blanket. When they find him, they also find that he had used
a pencil to write out and signed his final wishes on his prison wall.
Assuming the other Wills Act formalities are satisfied, does the

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 writing on the prison wall constitute “a writing” for purposes of the
Wills Act formalities? Should it? Id.
6. Robert Reed tape-recorded his final wishes, put the tape in an
envelope, sealed it, and then wrote on the outside of the envelope:
“Robert Reed To be played in the event of my death only! [signed]
Robert G. Reed.” Assuming the other Wills Act formalities are
satisfied, does the tape recording's “magnetic voice print” constitute
“a writing” for purposes of the Wills Act? Should it? See In re Estate
of Reed, 672 P.2d 829 (Wyo. 1983); see also Unif. Probate Code
§2-502 & cmt. (a).
California is home to Hollywood: what about videotaped wills? You
can imagine a testator deciding “I'm going to make a video will!
When I die, my lawyer will gather everyone together to see my last,
great, theatrical performance: a soliloquy of my testamentary
dispositions and thoughts on life and love.” A video will is not a
video of the will execution ceremony that was discussed in Chapter
Five in connection with issues of capacity (that would still involve a
traditional, written will). Rather, a video will is one where the will
itself is in video format.
Other than in the handful of states that allow nuncupative wills
where the video may be deemed the equivalent, the overwhelming
majority view is that a video does not constitute a writing and thus
does not create a valid will. (Can one argue in good faith that the
California harmless error doctrine changes California's view on
that?)
With the advancement of technology, electronic documents, replete
with digital signatures, are at the forefront of many legal issues,
particularly in the world of contracts. Would an electronic will (with
a digital signature, stored on a computer drive, thumb drive, DVD,
tablet, etc.) constitute a writing? Should an electronic writing
constitute a will?6 To date, only Nevada has statutorily recognized
such “documents” as meeting the writing requirement for a will.7
Nevada's allowance of electronic wills, however, is strictly
circumscribed by detailed statutes governing their validity.

2. The Signature Requirement

Virtually all Wills Acts require that the testator sign the document.
That obviously gives rise to the question: what constitutes a valid
signature? Must the decedent sign his or her legal signature? What if
the testator uses a short form of his or her name? What about a

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nickname? Does signing with an “X” count as a valid signature? What
if the testator requires assistance in signing—for example, if he or she
suffers from a neurological disease and his or her hand is guided or
steadied by another? May someone sign on behalf of the testator?
Most courts take an intent-based approach to analyzing what
constitutes a valid signature: whatever the decedent intended as his
or her signature qualifies as his or her signature—i.e., “with the
intention by so writing it to authenticate the document.”8 The problem
is, because the decedent is dead, it is difficult to determine the
decedent's intent. Thus, the general assumption is that, as long as he
or she stops voluntarily, whatever the decedent wrote is what he or
she intended as his or her signature. If, however, the decedent is
interrupted during the signature process and does not come back and
complete whatever he or she was writing, the assumption is that the
decedent intended to write more and so the incomplete writing is not a
valid signature. This view is consistent with the traditional strict
compliance approach but arguably not with the more modern trend
intent-based approach.
How would you characterize the court's analysis of the issue in In re
Moore's Estate, 92 Cal. App. 2d 120, 123–24 (1949):
While in some cases it has been said that an instrument is
deemed signed although the signature is typed, lithographed,
rubber-stamped, printed or photographed, even assuming
that such a signature might, under some circumstances, be
held sufficient to render an instrument enforceable, we think
that in the case of a will the statute requires a handwritten
signature, ... To hold that the mere typed name of a testator
is sufficient to satisfy the requirements of section 50 of the
Probate Code9 would open the door to an easy form of fraud,
when the purported signer was dead. We are in accord with
the statement of Mr. Justice Beatty, in Re Estate of Seaman,
supra, when he said, 146 Cal. at page 465, 80 P. at page
704, 106 Am.St.Rep. 53, 2 Ann.Cas. 726:
He [appellant] insists that section 1276 of the Civil
Code [now section 50, Probate Code], like the rest of its
provisions, must be liberally construed, “with a view to
effect its objects and promote justice.” Civ.Code, §4. I fully
agree with him on this proposition; but I apply it differently.
His argument is, in effect, that we should give a liberal
construction to wills which deviate from the statute in the
mode of their execution, for the purpose of sustaining

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 them, whereas a proper application of the principle
requires us to give a liberal construction and full effect to
every provision of the statute designed to prevent the
probate of spurious wills, although in so doing we may in
a particular instance defeat an honest attempt on the part
of a decedent to make a testamentary disposition of his
estate. The evil of occasionally defeating such an attempt
is far less serious than the establishment of a precedent
which would open the door to the frauds which the statute
was designed to prevent. Every statute of frauds is
designed to promote justice by requiring wills and
contracts to be executed with such formalities and indicia
of genuineness as to make simulated and fraudulent
writings of the classes defined impossible, or at least very
difficult. Such statutes, in the long run, promote justice—
which is their sole object—by shutting out opportunities of
fraud. Where they defeat one honest purpose, they
prevent unnumbered frauds which in their absence would
be feasible and measurably safe....
In contrast, in Estate of McCabe, 224 Cal. App. 3d 330 (Ct. App.
1990), the decedent executed his will 15 days before he died and was
too weak to sign his name. Instead he wrote an “X” directly above his
typewritten name on the line designated for his signature. A witness
(other than the attesting witnesses) acknowledged the decedent's
mark, signed her name and wrote the date, her address, and the word
“witness” near the mark. The court held the will was validly signed:
“Where, as here, the mark was witnessed separately by someone
other than the attesting witnesses, the opportunity for fraud is
minimal. Thus, strict compliance with the statutory requirements in
order to remove that opportunity was unnecessary.” (The court was
referring to California's Civil Code provision for when a mark may
qualify as a signature.)
Look back at California Probate Code section 6110. Does it allow
for someone to sign on behalf of the testator? When?
Under the traditional strict compliance approach, any scenario that
potentially opened the door for fraud would be held invalid—to avoid
even the potential for fraud. In light of that view, how would you
analyze a “rubber-stamped” signature? Or an electronic “signature”
that is made by the testator changing fonts on the computer so that
his or her printed-out “signature” appears in a cursive font to mimic an
actual signature? See Taylor v. Holt, 134 S.W.3d 830 (Tenn. App.

299
2003). While there is judicial precedent for holding this latter
technique to be valid (comparing it to the contract law's progression in
the area of the Statute of Frauds), the vast majority of states,
including California, have held that these would not constitute a valid
signature for purposes of a will.
Traditionally, states' Wills Acts10 required that the testator's
signature be at the end, or the foot, of the instrument. A close look at
California's statute reveals that this is no longer the case. Yet, as
discussed later in this chapter, estate planning attorneys continue to
utilize the traditional requirements, including that the testator sign at
the end of the will. Can you see why? If the signature is not at the end
of the instrument, what questions inherently arise?

Problems
1. Testator had a will that left all of his estate to his three children.
Years later, he remarried. Thereafter, he had an attorney draft a
new will that left all of his estate to his new wife. At the time of the
will's execution, testator was wheelchair-bound and legally blind to
the point that he was unable to read the document. When it came
time to sign the will, his hands were so shaky that his wife came to
his aid and guided his hand in order to sign the will. After his death,
his children challenged the validity of the will. Was the will properly
signed? See Muhlbauer v. Muhlbauer, 686 S.W.2d 366 (Tex. App.
1985).
2. What if in Problem 1, when the attorney handed the pen to the
testator to sign the will, testator had said his hands were “shaky”
and that he would need help. His wife then came over and wrote his
name while the testator rested his hand on her arm. Was the will
properly signed? See In re Kehl's Estate, 73 N.E.2d 437 (Ill. 1947).
3. What if in Problem 1, instead of signing the document, the testator
asked his wife to use a rubber stamp of his signature, which he
often used because of his physical ailments, to “sign” the will.
Should the rubber stamped “signature” qualify as a valid signature?
See Phillips v. Najar, 901 S.W.2d 561 (Tex. App. 1995).

3. The Witness Requirement

Traditional Wills Act statutes had two “presence” requirements: (1)
the testator had to sign the will in the “presence” of at least two
witnesses, present at the same time; and (2) the witnesses had to

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sign the will in the presence of the testator and each other. Together,
the two requirements de facto required “simultaneous signing.” The
1969 UPC “leaner” Wills Act eliminated the requirement of
simultaneous signatures: the witnesses no longer need to sign the will
in the presence of the testator or in the presence of each other. When
California revised its Wills Act in 1984, did it follow the UPC lead, or
did it retain the two “presence” requirements? Notwithstanding
California's recent adoption of the “harmless error rule,” in subsection
6110(c)(2), what is “required” in California under subsections 6110(c)
(1)–(2)(a)?11

Problem
The following facts are from In re Estate of Peters, 526 A.2d 1005
(N.J. 1987). How would the case come out in California the first time
through your analysis? Would you have to resort to the harmless error
rule?
On December 30, 1983, Sophia Gall came to the testator's
[Conrad Peter's] hospital room with her husband and Marie
Peters. Ms. Gall read the provisions of the will to Mr. Peters;
he then assented to it, and signed it. Although Ms. Gall, her
husband, and Mrs. Peters were present at the time, none of
these individuals signed the will as witnesses. It was the
apparent intention of Ms. Gall, who was an insurance agent
and notary, to wait for the arrival of two employees from her
office, who were to serve as witnesses.
When those two employees, Mary Elizabeth Gall and
Kristen Spock, arrived at the hospital, Sophia Gall reviewed
the will briefly with the testator, who, in the presence of the
two women, again indicated his approval, and acknowledged
his signature. Ms. Gall then signed the will as a notary, but
neither of the two intended witnesses placed her signature on
the will. Ms. Gall folded the will and handed it to Mrs. Peters.
Conrad Peters died fifteen months later, on March 28, 1985.
At the time of his death the will was still not signed by either
of the witnesses.
At the Probate Court proceeding, Ms. Gall testified as to
why the two intended witnesses never signed the will:
“As I say, just because of the emotional aspect of the
whole situation, my sister-in-law was there, my husband,
her brother was there, myself and the two girls. There

301
 were six of us. The other patients had visitors. It got to be
kind of—I don't know how to explain it, just the situation,
and the girls were in a hurry to get back to the office,
because they had to leave the office.
I honestly think in their minds, when they saw me sign
the will, they thought that is why they were there. And we
folded up the will, gave it [to] my sister-in-law. It was just
that type of situation.”
In an affidavit executed on June 28, 1985, Ms. Gall
explained that her failure to obtain the signatures of the
two witnesses was the result of her being “affected
emotionally by [the testator's] appearance.”
According to Sophia and Charles Gall, Conrad Peters
signed the instrument in their presence but before the arrival
of the intended witnesses. However, an affidavit submitted to
the court by Mary Elizabeth Gall on July 29, 1985, alleges
that Mary Elizabeth Gall was present while Conrad Peters
signed his will, and that she actually observed him as he
executed the document. Plaintiff's only explanation for this
discrepancy is that the affidavit was executed approximately
eighteen months after the ceremony at the hospital. The
State, however, does not argue that the contradictory
versions raise the possibility of fraud with respect to Conrad
Peters' will.
To the extent that California's Wills Act statute (CPC §6110)
requires that the witnesses be in “the presence of each other” when
they witness the testator sign or acknowledge, what does it mean to
be in each other's presence? Traditionally, this required that the
witnesses are physically present, typically together at the table when
the signing takes place. The first articulation of this requirement was
known as the “line of sight” test: the party in whose presence the act
had to be performed had to be able to see the other party's
performance if the party were to look. They technically did not have to
look (though it was expected he or she would)—the party just had to
have a clear “line of sight” so that, if the party did look, he or she
would see the performance in question. The modern trend approach
to the presence requirement is known as the “conscious presence”
test: as long as the party can tell, from a totality of the circumstances
(sight, hearing, awareness of what was going on, etc.) that the other
party is performing, the presence test is satisfied.12

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 Which approach does California apply?

In re Tracy's Estate
182 P.2d 336 (Cal. Ct. App. 1947)
McCOMB, Justice.
[Nell B. Tracy validly executed a valid will on July 18, 1945. On
September 30, 1945, Nell B. Tracy executed a second will that
purported to revoke her will. She died October 14, 1945. The issue on
appeal was whether the second will was validly executed and, in
particular, whether the witnesses had signed the will in the presence
of the testator. The trial court had ruled that the witnesses had. Note
that California law has dispensed with the requirement at issue in this
case. California no longer requires that both attesting witnesses sign
in the “presence” of the testator. The court's analysis of the
“presence” requirement, however, applies to the continuing California
requirement that both witnesses be “present,” at the same time, to
witness the testator's signature or acknowledgment.]
... The evidence discloses that at the time decedent signed the
revocation she was suffering from cancer and confined to her home in
a small bedroom about 9 by 12 feet in size. She stated to her nurse,
Reba Thornton, and a neighbor, Leora B. Blot, that she desired to
revoke her will and requested Miss Thornton and Mrs. Blot to sign as
witnesses. They received the instrument from her after witnessing
decedent sign the same, and hearing her declare that it was her
signature and that she desired to revoke her former will. Since there
was no place in the room where the witnesses could conveniently
sign the revocation, decedent directed them to take it into the
adjoining dining room and sign on the table there. In accordance with
these instructions the witnesses walked some twenty feet to the
dining room table and affixed their signatures to the revocation. The
testatrix could see into the dining room and hear the witnesses in
conversation, but could not actually see the act of signing. After they
had signed the document Mrs. Blot returned to the bedroom where
decedent expressed her satisfaction at having revoked her will.
Section 74 of the Probate Code provides that a will may be revoked
by a writing executed with the same formalities as are required for the
execution of a will. Section 50 of the Probate Code provides as one of
the requirements for the execution of a will that it be signed by at least
two witnesses in the testator's “presence.” “Presence” is defined in
Webster's New International Dictionary, 2dEd., 1939, page 1955 thus:

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“The part of space within one's ken, call, influence, etc.; immediate
nearness or vicinity of one; proximity.”
In a number of decisions where the meaning of the word “presence”
has arisen in connection with the execution of wills, the courts have
adopted what is known as the ‘conscious presence rule’ which means
that the testator need not actually view the act of signing by the
witnesses, but that these elements must be present: (1) the witnesses
must sign within the testator's hearing, (2) the testator must know
what is being done, and (3) the signing by the witnesses and the
testator must constitute one continuous transaction....
All of these elements were present in the instant case. The
witnesses signed within the decedent's hearing, she knew what was
being done, and the signing by the witnesses and decedent
constituted one continuous transaction. It is our opinion that the
finding of the trial court that the revocation was signed by the
witnesses in decedent's presence is, under the foregoing rule,
sustained by the evidence.
—————

Problems
1. “The will of Ozias Walker, deceased, was written by C. G. Warren,
the attorney at law of the testator, and was executed in the
presence of H. C. White and C. G. Warren, who were requested by
the testator to attest, as witnesses, its execution. The requirements
of the statute were complied with in all respects saving that the
witness C. G. Warren, in signing his name as a witness at the end
of the will, inadvertently wrote the name ‘C. G. Walker,’ thus
employing his own initials but the testator's surname.” Has the will
been properly executed? See In re Walker's Estate, 42 P. 815 (Cal.
1895). If not, can the document be saved under California's new
harmless error doctrine?
2. Testatrix was ill, so ill that she was bedridden. Not wanting anyone
to see her in this condition, she refused to let the witnesses who
were there to witness her sign the will come into her bedroom. Her
attorney set up a video monitor downstairs in the living room. The
witnesses were downstairs in the living room when the testator
executed her will in her bedroom upstairs. Then the attorney took
the will downstairs, and the witnesses signed the will. Has the will
been validly executed? See Whitacre v. Crowe, 972 N.E.2d 659

304
 (Ohio Ct. Ap. 2012). If not, can it be saved under the California
harmless error doctrine?
3. The following facts are from the In re Weber's Estate, 387 P.2d 165
(Kan. 1963). How would the case come out in California the first
time through your analysis? Would you have to resort to the
harmless error rule?
Henry Weber went to the home of Ben Heer in Riley. Mr.
Heer was not at home but his wife was, and Mr. Weber
advised Mrs. Heer he was ill and needed help to get into the
hospital. He stated he wished to go to the Riley County
Hospital in Manhattan. Mrs. Heer telephoned the hospital and
made arrangements to have Mr. Weber admitted.
After arrangements were completed Mrs. Heer offered to
put Mr. Weber's clothes in a suitcase and otherwise help him
prepare to go to the hospital. Next, she called a neighbor
who in turn went to where Mr. Heer was working, which was
about four miles from Riley, and told Mr. Heer that Henry
Weber was at Heer's home and wanted to see him. Heer
went immediately to his home. When he arrived Weber
advised Heer of his illness and of his desire to make a will
leaving one-half of his estate to his wife and one-half to his
niece, Lillian Price. Heer and Weber then decided to go to
see Harold Holmes, president of the Riley State Bank, to
have the will prepared.
The distance from the Heer residence to the bank was
three or four blocks. The two men drove to the bank, each in
his own automobile. Mr. Weber parked his car at an angle
against the curb of the street and beneath a window on the
north side of the bank and asked Mr. Heer, who had parked
on the east side and had come over to the Weber car, to see
if Mr. Holmes would come out to the car and talk to him.
Weber remained in his car and Heer went into the bank and
talked to Holmes who then came out and got into the front
seat of Weber's car. At Weber's request Heer got into the
back seat of the automobile. It was a chilly November day
and the car windows were kept closed. Weber explained to
Holmes how he desired to dispose of his property, one-half to
be left to his wife and one-half to his niece, and that he
wanted Heer to be his executor. Holmes took notes as Weber
talked. After Holmes concluded taking notes he went back
into the bank and prepared the purported will on a printed

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form captioned ‘Last Will and Testament’ by filling in a portion
of the blank spaces thereof with the information contained in
the notes he had made, except that he failed to mention
Weber's wife in the purported will.
The third paragraph of the will reads:
‘Third. I give, devise and bequeath to My Niece, Lillian
Price of Junction City, Kansas My share of land situated in
the Eureka Valley in Ogden and Manhattan Townships also
My share of all Real estate located in Madison Township,
Riley County Kansas and I do devise and bequeath all the
rest and residue of my estate both real, personal and mixed
to My Niece Lillian Price, any and all, money, stocks or
Bonds, any and all personal property which I may possess at
my death, whatsoever.’
The italicized portion of the above quotation was that part
typed from Holmes' notes onto the printed will form.
While Holmes was inside the bank he directed three bank
employees, Mr. and Mrs. Chamberlain and Mrs. Carlson, to
go to and stand in front of a closed window in the bank in
order that they could serve as witnesses to the signing of the
will. The window was approximately eight to ten feet from
where Weber was sitting in his closed automobile.
About fifteen minutes later Holmes returned to Weber's
automobile with a clipboard to which the purported will was
fastened. Holmes re-entered Weber's automobile and
handed the document to him. Weber read the document,
Holmes and Heer being in the automobile at this time.
Holmes and Weber having previously discussed the need
for witnesses, Holmes directed Weber's attention to the
window of the bank where the above-named bank employees
were standing. By waving to them, Weber indicated he saw
them, and they in turn waved back to him. After looking the
purported will over, Weber placed the clipboard on the
steering wheel of his automobile where it could be seen
through the closed windows by the witnesses, and signed the
document.
Holmes then returned to the bank with the document, and
there, standing before the bank window as heretofore
described, the witnesses signed their names. The table upon
which the signing occurred was against the window but the

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 table top was a foot to a foot and a half beneath the window
sill. Hence Weber could see the witnesses in the window as
they signed but could not see the pen or the purported will on
the table at the time of signing. Only that portion of the body
of each witness in the window could be seen by him.
After the three witnesses signed the purported will Holmes
took it back out to Weber's automobile, showed it to him,
Weber looked it over, and at Weber's request Holmes
retained the document at the bank.
The record disclosed that all three witnesses were
acquainted with Weber prior to November 16, 1960, and
knew his signature when they saw it. They recognized
Weber's signature on the purported will. However, none of
the witnesses could read any of the writing or printing on the
document while it was being signed by Weber in his
automobile.
It is noted from the record that at no time was there any
type of communication between Weber and the witnesses
other than their waving to one another; no verbal
communication whatsoever. Weber never entered the bank
building during this period of time and heard nothing of what
was said inside the building; and even more important, the
witnesses never left the building, so they couldn't possibly
have heard any of the conversation that occurred in Weber's
automobile.
The transaction at the bank took approximately one to one
and a half hours to complete. Weber then proceeded to drive
his automobile, unaccompanied, approximately twenty miles
to the Riley County Hospital where the earlier admittance
arrangements had been made, and it was there on
November 21, 1960, just five days later, he died.

D. The “Interested” Witness

The witnessing requirement is concomitant with the “protective” and
“evidentiary” functions of the Wills Act. Where a witness has a “stake”
in the will (is to benefit from the will) that he or she has witnessed,
such an interest in the will creates a conflict of interest that arguably
undermines the reasons for requiring witnesses for attested wills. The
witness requirement inherently presumes a “disinterested” witness.

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What should be the legal consequences if one, or both, of the
witnesses are “interested” witnesses?
At common law, the failure to have the requisite number of non-
interested witnesses would cause the entire will to be invalidated. The
most modern approach, exemplified by the UPC but adopted by only
a few jurisdictions, goes to the opposite end of the spectrum and
abolishes the entire interested witness doctrine, leaving challenges to
the validity of the will within the confines of other remedies such as
undue influence, fraud, etc. In the middle are varying approaches
where the will remains valid, but: (1) any gifts to an interested
witnesses are voided, (2) the interested witness is purged of their
“excess interest” under the will (the interested witness receives the
lesser of their share under the will or what they would take if the will
were not valid), or (3) a rebuttable presumption of misconduct arises,
and if the interested witness rebuts the presumption, he or she takes
the share under the will but if not, apply the purging approach.
Which approach has California adopted?
CPC §6112. Witnesses; interested witnesses
(a) Any person generally competent to be a witness may act as a
witness to a will.
(b) A will or any provision thereof is not invalid because the will is
signed by an interested witness.
(c) Unless there are at least two other subscribing witnesses to
the will who are disinterested witnesses, the fact that the will
makes a devise to a subscribing witness creates a
presumption that the witness procured the devise by duress,
menace, fraud, or undue influence. This presumption is a
presumption affecting the burden of proof. This presumption
does not apply where the witness is a person to whom the
devise is made solely in a fiduciary capacity.
(d) If a devise made by the will to an interested witness fails
because the presumption established by subdivision (c)
applies to the devise and the witness fails to rebut the
presumption, the interested witness shall take such proportion
of the devise made to the witness in the will as does not
exceed the share of the estate which would be distributed to
the witness if the will were not established. Nothing in this
subdivision affects the law that applies where it is established

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 that the witness procured a devise by duress, menace, fraud,
or undue influence.

Notes
1. Interested witness doctrine versus harmless error: In light of
California's new “harmless error” doctrine, has the legislature de facto
abolished the interested witness doctrine? As long as there is clear
and convincing evidence that at the time the decedent signed the will
he or she intended it to be his or her will, does it matter if one or more
of the witnesses are interested witnesses?
2. Practitioner's perspective: From the practitioner's perspective,
California's adoption of the “harmless error” doctrine is, for all intents
and purposes, irrelevant for drafting purposes relating to “interested
witnesses” (and otherwise). See supra, page 169 and infra, page 189.

Problem
D dies testate survived by her three children, X, Y and Z. D's will,
witnessed by X and Y, leaves $10,000 to child X, $3,000 to child Y,
and the residue (which amounted to $2,000) to child Z (assume D is
survived by no other heirs). Following D's death, how should D's
estate be distributed, and why?

E. “Swapped-Wills”
Mirror wills (also known as “mutual wills”) occur where two persons
(almost always spouses or similarly situated individuals) have wills
prepared that are “mirror images” of each other: “All to my spouse,
_______, if he/she survives me; if not, to the children equally.” The
dispositive provisions are, for all practical purposes, the same, with
the logical exception that the names of the spouses are different. The
two have the same lawyer draft the wills and go together to execute
them. You can see what is coming—the two “execute” the wills at the
same time (signatures and witnesses) but accidentally sign the wrong
will (the other's will). We clearly have a problem. Should a court
declare the will (or wills) valid notwithstanding that they were not
signed by the person for whom they were intended?
Under the traditional strict compliance approach the answer clearly
is no. These are, simply put, not validly executed wills; end of
analysis.

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 There have been a few cases, however, in strict compliance
jurisdictions, where the court has stretched the “misdescription”
doctrine to probate the will the decedent signed. Misdescription is a
will construction doctrine that typically applies after a will is
determined to be a validly executed will. It is used to help courts
construe drafting mistakes. Mechanically, if the court applies the
doctrine, it strikes out the “misdescriptions” in the will and then checks
to see if there is enough information left with respect to the gift in
question that the court feels comfortable it can ascertain and give
effect to the testator's intent. We will examine the “misdescription”
doctrine as a construction doctrine in Chapter 9. As applied to the
“swapped wills” scenario, the courts apply the doctrine as a curative
doctrine in an attempt to cure the defect in execution. The courts
strike all the “misdescriptions” in the will, including the name on the
front page of the will, and then see if there is enough information left
in the will to give effect to it as the will of the party who signed it. Strict
compliance purists oppose using the construction doctrine in an
attempt to cure the execution defect. Even if the court is open to using
the doctrine as a curative doctrine, whether the language of the will
factually permits it is very fact sensitive. It depends on the phrasing in
the instrument.
In the 1981 New York case of In re Snide, 418 N.E.2d 656, the
court adopted a new and interesting approach. In Snide, decedent
Harvey Snide and his wife, Rose Snide, intended to execute mirror
wills at a common execution ceremony, but each accidentally
executed the will prepared for the other. Rose offered the instrument
Harvey actually signed for probate. A guardian ad litem representing a
minor child objected to the probate of the will, asserting that it lacked
testamentary intent. The court acknowledged that a valid will requires
testamentary intent but declined to accept the view that this intent
attaches only to the prepared document and not the testamentary
scheme that it reflects. The court emphasized the obvious nature of
the mistake and noted that the two wills were reciprocal elements of a
unified testamentary scheme that were executed as part of one
unified execution ceremony. The court ruled that the will was properly
admitted to probate.
In Snide, did the court essentially apply substantial compliance
without expressly admitting it because it feared the administrative
costs and potential for fraud that could occur if the doctrine were
applied to all execution defects?

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 There are no reported California cases addressing the swapped-
wills scenario. Which approach do you think a California court would
apply, and why? Does California's harmless error doctrine help the
California courts with this scenario?

F. Real Life—Practice versus What Is Permitted by

Statutes and Courts
It is common practice for estate planning attorneys to draft a will
and conduct an organized “will execution” ceremony that appears to
be a throwback to the old Wills Act requirements in Groffman (and
then some). The ceremony begins with the lawyer: (1) gathering the
parties—the testator, three attesting witnesses, and the lawyer, (2)
taking them all into a small conference room, (3) closing the door, and
(4) letting the witnesses interact with the testator for a few minutes.
Then the lawyer takes control of the meeting, asking the testator: (1) if
the document before them is the testator's will, (2) if he or she has
read it, (3) if it disposes of his or her property as he or she wishes,
and (4) if he or she would like the witnesses to witness the will. The
questions are designed to ensure that the testator makes the
appropriate declarations in the presence of the witnesses. Then, with
all of the signatories there at the same time and in each other's
presence (typically with the testator on one side of the conference
table and the witnesses on the other side, sitting directly across from
the testator), the testator signs the will first (signing at the foot/end of
the will), and the witnesses signing immediately after the testator (and
immediately below the testator's signature). Why do estate planners
typically go to such trouble? By law, much of this is no longer
necessary. So if this is the norm for estate planning attorneys, why is
there such a push for removing or relaxing the requirements of a
validly executed will?
If estate planners continue to comply with the old-fashioned Wills
Act requirements, what is the objective of those supporting the UPC
to dispense with most of the formalities (along with less stringent
compliance standard with what remains)?

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 III. Holographic Wills
The primary factor that distinguishes holographic wills from attested
wills is that holographic wills do not have to be witnessed. To offset
the lack of witnesses, however, historically holographic wills had to be
in the testator's handwriting. Accordingly, holographic wills are also
often referred to as “handwritten” wills. Many states do not recognize
the validity of holographic wills (only about half do). Their concerns
include (and are not limited to) questions about whether the testator
had capacity at the time the document was written, the increased
potential for undue influence and fraud, and whether the testator truly
intended for this writing to serve as his or her will.
California has long recognized the validity of holographic wills and,
not surprisingly, the requirements for a valid holographic will have
changed over the years. It is fair to say that in general, and consistent
with attested wills, there has been some relaxation of the
requirements. Prior California statutes required that a holographic will
be “entirely written, dated and signed by the hand of the testator
himself.” (Former CPC §53). As with attested wills, traditionally courts
required strict compliance with these requirements.

Estate of Billings
64 Cal. 427 (1884)
MYRICK, J.
The body of the script proposed as an olographic will13 was entirely
written, and was signed by the hand of the deceased. The date reads
thus: “Sacramento, April 1, 1880.” The words “April 1st” were written
by the deceased; the balance was printed, the deceased having
evidently taken a sheet of paper with a letter-head, stating the
business and location of his firm, the name of the place,
“Sacramento,” and the year “1880,” printed, and filled in the month
and day, “April 1st.”
We had occasion to consider the principle underlying the facts of
this case, in Estate of Martin, 58 Cal. 580, and Estate of Rand, 61
Cal. 468. Section 1277, Civil Code, requires that a paper, to constitute
an olographic will, must be entirely written, dated, and signed by the
hand of the testator. It must be entirely written, it must be entirely
dated, and it must be entirely signed by him. If it be partly written by

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him and partly written by another, or printed; if it be partly dated or
signed by him and partly by another—it is not a compliance with the
statute. The words “April 1st” do not constitute a date—do not show
on what April 1st, the paper was written—there being, as was
suggested on the argument, many days “April 1st” in the life of any
man; it was requisite that the whole date, April 1, 1880, should have
been written by him in order to comply with the statute.
Order affirmed.
—————
Just as with attested wills, the original holographic will statutes
contained numerous detailed formalities and the courts required strict
compliance with these formalities. Countless holographic wills were
deemed invalid because they were not dated, or because the will
contained some typed or pre-printed portions that prevented the
document from being entirely written.
Just as with attested wills, over time scholars and even some
California courts indicated their displeasure with the harsh outcomes
that occurred when the burdensome statutory requirements were
strictly enforced. The California legislature responded by amending
the statutory scheme to make the requirements less stringent. The
following are the current versions of California's primary statutes
relating to holographic wills:
CPC §6111. Holographic wills; requirements
(a) A will that does not comply with Section 6110 is valid as a
holographic will, whether or not witnessed, if the signature and
the material provisions are in the handwriting of the testator.
(b) If a holographic will does not contain a statement as to the
date of its execution and:
(1) If the omission results in doubt as to whether its provisions
or the inconsistent provisions of another will are controlling,
the holographic will is invalid to the extent of the
inconsistency unless the time of its execution is established
to be after the date of execution of the other will.
(2) If it is established that the testator lacked testamentary
capacity at any time during which the will might have been
executed, the will is invalid unless it is established that it
was executed at a time when the testator had testamentary
capacity.

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 (c) Any statement of testamentary intent contained in a
holographic will may be set forth either in the testator's own
handwriting or as part of a commercially printed form will.
CPC §6111.5. Extrinsic evidence; admissibility
Extrinsic evidence is admissible to determine whether a
document constitutes a will pursuant to Section 6110 or 6111, or
to determine the meaning of a will or a portion of a will if the
meaning is unclear.
Those are the statutory provisions in the abstract; what about in
application? Assume the following facts: after the decedent's death, a
two page, handwritten document is found in the decedent's desk
drawer. The only other important document in the drawer is a
checkbook. The document is written on the front and back page of the
first page of a note pad. It is in the decedent's handwriting, and the
entire text is in block-style capital letters. At the top of the first page
are the words “Last Will, Etc. or What? Of Homer Eugene Williams.”
The document goes on to name two family members his executors, to
give his collectibles to his nephew, to state that in the event of illness
he did not want to be kept alive by life support means, to list his
“House” and “Bank Account” as his “Estate”, and finally it states: “I
would like my step daughter, Debra Cox to be able to live in the house
as long as she wants before putting it up for sale.” The next two
sheets of the note pad are blank, and the next page contains a list of
movies in the same block printing. The only place on the note pad
where the decedent's name appears is in the heading at the top of the
first page. An electronic image of the document is set forth at the top
of the next page. Does the document qualify as a holographic will? Is
it signed? Does it have testamentary intent?

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 In re Estate of Williams
155 Cal. App. 4th 197 (2007)
BAMATTRE-MANOUKIAN, Acting P.J.
In this probate case, Eric Williams Towle, the biological son of the
decedent, Homer Eugene Williams, appeals from orders admitting to
probate a holographic will offered by the decedent's stepdaughter,
Deborah Ann Cox, and appointing Cox executor. Appellant's principal
argument is that the document is not a valid holographic will under
Probate Code section 6111 because it is not signed by the decedent.
Appellant also argues that the document is not a valid will because it
does not completely dispose of the decedent's assets and because it
lacks language demonstrating testamentary intent....
BACKGROUND
Procedural History
Homer Eugene Williams died on December 7, 2005. On February
21, 2006, his son, Eric Williams Towle (Towle), filed a petition to
administer his father's estate, alleging that his father had died
intestate. The petition was granted on March 22, 2006.

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 On May 10, 2006, the decedent's stepdaughter, Deborah Ann Cox
(Cox), filed a petition for suspension of Towle's powers as personal
representative of the estate. Concurrently, she filed a petition to admit
a holographic will into probate, and a petition to be named the
executor of the estate, as specified in the will. Towle objected to Cox's
petition for probate of the holographic will and to her appointment as
the executor of the estate.
On May 23, 2006, following a hearing on May 19, 2006, the court
ordered Towle's powers as personal representative suspended,
pending a decision on the purported holographic will.
A hearing was held [and] ... the court granted Cox's petitions and
issued orders entering the holographic will into probate and naming
Cox as executor of the decedent's will.
Towle ... appeals the order admitting the holographic will to probate
and the order appointing Cox as executor.
Evidence
Cox, Towle, and Virginia Towle, the decedent's first wife, testified at
the hearing. Testimony centered around the circumstances in which
the will was found, the decedent's customary way of signing and
completing documents, the relationship the decedent had with his
children and stepchildren, and his expressions of his testamentary
wishes.
After the decedent's death, Towle was unable to locate a will in the
decedent's belongings and thus began probate proceedings based on
the understanding that no will existed. About a week after the
decedent's death, Cox found what appeared to be a holographic will
in “the center drawer of [decedent's] desk” and later brought this to
the attention of Towle's attorney. The desk contained other important
documents such as bank statements and tax returns. The center
drawer did not appear to contain any important documents other than
a checkbook.
The document found by Cox was handwritten on the front and back
of the first page of a note pad. The entire text was written in block-
style capital letters. The next two sheets of the note pad were blank.
After the blank pages, the next page of the note pad contained what
appeared to be a list of movies, in the same block printing. The
remaining pages were blank.
The words “Last Will, Etc. or What? Of Homer Eugene Williams”
appear at the top of the document, followed by the decedent's

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address. The document then names Deborah Cox and Lorna Williams
as executors, states their relationships to the decedent (stepdaughter
and sister-in-law respectively), and includes their addresses. It then
states, “Power of Attorney: Now Deborah Cox.” This is followed by a
disposition of the decedent's collectibles. The document says, “All My
Collictables: Everything including two pistols and two rifles, none fired:
to Nephew Kirk Bell.” Kirk Bell's address is included. Next is a
paragraph stating, “In the event of a serious sickness or accident: I do
not want to be kept alive by life support means. I name my executors
to see to my wishes are carried out.” Then there is a heading entitled
“My Estate.” This is followed by two items—“House” and “Bank
Account.” The present market value of the house is stated to be
“$225,000 to $350,000.” The bank accounts include “Checking and
Savings,” but no balances are stated. The final paragraph states, “I
would like my step daughter, Debra Cox to be able to live in the house
as long as she wants before putting it up for sale.”
Cox testified that the name written at the top of this document
appeared to be written by the decedent. She explained that the
decedent often left her notes to do things for him that were in block
letters, with his name also written in block letters, similar to that on the
holographic will. Cox had never seen the decedent write in cursive,
although she had come across checks where he had signed his
name. Cox explained that her stepfather was aware of the value of
properties in the neighborhood because he would talk to people on
the block when properties were for sale. Therefore, she believed that
his estimate of the value of the house at $225,000 to $350,000 likely
reflected values at the time he wrote the document. Cox estimated
that the current value of the house is approximately $700,000, which
she believed indicated that the document was written some years
ago. Where she found the notepad, in the decedent's desk drawer, he
would have had easy access to it.
Cox testified that the decedent had told her that “he put [her and his
sister-in law] both down as the executor for his will.” He was aware
that Cox had previously been the executor for her grandmother's
estate and he knew that the probate had gone smoothly. Cox testified
that she is “the general cashier in charge of the cash” at the Marriott
Hotel in Santa Clara. In this position, she handles forty-nine thousand
dollars in cash each day. Prior to being the general cashier, Cox was
“the accounts payable” person and was in charge of “paying bills.”
Cox also testified that “on two occasions” her stepfather had promised
her the house. He had told her “if I stayed there with him, I would get
the house if he died, and then also when the house was paid off and

317
he showed me the paper from the bank and says now, you don't have
anything to worry about.” The decedent had two life insurance
policies. One was payable to Cox, and her niece was the beneficiary
of the other one.
The decedent and Virginia Towle divorced when their two children,
Eric and Gayle, were three and seven respectively. Virginia Towle
remarried four years later and subsequently began using Towle as her
last name and the last name for her children. The decedent also
remarried and began living with his second wife and her children,
including Cox. In the 1970's, they moved as a family to 1945 Serge
Avenue, San Jose, where the decedent lived until his death in 2005.
Cox left home while in college, but moved back into the home at 1945
Serge Avenue for good in 1988, at her stepfather's request after her
mother had died. She provided companionship and care for her
stepfather for the last 17 years of his life. She did things such as fixing
his dinner, cleaning, shopping, doing laundry, running errands, picking
up medications, and taking him to the doctor. When he became ill,
she continued to take care of him. The night before he died, she went
to the hospital with him and stayed with him until he died. The Towle
family decided not to have a funeral because the family had plans for
Virginia Towle's birthday. Cox later learned that the cremation had
taken place and that the ashes had been sent back to Nebraska. She
and her niece were very upset by this.
Cox testified that she and her stepfather had a close, loving, familial
relationship. She called him “dad.” He had mentioned to her that he
wanted to adopt her. In contrast, she testified that the decedent had a
“distant” relationship with his biological children. She said that Eric
Towle only visited his father “five times” in thirty years, although he
lived in Scotts Valley and worked in San Jose. His father's home was
only approximately 15 minutes off of the route Towle would take back
and forth to work. Cox thought Towle called his father “two or three
times a year.” Cox remembered four occasions when the decedent's
daughter visited him in thirty years. She did not remember the
decedent's daughter calling. Cox felt that the families were completely
separate after the divorce and that the decedent essentially became
part of his second wife's family. She said her stepfather had been
“very upset” when he found out that his biological children were no
longer using his name.
Towle and Virginia Towle provided testimony that conflicted with
Cox's testimony regarding family relationships and the way the
decedent wrote documents. Virginia Towle testified that the decedent

318
loved his biological children and that she and her children socialized
with the decedent “constantly.” “He was invited to everything and
anything that had to do with graduation, special performances in
school.... There was constantly baptisms and weddings.... [We] were
always there together.” Virginia Towle explained that Cox “never”
attended those events and that the decedent never discussed Cox.
Virginia Towle continues her relationship with the decedent's
remaining siblings. She testified that the funeral was not held for the
decedent because “no one was interested and it seemed why, there
was no one to go to it.”
Virginia Towle testified that she had never seen the decedent print
anything and that “any letters, documents and things were always
written” rather than being printed. Additionally, Virginia Towle had
asked the decedent about making a will at “a party about ten years
ago.” She explained, “I said, have you done anything about the will
and the property? He said I'll do it, I'll do it. I go, you have to. What
about the house? He said it goes to Gail and Eric.”
Towle testified that he “had a very good relationship with [his]
father.” He did not see him regularly because “I was in a very busy
phase of my life, and he basically, like many elderly people, became
much more bound to his routines, and the list of things he would do
got shorter and shorter.” According to Towle, the relationship was not
“estranged” and the decedent sent Towle and his sister “birthday and
Christmas cards every year.” The cards to Towle were signed, “love,
dad.” He also sent his grandchildren “cards and gifts.” Towle testified
that Cox's relationship with the decedent was not close. “He never
talked about her and she seemed to be living a separate life.... [T]here
was nothing they ever did together.” Pictures introduced during
Towle's testimony depicted the decedent with his biological children
and their families at family events such as a wedding and a
christening.
Towle testified that he had never seen his father write any
documents in block letters similar to that in the purported holographic
will. He introduced credit cards, checks, and identification cards, all of
which the decedent had signed in cursive. Towle identified the
signatures on those documents as his father's.
ANALYSIS
The Holographic Will Statute
... The primary purpose of the holographic will statute is to prevent
fraud by requiring that the material provisions be in the testator's

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writing. (Estate of Southworth (1996) 51 Cal.App.4th 564, 59
Cal.Rptr.2d 272.) “Whether a document should be admitted to probate
as a holographic will depends on proof of its authorship and
authenticity, and whether the words establish that it was intended to
be the author's last will and testament at the time she [or he] wrote it.”
(Id. at p. 571, 59 Cal.Rptr.2d 272.) “Courts are to use common sense
in evaluating whether a document constitutes a holographic will.” (Id.
at p. 570, 59 Cal.Rptr.2d 272; Estate of Black, supra, 30 Cal.3d at pp.
885–886, 181 Cal.Rptr. 222, 641 P.2d 754.)
As the Supreme Court observed in Estate of Black, supra, 30
Cal.3d 880, 181 Cal.Rptr. 222, 641 P.2d 754, “‘[t]he policy of the law is
toward “a construction favoring validity, in determining whether a will
has been executed in conformity with statutory requirements.”
[citations].’” (Id. at p. 883, 181 Cal.Rptr. 222, 641 P.2d 754.) The high
court affirmed “‘“the tendency of both the courts and the Legislature ...
toward greater liberality in accepting a writing as an holographic
will....”’” [Citation.] ‘“Substantial compliance with the statute, and not
absolute precision is all that is required....”’ [Citation.]” (Ibid., original
italics; see also Estate of Baker (1963) 59 Cal.2d 680, 683, 31
Cal.Rptr. 33, 381 P.2d 913.)
The Signature Requirement
Appellant's primary argument is that the will was not a holographic
will because it did not contain a valid signature. Since the trial court
admitted the holographic will to probate, we must presume that the
court found it complied with the statute requiring that “the signature
and the material provisions are in the handwriting of the testator.”
(§6111.) Two components of the signature requirement are relevant
here: the location of the name in the document, and whether the
testator's use of block letters constituted his signature.
A. Location of the Signature
There is no requirement that the signature on a holographic will
must be at the end of the document, so long as it appears from the
document itself that the signature was intended to authenticate the
document. “It is settled in California that the signature need not be
located at the end but may appear in another part of the document,
provided the testator wrote his name there with the intention of
authenticating or executing the instrument as his will.” (Estate of
Bloch (1952) 39 Cal.2d 570, 572–573, 248 P.2d 21.) ...
In the holographic will before us, ... the testator did not include his
name at the end of the document. However, the evidence on the face

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of the document as a whole supports a finding that the name was
placed with the intention of authenticating the document. The phrase
“Last Will ... of Homer Eugene Williams” located at the top of the
document is almost identical to the title of the holographic will in
Morgan. In addition, there are other factors indicating that the
document was complete. Cases have shown that completeness is
highly relevant in determining if the name was written with an intent to
authenticate the document.
“From the earliest consideration of the question, completeness of
the testamentary declaration has been deemed sufficient evidence of
the ‘signing’ of the writing, even though the declarant's name was
written by him at a place other than the end.” (Estate of Kinney, supra,
16 Cal.2d at p. 56, 104 P.2d 782 (Kinney).) In Kinney, the name of the
decedent is included in only one location, after the date at the top of
the page. The first sentence states, “I Anna Leona Graves Kinney, do
bequeath all my possessions to my four sisters who were living in
1923.” (Id. at p. 52, 104 P.2d 782.) The court noted that two
characteristics indicated the document was complete. First, “[i]t was
written with studied care, indicated by the fact that the decedent
copied into her will the names and addresses of her sisters who were
living at the time stated....” (Id. at p. 55, 104 P.2d 782.) Second, “[t]he
fact that sufficient space remained on the paper to include additional
writing if the decedent intended any further declaration is also some
evidence of finality and completeness.” (Ibid.) The court concluded:
“The writing here involved appears to be a complete testamentary
declaration.” (Ibid.)
The document before us has similar indicia of completeness. First,
the decedent took the time, “with studied care,” to list the addresses
of those people included in the will: Cox, his sister-in-law, and his
nephew. (Kinney, supra, 16 Cal.2d at p. 55, 104 P.2d 782.) He also
wrote down his own address. Second, as in Kinney, there was
sufficient room at the end of the document for the decedent to write
more if he had wanted to do so. Another characteristic indicating
completeness was the age of the document. Here the inference could
be drawn from the property values stated in the document that it was
written a number of years ago. Cox testified that she found it in the
decedent's center desk drawer, where it was readily available had he
wanted to change or add to it. All of this evidence reasonably
supports the conclusion that “the writer had done everything that he
intended to do.” (Estate of Brooks, supra, 214 Cal. at p. 140, 4 P.2d
148, italics in original.)

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 The case before us differs from Estate of Bernard (1925) 197 Cal.
36, 239 P. 404, in which the document clearly appeared to be
unfinished. There the court wrote: “The abrupt termination of the
document near the middle of the last page is a strong indication of
decedent's intent to do something more in order to make it a complete
will.” (Id. at p. 40, 239 P. 404.) In contrast, here the decedent
appointed an executor, disposed of his collectables, listed assets for
reference, and then indicated his intention for the house. Unlike the
will in Brooks, supra, the document ended with a period. (See also
Estate of Bloch, supra, 39 Cal.2d at p. 575, 248 P.2d 21 (Bloch) [court
noted that the document appeared to have a period at the end when
determining if it was complete].)
From an evaluation of the whole document in the case before us, it
appears that the name at the top of the document was intended as a
mark of execution....
Under the foregoing cases, the document before us provides
sufficient indicia of completeness from which to conclude that the
name at the top was intended to be a mark of authentication. “‘When
the name is used to identify the decedent as the author of the alleged
will ... or to identify the instrument as decedent's will ... and in addition
the instrument appears to be a complete testamentary document, it
may reasonably be inferred that the name was placed where it was
with the intention of executing the instrument. In such cases the name
is linked to the alleged testamentary act and the probabilities that it
was intended as a signature are strong.’” (Estate of Rowe (1964) 230
Cal.App.2d 442, 447, 41 Cal.Rptr. 52.)
B. Form of the Signature
Appellant contends that the decedent's name at the top of the
document is written in block letters, and therefore, cannot be
considered a signature. This argument is based upon the decision in
Estate of Twohig (1986) 178 Cal.App.3d 555, 223 Cal.Rptr. 352
(Twohig). Twohig concerned a handwritten codicil to an executed
formal will. However, the testator failed to sign the codicil....
Our case is distinguishable from Twohig. In Twohig, the codicil did
not include the testator's name at all. There was therefore no
authenticating mark from which an intent to execute the document
could be inferred. Further, it appeared that the testator had intended
to sign it because he wrote “signed” on a particular date. Thus, unlike
our case, the document on its face tended to show that there was
something else the testator intended to add before the document was

322
complete, namely his signature. Finally, there was no issue in our
case that the document attempted to modify a valid will. The
holographic will in our case was the testator's only expression of his
testamentary wishes. Finally, there was no issue in our case that the
document attempted to modify a valid will. The holographic will in our
case was the testator's only expression of his testamentary wishes.
Appellant asserts that the block letters at the top of the document
are not in the form the decedent used to sign legal documents and,
therefore, it must be found that the document was not properly
executed. However, several cases illustrate that the way a testator
signs a holographic will does not need to be identical to a signature
used to sign other legal documents. In Estate of Morris (1969) 268
Cal.App.2d 638, 640, 74 Cal.Rptr. 32 (Morris), the court found that
“[t]he use of the initials as a signature was an effective signing of the
will. [Citations.]” The words, “Love from ‘Muddy,’” signed at the end of
a holographic will in the form of a letter, were also considered a valid
signature. (Estate of Button (1930) 209 Cal. 325, 328, 334, 287 P. 964
(Button).) And similarly, in Estate of Henderson (1925) 196 Cal. 623,
634, 238 P. 938 (Henderson), the court found the phrase “Your loving
mother” constituted a valid signature.
...
Other Evidence of Testamentary Intent
“Before an instrument may be admitted to probate as a will, it must
appear from its terms, viewed in the light of the surrounding
circumstances, that it was executed with testamentary intent.
[Citations.]” (Estate of Geffene (1969) 1 Cal.App.3d 506, 512, 81
Cal.Rptr. 833.) Therefore, we must evaluate whether there was
substantial evidence supporting a finding that the holographic
document was intended to be a testamentary document. It is
established that “‘“[n]o particular words are necessary to show a
testamentary intent. It must appear only that the maker intended by it
to dispose of property after his death, and parol evidence as to the
attending circumstances is admissible.” [Citation.]’” (Estate of Spitzer
(1925) 196 Cal. 301, 307, 237 P. 739 (Spitzer).)
Appellant contends that three characteristics of the will undermine
the conclusion that the document is testamentary. First, he asserts
that the title “Last Will Etc. or What?” creates an ambiguity and
implies that the decedent was unaware of what he was writing.
Second, he contends the failure of the document to dispose of all of
the decedent's property indicates it is not testamentary in nature.

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Third, appellant asserts that the statement “I would like ...” in the
provision regarding the house (italics added) is ambiguous and does
not clearly demonstrate an intent on the part of the decedent to
dispose of his property. We address each of these contentions
separately.
... “In determining whether the instrument propounded was intended
to be testamentary, reference will be had to the surrounding
circumstances, and the language will be construed in the light of
these circumstances. If it shall then appear that the instrument was
intended to be testamentary, the court will give effect to the intention,
if it can be done consistently with the language of the instrument and
the particular form of the instrument is immaterial.” (Id. at pp. 799–
800, 222 P.2d 692.)
“‘“The true test of the character of an instrument is not the testator's
realization that it is a will, but his intention to create a revocable
disposition of his property to accrue and take effect only upon his
death and passing no present interest.” [Citation.]’” (Spitzer, supra,
196 Cal. at pp. 307–308, 237 P. 739.) In the instant case, the text of
the document indicates that the intent of the decedent was to dispose
of his property upon his death. As in Smilie the parts of the text that
are confusing or extraneous, such as the words “Etc. or What?” can
be ignored as surplusage in order to uphold the intent of the
decedent. Intent is demonstrated on the face of the document by the
use of the words “Last Will” in the title, the naming of an executor, and
the disposal of identified property. The decedent clearly contemplated
that the identified property would be disposed of after his death.
Similarly, the inclusion of instructions regarding the decedent's
wishes upon a serious illness, and the mention of Deborah Cox as
having his power of attorney, which would normally be provisions that
would be made effective during the person's lifetime, could also have
been properly ignored by the trial court. In Estate of Sargavak (1950)
35 Cal.2d 93, 216 P.2d 850, the decedent wrote a letter shortly before
her death that included testamentary and non-testamentary
provisions. The court held that the decedent “decided to leave her
property to two men she had known for more than forty years and for
whom she had demonstrated a warm personal affection. This purpose
is clearly expressed by the terms of the instrument. It is not negatived
by evidence that she had an additional purpose, expressed in the
letter and corroborated by the testimony upon which contestants
rely.... The inclusion of nontestamentary provisions with those of a
testamentary nature does not make the instrument inoperative as a

324
will.” (Id. at p. 101, 216 P.2d 850.) In our case as well, the non-
testamentary provisions, and the decedent's uncertainty about the
proper title, do not serve to make the instrument inoperative as a will.
Appellant's second contention is that the will is invalid because it
does not dispose of all of the decedent's property. However, in Estate
of Rowe, supra, 230 Cal.App.2d 442, 41 Cal.Rptr. 52, the court found
a holographic will to be valid that did not dispose of all of the
decedent's property....
In the case before us, the failure of the decedent to dispose of all of
his property similarly does not compel a conclusion that the will is
invalid or that the document lacks indicia of testamentary intent.
Decedent specifically expressed a testamentary intent and disposed
of some of his property. In particular, the phrase, “All my collictables:
everything including two pistols and two rifles, none fired: to nephew
Kirk Bell ...” in combination with the title, “Last Will ...” indicates that
the decedent had a testamentary intent.
Appellant next contends that the words “I would like,” with regard to
the house, do not show testamentary intent, but are rather a
suggestion or recommendation. Whether these words are construed
as an expression of testamentary intent or a suggestion depends on
whether they indicate an intended disposition of property after the
testator's death, or whether they are directed to a beneficiary to make
some further division or disposition of property.
... [T]he language in the holographic will before us does not express
a suggestion or wish to a legatee or devisee regarding the future
disposition of property being devised. Rather it is an expression of the
testator's intent as to the house he and his stepdaughter are living in,
in the event of his death. It provides: “I would like my step daughter,
Debra Cox, to be able to live in the house as long as she wants
before putting it up for sale.” There is no one else named in the will as
a devisee of this property. It is reasonable to conclude that the
phrase, “I would like,” in this context is addressed to the executors of
the estate, who had been previously identified in the document.
Therefore, under the cases cited above, this phrase can be construed
as an expression of testamentary intent, rather than a suggestion.
Finally, we note that the evidence presented at trial supported the
finding that the document in this case was written with testamentary
intent. Declarations of the testator are admissible to demonstrate a
testamentary intent. (Estate of Spies (1948) 86 Cal.App.2d 87, 194
P.2d 83 (Spies).) ...

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 In the case before us, Cox's testimony as to the decedent's express
wishes upon his death provided evidence, similar to that in Spies, that
the holographic document, which was consistent with those wishes,
was “testamentary in character.” (Spies, supra, 86 Cal.App.2d at p.
91, 194 P.2d 83.) Cox testified that the decedent had told her that he
would make provision for her regarding the house if he died. She also
testified that he asked her to be executor and that he told her he had
“put us both [Cox and his sister-in-law] down as the executor for his
will.” As in Spies, testimony regarding the decedent's statements
about his will and future intentions were admissible to demonstrate
testamentary intent. This testimony, in addition to the title of the
document as a “Last Will,” the “studied care” with which the decedent
set forth the names and addresses of those identified in the will
(Estate of Kinney, supra, 16 Cal.2d at p. 55, 104 P.2d 782), the indicia
of completeness of the document, and the express terms disposing of
some of the decedent's property, all support a finding that the
document was written with testamentary intent.
DISPOSITION
The orders are affirmed.
—————

Notes
1. Judicial approach: How far have the California courts come since
Estate of Billings? To the extent they have adopted substantial
compliance with respect to the holographic statutory requirements,
should they adopt substantial compliance with respect to the attested
statutory requirements?
2. Paradigm scenarios: The Estate of Billings case is fairly
representative of the traditional holographic will: one that is essentially
entirely handwritten by the testator. While the Estate of Williams case
is hardly representative of a typical holographic will vis-à-vis style and
presentation, it too is traditional in nature in that the document is
entirely in the testator's “handwriting.”
When the legislature changed the law to no longer require the
entire document to be in the testator's handwriting, but only the
“material provisions,” it led to testators going down to their local
business supply store and purchasing a pre-printed form will, filling in
the blanks in their handwriting, and then signing it. Should such a
document qualify as a valid holographic will? Are the “material

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provisions” in the testator's handwriting? What constitutes the
“material provisions”?

In re Estate of Johnson
630 P.2d 1039 (Ariz. 1981)
WREN, Chief Judge.
This appeal involves the question of whether the handwritten
portions on a printed will form, submitted to the trial court as a
holographic will, were sufficient to satisfy the requirements of A.R.S.
§14-2503 that the material provisions of such a will must be entirely in
the handwriting of the testator.
Arnold H. Johnson, the decedent, died on January 28, 1978 at the
age of 79....
The document claimed by appellants to be decedent's last will and
testament was a printed will form available in various office supply
and stationery stores. It bore certain printed provisions followed by
blanks where the testator could insert any provisions he might desire.
The entire contents of the instrument in question are set forth below,
with the portions ... [italicized and bolded being the portions that] are
in the decedent's handwriting.
THE LAST WILL AND TESTAMENT
I Arnold H. Johnson a resident of Mesa Arizona of Maricopa
County, State of Arizona, being of sound and disposing mind
and memory, do make, publish and declare this my last WILL
AND TESTAMENT, hereby revoking and making null and void
any and all other last Wills and Testments heretofore by me
made.
FIRST—My will is that all my just debts and funeral expenses
and any Estate or Inheritance taxes shall be paid out of my
Estate, as soon after my decease as shall be found convenient.
SECOND—I give devise and bequeath to My six living
children as follows:
To John M. 1/8 of my Estate
Johnson
Helen Marchese 1/8
Sharon Clements 1/8
Mirriam Jennings 1/8
Mary D. Korman 1/8

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 A. David Johnson 1/8
To W. V. Grant, Souls Harbor Church
3200 W. Davis Dallas Texas 1/8
To Barton Lee McLain
and Marie Gansels
Address 901 E. Broadway Phoenix
Az Mesa 1/8
I nominate and appoint Mirriam Jennings my Daughter of
Nashville Tenn. as executress of this my Last Will and
Testament Adrress 1247 Saxon Drive Nashville Tenn.
IN TESTIMONY WHEREOF, I have set my hand to this. My
Last Will and Testament, at ____________________ this 22
day of March, in the year of our Lord, One Thousand Nine
Hundred 77
The foregoing instrument was signed by said Arnold H.
Johnson in our presence, and by _________ published and
declared as and for _________ Last Will and Testament, and at
_________ request, and in _________ presence, and in
presence of each other, we hereunto subscribe our Names as
Attesting Witnesses, at _________ This 22 day of March, 1977
My Commission expires
Jan. 16, Ann C. McGonagill
1981 (Notary public seal)
Initially it is to be noted that Arizona has adopted the Uniform
Probate Code, the holographic will provisions being contained in §2-
503, and found in A.R.S. §14-2503:
A will which does not comply with §14-2502 is valid as a
holographic will, whether or not witnessed, if the signature
and the material provisions are in the handwriting of the
testator.
The statutory requirement that the material provisions be drawn in
the testator's own handwriting requires that the handwritten portion
clearly express a testamentary intent. Estate of Morrison, 55 Ariz.
504, 103 P.2d 669 (1940). Appellants argue that the purported will
here should thus be admitted to probate, since all the key dispositive
provisions essential to its validity as a will are in the decedent's own
handwriting; and further, when all the printed provisions are excised,
the requisite intent to make a will is still evidenced. We do not agree.
In our opinion, the only words which establish this requisite

328
testamentary intent on the part of the decedent are found in the
printed portion of the form.
The official comment to §2-503 of the Uniform Probate Code
(U.L.A.) sheds some light upon the situation where, as here, a printed
will form is used:
By requiring only the “material provisions” to be in the testator's
handwriting (rather than requiring, as some existing statutes do,
that the will be “entirely” in the testator's handwriting) a
holograph may be valid even though immaterial parts such as
date or introductory wording be printed or stamped. A valid
holograph might even be executed on some printed will forms if
the printed portion could be eliminated and the handwritten
portion could evidence the testator's will. For persons unable to
obtain legal assistance, the holographic will may be
adequate....
This court, in In re Estate of Mulkins, 17 Ariz.App. 179, 180, 496
P.2d 605, 606 (1972) traced earlier Arizona decisions and determined
that the “important thing is that the testamentary part of the will be
wholly written by the testator and of course signed by him” (citing
Estate of Morrison, supra) (emphasis in original). Mulkins also found
that the printed words of the will, set forth below were not essential to
the meaning of the handwritten words and could not be held to defeat
the intention of the deceased otherwise clearly expressed.
It is thus clear that, under the terminology of the statute and the
comment thereto, an instrument may not be probated as a
holographic will where it contains words not in the handwriting of the
testator if such words are essential to the testamentary disposition.
However, the mere fact that the testator used a blank form, whether of
a will or some other document, does not invalidate what would
otherwise be a valid will if the printed words may be entirely rejected
as surplusage.
In support of their position appellants rely on Estate of Blake v.
Benza, 120 Ariz. 552, 587 P.2d 271 (App.1978). In Blake this court
upheld the trial court's admission to probate, as a valid holograph the
postscript to a personal letter:
P.S. You can have my entire estate.

/x/ Harry J. Blake (SAVE THIS).

There having been no contention that the letter was not written and
signed by the decedent, it was held that the postscript was more than

329
a mere casual statement, and was deemed sufficient to demonstrate
a testamentary intent. Analogizing to Blake which held that the use of
the word “estate” by the decedent inferred that he was making a
disposition of his property to take effect upon his death, appellants
point to that portion of the document here which states:
TO (the name of the respective person) 1/8 of my estate.
as being sufficient to likewise establish the requisite intent. Again, we
do not agree.
Blake did not rely solely upon the use of the word “estate” to
determine that the testator had a testamentary intent. The opinion
focused upon the emphasized words “SAVE THIS” to support the
position that the letter was to have a future significance. The fact that
the formal signature following the dispositive clause bore the
testator's name in full as opposed to simply “Your Uncle Harry”, as in
previous letters, was also supportive of a testamentary intent. Finally,
the dispositive clause itself in Blake contained the phrase “you can
have,” which clearly imported a future connotation.
Contrasting the Blake will to the handwritten segments of the
purported will before us, we find a marked difference. Though the
decedent here used the word “estate”, this word alone is insufficient to
indicate an animus testandi.
In Webster's New Collegiate Dictionary, G & C Merriam &
Company, Springfield, 1975 at 391, one of the definitions of the word,
“estate” is, “the assets and liabilities left by a person at death.”
However, the same word is also defined as:
the degree, quality, nature, and extent of one's interest in land
or other property. POSSESSIONS, PROPERTY esp : a
person's property in land and tenements.
Clearly then the word “estate” is not the sine qua non of an intent to
draft a will. Likewise, the word “TO”, by itself, has neither a present
nor a future meaning. We are thus unable to determine from the
handwritten portions of the will form whether it was meant by
decedent to have a testamentary significance and thus hold that the
trial court did not err in refusing to admit it to probate.
Admittedly, as pointed out in the special concurrence, our decision
here might well do violence to the intent of the decedent, Arnold H.
Johnson. However, as was stated by our Supreme Court in Estate of
Tyrrell, 17 Ariz. 418, 153 P. 767 (1915):

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 If the statute requires the testator to sign the instrument and he
omits to sign it, although he intended to do so, such omission
may not be cured by his intention. The omission is fatal to the
validity of the will. The omission of any of the requirements of
the statute will not be overlooked on the ground that it is
beyond question that the paper was executed by the decedent
as his will while he possessed abundant testamentary capacity,
and was free from fraud, constraint or undue influence, and
there is no question of his testamentary purpose, and no
obstacle to carrying it into effect had his will been executed in
the manner prescribed by the statute. (Citations omitted) 17
Ariz. at 422, 153 P. at 768.
Further, quoting from In re Walker's Estate, 110 Cal. 387, 42 P. 815,
52 Am.St.Rep. 104, 30 L.R.A. 460, 42 P. 815, Tyrrell went on to state:
When a will is proved every exertion of the court is directed to
giving effect to the wishes of the testator therein expressed, but
in the proving of the instrument the sole consideration before
the court is whether or not the legislative mandates have been
complied with. id. (emphasis added).
We thus have stringent requirements for finding that a document,
which might appear in a thousand different forms, is a valid and
authentic holographic will.
This document having failed as a will, we dismiss appellants'
argument that we may look to extrinsic evidence to determine the
testator's intent. Appellants' motion to strike an instrument attached to
the estate's reply memorandum and response to cross motion for
summary judgment, purportedly written by the deceased, is therefore
granted.
Judgment affirmed.
CONTRERAS, Judge, specially concurring.
I find myself compelled to concur in this decision because
established legal principles clearly indicate that the trial court did not
err in refusing to admit the document to probate....
... But it is an illogical result which defeats the intent of the decedent
and fails to uphold the proffered will. In addition, it ignores the
practical consideration of a lay person who desires to dispose of his
small estate without the assistance of an attorney.
—————

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 Notes and Problems
1. Is testamentary intent a material provision? Following the Johnson
decision and its progeny, the California legislature amended section
6111 to add subsection (c). How would the Johnson printed form
will type of case be decided in California today? Was the legislature
a bit too focused in its amendment? What if a decedent takes out
his or her lawyer-prepared, validly executed, typed will, and on the
bottom of the last page, under the signature, handwrites “And I also
give $50,000 to my good friend Franco.” The testator then initials
and dates it. Is that a valid holographic codicil? (The legislature also
added Probate Code Section 6111.5 in 1990 in response to the
Johnson case and its progeny).
2. Intent versus formalities: In light of the court's analysis and decision
in In re Estate of Williams, and in light of the legislative action in
amending Probate Code Sections 6111 and 6111.5, at least with
respect to holographic wills, would you say California takes a
formalistic approach or a more intent-based approach?
3. Internet-based form wills: What if, in Johnson, instead of
purchasing a pre-printed form will, the testator went to his
computer, downloaded a form will from the Internet, typed in the
provisions, printed it out, signed it in his study, and then died later
that night? Is it a valid holographic will? Does California's harmless
error doctrine apply? If so, should a court probate it?
4. Testatrix, Eileen Foxley, is an independent woman who is used to
handling her own affairs. She had raised six daughters and two
sons. She validly executed an irrevocable trust and will that left her
estate to her daughters equally (each daughter was named). She
took the will—along with a photocopy of it—home with her after
executing it. Thereafter, her daughter Jane died, survived by her
son Hogan (who then would take Jane's share under Foxley's trust
and will). Foxley did not like Hogan; she believed he had abused
his mother. After Jane's death, Foxley tried to amend the trust to
remove Hogan, but her attorney explained to her that it was
impossible. Foxley was so adamant that he not participate in the
trust she instructed the attorney to “buy him out.” When the attorney
offered to help with the will, she told him “take care of it.” The
attorney interpreted her response as her telling him “to butt out.”
After Foxley's death, the will and photocopy were found. The will
had no marks on it, but on the photocopy, in the clause leaving her
estate to her daughters, she had drawn a line through her daughter
Jane's name. Moreover, in the margin, she had written, signed, and

332
 dated the following: “her share to be divided between five
daughters.” Does the writing qualify as a valid holographic codicil?
Which, if any, elements are at issue? How so? See In re Estate of
Foxley, 575 N.W.2d 150 (Neb. 1998).
5. The modern trend judicial approach: As you may have sensed,
holographic will cases are often fact sensitive. Courts appear rather
willing to stretch the law to uphold what appears to be a holographic
will. Assume the following handwritten index card is found among
Tai-Kin Wong's belongings following his death. Is there enough on
the card to be a valid holographic will?

All Tai-Kin
Wong's → Xi
Zhao, my best
half TKW 12-31-
92.

Estate of Wong
40 Cal. App. 4th 1198 (Ct. App. 1995)
WUNDERLICH, Associate Justice.
In this case we review the trial court's decision that a document
containing eight words, seven of them proper names and an
appellation, constituted a holographic will.
Tai-Kin Wong (Tai) was a successful 44-year-old businessman who
until just before death had a history of good health. He was living with
his girlfriend Xi Zhao (Xi), and he enjoyed a close and loving
relationship with his large family. On New Year's Eve in 1992, he took
ill and died in a hospital emergency room of unexplained causes.
Sometime after his death, found in his office was a sealed envelope,
decorated with stickers and containing a handwritten note which read
“All Tai-Kin Wong's → Xi Zhao, my best half TKW 12-31-92.” This
document—containing no subject, no verb, no description of property,
and no indication of its subject matter or purpose—was found by the
trial court to be a holographic will, passing Tai's entire estate to Xi.
Tai's father, Kok-Cheong Wong (appellant) brought this appeal....
FACTS/PROCEDURAL HISTORY

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 At the time of his death, Tai was 44 years old. He had never
married and he had no children. For the previous three years, he and
Xi had lived together in Saratoga. Tai and Xi had met in 1987 at a
scientific conference. They fell in love and began to live together in
1989 after Xi received her doctorate in cell biology. They lived
together until the time of Tai's death on New Year's Eve.
When Xi relocated to California to be with Tai, she turned down
several job offers that were more attractive than the one she accepted
at Stanford University. Previously she had visited Tai in California and
they had kept in close touch. She immediately moved into his house
in Saratoga and worked at her full-time job at Stanford. Tai,
meanwhile, was engaged in running a company he founded with his
brother, Danny Wong (Danny) called Baekon, Inc. Xi helped Tai run
Baekon, working for Baekon in the evenings and on weekends. In
1990 Tai and Xi founded a new company, Transgenic Technologies,
Inc. (TTI) which they owned equally. Tai worked every day at TTI in
Fremont, developing the new business. Baekon was wound down;
Danny transferred his interest in the business to Tai.
Tai and Xi thus lived together and worked together for the last three
years of Tai's life. Whether their love relationship was flourishing or
floundering was disputed at trial. Though supposedly lovers, on the
day of Tai's death, New Year's Eve, they had arranged to dine
separately—Tai with his close friend, Dr. Jianmin Liu and his girlfriend,
and Xi with a man she describes as then a casual social
acquaintance, Brien Wilson, a local attorney.
The evidence Xi introduced tended to show that she was close to
Tai's family, indeed, practically accepted as a member of it. After Mr.
Wong came home from the hospital following a stroke, Tai and Xi took
care of him four nights a week, Monday through Thursday. Mr. Wong
viewed Xi as his son's companion, and presented her with gifts of
money, traditionally given only to family members in Chinese families.
When Tai died on December 31, 1992, it was in the throes of an
illness which was similar in its symptoms to sicknesses that had
afflicted him two or three times earlier that month. On December 11,
1992, he felt very ill while dining in a restaurant. Xi told him to see a
doctor. On December 20, 1992, Tai collapsed at home but recovered
and told Xi he would be fine. On December 21st he called Xi at her
Stanford office and told her he was sick again. Xi told Tai to call “911”;
he was taken to Washington Hospital in Fremont by ambulance. He
spent three days in the intensive care unit. Doctors were unable to
diagnose his illness, but wished to do a test which Tai declined. On

334
December 31st, he again became ill, was taken to the hospital by
ambulance, and died with the same symptoms.
The onset of the final episode was unclear. During the day on New
Year's Eve, Tai was working at his office in Fremont. He had business
meetings that afternoon until about 4:30, which Xi and others
attended. Although not 100 percent healthy, he appeared to be well
and to be functioning well. He called Dr. Liu two or three times to
finalize dinner arrangements for the evening. Another employee who
was working at the office waved good-bye to Tai at 6 p.m. and he
appeared to be just fine. At 7 p.m. Dr. Liu received a call from Tai
saying that he was feeling very ill. Dr. Liu's girlfriend advised him to
call “911” which Tai did. His friends agreed to come to the Fremont
office from Berkeley. When they reached the office the ambulance
had already taken Tai to the hospital. The ambulance attendants
found Tai conscious upon their arrival at the office building, but he lost
consciousness in the ambulance, never regained it, and died at the
hospital before midnight.
By the time Dr. Liu and his girlfriend Jennifer Zhang arrived at the
hospital, Tai was in a coma. When the doctors told Dr. Liu that Tai was
dying, he tried to reach members of Tai's family. Because he did not
have their telephone numbers, he called Tai's Saratoga house trying
to reach Xi. There was no answer. Meanwhile, Xi was having dinner
with Brien Wilson at a fancy French restaurant in Los Gatos. She had
concealed from Tai the fact that she was dining on New Year's Eve
with Brien Wilson, a man she moved in with two and one-half months
after Tai's death. After dinner, she returned to the Saratoga house,
and shortly after her arrival she received a call from Dr. Liu informing
her that Tai was in the hospital. (Dr. Liu testified he never did reach Xi
on the telephone. Rather, she called him at the hospital after Tai's
death.) According to Xi, when she arrived at the hospital, close to
midnight, Tai was already dead. While Tai had some symptoms similar
to those that characterized his illness 10 days earlier, the cause of
death was mysterious and has never been determined.
The questioned document or purported will was discovered in the
following way: Xi made no effort to find a will at the residence she
shared with Tai. Instead, on January 18, 1993, two weeks after Tai's
funeral, Xi, Roy Tottingham (then a business consultant to TTI and
now vice-president), Dr. Gin Wu (a TTI employee) and Heston Chau
(an old friend of Tai's) searched Tai's office. Xi had asked Danny
Wong to help go through Tai's papers, but he refused to do it. These

335
four people, then, including Xi, divided the papers into business
documents and personal papers and placed them in separate boxes.
During this search they found a sealed envelope in one of Tai's
desk drawers, but Xi could not remember which one nor who saw it
first. The upper left hand corner contained Tai's address label, the
center of the envelope bore two stickers: a rainbow with the words
“You're Special,” and a rainbow with the words “Love You.” This
sealed envelope was placed in the box of Tai's personal papers which
itself was sealed. Later the sealed box was placed in Xi's office where
it remained unopened.
Dr. Victor Vurpillat, (the co-CEO of TTI when Tai was alive), opened
the box in Xi's office sometime later. The only item he removed from
the box was the envelope with the stickers. Vurpillat took the
envelope and the following day he and Roy Tottingham met with TTI's
attorney, together with a probate attorney, John Willoughby, who
opened the envelope.
After Tai's death, Xi and Tottingham and Vurpillat incorporated a
new company called Transcell Therapeutic Infusion, Incorporated.
(TTI, Inc.) Obviously the initials are the same as for Transgenic
Technologies, Inc. The new business involves intracellular therapy. Its
product is one that delivers ribozyme (a specific molecule) into cells to
achieve intracellular therapy for patients infected with viruses. Xi
claims to have invented the technology used in TTI, Inc. but could not
recall when. She was also certain that TTI, Inc.'s processes did not
require the use of any TTI or Baekon technology.
Xi filed a petition for probate of the purported will. Xi was first
appointed personal representative and Tottingham was appointed
special administrator for the purpose of handling Tai's real estate and
voting his shares of stock. Mr. Wong, from whom the family had kept
word of Tai's death for some six weeks because of Mr. Wong's poor
health, filed the will contest on May 14, 1993.
CONTENTIONS OF PARTIES
Appellants contend: the document admitted to probate is not a valid
will, because as a matter of law, the words in the document cannot
constitute a will and because there is not sufficient evidence of
testamentary intent. Appellants also contend that the trial court
erroneously excluded decedent's statements regarding his feelings
toward respondent and also erred in granting respondent's motion to
quash certain deposition subpoenas. Respondent Xi disputes each
contention.

336
DISCUSSION
The document the trial court found to be a will reads as follows: “All
Tai Kin Wong's → Xi Zhao, my best half.” Beneath are the initials
“TKW” and the date “12-31-92.” The document is completely
handwritten.
...
A holographic will is one entirely in the writing of the testator. The
requirements are that it be signed, dated, and that it evidence
testamentary intent. (See Prob.Code, §6111.) The trial court resolved
the issue of whether the will was in the writing of the testator in favor
of proponent Xi. Clearly the document is dated at the bottom.
Regarding the third requirement, Witkin says “[I]t must appear that
decedent intended to make a testamentary disposition by that
particular paper, and if this cannot be shown it is immaterial that his
testamentary intentions were [or would have been] in conformity with
it.” (12 Witkin, Summary of Cal.Law (9th ed. 1990) Wills & Probate,
§213, p. 251, italics in original.)
No particular words are required to create a will. “Thus, a letter or
other informal document will be sufficient if it discloses the necessary
testamentary intent, i.e., if it appears that the decedent intended to
direct the final disposition of his property after his death. The
surrounding circumstances may be considered in reaching a
conclusion on this issue. [Citations.]” (12 Witkin, Summary of Cal.Law,
supra, §209, p. 248, italics added.) In other words, if it is not
completely clear that the document evidences testamentary intent, it
is possible to resort to extrinsic evidence of the surrounding
circumstances in order to provide it.
...
We can see that the instant case ... differs from even the existing
similar cases. In most ... cases..., we find descriptions of property and
words expressing donative intent. In the cases in which it is a little bit
doubtful whether the proffered document is a will, we often have the
express statement of the decedent, made shortly before death, that
decedent has written his or her will and provided for decedent's loved
ones in a certain letter or in a certain document. Clearly such direct
extrinsic evidence is extremely probative on the question of whether a
document is a will. In the instant case, we have no such helpful
extrinsic evidence.

337
 Appellants contend the document admitted to probate cannot, as a
matter of law, constitute a will. We agree.
We consider this document which is offered as a holograph to be
unique. The document consists of eight handwritten words—five of
them constituting two proper names and three of them constituting an
appellation, one arrow, a date and initials at the bottom. This series of
words contains no recognizable subject, no verb and no object. The
trial court below found these words constituted a valid holographic will
under California law, the import of which was to bequeath all of
decedent's estate to Xi. We conclude that it simply does not contain
words sufficient to constitute a valid will.
No particular words are required to create a will. (Estate of Weber
(1926) 76 Cal.App. 723, 725, 245 P. 776.) But every will must contain
operative words legally sufficient to create a devise of property.
(Estate of Young (1899) 123 Cal. 337, 343, 55 P. 1011.) In this case,
the words are either absent or are so ambiguous in meaning that it is
impossible to tell what, if anything, is meant to be given, much less
that it is intended to be a transfer of property upon death.
First, no words describe the property allegedly meant to be
bequeathed, or even that it is property which is the subject of the
note. In attempting to determine the meaning of this first phrase the
question is, all of Tai-Kin Wong's what? The trial court found that the
absence of a “what” meant all of Tai's property but there is nothing in
the document that supports that speculation.
Nor does the document contain any donative words—not “give,”
“bequeath,” “will,” or even “want Xi Zhao to have.” Instead of a word
that indicates a gift or transfer of some sort, Xi contends that the
arrow is meant to transfer Tai's entire estate to her upon his death.
However, an arrow is not a word at all. It is a symbol with no fixed
meaning, either in the general community or as used by the decedent
himself. As such, it does not have one meaning which allows it to be
used in place of a word, nor can it be used to supply any meaning to
the words around it.
Appellants did not find, nor have we, a single case in which a
symbol has been used in place of words indicating donative intent in a
will. In fact, we have not found a case in which a symbol of no fixed
meaning has been used in any material clause of a will. The Probate
Code itself assumes that words will be used to create a will. (See,
e.g., §6162.) The entire purpose of a will is to express the decedent's
wishes for disposition of his or her property after death. If there are

338
insufficient words in the document to do that, or if there are no words
at all but ambiguous symbols, the decedent has failed in his or her
purpose even if decedent did intend to write a will. The document in
this case falls into that category; it simply does not contain operative
words legally sufficient to accomplish a transfer of property upon
death. Because this first issue is dispositive, we need not address
appellants' other assignments of error.
DISPOSITION
Because the questioned document cannot constitute a will as a
matter of law, the judgment is reversed and the trial court is directed
to enter judgment in appellants' favor. Costs to appellants.
—————

Notes and Problems

1. Testamentary intent versus probable intent? The court made a
point of noting that on the evening Wong died: “Xi was having
dinner with Brien Wilson at a fancy French restaurant in Los Gatos.
She had concealed from Tai the fact that she was dining on New
Year's Eve with Brien Wilson, a man she moved in with two and
one-half months after Tai's death.” Does the court seem to think
that is relevant? Is there any evidence that Wong knew she was out
having dinner with Wilson that night? Is the court seeking to
determine and give effect to Wong's intent at the time he created
the index card or his probable intent in light of all the facts (even
some he did not know)? Did the court in In re Estate of Williams
really apply probable intent (was that document really a will or was
it just a document that the court was convinced more likely
expressed his probable intent than the intestate scheme)? Should
the courts be more open to probable intent in the context of
holographic wills given that they are homemade wills?
2. Testatrix executed a valid holographic will. Paragraph 12 of the will
gave her “books and diploma” to her niece, Doris. Thereafter
testatrix fell ill and was hospitalized for several weeks. When she
was finally well enough, her nephew Fred and his wife took testatrix
home. She asked him to retrieve a box from a dining room closet.
Inside the box was the holographic will. She instructed Fred to draw
a line through Doris's name in paragraph 12 of the will, and to
insert, in Fred's handwriting, the following “Fred Bieber daughters.”
Testatrix died without doing anything else to the will. Does the will
qualify as a valid holographic will? The books and diploma in

339
 question are of minimal market value. See In re Estate of Krueger,
529 N.W.2d 151 (N.D. 1995).
3. The following facts are from a recent California case, Estate of
Southworth, 59 Cal. Rptr. 2d 272, 274–75 (Ct. App. 1996). Is there
a valid holographic will?
Decedent [Dorothy Southworth] never married and had no
children. On March 4, 1986, in response to decedent's
request for information, NSAL sent a letter to her describing
its lifetime pet care program and explaining how to register
for it. NSAL asked that she return its enclosed pet care
registration card, contact her attorney to include her bequest
to NSAL in her estate and send a copy of the bequest to
NSAL. NSAL informed her that “[e]ven if you don't currently
have a will, we'll accept your Registration on good faith and
maintain an Active file on your pet while you're arranging the
Bequest.” Decedent never returned the registration card to
NSAL.
On September 4, 1987, decedent requested registration
with The Neptune Society for cremation of her body upon her
death. On the registration form, she stated that she never
married and that Neptune should contact the Ventura County
Coroner to make arrangements. On the same date, decedent
sent a letter to NSAL asking whether or not it destroys
animals.
Her letter to NSAL states, “I have been terribly upset since
I heard [that NSAL destroys animals] because I have always
truly believed that you did not destroy animals and this was
the determining factor in my selection of you as the
beneficiary of my entire estate as I have no relatives and do
not want the State of California, courts, or attorneys to benefit
from my hard earned labor.
“I should appreciate greatly if you would clarify this point
about the destruction of animals at your shelter and tell me
honestly and truly what your policy is [and] not hedge
because I have mentioned leaving my estate to your
organization.”
On September 9, 1987, NSAL wrote to assure her that it
would not destroy any pet. NSAL included a brochure
regarding estate planning. The brochure explained that a
letter or a verbal promise will not effectuate a testamentary

340
gift; that a proper written will is required. The mailing urged
members to consult an estate planning attorney to avoid the
possibility that the estate might end up with “distant relatives
whom you didn't even know.” Decedent never prepared a
formal will.
NSAL sent a donor card to the decedent. It stated: “Your
newest gift to the North Shore Animal League will help get
more homeless dogs and cats out of cages and into new
homes.” The donor card thanked her “for your interest in
making a bequest to the League.” It explained that she could
change her life insurance policy or provide for animals in her
will by calling her attorney. It sought gifts and legacies and
asked her to complete and return the donor card.
On April 19, 1989, she returned the donor card to NSAL.
The card provided three options: a. naming NSAL as a
beneficiary of a life insurance policy, b. changing one's will to
leave securities or cash to NSAL, or c. not taking immediate
action, but stating her intentions.
On the card, the decedent circled printed option (c) which
states: “I am not taking action now, but my intention is [in the
blank space provided she wrote] My entire estate is to be left
to North Shore Animal League.”
The donor card also included a printed statement which
reads, “The total amount that the animal shelter will someday
receive is [she wrote in the blank space] $500,000.” The card
then stated, “I would like the money used for:
“Food and shelter for the animals
“Adoption Fund to advertise for new owners
“Spaying and Neutering Program
“Unrestricted use[.]”
Decedent placed an “x” next to the food and spaying
options listed. She signed and dated the donor card.
On May 10, 1989, NSAL sent a thank you letter to
decedent for “letting us know that you will remember the
North Shore Animal League in your will.” The letter requested
that decedent “have your attorney send us a copy of your
will[.]”
The Neptune Society asked for additional information to
complete the death certificate, pursuant to amendments to

341
 the Probate Code. Decedent returned Neptune's
supplemental form and stated that there are “[n]o living
relatives” and to “[p]lease notify North Shore Animal League.”
She included NSAL's address, telephone numbers and the
name of the executive director of NSAL. She signed the
supplemental form and dated it October 20, 1989.
On September 2, 1992, NSAL sent a letter to decedent
acknowledging that in March 1989 she wrote NSAL to state
that she intended to take action leading to its becoming one
of the beneficiaries of her estate. NSAL requested a meeting
with decedent, thanking her for her “kind thoughts and
generous support.” She never responded to this request.
On January 14, 1994, Dorothy Southworth died....
Did Dorothy die testate or intestate?

1. A document executed at one point in time but not effective until a later point in
time.
2. Attested wills need not be drafted uniquely for a testator. They also can include
pre-printed wills, those generated from will-drafting software and, most notably, the
California Statutory Will from California Probate Code Section 6240.
3. Section 12(2) of the new, local Wills Act, Wills Act Amendment Act (No. 2) of
1975, §9 amending Wills Act of 1936, §12(2), 8 S. Austl. Stat. 665.
4. As previously indicated, the California Statutory Will (CPC §6240) is a common
example.
5. See Stoker, supra page 170. The testator dictated his will to his friend who
wrote it down, “word for word,” in her handwriting. This meets the requirements of a
writing.
6. For an interesting presentation of the case in support of electronic wills, see
Joseph Karl Grant, Shattering and Moving Beyond the Gutenburg Paradigm: The
Dawn of the Electronic Will, 42 U. MICH. J.L. REFORM 105 (2008).
7. Nev. Rev. Stat. Ann. §133.085 (West 2013); but see In re Estate of Javier
Castro, No. 2013ES00140 (Lorain Cnty. Ohio Ct. Com. Pl. June 19, 2013)
(upholding a will drafted on a Samsung Tablet), and Re: Yu [2013] QSC 322. Karter
Yu typed out his testamentary wishes on the Notes app of his iPhone and then typed
his name at the end. The Supreme Court of Queensland, Australia, ruled that this
“instrument” constituted a valid will.
8. In re Bauman's Estate, 114 Cal. App 551, 556 (1931).
9. Now Section 6110 of the Probate Code.
10. Including those in California. See former California Probate Code section 50
(the precursor to Probate Code section 6110).
11. California's Statutory Will (California Probate Code Section 6240) is another
version of an attested will. Do the California Statutory Will provisions require more
than California's primary Wills Act (California Probate Code Section 6110)?

342
 12. A word of caution with respect to the witness requirements for the California
Statutory Will—they are more strict than those adopted by California case law. See
California Probate Code section 6240.
13. That is not a typographical error—holographic wills were originally known as
olographic wills.

343
Chapter 7

344
Will Revocation

345
 I. Introduction
A will is an ambulatory document: a document that does not
take immediate effect upon execution; it becomes effective at
some point in the future (i.e., when the testator dies). A will is also
revocable. Between the time of execution and the testator's
death, the testator can revoke the will at any time (and make a
new one if he or she wishes). The fact that a will is revocable
gives rise to an obvious question: what is required to properly
revoke a will?
In many respects, revoking a will is the inverse of executing a
will. Revocation is a testamentary act that requires the same
testamentary capacity as is necessary to execute a will. Similar to
execution, the most common forms of revocation require intent
and an act: more specifically, the intent to revoke and a
corresponding act (we will see that the “corresponding act”
depends on how the testator is attempting to revoke his or her
will). In the will execution material, we examined the tension
about which variable should be given more weight in the
analytical process—the intent or the act. Historically, strict
compliance emphasized the formalities associated with the act
requirement. In contrast, the modern trend approach (most
notably the “substantial compliance/harmless error” movement)
shifts the focus to the intent component.
As you read the revocation material, you might want to keep in
mind this historical approach to the two variables. With respect to
the law of revocation, have courts historically focused likewise on
the formalities surrounding the revocation act? Has there been a
modern trend shift to the intent component?

A. The Traditional Approach

Thompson v. Royall
163 Va. 492 (1934)
HUDGINS, Justice.

346
 The only question presented by this record, is whether the will
of Mrs. M. Lou Bowen Kroll had been revoked shortly before her
death.
The uncontroverted facts are as follows: On the 4th day of
September, 1932, Mrs. Kroll signed a will, typewritten on five
sheets of legal cap paper; the signature appeared on the last
page duly attested by three subscribing witnesses. H. P. Brittain,
the executor named in the will, was given possession of the
instrument for safe-keeping. A codicil typed on the top third of one
sheet of paper dated September 15, 1932, was signed by the
testatrix in the presence of two subscribing witnesses.
Possession of this instrument was given to Judge S. M. B.
Coulling, the attorney who prepared both documents.
On September 19, 1932, at the request of Mrs. Kroll, Judge
Coulling, and Mr. Brittain took the will and the codicil to her home
where she told her attorney, in the presence of Mr. Brittain and
another, to destroy both. But instead of destroying the papers, at
the suggestion of Judge Coulling, she decided to retain them as
memoranda, to be used as such in the event she decided to
execute a new will. Upon the back of the manuscript cover, which
was fastened to the five sheets by metal clasps, in the
handwriting of Judge Coulling, signed by Mrs. Kroll, there is the
following notation:
“This will null and void and to be only held by H. P.
Brittain, instead of being destroyed, as a memorandum
for another will if I desire to make same. This 19 Sept
1932
“M. Lou Bowen Kroll.”

The same notation was made upon the back of the sheet on
which the codicil was written, except that the name, S. M. B.
Coulling, was substituted for H. P. Brittain; this was likewise
signed by Mrs. Kroll.
Mrs. Kroll died October 2, 1932, leaving numerous nephews
and nieces, some of whom were not mentioned in her will, and an
estate valued at approximately $200,000. On motion of some of
the beneficiaries, the will and codicil were offered for probate. All
the interested parties including the heirs at law were convened,

347
and on the issue, devisavit vel non, the jury found that the
instruments dated September 4th and 15, 1932, were the last will
and testament of Mrs. M. Lou Bowen Kroll. From an order
sustaining the verdict and probating the will this writ of error was
allowed.
For more than one hundred years, the means by which a duly
executed will may be revoked, have been prescribed by statute.
These requirements are found in section 5233 of the 1919 Code,
the pertinent parts of which read thus: “No will or codicil, or any
part thereof, shall be revoked, unless * * * by a subsequent will or
codicil, or by some writing declaring an intention to revoke the
same, and executed in the manner in which a will is required to
be executed, or by the testator, or some person in his presence
and by his direction, cutting, tearing, burning, obliterating,
canceling, or destroying the same, or the signature thereto, with
the intent to revoke.”[1]
The notations, dated September 19, 1932, are not wholly in the
handwriting of the testatrix, nor are her signatures thereto
attached attested by subscribing witnesses; hence under the
statute they are ineffectual as “some writing declaring an intention
to revoke.” The faces of the two instruments bear no physical
evidence of any cutting, tearing, burning, obliterating, canceling,
or destroying. The only contention made by appellants is, that the
notation written in the presence, and with the approval, of Mrs.
Kroll, on the back of the manuscript cover in the one instance,
and on the back of the sheet containing the codicil in the other,
constitute ‘canceling’ within the meaning of the statute.
Both parties concede that to effect revocation of a duly
executed will, in any of the methods prescribed by statute, two
things are necessary: (1) The doing of one of the acts specified,
(2) accompanied by the intent to revoke—the animo revocandi.
Proof of either, without proof of the other, is insufficient. [Citation
omitted.]
The proof established the intention to revoke. The entire
controversy is confined to the acts used in carrying out that
purpose. The testatrix adopted the suggestion of her attorney to
revoke her will by written memoranda, admittedly ineffectual as
revocations by subsequent writings, but appellants contend the

348
memoranda, in the handwriting of another, and testatrix's
signatures, are sufficient to effect revocation by cancellation. To
support this contention appellants cite a number of authorities
which hold that the modern definition of cancellation includes,
“any act which would destroy, revoke, recall, do away with,
overrule, render null and void, the instrument.”
Most of the authorities cited, that approve the above, or a
similar meaning of the word, were dealing with the cancellation of
simple contracts, or other instruments that require little or no
formality in execution. However there is one line of cases which
apply this extended meaning of ‘canceling’ to the revocation of
wills. The leading case so holding is Warner v. Warner's Estate,
37 Vt. 356. In this case proof of the intent and the act were a
notation on the same page with, and below the signature of the
testator, reading: ‘This will is hereby cancelled and annulled. In
full this the 15th day of March in the year 1859,’ and written
lengthwise on the back of the fourth page of the foolscap paper,
upon which no part of the written will appeared, were these
words, ‘Cancelled and is null and void. (Signed) I. Warner.’ It was
held this was sufficient to revoke the will under a statute similar to
the one here under consideration.
...
The construction of the statute in Warner v. Warner's Estate,
supra, has been criticized by eminent textwriters on wills, and the
courts in the majority of the states in construing similar statutes
have refused to follow the reasoning in that case. [Citations
omitted.]
The above, and other authorities that might be cited, hold that
revocation of a will by cancellation within the meaning of the
statute, contemplates marks or lines across the written parts of
the instrument, or a physical defacement, or some mutilation of
the writing itself, with the intent to revoke. If written words are
used for the purpose, they must be so placed as to physically
affect the written portion of the will, not merely on blank parts of
the paper on which the will is written. If the writing intended to be
the act of cancelling, does not mutilate, or erase, or deface, or
otherwise physically come in contact with any part of written
words of the will, it cannot be given any greater weight than a

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similar writing on a separate sheet of paper, which identifies the
will referred to, just as definitely, as does the writing on the back.
If a will may be revoked by writing on the back, separable from
the will, it may be done by a writing not on the will. This the
statute forbids.
The learned trial judge, A. C. Buchanan, in his written opinion,
pertinently said:
“The statute prescribes certain ways of executing a will, and it
must be so executed in order to be valid, regardless of how clear
and specific the intent. It also provides certain ways of revoking
and it must be done so in order to a valid revocation, regardless
of intent....
“The same reasoning led the Illinois court to the same
conclusion in Dowling v. Gilliland, * * * [122 N.E. 70, 72 (Ill. Sup.
Ct.)], where it is said:
“‘The great weight of authority is to the effect that the mere
writing upon a will which does not in any wise physically obliterate
or cancel the same is insufficient to work a destruction of a will by
cancellation, even though the writing may express an intention to
revoke and cancel. This appears to be the better rule. To hold
otherwise would be to give to words written in pencil, and not
attested to by witnesses nor executed in the manner provided by
the statute, the same effect as if they had been so attested.”
...
The attempted revocation is ineffectual, because testatrix
intended to revoke her will by subsequent writings not executed
as required by statute, and because it does not in any wise
physically obliterate, mutilate, deface, or cancel any written parts
of the will.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
—————

Notes

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 1. Judicial approach: How would you characterize the court's
application of the statutory revocation requirements in Thompson:
strict compliance, substantial compliance, or harmless error?
2. California approach: In Thompson, the court discussed the
two principal methods of revocation: revocation by writing that
qualifies as a new will, and revocation by destructive act. Chapter
6 covered what is necessary to create a new will in California.
California's statute on revocation by writing and revocation by act
is on the next page. After you read it, circle back to the Thompson
case. How would the Thompson case come out in California?
Why?

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 II. Express Revocation
A. Introduction
The different methods of revocation fall into two logical
groupings: express revocation and implied revocation. The
express revocation category includes those methods of
revocation where the testator's intent to revoke is either express,
or it is associated with an act where the presumed evidence of
testator's intent is so strong it is deemed de facto express intent.
Express revocation includes: (1) revocation by writing a new will
(that either expressly or by inconsistency revokes the old will), or
(2) revocation by destructive act. Typically, express revocation
involves some affirmative, or semi-affirmative, act by the testator.
The Thompson case is an example of an attempted express
revocation.
Implied revocation, on the other hand, typically occurs where
there is no direct, express evidence of testator's intent to revoke,
yet under the circumstances a presumption of revocation arises.
For example, if a will was last in the testator's possession, and
the will cannot be found following the testator's death, what are
the two most logical explanations for why it cannot be found?
Inasmuch as the will is a very important document, which is the
more likely explanation? Similarly, if testator's will provides for his
or her spouse, but at the time of the testator's death the marriage
has been dissolved and the couple are no longer married, what
are the two most logical explanations for why the testator did not
change his or her will? Knowing human nature, which is the more
likely explanation? Even though there is not direct, express
evidence of the testator's intent to revoke his or her will, in certain
circumstances a presumption of revocation will arise by operation
of law.
We will begin our examination of revocation with the preferred
method of revocation: express revocation. California Probate
Code Section 6120 sets forth the two ways one can expressly
revoke a will in California: (1) by a subsequent writing that
qualifies as a will (commonly referred to as “revocation by

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writing”), or (2) by a destructive act (commonly referred to as
“revocation by act”).
CPC §6120. Express revocation of a will
A will or any part thereof is revoked by any of the following:
(a) A subsequent will which revokes the prior will or part
expressly or by inconsistency.
(b) Being burned, torn, canceled, obliterated, or destroyed,
with the intent and for the purpose of revoking it, by either
(1) the testator or (2) another person in the testator's
presence and by the testator's direction.

B. Revocation by Writing
1. Codicil versus Will
Notwithstanding its brevity, California Probate Code Section
6120 contains a significant amount of information. Subsection (a)
sets forth the first method a testator can use to affirmatively
revoke a will: a testator can revoke a will by properly executing a
subsequent will. But note that the introductory clause to the
section provides that this subsequent will may revoke the
underlying will in whole or in part. Where a subsequent will validly
revokes a prior will in whole (so there is no reason for the probate
court to resort to the prior will), the subsequent will controls and
the revoked will no longer has any testamentary life or legal
significance. From a drafting perspective, a commonly used
phrase is “this will revokes all prior wills.” That phrase, in a validly
executed will, adequately expresses the intent to revoke all prior
wills and will validly revoke all prior wills.
Where, however, a subsequent will only partially revokes or
amends a prior will (i.e., there is still reason for the probate court
to refer to the underlying will to determine and give effect to
testator's intent), the subsequent will is “a codicil” to the prior will.
Both the codicil and the underlying will have testamentary life and
significance.
The most common codicil is one that amends an existing will
(as opposed to another codicil). For example, assume the testator
has a will that makes 100 different gifts. The testator wants to

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change just one gift—the gift in paragraph 23 of the will. Rather
than re-typing the entire will (which in the old days would have
involved quite a bit of time, labor, and cost), the lawyer could draft
a short document for the testator's execution that expressly
revoked paragraph 23 of the old will, sets forth the new paragraph
23 with the new gift, and otherwise expressly re-affirms and re-
publishes the underlying will. When the testator properly executes
that document, the new document will be a codicil to his or her
will, and the codicil will have the legal effect of re-executing and
re-dating the underlying will as of the date of the codicil—all now
properly revised to reflect the testator's intent.
While codicils still exist as a legal option, they are generally not
the first choice of estate planning attorneys to amend an existing
will. Today, most attorney-prepared wills are stored in electronic
format on a computer. Rather than having the client execute a
codicil, with all the risks inherent in multiple documents, most
estate planning attorneys prefer to integrate the client's changes
into the existing will that is stored in electronic format. The new,
amended will is then printed out and executed with, of course,
clear and express language revoking all prior wills (and any
codicils). Nonetheless, codicils (and concepts that, in substance,
implicate codicils) have continued relevance in the study of wills.
A testator can have as many codicils as he or she wishes. First
and foremost, though, a codicil has to be a validly executed will. It
is a will that only partially amends or revokes an existing will.
Technically there cannot be a codicil unless there is a valid will at
the time the codicil is executed. Legally, the codicil and the will
have an interesting relationship. Revocation of a will revokes all
codicils thereto, but revocation of a codicil only affects the codicil
—it does not revoke the underlying will.

Problems
1. Testator validly executes Will #1, which leaves all of his
property to his alma mater, The University of Nirvana.
Thereafter, Testator hears that Nirvana has appointed a new
President, whom Testator does not like. Testator takes out a
piece of paper on which he handwrites, dates, and signs the

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 following: “I hereby revoke my last will and testament.” Is that a
valid revocation? Is that a valid will?
2. Testator validly executes Will #1. It makes more than 100
different gifts to family members, friends, and charities.
Thereafter, Testator decides she wants to change one gift.
Testator validly executes Will #2, which changes one gift from
beneficiary A to beneficiary X. The heading at the top of the
document says “Will #2”—but all it does is change one gift. Is
Will #2 a will or a codicil?
3. Testator validly executes Will #1. It makes more than 100
different gifts to family members, friends, and charities.
Thereafter, Testator decides she wants to change one gift.
Testator's attorney pulls up the document on the computer,
changes the one gift, re-prints the entire document, and
Testator validly executes the new document. Is the new
document a will or a codicil?

2. Revocation by Writing: Expressly versus by

Inconsistency
California Probate Code Section 6120(a) also provides that
where the revocation is by a subsequent will, the writing can
either “expressly or by inconsistency” revoke the underlying will.
Express revocation occurs where a clause is included in the
subsequent will that expressly revokes the prior will in whole or in
part. A standard express revocation clause often says the
following: “I hereby revoke any and all prior wills and codicils.” No
magic language is required; it is a question of intent. That intent
can be expressed in either an attested will or a holographic will
(regardless of the whether the underlying will is an attested will or
a holographic will). For all intents and purposes, express
revocation is the sole method of revocation used by estate
planning attorneys. It is almost inconceivable that a professionally
drafted attested will would fail to contain, typically near the
beginning of the will, an express revocation clause setting forth
both the intent to revoke and the scope of the revocation (i.e.,
whether it revokes the prior will in whole or in part).2

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 California Probate Code Section 6120(a) also authorizes a
subsequent will (or codicil because the term “will” includes
codicils) to revoke a prior will “by inconsistency.” This can be
more problematic because of the different types of gifts that can
be made in a will. While the different fact patterns can run the full
gamut, here is the basic set-up: Testator has a validly executed
and dated will—Will #1. Thereafter, Testator validly executes Will
#2. The dispositive provisions of Will 2 are different from those in
Will #1. There would be no problem if Will #2 contained an
express revocation clause stating this new will “revoked all prior
wills.” Will #1 would clearly and expressly be revoked; end of
story. Assuming, however, Will #2 has no such clause, and we
have two validly executed wills, albeit one more recent than the
other. Should the law assume that by making Will #2 the testator
intended to revoke Will #1?
The above hypothetical is a classic example where the second
part of CPC Section 6120(a) applies. While Will #2 is a writing,
this situation is often referred to as implied revocation by
inconsistency. While Will #2 did not expressly revoke Will #1, the
statute provides that Will #2 will revoke Will #1, but only to the
extent that Will #2's provisions are inconsistent with the
provisions in Will #1. This could play out one of two ways: (a) the
entirety of Will #1 being revoked if the dispositive provisions of
Will #2 are wholly inconsistent; or (b) Will #2 could be only a
partial revocation (hence a codicil) where some inconsistencies
between the two wills exist, but some gifts in Will #1 still stand.
Again, there are countless fact patterns that could yield very
different results.

Problems
Assume a validly executed Will #1 followed, at a later date, by a
validly executed Will #2. Will #2 does not contain language
specifically revoking Will #1. Who takes the testator's property in
the following variations?
1. Testator Tricia's Will #1 leaves all of her property to her
granddaughter, Grace. Will #2 leaves all of Tricia's property to
her grandson, Gary.

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2. The dispositive provisions of Testator Tricia's Will #1 gives her
car to her daughter, Dalia, her gold watch to her other daughter,
Deborah, her Malibu home to her son, Steven, and the balance
of her property to her grandson, Gary. Will #2, however, leaves
the same car to her nephew, Ned, the same watch to her niece,
Nancy, her Malibu home to her sister, Sally, and the balance of
her property to her granddaughter, Grace.
3. Testator Tricia's Will #1 leaves all of her property to her
granddaughter, Grace. Will #2 leaves her car to her daughter,
Dalia, her gold watch to her other Daughter, Deborah, and her
Malibu home to her son, Steven.
4. Same as Question #2, above, except that Will #2 leaves her
car to her daughter Dalia, her gold watch to her sister, Sally,
and her Malibu home to her son, Steven.

C. Revocation by Act
In addition to revocation by writing, most states also permit
revocation by act if a destructive act is performed to the will, and
the testator has the intent to revoke. California recognizes
revocation by act. CPC §6120(b). You may recall the Estate of
Stoker case in the previous chapter. The case involved
California's limited new harmless error doctrine with respect to the
witness attestation requirement. The precise issue in the case
was whether testator had executed a valid will where he had a
friend handwrite the will provisions as he dictated them, and then
he signed the document but the witnesses did not. After creating
what he assumed was a new will, the testator told his friends who
were present that he no longer wanted his original will to be valid
and performed a series of rather unique and expressive
destructive acts to the original 1977 will:
Gretchen Landry, a friend of decedent's, testified that in
2001 decedent took his original copy of the 1997 will,
urinated on it and then burned it. We hesitate to speculate
how he accomplished the second act after the first. In any
event, decedent's actions lead to the compelling conclusion
he intended to revoke the 1997 will.
Estate of Stoker, 193 Cal. App. 4th at 245. The court had no
trouble finding that Steven Stoker's actions constituted a valid

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revocation by act.

1. The Physical Act

The revocation by act method of revoking a will has two
components: (1) the intent to revoke, and (2) the destructive act.
While the two elements are distinct, they also overlap. Sometimes
the nature of the destructive act is so obvious that the courts will
infer the intent to revoke. Conversely, where the intent to revoke
is clear, one could argue that the courts should take a more
flexible view of the act requirement. Not everyone, however,
agrees on that point.
This second scenario—where the intent to revoke is clear but
the compliance with the act requirement is not—was at issue in
the Thompson case. The less than perfect act required the court
to explore the underlying latent issue in the revocation by act
doctrine. What does it mean to say that the destructive act must
be done to the will? What constitutes the will? Does the piece of
paper on which the words are written constitute the will, or must
the destructive act affect the actual printed words of the will?
What if the testator's handwritten notations or markings are on the
will (for example, in the margin), but they do not physically touch
the written words of the will?
The Uniform Probate Code expressly addresses the issue and
takes more of a modern trend, intent-based approach: “A burning,
tearing, or canceling is a ‘revocatory act on the will,’ whether or
not the burn, tear, or cancellation touched any of the words on the
will.” UPC §2-507(a)(2). The statutory provision in the Thompson
case did not expressly address the issue. The court applied the
traditional, majority approach. What is that approach? How would
you describe that approach from a strict compliance versus
substantial compliance versus harmless error perspective?
Look back at the California statutory revocation material. Does
it expressly address the issue of whether the destructive act must
affect the printed words of the will? In other words, must the
crossing out or written words indicating revocation actually touch
the will's printed words? Is it sufficient if words or the like
expressing the intent to revoke are written in the margins? Should

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it make any difference if, instead of words, a destructive act is
performed on the margin? In Thompson (not a California case),
the writings in the margins of the will were not sufficient.
Surprisingly, no California court has analyzed the issue, though a
few older opinions have language that implies California follows
the traditional majority approach.
As for what constitutes a destructive act, this is usually not at
issue in the typical revocation by act scenario: when the testator,
with the accompanying requisite intent, totally destroys a will with
the intent to revoke by tearing it up, burning it, crossing out all of
the pages of the will while writing “null and void” on the face of
every page, sending it through a shredder, and so on. But what if
only parts of the will are crossed out? What if the destructive act
is performed across only one paragraph or one section of the
will? What if that section is the signatory block? Revocation by act
is yet another example of a doctrine where a layperson may not
necessarily know what he or she is doing or, more accurately, he
or she may not know the ramifications of what he or she is doing.

Problems
1. Testatrix validly executed her will and took it home with her.
Following her death, initially the will could not be found. After a
more extensive search, however, her will was found—
completely intact and with no markings on it—inside a paper
bag with other items of trash in a hallway closet area that the
testatrix referred to as “trash alley.” Has the will been validly
revoked? See SouthTrust Bank of Alabama, N.A. v. Winter, 689
So. 2d 69 (Ala. Civ. App. 1996).
2. Tommy Smith, who was separated but not divorced from his
wife, validly executed a typed will that was only three
paragraphs long. Paragraph (a) authorized the payments of his
just debts. Paragraph (b) left all of his property to his brother,
Bob Smith. Paragraph (c) appointed his brother Bob executor.
Thereafter, Tommy and Bob had a falling out. Tommy took out
the will and in the margin next to paragraphs (b) and (c) wrote
the following: “Bob Smith, Jr., this 31st day of 2010.” Bob
Smith, Jr. is his nephew (his brother's son). In addition, in
paragraphs (b) and (c) of the typed will where it mentions Bob
Smith, Tommy inserted, in his own handwriting, the word “Jr.”

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after each reference. Thereafter, Tommy died. Is the
handwriting on the typed will sufficient to constitute a codicil? Is
the handwriting on the typed will sufficient to constitute a
revocation by act? See Wiley v. Wiley, 184 So. 2d 854 (Miss.
1966).

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 III. Implied Revocation
A. Implied Revocation by Act
Many scholars complain that the threshold for creating a valid
will is too high (hence the substantial compliance and harmless
error movement). To the extent that revoking a will is the flip side
of executing a will, should the threshold for revoking a will be
similar? Or, because the testator is “coming back home” to the
state's intestate scheme, should the threshold for revoking a will
be lower? Moreover, when might it be appropriate for a court to
infer from the facts that the testator revoked a will even in the
absence of any direct evidence that the testator (or another
person) performed a destructive act to the will? If a will was last in
the testator's possession, and the will cannot be found following
the testator's death, is there a valid revocation?

Estate of Obernolte
91 Cal. App. 3d 124 (Ct. App. 1979)
COBEY, Acting Presiding Justice.
Dona Wilson appeals from an order denying her petition for
revocation of the probate of a will of Jennie Vessels Obernolte,
deceased, executed some two months before her death on
December 21, 1974....
On October 17, 1974, the decedent, being of sound mind, duly
executed in the office of her attorney, Mr. Forde, an original and a
duplicate original of a will under which she left her estate, share
and share alike, to her only child, the just-mentioned petitioner,
Dona Wilson, Mrs. Wilson's two children, and the decedent's
sister and two brothers. She apparently took the original of the will
home to her apartment and placed it in a cedar chest in her
bedroom. She kept this chest locked and she and her sister had
the only two keys to it.
The only person living with the decedent, off and on, was her
handyman, Mr. Vance Mayers, who helped her in her personal
wants and maintained the apartment complex which she owned

361
and managed. She was a lonely and fearful woman, whose
contact with the just-mentioned members of her family was
almost entirely by telephone. She was apparently unhappy with
practically all of the members of her family, including Mrs. Wilson.
She complained that they never visited her and she was
frequently depressed. Consequently she told at least two people
in November of 1974 that she was tearing up her will, so “that she
wasn't leaving anyone a ‘d’ thing, [and that] if they got anything,
they would have to fight for it.”
On the other hand, during the approximately two months that
intervened between the making of her last will and her death, she
expressed concern about the security in her apartment of the
original of the will and suggested that she might move it from the
locked cedar chest to a cupboard in her kitchen. Furthermore,
although she visited her attorney's office, which was only a block
and a half from her apartment, eleven days before her death to try
to consult with him about a business matter, and although she
chatted with his secretary at length at least seven times about
how lonely and unhappy she was and her fears for her safety, she
never mentioned to either of these people anything about
destroying her will or having it redone.
Within hours of her death on December 21st, one of her
tenants informed her daughter of her demise. Mrs. Wilson came
over immediately and, according to her testimony, searched the
apartment unsuccessfully for the original of the will for a couple of
days. According to her, she found the empty envelope from the
cedar chest in which the will had apparently been kept, but she
could never locate the original instrument itself. Her further
extensive search for a possible safe deposit box was also
unsuccessful.
The day after the decedent's funeral, Mr. Forde informed Mrs.
Wilson by telephone that he had at his office the duplicate original
of the will and generally of its provisions. A few days later Mrs.
Wilson came to the office and according to Mr. Forde “she was
most unhappy and distressed” when she actually saw the
duplicate original of the instrument.
The trial court found, among other things, that persons other
than the decedent had access to the original copy of the will at

362
her place of residence prior to her death and that, as already
noted, it is “equally probable” that if the decedent's copy of the will
was destroyed, it was destroyed by someone other than the
decedent.
DISCUSSION
I. The Rebuttable Presumption of Revocation Came Into Play in
This Case
Such a presumption arises when it is shown that (1) the
decedent had the will in her possession prior to her death; (2) she
was competent until that time; (3) the will could not be found after
her death. (Estate of Ross (1926) 199 Cal. 641, 646, 648 [250 P.
676) Sparks v. Lauritzen (1967) 248 Cal.App.2d 269, 274–275 [56
Cal.Rptr. 370].)
This Presumption Is a Rebuttable Presumption Affecting the
Burden of Producing Evidence Rather Than the Burden of Proof
Evidence Code 600 defines a presumption as “an assumption
of fact that the law requires to be made from another fact or group
of facts found or otherwise established in the action.” ... Evidence
Code section 604 provides that the effect of this kind of
presumption is to require the trier of fact to assume the existence
of the presumed fact until evidence is introduced which would
support a finding of its nonexistence. On the other hand,
according to Evidence Code section 606, the effect of a
presumption affecting the burden of proof is to impose upon the
party against whom it operates the burden of proving the
nonexistence of the presumed fact....
[In] Estate of Bristol,..., 23 Cal.2d at pages 224–225[,] ... the
court said that this presumption could be rebutted by evidence
showing that “it is equally probable (1) that the will was destroyed
by another person than the decedent, or (2) that the act was not
done with an intention to revoke the instrument.” (Italics in
original.) Equal probability does not satisfy a burden of proof; it
does, however, satisfy a burden of producing evidence. (See
Evid. Code, §§115, 550, subd. (a).) In other words, the effect of
the rebuttable presumption of revocation of a will is prima facie
only; it exists only until rebutted by substantial evidence. (See
Betts v. Jackson (N.Y. 1830) 6 Wend. 173, 182–183.)

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III. There Is Substantial Evidence in Support of the Challenged
Key Finding of Equal Probability
In the approximately two months that intervened between the
preparation of the decedent's last will and her death, she talked
quite a bit about destroying the will. But talking about her will,
particularly to its beneficiaries, appears to have been a habit of
hers. We entertain no doubt that she was quite unhappy with
practically all of the will's beneficiaries and apparently was
unaware of what would happen to her property if she died without
a will. But, on the other hand, she did express definite concern
about the security of her will and, although she visited the office of
her attorney, who had drawn three wills for her, eleven days
before her death and chatted at length several times with his
secretary, who seems to have been something of a confidante for
this lonely woman, she never mentioned to either of these people
anything about destroying or redoing her will.
We regard this last-mentioned evidence as substantial
evidence rebutting the presumption of revocation and supporting
the key finding of equal probability. This finding is a carefully
drawn finding. It is conditional in form because an equal
probability did exist that if the decedent's will was destroyed, this
act was done by someone other than the decedent; namely,
either Mr. Vance Mayers, the handyman who was not a
beneficiary under the will and who could possibly have had
access to it before her death, or the petitioner, who stood to
inherit all of her mother's estate without a will (see Prob. Code,
§222) but only one-sixth under the will.
DISPOSITION
The order of denial of revocation of the probate of the
decedent's last will is affirmed.
—————

Notes
1. The presumption of revocation: The presumption of
revocation is a fairly “soft” presumption. It shifts the burden of
producing evidence to the will proponent. If, however, the will
proponent brings forth evidence offering an alternative

364
explanation for why the will cannot be found, the question of
whether the will was validly revoked becomes a question of fact
for the fact-finder. And as the court held in Obernolte, so long as
the alternative explanation is equally plausible, the presumption
has been rebutted.
The presumption of revocation is basically a subset of which
type of express revocation (revocation by writing or revocation by
act)? How so? What is the logic underlying the presumption of
revocation doctrine?
2. Duplicate originals: The decedent in Obernolte executed
both “an original and a duplicate original” of her will. What is a
“duplicate original”? In applying the presumption of revocation,
should it matter whether the testator executed a duplicate
original? How does the presence of a duplicate original affect the
logic underlying the presumption of revocation doctrine? Did the
presence of a duplicate original affect the court's analysis of the
doctrine in the Obernolte case? Subsequent to the court's opinion
in Obernolte, the California legislature codified the presumption of
revocation doctrine. Would the Obernolte case come out the
same way today?
CPC §6124. Presumption of revocation
If the testator's will was last in the testator's possession, the
testator was competent until death, and neither the will nor a
duplicate original of the will can be found after the testator's
death, it is presumed that the testator destroyed the will with
intent to revoke it. This presumption is a presumption
affecting the burden of producing evidence.
In legal practice, “duplicate original” wills are an anomaly—
pretty much nonexistent if the will is drafted by an estate planning
attorney. A duplicate will is not a photocopy of an original will. As
used in CPC Section 6124, duplicate original wills represent two
identical copies of the same will, each of which is properly
executed at the same time. Basically, they are two identical, fully
executed versions of the same will. Again, in practice estate
planning attorneys rarely do this because there is no reason for a
testator to have duplicate original wills. Nonetheless, duplicate
original wills can exist and CPC Section 6124 addresses the legal

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consequences duplicate original wills when they overlap with the
revocation by presumption doctrine.
3. Will found post-death with a destructive mark on it: Should
the logic underlying the presumption of revocation doctrine apply
if the testator's will is found following his or her death, but with a
destructive act across all or part of the will? In a 1906 California
Supreme Court case, Wikman's Estate, 148 Cal. 642 (1906), the
will was last in the testator's possession, the testator had capacity
until death, and the will was found after his death with a line
drawn through the executor's name. Should the presumption
arise that it was the testator who made the destructive act to the
will with the intent to revoke?
[T]he will was in the possession of the testator from the
time of its execution until his death; that immediately after
his death it was found among his effects in his trunk; and
that when so found the ink-lines were over and through ...
[the name of the executor].... “From these circumstances
alone arise the presumptions: (1) That the cancellations
were the act of the testator; and (2) that they were
performed with the intent and purpose of revoking the
instrument.” The general authorities are to the same effect.
4. The lost will doctrine: Assume that a will cannot be found
following the testator's death, but either (a) the will was not last in
the testator's possession, or (b) if the presumption arises, it is
rebutted. Can the court probate a will that cannot be found? How?
The general rule is that the terms of a lost will must be proved by
clear and convincing evidence. California used to require that the
will provisions be “clearly and distinctly proved by at least two
credible witnesses.” CPC §350. But in 1982 the statutory
provision was repealed. California now requires only that the
terms of the lost will be proved by a preponderance of the
evidence, with no minimum number of witnesses.

Problems
1. Assume the probate court found the following facts. Does the
presumption of revocation arise? If so, is it rebutted?
Decedent prepared an original will plus a fully conformed
copy (a conformed copy is not a duplicate original; her

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 attorney kept the conformed copy of the will). Decedent
informed various individuals that she had made a will
leaving everything to her granddaughter (to the exclusion of
her daughter) and that decedent and her granddaughter
were very close. Decedent kept all her valuable documents
in a brown handbag. Decedent told witnesses that she had
her will with her several days before her death. Decedent's
handbag was on her bed when she died. Several persons
had access to the brown handbag after she died. Various
individuals searched for the will to no avail. Decedent had
not indicated to anyone that she had destroyed her will.
See In re Estate of Richard, 556 A.2d 1091 (Me. 1989).
2. Testatrix validly executed her typed will. When the will was
being typed up, the typist generated a carbon copy of the will.3
The testatrix signed the carbon copy (in addition to the actual
typed will), but the witnesses signed only the typed will (and not
the carbon copy). Testatrix took both documents home with her.
Following her death, a sealed envelope was found among her
personal papers. On the outside of the envelope, in the
Testatrix's handwriting, were the following notes: “Copy of Deed
to Lutheran Cemetery,” “Copy of Last Will and Testament” and
the signature “A. C. Engelken.” On the back of the envelope,
written across the flap, was the signature “A. C. Engelken.” The
envelope contained a deed to a cemetery plot and the carbon
copy of the will. On the back side of the last page of the carbon
copy of the will, in the Testatrix's handwriting, were the
following handwritten words: “Copy of Last Will and Testament
of Anna C. Engelken” and “Original in Safe Deposit Box in Jam.
Savings Bank.” At the time of her death, Testatrix no longer had
a safe deposit box at Jamaica Savings Bank; and while she
had a safe deposit box at National Bank, the will was not there.
Does the presumption of revocation arise? If so, is it rebutted?
See Will of Engelken, 426 N.Y.S.2d 894 (1980).

B. Implied Revocation by Operation of Law

Because a will is an ambulatory document (executed at one
point in time, but not effective for most purposes until death),
there is a risk that the circumstances surrounding the testator
may change between the will's execution and the testator's death

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—and that those changes may affect the average testator's intent.
Can you think of any milestones or events in one's life that are so
significant that even in the absence of a testator expressing the
intent to revoke, the law will presume that the will is revoked (at
least in part) upon that event's occurrence?
CPC §6122. Provisions in will in favor of spouse; effect of
dissolution or annulment of marriage
(a) Unless the will expressly provides otherwise, if after
executing a will the testator's marriage is dissolved or
annulled, the dissolution or annulment revokes all of the
following:
(1) Any disposition or appointment of property made by
the will to the former spouse.
(2) Any provision of the will conferring a general or special
power of appointment on the former spouse.
(3) Any provision of the will nominating the former spouse
as executor, trustee, conservator, or guardian.
(b) If any disposition or other provision of a will is revoked
solely by this section, it is revived by the testator's
remarriage to the former spouse.
(c) In case of revocation by dissolution or annulment:
(1) Property prevented from passing to a former spouse
because of the revocation passes as if the former
spouse failed to survive the testator....
(2) Other provisions of the will conferring some power or
office on the former spouse shall be interpreted as if the
former spouse failed to survive the testator....
Historically the revocation by operation of law doctrine applied
only to probate testate property (do you see why it does not apply
to probate intestate property?). To the extent the doctrine is based
on the assumption that upon a dissolution of marriage (more
commonly referred to as a divorce), a testator no longer wishes to
give any property to his or her former spouse, does it make sense
to limit the doctrine to probate testate property as opposed to
non-probate property? Nevertheless, that was the situation in

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most states, including California, until relatively recently. In 2002
the California legislature adopted the following statutory provision.
CPC §5600. Provisions in nonprobate instrument in favor of
spouse; failure of provision due to dissolution or
annulment of marriage
(a) Except as provided in subdivision (b), a nonprobate
transfer to the transferor's former spouse, in an instrument
executed by the transferor before or during the marriage,
fails if, at the time of the transferor's death, the former
spouse is not the transferor's surviving spouse as defined
in Section 78, as a result of the dissolution or annulment of
the marriage....
(b) Subdivision (a) does not cause a nonprobate transfer to
fail in any of the following cases:
(1) The nonprobate transfer is not subject to revocation by
the transferor at the time of the transferor's death.
(2) There is clear and convincing evidence that the
transferor intended to preserve the nonprobate transfer
to the former spouse.
(3) A court order that the nonprobate transfer be
maintained on behalf of the former spouse is in effect at
the time of the transferor's death.
(c) Where a nonprobate transfer fails by operation of this
section, the instrument making the nonprobate transfer
shall be treated as it would if the former spouse failed to
survive the transferor.
...
(e) As used in this section, “nonprobate transfer” means a
provision, other than a provision of a life insurance policy,
of either of the following types:
(1) A provision of a type described in Section 5000.
(2) A provision in an instrument that operates on death,
other than a will, conferring a power of appointment or
naming a trustee.

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Is CPC Section 5600 essentially the same as the probate testate
version of the doctrine, CPC Section 6122?
The revocation by operation of law doctrine also applies to
property held in joint tenancy:
CPC §5042. Joint tenancy severed if former spouse not
decedent's surviving spouse; exceptions
(a) Except as provided in subdivision (b), a joint tenancy between
the decedent and the decedent's former spouse, created
before or during the marriage, is severed as to the decedent's
interest if, at the time of the decedent's death, the former
spouse is not the decedent's surviving spouse as defined in
Section 78, as a result of the dissolution or annulment of the
marriage. A judgment of legal separation that does not
terminate the status of husband and wife is not a dissolution
for purposes of this section.
(b) Subdivision (a) does not sever a joint tenancy in either of the
following cases:
(1) The joint tenancy is not subject to severance by the
decedent at the time of the decedent's death.
(2) There is clear and convincing evidence that the decedent
intended to preserve the joint tenancy in favor of the
former spouse.
(c) Nothing in this section affects the rights of a subsequent
purchaser or encumbrancer for value in good faith who relies
on an apparent severance under this section or who lacks
knowledge of a severance under this section.
(d) For purposes of this section, property held in “joint tenancy”
includes property held as community property with right of
survivorship, as described in Section 682.1 of the Civil Code.

1. Same-Sex Couples
As previously discussed in Chapter 3, a domestic partner is, for
all intents and purposes, a spouse. Accordingly, it follows that the
same provisions regarding revocation of a spouse's interest in a
will or non-probate instrument should apply equally to same-sex
couples that terminate their domestic partnership. While that

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arguably is the case, it is not as clear-cut as one might assume it
should be.
While same-sex couples are now permitted to marry in
California, which means the operation by law provisions set forth
above would apply equally to same-sex couples who divorce,
there was a period of time when same-sex couples were not
permitted to marry but were permitted to register as domestic
partners. Same-sex relationships are much like heterosexual
relationships in that not all of them last “until death do us part.”
Because registered domestic partners were not married, they
could not divorce. Instead, they could “terminate” the domestic
partnership.
California Probate Code Section 6122.1 applies the revocation
by operation of law doctrine to the wills of registered domestic
partners who terminate their partnership.4 It is virtually identical to
CPC Section 6122, other than the necessary changes in phrasing
to reflect that it applies to domestic partners when their
partnership is terminated. At first blush you might be surprised to
learn that there are no corresponding statutory provisions
explicitly applying revocation by operation to non-probate
instruments held by domestic partners who officially terminate
their partnership. Recall that while at one time California adopted
a piecemeal approach to granting spousal rights to registered
domestic partners, in Family Law Code Section 297.5 California
granted “across the board” spousal rights to registered domestic
partners, thereby mooting the need to adopt parallel statutory
provisions every time there is a statute dealing with spousal rights
and/or duties. California Family Code Section 297.5 expressly
provides, in part, that “[r]egistered domestic partners have the
same rights, protections, and benefits, ... as are granted to and
imposed upon spouses.” Numerous provisions in the California
Probate Code historically were amended to make express
reference to domestic partners/partnerships, but most of these
specific references have now been removed as they are
redundant (with domestic partners being equivalent to spouses).
Perhaps the failure to remove CPC Section 6122.1 is merely an
oversight. Whatever the reason for CPC Section 6122.1,
revocation by operation of law should apply to non-probate
property held by registered domestic partners who terminate their

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relationship just as the doctrine applies to non-probate property of
spouses who get divorced.

Note
The family protection doctrines: Chapter 10 will cover what are
commonly referred to as the family protection doctrines. These
doctrines, in certain circumstances, grant family members who
have been left out of a decedent's estate planning instruments a
statutory right to share in the decedent's property despite not
being named a beneficiary. The omitted family members are
granted gifts by operation of law. That being the case, the family
protection doctrines have the indirect effect of revoking, at least in
part, other gifts in the instrument to other beneficiaries.
Accordingly, the doctrines could be covered here as additional
examples of revocation by operation of law, but because their
primary purpose is to grant a new gift, and not to revoke a gift per
se, these doctrines will be covered as part of the family protection
material.

Problem
T executes duplicate wills that leave all her property to Hastings
Law School. T takes one copy home with her and leaves the
other copy with her attorney. After T's death, the will that T
brought home with her cannot be found, but a handwritten, signed
but undated instrument is found, which provides as follows: “I give
everything I own to Santa Clara Law School.” Assuming no other
evidence is brought forward concerning T's intent or actions, what
arguments will the respective law schools make? Under the
California Probate Code, what is the most likely outcome, and
why?

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 IV. Revival of Revoked
Wills
Once a will has been revoked, is it a “dead” legal instrument?
Are there any circumstances, short of re-executing the
instrument, where the instrument might nevertheless be probated
as a valid will? The next two sections of the material address two
doctrines that permit a court to probate a validly revoked will: (1)
revival, and (2) dependent relative revocation. While these
doctrines are similar in some respects, they are separate
doctrines that operate differently. Dependent relative revocation is
a particularly challenging doctrine that will require your best effort
to master.
The concept and doctrine of revival is probably best introduced
by a simple real-world example that typifies the context in which
the issue arises. Assume a testator has a valid will (Will #1), and
thereafter testator validly executes Will #2, which either expressly
or implicitly revokes Will #1. Thereafter the testator changes his
or her mind and validly revokes Will #2. The question that
naturally arises is what effect, if any, should revocation of Will #2
have on Will #1. Should Will #1 be automatically revived, or
should the testator have to take affirmative steps to restore
testamentary life to Will #1? Should the testator have to re-
execute the document with all the Wills Act formalities, or should
the law establish a different threshold for “revival” of a revoked
will?
English common law reasoned that because a will is an
ambulatory document that does not take effect until the testator's
death, Will #1 was treated as never having been revoked. Under
the English approach, Will #2 only revoked Will #1 if Will #2 still
existed at the testator's death. If Will #2 is revoked, Will #2 merely
“came and went” before the testator's death, so it never had any
effect for any purpose. Accordingly, Will #1 not need be revived
because it was never revoked. Only a handful of states apply
some vestiges of the English approach.

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 Under what is often referred to as the “American approach,”
Will #2 is deemed effective immediately for revocation purposes
(i.e., it immediately revokes Will #1—an exception to the general
rule that a will is an ambulatory document that has no legal effect
until the testator's death). Therefore, if Will #2 is revoked, does
revocation of Will #2 automatically revive Will #1, or must the
testator do something to revive Will #1? The overwhelming
majority of states reject the aforementioned English approach,
under which revocation of Will #2 would automatically revive Will
#1. Instead, under the majority American approach, the testator
must do something to revive Will #1. What that “something” is
depends on the jurisdictional approach. The more traditional,
strict compliance, formalities-based end of the spectrum requires
the testator to re-execute Will #1 with all necessary “Wills Act”
formalities. The other end of the spectrum takes more of an
intent-based approach (and this is the approach a majority of the
states have adopted). The California approach is set forth below:
CPC §6123. Second will revoking first will; revocation of
second will and possible revival of first
(a) If a second will which, had it remained effective at death,
would have revoked the first will in whole or in part, is
thereafter revoked by acts under Section 6120 or 6121,
the first will is revoked in whole or in part unless it is
evident from the circumstances of the revocation of the
second will or from the testator's contemporary or
subsequent declarations that the testator intended the first
will to take effect as executed.
(b) If a second will which, had it remained effective at death,
would have revoked the first will in whole or in part, is
thereafter revoked by a third will, the first will is revoked in
whole or in part, except to the extent it appears from the
terms of the third will that the testator intended the first will
to take effect.
Which approach has California adopted?
The following is not a California case, but it presents a typical
revival factual scenario and serves as a good example of how the
doctrine can be applied. While the South Dakota approach to

374
revival is not identical to the California approach, it is close
enough to be a good teaching case.
The case also serves as a good reminder of the role family
dynamics can play in estate planning and in a testator's
statements and actions.

In re Estate of Heibult
653 N.W.2d 101 (S.D. 2002)
GILBERTSON, Chief Justice.
[¶1.] Anna K. Heibult executed a will in 1990 devising a larger
portion of her property to Ronald Heibult, the youngest of her four
children. In 1991, on a visit to California to see the three older
siblings, Anna executed a second will and trust dividing the
property equally. Neither the original nor a signed copy of the
second will was ever found. When Anna died in February 2000,
the three older siblings petitioned for adjudication of intestacy.
The circuit court, however, granted Ronald's petition to probate
the 1990 South Dakota will....
FACTS AND PROCEDURE
[¶2.] Anna and George Heibult were married for over fifty years.
During these years, they lived on their farm near Parker, South
Dakota, and raised four children: Calvin, Georgiann, Melba, and
Ronald. Ronald was the only sibling to remain in South Dakota.
He farmed with his father until George's death in 1989. Ronald
then took over the operation of the farm and cared for his mother.
[¶3.] After her husband's death, Anna wished to draft a new will
and sought the advice of Attorney John E. Burke. Burke had
represented the couple since the 1950's. Burke testified at trial:
She came, Anna came in and asked me to draw a new will.
And she told me that both before and after her husband's
death Ron had always been there when she needed him.
Everybody else had moved to California and she wanted to
give him a little, some more than she was giving the rest of
the children, his brother and sisters.
In accordance with Anna's instructions, Burke drafted a will that
left an undivided one-half interest in the “home place” and another

375
quarter section of the Heibult farm entirely to Ronald. The will also
provided that Ronald could purchase the other half by paying the
appraised value to the other three siblings over a period of twenty
years. The rest of Anna's estate, including the remaining eighty
acres of the farm, was divided equally among all four siblings.
After execution [“the 1990 South Dakota will”], the will remained in
Burke's possession until Anna's death in February 2000.
[¶4.] In June 1991, Anna traveled to California to visit Calvin,
Georgiann, and Melba. During her visit, the subject of Anna's will
was discussed. Ethel Wolleson, Georgiann's neighbor and good
friend, testified that she had shown Anna a copy of her own will,
which divided her estate equally among her children. According to
Ethel, Anna had immediately exclaimed that she wanted the
same thing. The next morning, Ethel took Anna to see Ethel's
attorney, accompanied by Anna's three children. There, Anna
paid $850 to attorney Charles Blek to draw up a new will and a
trust, which divided her property equally among the four Heibult
siblings and revoked all previous wills. The following morning,
Anna, Ethel and the three siblings returned to Blek's office to
execute the will.
[¶5.] The day after the California will was executed, Anna flew
home to South Dakota. Instead of returning alone as she had
planned, Georgiann and Ethel accompanied her. Immediately
upon arrival, Georgiann and Ethel took Anna to the bank to
ensure that Anna put the new will in her safe deposit box. Next,
Georgiann and Ethel drove Anna to the county courthouse to
convey the deeds to the farm property into the trust drawn up by
Blek. Anna refused, however, to allow Georgiann or Ethel to come
in with her. When she returned to the car, she told Georgiann and
Ethel that she had transferred the deeds and she showed them a
receipt. That evening, the three started a fire in the backyard,
purportedly to “celebrate” by burning the 1990 South Dakota will.
[¶6.] It appears however, that Anna fooled them all. While she
did burn several papers in the fire, none was the 1990 South
Dakota will, as she led Georgiann and Ethel to believe. Instead,
the original 1990 South Dakota will remained, as it always had
been, in Burke's possession. In addition, neither the original nor
any signed copy of the 1991 California will was ever found in
Anna's safe deposit box or elsewhere. The trust was found in the

376
safe deposit box, but no property had been placed in the trust to
fund it. Instead of considering the possibility that Anna herself had
removed and destroyed the 1991 California will, or possibly never
had placed it there to begin with, Ronald's siblings claim Ronald
had ample opportunity to remove and destroy it. Both Calvin, who
moved back to South Dakota in 1993, and Ronald had keys to the
safe deposit box. But the bank's safe deposit admission record for
box 338 shows the only two people to have accessed the box
since 1991 were Anna and Calvin. Finally, when Anna had visited
the courthouse seemingly to transfer the deeds to her farm into
the trust, she had instead paid $5 and received two copies of her
husband's death certificate.
[¶7.] On December 29, 1993, Anna again met with Burke
regarding her estate. Burke testified at trial that Anna had relayed
the events surrounding the execution of the 1991 California will.
According to Burke, Anna told him that she had deliberately
misled Georgiann and Ethel into thinking she was burning the
1990 South Dakota will, when in fact, she had burned the 1991
California will. Then Anna gave Burke the unrecorded deeds and
explained how she had also misled Georgiann and Ethel at the
courthouse. Burke testified Anna had asked what she needed to
do to ensure the 1990 South Dakota will would remain in effect.
Burke advised her that because the 1991 California will had been
burned with intent to revoke it, and the 1990 South Dakota will
was still in his possession, she needed to do nothing further.
[¶8.] Anna died on February 29, 2000. Georgiann, Melba, and
Calvin filed a petition for adjudication of intestacy, determination
of heirs, and appointment of a personal representative. Ronald
resisted the petition for intestacy and filed a petition for formal
probate of the 1990 South Dakota will. None of the parties dispute
that Anna was of sound mind and acted of her own free will
during the times in question. No allegations of undue influence
were made.
... [The court of appeals agreed with the trial court that the
California will had been validly revoked by act.]
[¶19.] 3. Whether there was sufficient evidence to establish
the revival of the 1990 South Dakota will.

377
 [¶20.] There is no dispute that the 1990 South Dakota will was
revoked upon execution of the 1991 California will. See SDCL
29A-2-507(a)(1). Therefore, we must ascertain whether, the 1990
South Dakota will was revived upon revocation of the subsequent
will.
[¶21.] Under common law, the destruction of a will containing a
revocatory clause revived the former will, so long as it was
preserved uncanceled. 79 Am.Jur.2d Wills §689 n. 35 (1975).
South Dakota law, however, provides:
If a subsequent will that wholly revoked a previous will is
thereafter revoked by a revocatory act under §29A-2-
507(a)(2), the previous will is revived only if it is evident
from the circumstances of the revocation of the subsequent
will or from the testator's contemporary or subsequent
statements that the testator intended the previous will to
take effect as executed.
SDCL 29A-2-509(a). As noted above, Ronald's siblings were
unable to successfully rebut the presumption that Anna had
destroyed the 1991 California will with the intent to revoke it.
There is also a presumption in favor of finding testacy over
intestacy. Estate of Martin, 2001 SD 123, ¶19, 635 N.W.2d 473,
476 (citing 79 Am.Jur.2d Wills §745 (1975)). As a result, the
circuit court determined that Anna had intended the 1990 South
Dakota will to be revived.
[¶22.] It is evident from the circumstances surrounding the 1991
California will's revocation, as well as from Anna's subsequent
statements, that she intended the 1990 South Dakota will to take
effect as executed. Anna intentionally misled Georgiann and Ethel
regarding both wills. Whether Anna actually burned the 1991
California will in place of the 1990 South Dakota will, as testified
by Burke, is less significant than Anna's deception regarding the
issue. The 1990 South Dakota will was never burned, the 1991
California will was never found, the deeds were never transferred,
and the trust was never funded. All of this was in direct
contradiction to Anna's representations to Georgiann, Ethel,
Melba, and Calvin.
[¶23.] Ronald's siblings argue that it makes little sense for Anna
to pay $850 for a will she did not intend to keep. Yet, $850 may

378
be a small price to pay for a decade of family accord. Ronald was
a natural object of Anna's bounty, given he was the only child to
remain in South Dakota, actively farm with his father, and care for
his parents. See Rowett v. McFarland, 394 N.W.2d 298, 305
(S.D.1986). In any event, it seems clear that Anna knew exactly
what she was doing; neither party has alleged she was not of
sound mind. See Estate of Klauzer, 2000 SD 7, ¶9, 604 N.W.2d
474, 477 (stating intent of the testator is ultimate factor in settling
will contest). Therefore, given the entirety of the evidence, this
Court is not left with a definite and firm conviction that a mistake
has been committed. We deem the 1990 South Dakota will
revived and affirm the trial court's admission of it to probate.
—————

Notes
1. California's revival approach: California's revival statute,
CPC Section 6123, contains two subsections. Why? What are the
two possible revival scenarios? Do you see how they match up
with the different requirements for revival? How would you re-
write the statute to make it more obvious what is required for
revival as it relates to the two different ways a testator can revoke
Will #2? In which scenario is extrinsic evidence of testator's intent
admissible, and in which scenario is the extrinsic evidence not
admissible?
2. Practitioner's perspective: One of the themes in the course
focuses on the fact that many of the “problem issues” covered in
the material can be avoided with proper drafting or by utilizing a
qualified estate planning attorney. To what extent could proper
drafting or proper estate planning advice make revival a “non-
issue”? When could revival be an issue, notwithstanding a
professionally drafted will?

Problem
The following facts are from Shinn v. Phillips, 220 N.E.2d 674
(Ohio Ct. App. 1964):
The testator, Danna T. Burns, died on September 28,
1962. During his lifetime he executed two wills, one

379
 dated March 15, 1961, to which a codicil was attached
dated October 25, 1961, and a second will dated
February 15, 1962. The later will contained a provision
specifically revoking all prior wills. Upon the testator's
death, his later executed will could not be found, but a
carbon copy of his first will was found, with a typewritten
statement attached ‘The original draft of my last will is in
the hands of Attorney Morris Phillips. I have destroyed
the will recently drawn by Attorney J. Elmer Narnum.’
This paper writing was signed by the testator and dated
but was not witnessed.
If this were a California case, how would it be analyzed?

380
 V. Dependent Relative
Revocation (“DRR”)
Dependent Relative Revocation (DRR) is one of the more
challenging doctrines in the law of wills. It is an equitable doctrine
that is an ancillary component to the world of will revocation. Part
of the difficulty with the doctrine stems from its name: at first
blush, it is not self-defining at all. Conceptually, it might help to
think about the doctrine as “the conditional revocation doctrine.”
There is no doubt that a revocation can be conditional so long as
that intent is express in the instrument (“I give my daughter
Carolyn $10,000, but if she marries Matt, her gift is revoked”). Is it
appropriate for a court to infer that a testator's valid revocation
was conditional?
One way to think about DRR is that it is a judicially created
doctrine where the courts may infer that the testator's revocation
was conditional (even though that condition was not expressed).
Where the testator's revocation appears to be based on an
underlying assumption, and that assumption was incorrect (i.e.,
the assumption was a mistake), the court may decide the
revocation was conditioned upon the assumption and thus should
not be given effect.5 The challenge then becomes identifying
when is it appropriate for a court to infer that a valid revocation
was conditional upon an unexpressed condition, and to articulate
the doctrine for practical application.

Kroll v. Nehmer
705 A.2d 716 (Md. 1997)
WILNER, Judge.
Margaret Binco died on December 19, 1994, leaving four wills
—one dated July 24, 1980, a second dated April 12, 1985, a third
dated June 28, 1990, and a fourth dated October 27, 1994. We
are concerned here only with the second will—the 1985 will.
The 1980 will, it appears, had been altered, and, although it
was at one time offered for probate, no one now contends that it

381
has any validity. When Ms. Binco drew the 1990 will, she wrote on
the back of her 1985 will “VOID-NEW WILL DRAWN UP 6-28-90.”
The 1990 and 1994 wills, all parties agree, are ineffective
because they lack the signatures of attesting witnesses, as
required by Maryland Code, Estates and Trusts Article, §4-102.
Accordingly, if the 1985 will was effectively revoked by Ms. Binco,
she would have died intestate, in which event appellant, her
brother and closest surviving relative, who was not named as a
beneficiary under the 1985, 1990, or 1994 wills, would inherit. The
dispute now before us is therefore between appellant, urging that
the 1985 will had been revoked, and appellee, the person who
offered that will for probate and who was appointed as personal
representative to administer the estate under the will, who
contends that the 1985 will had not been effectively revoked.
Over appellant's objection, the Orphans' Court for Baltimore
County, apparently applying the doctrine of dependent relative
revocation, admitted the 1985 will to probate, notwithstanding its
apparent revocation by Ms. Binco. The Circuit Court for Baltimore
County affirmed that decision. We granted certiorari on our own
initiative before any proceedings in the Court of Special Appeals
to consider whether the lower courts erred in applying the
doctrine and finding the 1985 will to be valid....
Dependent Relative Revocation
Section 4-105 of the Estates and Trusts Article permits a will to
be revoked by “cancelling ... the same, by the testator himself....”
It is clear, and neither party now suggests otherwise, that, by
writing on the 1985 will “VOID-NEW WILL DRAWN UP 6-28-90”
and retaining the will, so marked, among her papers, Ms. Binco
intended to revoke that will and that, unless saved by the doctrine
of dependent relative revocation, that will was effectively revoked.
As we indicated in Arrowsmith v. Mercantile-Safe Deposit, 313
Md. 334, 343, 545 A.2d 674, 679 (1988), no reported Maryland
appellate decision has ever applied that doctrine. The doctrine, in
its most general form, is described in 2 William J. Bowe &
Douglas H. Parker, Page on the Law of Wills §21.57 at 446 (rev.
ed.1960):
“In general the doctrine of dependent relative revocation
applies to invalidate the revocation of a will where it is

382
 shown that the revocation was conditioned on the
occurrence of certain facts which never came to pass or
upon the existence or nonexistence of circumstances which
were either absent or present contrary to the condition.”
As most commentators, including the revisors of Page's opus,
point out, in applying the doctrine, courts often speak in terms of a
conditional revocation, regarding the revocation as conditioned on
the existence of a set of facts or circumstances that the testator
assumes to exist, when, in reality, the revocation is itself
unconditional but is rather based on a mistaken frame of mind—a
mistake of either fact or law. They give as an example of a
mistake of fact the circumstance in which a testator physically
destroys his will believing that the document he is destroying is
not his will but some other instrument. In that circumstance, they
suggest, the necessary intention to revoke the will is clearly
lacking, and a “mistake of this sort prevents revocation, although
all the other elements are present.” Id. at 448. There is no need in
that situation to construe the revocation as a “conditional” one—
the presumed condition being that the document being destroyed
is not the testator's will—for a mistake of that kind suffices on its
own to justify granting relief.
The more troublesome branch of the doctrine is where the
mistake is not in the act of revocation itself but in the inducement
for the act, arising from facts or circumstances extrinsic to the
instrument revoked. This often takes the form of a mistake of law
or of legal consequences. The most common instance of this form
is “where a testator revokes a later will in the belief that he can
thus put a prior will into effect, or where he revokes a prior
instrument thinking that a later instrument has been executed in
due form and that no other facts exist which will prevent such
instrument from operating as a later will.” Id. at 448. See also
Joseph Warren, Dependent Relative Revocation, 33 Harv. L.Rev.
337, 342 (1920).
It is possible, of course, for a testator to make clear that his
revocation of an existing will is conditioned on the legal validity or
effectiveness of some other instrument, but, as the Page authors
note, in most instances the testator has simply assumed that
state of affairs and has articulated no such condition. In such
cases, the revocation is really less of a conditional one than one

383
based on a mistake of law which, if regarded in that manner,
would not normally suffice to avoid an otherwise deliberate act.
Some courts, in an effort to effectuate what they presume would
have been the testator's intent had he known the true
circumstances, have thus constructed the fiction of a conditional,
or dependent relative, revocation, as a more plausible theory
upon which to provide relief. See George E. Palmer, Dependent
Relative Revocation and its Relation to Relief for Mistake, 69
Mich. L.Rev. 989–90 (1970–71):
“The one part of the law of wills in which courts often do
give relief for mistake is in connection with revocation by
holding that an apparent revocation was ineffective
because of mistake in underlying assumptions. Rarely, if
ever, however, does a modern court rest its decision
squarely on its power to relieve for mistake. Instead, the
testator's intent to revoke is regarded as conditioned upon
the truth of the matter in question; since the condition has
not been met the conclusion is reached that there was no
revocation for lack of the requisite intent. This is the
doctrine of dependent relative revocation. It rests upon an
analysis that, with few exceptions, is found nowhere else in
the law relating to mistake in underlying assumptions.”
(Emphasis added.)
... As Page, and increasingly many courts, have warned,
however, the testator's true intentions in a mistake of law-implied
condition context are often ambiguous—harder to discern with
real clarity and authority—and, before applying legal fictions
based on undocumented presumptions to accept as valid a will
that has otherwise been facially revoked in accordance with all
legal prerequisites, courts need to examine the circumstances
with great care and caution. We shall turn now to those
circumstances, as they appear in this case....
Neither the 1990 will nor the 1994 will make any reference to
any earlier will, and, as noted, neither contains the signatures of
any attesting witnesses, although the 1990 will has a place
designated for witnesses.
... The sole question presented to the circuit court was whether
the orphans' court erred in applying the doctrine of dependent

384
relative revocation and admitting the 1985 will to probate,
notwithstanding its apparent revocation. After a brief evidentiary
hearing, the court entered an order affirming the admission of the
1985 will to probate. The basis of its ruling was that “the
revocation of the April 12, 1985 Will was so related to the making
of the June 28, 1990 Will as to be dependent on it. Therefore,
since the June 28, 1990 Will was invalid, the April 12, 1985 Will,
whose contents can be ascertained, should be given effect.”
Application of Dependent Relative Revocation
At issue here is the branch of the dependent relative revocation
doctrine that, in effect, disregards conduct otherwise qualifying as
a revocation of a will when that conduct, in the court's view, was
based on an assumption by the testator that the will being
revoked would be immediately replaced by a valid new will. It is
the “mistake of law” branch of the doctrine. Two overlapping and
confluent assumptions underlie the theory. One was expressed in
a 1929 Annotation, A.G.S., Effect of Testator's Attempted
Physical Alteration of Will After Execution, 62 A.L.R. 1367, 1401
(1929):
“It is based upon the presumption that the testator
performed the act of revocation with a view and for the
purpose of making some other disposition of his property in
place of that which was canceled, and that there is,
therefore, no reason to suppose that he would have made
the change if he had been aware that it would have been
wholly futile, but that his wishes with regard to his property,
as expressed in his original will, would have remained
unchanged, in the absence of any known and sufficient
reason for changing them.”
See also the 1952 update of that Annotation, L.S. Tellier, Effect of
Testator's Attempted Physical Alteration of Will After Execution,
24 A.L.R.2d 514, 554 (1952).
A second, or perhaps simply a different articulation of the
same, theory offered in support of the doctrine comes into play
when, as is often the case, the effect of not disregarding the
revocation is for the decedent's estate, or some part of it, to pass
intestate. See In re Macomber's Will, 274 A.D. 724, 87 N.Y.S.2d
308, 312 (1949): “The rule seeks to avoid intestacy where a will

385
has once been duly executed and the acts of the testator in
relation to its revocation seem conditional or equivocal.” See also
Goriczynski v. Poston, 248 Va. 271, 448 S.E.2d 423, 425 (1994).
The law disfavors intestacies and requires that, whenever
reasonably possible, wills be construed to avoid that result.
Crawford v. Crawford, 266 Md. 711, 719, 296 A.2d 388, 392
(1972). Courts have made it clear, however, that the law's
preference for a testate disposition is always subordinate to the
intention of the testator, whether ascertained or presumed. See
Charleston Library Soc. v. Citizens & Southern Nat. B., 200 S.C.
96, 20 S.E.2d 623, 632 (1942).
Although, as noted, this Court has never applied the doctrine,
we have discussed aspects of it in three cases. In Semmes v.
Semmes, 7 H. & J. 388 (Md.1826), the testator had a will leaving
his entire estate to his wife, in trust for herself and his infant son
until the child reached 21, at which point one-half of the personal
property was to go to her absolutely. When his wife predeceased
him, the testator used a pen to obliterate his signature and those
of the attesting witnesses and to write on the bottom of the will,
“In consequence of the death of my wife, it is become necessary
to make another will.” Id. at 389. Unfortunately, he died before
making another will. The orphans' court refused to probate the
existing will, and this Court affirmed that judgment. Our
predecessors discussed the doctrine of dependent relative
revocation as it had been applied in some English cases, notably
Onions v. Tyrer, 1 P. Williams, 343 (1717), characterizing the
doctrine as based on a mistake principle:
“The cancelling of a will is said to be an equivocal act, and
not to effect a revocation, unless it is done animo
revocandi. And where it is a dependent relative act, done
with reference to another, which is meant and supposed to
be good and effectual, it may be a revocation or not, as to
that to which it relates is efficacious or not. As where a man
having duly executed one will, afterwards causes another
to be prepared, and supposing the second to be duly
executed, under that impression alone cancels the first. In
such case it has been held, that on the second turning out
not to have been duly executed, the cancelling the first,

386
 being done by mistake and misapprehension, would not
operate as a revocation.”
7 H. & J. at 390–91.
Having so characterized the doctrine, the Court made clear that
the doctrine would never apply “where a man has deliberately and
intentionally cancelled his will, as in this case, in the entire
absence of all accident or mistake, notwithstanding he may, at the
time, have intended to make another will.” Id. at 391. We
accepted, from the evidence, that the testator did not intend to die
intestate but held that “however that may be, we cannot make a
will for him.” Id. On its facts, Semmes was similar to the situation
in In re Emernecker's Estate, supra, 218 Pa. 369, 67 A. 701,
where the revocation also was not actually accompanied by the
preparation of a new, albeit ineffective will....
This case presents for the first time a situation in which the
doctrine might be applied and in which other courts have applied
it. It is not a situation, however, in which we believe it appropriate
to apply the doctrine.
It is important to keep in mind that, in the context now before
us, the doctrine rests on a fiction that is, in turn, supported only by
an assumption as to what Ms. Binco would have done had she
known that her 1990 will was invalid. As Professor Warren
observed in his law review article, “[t]he inquiry should always be:
What would the testator have desired had he been informed of
the true situation?” Joseph Warren, Dependent Relative
Revocation, supra, 33 Harv. L.Rev. at 345. The most rational and
obvious answer to that question, of course, is that the testator
would have desired to make the new instrument effective, and, if
presumed intent were to control, the court would simply overlook
the statutory deficiency and probate the new will, rather than
overlook the legal effect of an otherwise deliberate revocation and
probate the old one. That is an option the law does not permit,
however. We thus must look for secondary, fictional intentions
never actually possessed by Ms. Binco. The real question is what
Ms. Binco would have wanted to do if she had been told that she
was unable to make a new will: would she have preferred her
estate to pass under the existing (1985) will to persons she had

387
decided to remove as beneficiaries, or would she have preferred
that her estate pass intestate to her brother?
In attempting to arrive at a reasonable answer to that kind of
question, courts have considered all of the relevant
circumstances surrounding the revocation—the manner in which
the existing will was revoked, whether a new will was actually
made and, if so, how contemporaneous the revocation and the
making of the new will were, parol evidence regarding the
testator's intentions, and the differences and similarities between
the old and new wills. The courts recognize that the question is
always one of presumed intent. In many cases, because the other
evidence is either inconclusive or nonexistent, the principal focus
is on the differences and similarities between the two instruments.
In that regard, the courts have generally refused to apply the
doctrine unless the two instruments reflect a common dispositive
scheme. (Citations omitted.)
Conversely, courts that have applied the doctrine have looked
to the similarity of the new and old dispositive schemes as a basis
for concluding that the testator indeed intended the revocation to
be conditional and that he would have preferred to have his
estate pass under the old will rather than through an intestacy.
(Citations omitted.)
In the case before us, Ms. Binco indicated a clear intent to
revoke her 1985 will by writing VOID on the back of it. Unlike the
situation in Safe Dep. & Trust Co., supra, 117 Md. 154, 83 A. 45,
there is nothing ambiguous about her intent to revoke that will.
Also unlike that case and Semmes, however, she did
contemporaneously handwrite a new will, thereby indicating with
some clarity that her act of revocation was based on her mistaken
belief that the new will was valid and would replace the old one.
The confluent inference, that she intended to revoke the 1985 will
based on her belief that it would be superseded by the 1990 will,
does not alone justify application of the doctrine of dependent
relative revocation. We must still search for that fictional
presumed intent of what she would have done had she been
informed that she could not make a new will. There was some
evidence that Ms. Binco did not have a good relationship with her
brother and would not have desired that he take any part of her

388
estate. That evidence was contradicted, however, by testimony
that appellant and his sister did have a cordial relationship.
We turn, then, to a comparison of the 1985 and 1990 wills and,
as noted, we find two very different dispositive schemes. Apart
from the fact that the 1990 will did not contain a residuary clause
and may not have effected an entirely testate disposition, the fact
is that, with the possible exception of the First Church of God,
whose status under the 1990 will is, at best, unclear, none of the
beneficiaries under the 1985 will were named in the 1990 will.
The 1990 will replaced them all, indicating that Ms. Binco did not
wish any of them (again with the possible exception of the First
Church of God) to be benefitted. The effect of applying the
doctrine and disregarding her revocation, however, is precisely to
do what she clearly did not want done—to leave her estate to
people she had intended to disinherit. We cannot fairly presume
such an intent on her part; nor should the lower courts have done
so.
We need not decide in this case whether the doctrine of
dependent relative revocation, as articulated above, is part of
Maryland law and, if it is, the circumstances under which it may
properly be applied. It cannot be applied under the circumstances
of this case.
—————

Notes
1. DRR—conceptually and doctrinally: As difficult as the court's
opinion may appear to one reading about DRR for the first time,
the court actually does an excellent job of explaining: (1) the
conceptual logic behind the doctrine, and (2) the doctrinal
challenges inherent in articulating a workable formulation of the
doctrine.
First, DRR is not at issue unless there is a valid revocation. If
an attempted revocation is not valid, a party need not invoke DRR
to ask the court to ignore the revocation; an invalid revocation is
no revocation. Thus, the first requirement for DRR is a valid
revocation. Look back at the court's opinion in Kroll. The first
paragraph under the DRR heading establishes that the testatrix
validly revoked her 1985 will.

389
 Second, the revocation must have been based upon a mistake
(a mistake of either fact or law). The court does an excellent job
of noting that while many authorities and courts talk in terms of an
incorrect assumption, the general rule is that the flawed
assumption must rise to the level of a mistake at the time of the
revocation. The court makes that point not only in its generic
discussion of DRR (in the remaining paragraphs under the DRR
heading in the court's opinion), but also in its discussion of the
Semmes case. In Semmes, the testator revoked his will, intending
to execute a new will. He assumed he would get around to
executing a new will before he died. But as the court pointed out,
“[u]nfortunately, he died before making another will.” The court
correctly noted that this would not be an appropriate scenario for
DRR. There was no mistake at the time of revocation that caused,
or at least contributed to, the testator's decision to revoke the will.
Things did not turn out as the testator assumed (i.e., he did not
execute a new will before he died), but that was an assumption
that did not turn out as he thought it would. It technically was not
a mistake of law or fact at the time he revoked the will.
In Kroll, the court found that there was sufficient connection
between the revocation of the 1985 will and the attempted
execution of the 1990 will to rise to the level of a mistake at the
time of revocation: “Unlike ... Semmes, however, she [the
testatrix] did contemporaneously handwrite a new will, thereby
indicating with some clarity that her act of revocation was based
on her mistaken belief that the new will was valid and would
replace the old one.” This conclusion is also supported by the
note handwritten by the testatrix on the back of the 1985 will:
“VOID-NEW WILL DRAWN UP 6-28-90”. Testatrix apparently
believed the 1990 document was a “new will” when in reality it
was not a valid new will. The testatrix revoked her 1985 will
because of a mistake of law.
Third, the court does an excellent job of pointing out that even
assuming, arguendo, that the testator revoked his or her will
based upon a mistake, the doctrine should not apply unless it can
be established that the testator's probable intent would be to have
the revocation ignored:
We thus must look for secondary, fictional intentions never
actually possessed by Ms. Binco. The real question is what

390
 Ms. Binco would have wanted to do if she had been told
that she was unable to make a new will: would she have
preferred her estate to pass under the existing (1985) will
to persons she had decided to remove as beneficiaries, or
would she have preferred that her estate pass intestate to
her brother?”
The court acknowledges this can be a rather open-ended inquiry
into the decedent's probable intent: “In attempting to arrive at a
reasonable answer to that kind of question, courts have
considered all of the relevant circumstances surrounding the
revocation ....”
Courts, however, are rather uncomfortable with such an open-
ended inquiry. Whenever possible they appear to favor a
“spectrum” type of an analysis. As the court noted, it has only two
options: the court can either: (1) apply DRR and ignore the
revocation (i.e., give effect to the revoked instrument/gift), or (2)
decline to apply DRR and give effect to the revocation. Those are
the two ends of the spectrum. The testator's failed testamentary
scheme is his or her true intent, but the court cannot give effect to
that because the testator failed to execute it properly. To the
extent, however, that that appears to be the testator's true intent,
invariably the courts ask where on the spectrum between the
court's only two options does the testator's true intent fall? If the
failed true intent is more like the revoked instrument/gift end of
the spectrum, the court should apply DRR and ignore the
revocation. If, however, the testator's true intent is more like the
outcome if the revocation is given effect, the court should decline
to apply DRR. (Note that the burden of proof is on the party
invoking DRR, so if the court cannot discern which outcome the
decedent would have preferred, the court should decline to apply
DRR).
Note that in Kroll the court de facto applied the spectrum
analysis. The court compared her true intent at the time of
revocation (the provisions of the 1990 will) to the provisions of the
1985 will and found them to be nothing alike (which de facto gives
rise to the presumption that the testator would not want DRR to
apply):

391
 We turn, then, to a comparison of the 1985 and 1990
wills and, as noted, we find two very different dispositive
schemes. Apart from the fact that the 1990 will did not
contain a residuary clause and may not have effected an
entirely testate disposition, the fact is that, with the
possible exception of the First Church of God, whose
status under the 1990 will is, at best, unclear, none of the
beneficiaries under the 1985 will were named in the 1990
will. The 1990 will replaced them all, indicating that Ms.
Binco did not wish any of them (again with the possible
exception of the First Church of God) to be benefitted.
The effect of applying the doctrine and disregarding her
revocation, however, is precisely to do what she clearly
did not want done—to leave her estate to people she had
intended to disinherit. We cannot fairly presume such an
intent on her part; nor should the lower courts have done
so.
Applying the spectrum analysis, the court concluded that it was
more probable that if the testatrix knew she had only two options,
the 1985 will or intestacy, she probably would have preferred
intestacy.
2. The revival overlap: At this point, DRR may not look so
complicated. All it appears to require is a valid revocation, based
upon a mistake, and the testator would not have revoked but for
the mistake. That statement of the doctrine, however, overlooks a
latent limitation inherent in the doctrine. If that were all that was
required, what would stop someone from coming in to court
anytime there is a revocation (in whole or in part) and arguing
DRR in an attempt to get a share of the estate? To rein in the
doctrine, the courts have incorporated some of the evidentiary
restrictions inherent in the revival doctrine into the DRR doctrine.
The modern trend approach to revival focuses on the testator's
intent. Assume Will #1 and Will #2, and then the testator revokes
Will #2. Will #1 is revived if the testator intends to revive Will #1.
The testator need not re-execute the will (Will #1) to revive it. The
key then, whenever the testator revokes Will #2, is whether the
testator intended to revive Will #1. The testator's intent controls.
From an evidentiary perspective, the question then becomes:
what evidence of the testator's intent to revive will the courts

392
accept? Note that the revival statute very carefully addresses that
issue. What evidence is admissible depends on how Will #2 was
revoked. If Will #2 is revoked by writing (Will #3), the intent to
revive must be set forth in Will #3. If, however, Will #2 is revoked
by act, the statute permits extrinsic evidence as to the testator's
intent.
Just as the revival statute restricts the evidence that is
admissible to show testator's intent, the courts have developed
similar (but not identical) restrictions on the evidence that is
admissible with respect to the mistake requirement in DRR. The
material above established the traditional articulation of DRR:
DRR applies anytime there is a valid revocation, based upon a
mistake, and the testator would not have revoked but for the
mistake. The key to DRR is the testator's conditional intent, which
is inferred from the testator's mistake. The issue then becomes:
what evidence of the mistake (the basis for inferring the testator's
conditional intent) will the courts accept? Like revival, the answer
depends on how the revocation in question was achieved (the
revocation the court is being asked to ignore). If the revocation
was in writing (i.e., Will #2), the mistake must be set forth or
reflected in the writing (Will #2). If, however, the revocation was
by act, the courts invariably require evidence of a failed attempt at
a new testamentary disposition—typically a new will, though it
need not be, as it just needs to be a failed attempt at a new
testamentary disposition that involves a writing (thus making it
difficult to fabricate such evidence).6 This evidentiary restriction is
implicit in the court's discussion of DRR in Kroll though it is not
stated as expressly as are the doctrine's other requirements:
The most common instance of this form [of DRR—DRR
where the revocation is by act] is “where a testator revokes
a later will in the belief that he can thus put a prior will into
effect, or where he revokes a prior instrument thinking that
a later instrument has been executed in due form and that
no other facts exist which will prevent such instrument from
operating as a later will.” (Quoting from Joseph Warren,
Dependent Relative Revocation, 33 HARV. L. REV. 337, 342
(1920), one of the leading law review articles on the
doctrine).

393
In discussing DRR by act, the court (and the article) implicitly set
forth the need for a failed attempt at a new testamentary
disposition. In the first scenario discussed, the failed attempt at a
new testamentary disposition is a failed attempt at reviving a prior
will—an evidentiary restriction that helps rein in the scope of the
doctrine. In the second scenario discussed in the quoted material,
the failed attempt at a new testamentary disposition is a failed
attempt at executing a new will.
The court implicitly applies and uses the evidentiary restriction
in its application of DRR to the Kroll case. How did the testatrix
revoke the 1985 will in Kroll? She revoked it by act. The court
carefully pointed out that “by writing on the 1985 will” (emphasis
added) she revoked the 1985 will (the writing on the will was not
signed, thus providing additional support for the conclusion that it
constituted revocation by act—the act of canceling the will).
Inasmuch as the revocation in question was by act, the party
invoking DRR must prove the mistake (the basis for the
revocation) by proving a failed attempt at a new testamentary
disposition. In Kroll, the failed attempt at a new testamentary
disposition is the failed 1990 will. The mistake is a mistake of law
(the testatrix believed the 1990 will was valid when it was not).
The key, however, is the latent evidentiary restriction that courts
invariably apply to DRR. Where the revocation is by act, the party
invoking DRR is limited in the evidence the party can offer to
prove the mistake. Admissible evidence is limited to showing a
failed attempt at a new testamentary disposition. Where the
revocation is in writing (Will #2), the mistake must be set forth in
or reflected in the writing (Will #2).

Problems
1. Testator's validly executed will (Will #1) leaves all of his
property to his friend, Fred, and lists Elise as the executor.
Testator decides to make a new Will #2, which retains Fred as
the sole beneficiary but replaces Elise with Edward as executor.
Testator validly revokes Will #1 by physical act (e.g., he crosses
out the face of each page and writes “revoked” across the face
of each page). Assume, however, that Will #2 was not validly
executed (e.g., it was not properly signed).

394
 Testator dies and his relatives assert that they are entitled to
all of Testator's property via intestate succession, claiming that
Testator died without a valid will. Can Fred successfully invoke
DRR, and if so, how much would he get?
2. Assume Testatrix has a valid typed will that provides, in
pertinent part, as follows: “I give $10,000 to my daughter
Carolyn.” Thereafter Testatrix decides she wants to increase
the gift to Carolyn to $15,000. Testatrix takes out the will, draws
a line through the “$10,000” amount typed in the will and
handwrites “$15,000” above it. The Testatrix then puts the will
back in her desk. No one knows what she has done until it is
found after her death. How much, if anything, does Carolyn
get?
Originally Carolyn was to receive $10,000. When Testatrix
drew a line through that gift, however, that act constituted a
valid revocation by act. At that point Carolyn would receive
nothing. Then Testatrix handwrote $15,000 on the will. The
question is whether that is a valid codicil to her typed will. It
does not qualify as an attested will because there are no
witnesses and it is not signed. It does not qualify as a
holographic will because not all of the material provisions are
in her handwriting and it is not signed. It does not qualify as a
will under the harmless error doctrine because it is not signed.
Accordingly, at this point Carolyn would receive nothing.
Can Carolyn successfully invoke DRR? If so, how much would
she get?
3. Assume the same scenario as in Problem 2, only this time
assume Testatrix handwrites in $1,000. Inasmuch as the
handwritten interlineation is not a valid codicil, can Carolyn
successfully invoke DRR? If so, how much would she get?
4. In 1955, Testatrix executed a valid will in Milwaukee (none of
her heirs are named as beneficiaries). In 1959, Testatrix
executed a valid will in Kankakee (only one heir is named as a
beneficiary). The bulk of her estate under both wills was
devised to three of her close friends (the same friends under
both wills). Testatrix subsequently destroyed the Kankakee will
(but her attorney had a photocopy of it) with the intent to revoke
it. She told several witnesses that she wanted the Milwaukee
will to stand. Thereafter Testatrix died.

395
 If the controlling law requires a revoked will to be re-executed
to be revived, did testatrix validly revive Will #1 (the Milwaukee
will)? If not, can the beneficiaries under either will (or both
wills) invoke DRR? What would be your analysis if the
beneficiaries asked the court to apply DRR? See In re Estate
of Alburn, 118 N.W.2d 919 (Wis. 1963).
5. Assume Testator has a validly executed will that bequeaths
$5,000 to his good friend Paul. Thereafter Paul goes to Africa
to work with an NGO (a non-governmental organization doing
good in Africa). Thereafter Testator receives word that the
village Paul was working in was attacked, and everyone was
killed. Testator validly executes a codicil that provides, in
pertinent part, as follows: “I hereby revoke my gift to Paul
because he is dead.” Testator dies in a car crash later that day,
and a week later Paul turns up alive in another remote village in
Africa. Is Paul entitled to take from Testator's estate?
6. Assume the same scenario as in Problem 5, only this time the
codicil says: “I hereby revoke the gift to Paul.” Testator told
several witnesses that the reason he revoked the gift was
because he had heard Paul was dead. What is the most likely
result?
7. Assume the same scenario as above in Problem 5, only this
time the codicil changes Paul's gift from an outright gift to a gift
in trust (and it is a significantly larger gift). Unbeknownst to
Testator the new gift to Paul violates the Rule Against
Perpetuities and thus is void. The problem is not discovered
until after Testator's death. To what, if anything, is Paul entitled?
8. Testator, a resident of New York, validly executed Will #1,
which contained a gift to a Loyola High School (a private, Jesuit
high school). Later, Testator moves to California and validly
executes an identical Will #2 (expressly revoking Will #1), and
dies within days of making Will #2. Under an old law (no longer
valid in most jurisdictions) gifts to charities made by a will within
a certain period after a testator's death were null and void. If
the law still applied in the jurisdiction, Will #2 in effect would
contain no gift to Loyola. If Loyola invokes DRR, what would be
your analysis?
9. X had a will devising all of her property to her brother, B.
Subsequently, X's mental state deteriorated and a conservator,

396
 C, was appointed for X. Thereafter C mistakenly told X that B
had died in a car crash, and X executed a new will that
expressly provided: “I hereby revoke my prior will and devise all
of my property to Santa Clara Law School.” Absent additional
evidence, upon X's death, what is the most likely result under
the California Probate Code, and why?
10. In 1968, testatrix executed and brought home with her a will
leaving the bulk of her estate to her son, Donald (to the
exclusion of her other son, Robert). In 1970, testatrix executed
and brought home with her a new will that expressly revoked
the 1968 will and left her estate “to Donald and Robert, share
and share alike.” At her death, the 1970 will could not be found.
How should testatrix's property be distributed, and why?

1. This method of revoking a will is similar to and based upon the English
Wills Act of 1837.
2. The very simple California Statutory Will (the pre-printed, “fill in the blank”
will that is found in CPC §6240) has, as the first enumerated item, the
following: “1. Will. This is my Will. I revoke all prior Wills and codicils.” This is a
classic example of a valid express revocation of all prior wills and codicils, and
it is boilerplate language that is included in most well-drafted wills.
3. The term “carbon copy,” as used here, is an “old school” concept of a
second, under-copy duplicate with the use of carbon paper between the
original typed sheet and a second “copy” sheet. The pressure of typewritten
letters make an impression, via the carbon paper, on the under-copy sheet.
True carbon copies usually predate the wide-scale use of photocopiers.
4. The termination of a California domestic partnership is, for all intents and
purposes, the same process as that for a dissolution of a marriage (a divorce).
An adjudicated matter, the termination of a California domestic partnership
effectuates the proper classification and distribution of “marital” property (e.g.,
community property, separate property, etc.).
5. Is the court “ignoring the revocation” or “reviving the revoked material” on
the testator's presumed intent? While DRR technically is not a subset of revival
because DRR can apply even in the absence of a second will, there is no doubt
that conceptually some of the revival doctrine has made its way into the DRR
jurisprudence.
6. In Kroll, the failed attempt at a new testamentary disposition was the June
28, 1990 Will.

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Chapter 8

398
Components of a Will

399
 I. Introduction
As circular as it may sound initially, a will can consist of more
than just the will. A will can have several components. This
chapter explores the doctrines that permit the probate court to
expand on the scope of a will—to give effect to the testator's
intent even when that intent is expressed outside of what the
layperson would consider the pages of the testator's will.

400
 II. Integration
Whenever the law discusses a document that can have multiple
pages, at some point the law must define what constitutes the
pages of that document. Most law students encounter this issue
during the first year of law school when examining the issue of
what constitutes a valid contract under the Statute of Frauds. No
doubt included in that material was a discussion of what is
required for various separate “papers” or “writings” to be
considered an integrated written contract. A similar issue can
arise with respect to a will: what constitutes the pages of a
testator's will? The doctrine of integration addresses that
question.

A. Attested Will
In the typical attested will execution scenario, the doctrine of
integration is as logical and straightforward as one might expect.
The pieces of paper that are physically present at the time of
execution and that the testator intends to be part of the will
constitute the pages of the will. Rarely is integration an issue for
attested wills because of the role of the drafting and supervising
attorney. Virtually all attested wills are drafted by an attorney, and
the will execution ceremony is invariably supervised by the
attorney. All of the pages of the will are successively numbered, in
the same type font, and securely fastened together. Such
preparation should leave no doubt that the multiple pieces of
paper physically present and fastened together when the
execution ceremony begins are intended by the testator to
constitute the pages of his or her will. That is why in real life there
are very few attested will cases where integration is an issue.
There are none to date in California. Holographic wills, however,
are another story.

B. Holographic Will
The threshold question for integration as applied to holographic
wills is whether the courts should modify the doctrine in light of

401
the fact that holographic wills are homemade wills by laypeople.
In the case of In re Estate of McCarty, 211 Cal. App. 2d 23, 27–28
(Ct. App. 1962), the court had the following to say about the
doctrine of integration as it applies to holographic instruments:
‘In the law of wills, integration ... occurs when there is
no reference to a distinctly extraneous document, but it is
clear that two or more separate writings are intended by
the testator to be his will.’ (Estate of Wunderle, supra, 30
Cal.2d at p. 281, 181 P.2d at p. 878.) Thus several
writings which are connected by sequence of thought
(Estate of Swendsen (1941) 43 Cal.App.2d 551, 111 P.2d
408), folded together (Estate of Merryfield (1914) 167
Cal. 729, 141 P. 259), or physically forming one
document (Estate of Clisby (1904) 145 Cal. 407, 78 P.
964), have been admitted to probate as constituting a
holographic will. It is also clear that a holographic will
need not be signed at the end (Estate of Morgan (1927)
200 Cal. 400, 253 P. 702), and that the testator may
make alterations to a holographic will on a date
subsequent to the date on which it was signed. (Estate of
Finkler (1935) 3 Cal.2d 584, 599–602, 46 P.2d 149.)
Such alterations, when made in the testator's
handwriting, operate to adopt the old date and
signatures. (See Estate of Dumas (1949) 34 Cal.2d 406,
410–411, 210 P.2d 697, and authorities therein cited.) ‘If
the papers are all holographic and there is a dating and
signing somewhere among them, it is immaterial when or
where the dating or signing was done so long as it may
be reasonably inferred that the testator meant all the
papers together to constitute his will and that the
signature was written with the intent that it should there
serve as a token of execution.’ (Estate of Moody, supra,
118 Cal.App.2d at p. 308, 257 P.2d at p. 713.)

Notes
1. Integration—holographic versus attested will: Is the law of
integration the same for holographic wills as it is for attested
wills? How would you articulate the doctrine of integration as it
applies to holographic writings?

402
 2. Holographic codicils to holographic wills: The general rule is
that a codicil must be executed with the same Wills Act formalities
as are required for a valid will. This applies to attested codicils to
attested wills, and to holographic codicils to attested wills, but in
light of the court's statement above, does it apply to holographic
codicils to holographic wills? What is the rule for holographic
codicils to holographic wills?

Problem
Following Frank Blain's death, seven separate sheets of paper,
each wholly in his handwriting and signed by him, were found in
his safe deposit box, folded together and enclosed in a sealed
envelope, on which was written in the decedent's handwriting
“Last Will F. B.” Three of the sheets of paper were dated June 1,
1949, and the other four were dated April 9, 1952. Six of the
sheets of paper dealt with separate devises or bequests to
separate beneficiaries, and the seventh authorized the sale of a
parcel of real property to cover the inheritance taxes and probate
expenses. In addition, the same safe deposit box contained a
small piece of paper with five words written in the decedent's
handwriting “to Sonia Lambert Frank Blain.” Sonia is Frank's
granddaughter. The small piece of paper was wrapped around a
small ring box that contained a dinner ring worth $120. Should the
seven sheets of paper be considered seven distinct wills or,
rather, one will under integration? Can the small piece of paper be
integrated with the other sheets of paper? See In re Blain's
Estate, 140 Cal. App. 2d 917 (1956).

403
 III. Republication by
Codicil
The basics of a codicil were covered in the last chapter. A
codicil is a will that amends or revises an existing will. Because a
codicil “amends or revises an existing will,” it obviously can have
the effect of expanding the scope of the will by permitting the
court to give effect to the testator's intent expressed not only in
the will but also in the codicil. But to the extent the two documents
are wills, one can argue that a codicil does not really expand the
scope of the will—it just becomes a component of the will.
However it is viewed, a codicil obviously affects the scope of a
will.
A codicil is an interesting legal instrument because it has a
unique relationship with the underlying will—a relationship that is
difficult to articulate. Not only does a codicil revise and/or amend
a will, the general rule is that a codicil republishes the will.
Republishing the will means, as a general rule, that a codicil re-
executes and re-dates the will to the date of the codicil. Both of
these ancillary codicil rules are simple to state in isolation, but
that simplicity can be misleading because these ancillary rules
can overlap, and interact with, a plethora of other rules, thereby
giving rise to a whole host of interesting crossover issues.
For example, re-executing the will can clean up possible
execution issues involving the original will execution ceremony.
Assume a beneficiary under the testator's original will is one of
the two attesting witnesses to the will execution ceremony (which
would give rise to the interested witness doctrine), but that
interested witness is not a witness to the codicil. Most courts hold
that the codicil would cure the potential interested witness
scenario (assuming there is no interested witness involved in the
codicil execution ceremony) because the codicil republishes (re-
executes) the underlying will.
In addition, re-dating the will can interact with other date-
sensitive doctrines, thereby creating another set of interesting
overlap issues. For example, historically, if a person executed a

404
will while single and thereafter married, the marriage
automatically voided the will.1 The logic behind the doctrine was
to make sure the new spouse was not accidentally omitted.
Voiding the will would force the testator's property through
intestacy where the new spouse would receive a share. But what
if, after his or her marriage, the testator executed a codicil that
changed only the executor of his or her estate? Should the codicil
be deemed to re-date the will to after the date of the wedding,
thereby knocking out the protection for the new spouse under the
omitted spouse doctrine?
There are too many potential overlaps between the
republication by codicil doctrine and other doctrines to examine
them all, but it is helpful to get a sense of how the courts deal with
the overlaps.

In re McCauley's Estate
71 P. 512 (Cal. 1903)
CHIPMAN, C.
Jennie C. McCauley duly executed a will on February 12, 1900,
in which she, among others, made several bequests to charitable
institutions. On March 16, 1900, she duly executed a codicil to
this will. She died April 14, 1900, 28 days after the execution of
the codicil. The state, by the attorney general, filed objections and
contest to the petition for final distribution, so far as concerned the
charitable bequests, and prayed that they be adjudged void, and
that they be distributed to the state for the support of the common
schools. The trial court adjudged the said bequests to be valid,
and decreed distribution accordingly. The state appeals from the
decree.
The codicil did not attempt to change any of the charitable
bequests, or any of the general provisions of the will, but related
solely to specific bequests and devises to certain individual
legatees. It stated that ‘the foregoing codicil * * * was, at the date
hereof, * * * signed, sealed, and published as, and declared to be,
together with the will set forth on the preceding pages, to be her
last will and testament,’ etc. Section 1313, Civ. Code, provides as
follows: ‘No estate, real or personal, shall be bequeathed or
devised to any charitable or benevolent society or corporation, or

405
to any person or persons in trust for charitable uses, except the
same be done by will duly executed at least thirty days before the
decease of the testator.’2 Section 1287 of the same Code reads
as follows: ‘The execution of a codicil, referring to a previous will,
has the effect to republish the will, as modified by the codicil.’ The
testatrix left ‘no relatives or next of kin,’ as she declared in her
will, and, as seems to be conceded by respondents, the bequests
in question will escheat if, as to such bequests, the will is invalid.
Appellant's contention is ‘that the effect of the republication of
the will by the codicil of March 16, 1900, and the testatrix dying in
less than 30 days thereafter, is to invalidate all the bequests to
charity contained in the will.’ Appellant cites numerous cases to
the effect that the codicil brings the will to it, and makes it the will
from the date of the codicil. Some of the cases speak of the
codicil as a republication of the whole will at the date of the
codicil. Still others hold that the codicil operates as a republication
of the will, the effect of which is to bring down the will to the date
of the codicil, so that both instruments are to be considered as
speaking at the same date, and taking effect at the same time.
Payne v. Payne, 18 Cal. 292, at page 302, and In re Ladd, 94 Cal.
670, 30 Pac. 99, are cited as in line with the authorities elsewhere
holding as above stated. In the Ladd Case it was said that ‘the
execution of the codicil had the effect ‘to republish the will as
modified by the codicil’ (Civ. Code, §1287) as of the date of the
codicil (Payne v. Payne, 18 Cal. 302).’ Again: ‘The effect of its
execution was to republish the entire will, and not merely the
clause so modified, “as if the testator had inserted in the codicil all
the words of the will.’’ Doe v. Walker, 12 Mees. & W. 597. In
giving construction to the will it was said that ‘the whole of the
original will and the codicil are to be construed as a single
instrument executed at the date of the codicil, and of which all the
parts are to be construed, “so as, if possible, to form one
consistent whole.” Civ. Code, §1321. But it was also said: ‘A
codicil is never construed to disturb the dispositions of the will
further than is absolutely necessary for the purpose of giving
effect to the codicil. 1 Jarman on Wills, 176. ‘The dispositions
made by a will are not to be disturbed by a codicil further than is
absolutely necessary in order to give it effect, and a clear
disposition made by the will is not revoked by a doubtful

406
expression or inconsistent disposition in a codicil.’ Kane v. Astor's
Exors., 5 Sandf. 533. “The different parts of a will, or of a will and
codicil, shall be reconciled if possible; and, where a bequest has
once been made, it shall not be revoked, unless no other
construction can fairly be put upon the language used by the
testator Colt v. Colt, 32 Conn. 446. See, also, Wetmore v. Parker,
52 N. Y. 462; Johns Hopkins University v. Pinckney, 55 Md. 365.”
No one for a moment can suppose that the codicil in the present
will was intended to disturb the bequests made in the original will
in aid of the charities named. These bequests were not only left
untouched by the codicil, but the testatrix declared that ‘the
foregoing codicil * * * was * * * published as, and declared to be,
together with the will set forth on the preceding pages, to be her
last will.’ That the testatrix intended her bequests first made in the
will to stand unaffected by the codicil can admit of no doubt, and
yet we are asked to give such construction to section 1287 as
shall destroy a large number of her bequests, and practically
nullify the testatrix's clearly expressed intention with respect to
them. We have seen that no such construction can be given to
the codicil itself. Can we—or, rather, are we compelled to—so
construe the statute as to destroy these bequests, and thus
thwart the design of the testator? ... In construing section 1287,
we must keep in view the various sections relation to the subject
of wills, and must so construe that section as to preserve the
letter and spirit of all the provisions of the statute so far as
possible. The section should have such construction, if it is
possible in reason to do so, as will carry out the known intention
of the testator. Section 1313 invalidates the charitable bequest
unless the will is ‘duly executed at least thirty days before the
decease of the testator.’ When the will is once ‘duly executed,’ it
remains the will of the testator until revoked. This may be done as
prescribed in section 1292. A codicil does not disturb the will
except so far as it is inconsistent with it, or in terms or by
necessary intendament (sic) revokes it. As was said in the Ladd
Case: ‘Where a bequest has once been made, it shall not be
revoked unless no other construction can fairly be put upon the
language used by the testator.’ For some purposes, no doubt, the
will speaks from the date of the codicil, but this is true only so far
as the codicil requires that it should so speak. It is entirely
consistent with the statute and the codicil now before us that the

407
contested bequests should stand as made of the date of the will.
The testatrix declared the will as first executed to be her will,
except as to the changes made in the codicil, and the statute
(section 1287) says that the effect of the codicil is ‘to republish the
will, as modified by the codicil,’ and not otherwise. To construe the
statute, as is contended for by appellant, is to leave a large part of
the estate undisposed of, as well as to defeat the object of the
testatrix. We do not think it should be given any such
construction.
—————

Notes
1. Republication by codicil and testator's intent: As the court's
analysis in McCauley demonstrates, there is often tension when
the republication by codicil overlap creates an outcome that
appears to be inconsistent with the testator's intent. A competing
consideration—that the court did not pay much attention to in the
McCauley case—is the public policy behind the overlapping
doctrine. The principal public policy consideration behind most
mortmain statutes was to discourage hasty decisions by testators
who assumed they were about to die and who arguably were
trying to “buy their way into the afterlife” at the exclusion of
persons who would ordinarily be the objects of their bounty.
Assuming, arguendo, those were the public policy considerations
behind the mortmain provisions in McCauley, the court's decision
not to apply republication by codicil to void the gifts in question
appears even more defensible. The original gifts were executed
well outside the restricted timeframe.
2. Republication by codicil—rule of law or rule of construction?
As a general rule, where the overlap appears to facilitate giving
effect to the testator's apparent intent, the courts liberally recite
and apply the overlapping rules to avoid or cure any potential
problem. Where, however, the overlap appears to impede or
conflict with the testator's apparent intent, many courts state that
the republication by codicil rule is a rule of construction and not a
rule of law per se, thereby permitting the court to decline to apply
the doctrine if it concludes that application would be inconsistent
with testator's overall intent.

408
 3. Express republication clause: The republication by codicil
doctrine applies regardless of whether there is an express
republication clause in the codicil or not. Where the republication
conflicts with the testator's intent, the McCauley case shows that
the courts are, in fact, open to not applying the republication by
codicil doctrine. What if the codicil expressly states that it
republishes and redates the underlying will? Should that affect the
court's analysis of whether it can/should decline to republish and
redate the will?
4. Analytical approach: Because it is impossible to examine all
the possible overlaps between republication by codicil and other
will-related doctrines, it is more important that you are sensitive to
the possible tension in the overlapping scenarios and that you
know the different arguments the affected parties would make.
Lead with the general rule that the codicil republishes the
underlying will, but be open to exceptions where republication
appears inconsistent with the testator's overall intent.

Problems
1. In most states, under the pretermitted child doctrine (also
known as the omitted child doctrine in some states), a child
who is born to the testator after execution of the will is entitled
to a share of the testator's estate—on the assumption that the
testator intended to provide for the child but forgot to modify his
or her will. The details of the doctrine vary from state to state,
and this book covers the doctrine in detail in Chapter 10. Based
upon that fairly simple statement of the doctrine, should the
child in the following fact pattern be entitled to invoke the
doctrine?
Testator executed a valid will that created a testamentary trust
for his spouse for life, remainder to his then-living children.
Thereafter testator had another child, Patricia. Thereafter
testator contacted his attorney and asked her to prepare a new
will that would include Patricia. After reviewing the proposed
new will, testator and his attorney had a disagreement about
the worth of testator's assets and how that affected the
provisions of the proposed new will. The attorney advised
testator to execute a codicil to the old will to address a concern
with the marital trust for his spouse and to revisit the issue of

409
 providing for Patricia after they resolved the asset issue.
Testator executed the codicil to the old will. The codicil
expressly republished the underlying will. Tragically, testator
died four months later from a heart attack at the age of 38.
Can Patricia successfully invoke the pretermitted child
doctrine? See Azcunce v. Estate of Azcunce, 586 So. 2d 1216
(Fla. Dist. Ct. Ap. 1991).
2. Testatrix executed a will and two codicils. Michael O'Connell
was both a witness and a beneficiary under the will. Joan Baller
was a witness to the first codicil, but not the will or the second
codicil. Assuming the jurisdiction has an interested witness
statute that voids gifts to an interested witness, can either
witness take their gift? See King v. Smith, 302 A.2d 144 (N.J.
Super. 1973).

410
 IV. Incorporation by
Reference
What if a document is not physically present when the testator
executes his or her will, but the testator has expressed the intent
that the probate court recognize and give effect to the intent
expressed in the “other” document. As a general rule, can the
court give effect to that intent if the intent is not part of the will—if
it was not executed with Wills Act formalities? Can the testator
“expand” the scope of the will to give effect to intent expressed
outside the will (i.e., can a testator incorporate by reference an
extrinsic document into the will)? Under what conditions, if any,
might you think it appropriate for a testator to incorporate another
document into a will?

A. Classic Incorporation by Reference

Must testamentary intent—an individual's wishes with respect
to what he or she wants done with his or her property at time of
death—always be expressed in a document that qualifies as a
will? Can the testator express his or her testamentary wishes in
another document, a document other than the will (and a
document that does not qualify as a nonprobate instrument) and
still have the court give effect to the testamentary wishes
expressed in that document? If so, when? And under what
conditions? To what extent does permitting a court to give effect
to the testamentary wishes expressed in a document other than a
will create a loophole that undermines the Wills Act formalities?
Testator Bob validly executes a will dated January 1, 2015, and
the will contains various dispositive provisions, standard clauses
regarding executors, etc. One of the dispositive clauses, however,
states that $50,000 as well as his Ferrari are to be distributed to
the individual who is identified in a letter that is being held by the
executor of Bob's estate. Bob dies and his executor produces the
referenced letter. The letter is dated December 1, 2014, and
states that the $50,000 and the Ferrari are to be distributed to his
pal, Pete. Bob's will does not provide for the disposition of either

411
the $50,000 or the car, but the residue of his estate goes to
charity. Who gets the car and the $50,000? Why?

Simon v. Grayson
102 P.2d 1081 (Cal. 1940)
WASTE, C. J.
The question presented for determination upon this appeal
involves the construction and effect to be given a provision in a
will purporting to incorporate a letter by reference. Respondent's
claim to certain of the estate's funds is based upon the terms of
the letter. The appellants, who are residuary legatees under the
will, contend that the attempted incorporation by reference was
ineffectual. The facts, which were presented to the trial court upon
agreed statement, are as follows:
S. M. Seeligsohn died in 1935. His safe deposit box was found
to contain, among other things, a will and codicil and a letter
addressed to his executors. The will, which was dated March 25,
1932, contained a provision in paragraph four, leaving $6,000 to
his executors “to be paid by them in certain amounts to certain
persons as shall be directed by me in a letter that will be found in
my effects and which said letter will be addressed to Martin E.
Simon and Arthur W. Green (the executors) and will be dated
March 25, 1932.” Paragraph four also provided that any one
having an interest in the will “shall not inquire into the application
of said moneys” and that the executors “shall not be accountable
to any person whomsoever for the payment and/or application of
said sum ... this provision ... is in no sense a trust”.
The letter found in the testator's safe deposit box was dated
July 3, 1933, and stated: “In paragraph VIII of my will I have left
you $6,000—to be paid to the persons named in a letter and this
letter is also mentioned in said paragraph. I direct that after my
death you shall pay said $6,000 as follows: To Mrs. Esther Cohn,
1755 Van Ness Ave. San Francisco, Calif. the sum of $4,000— ...
If any of the said persons cannot be found by you within six
months after my death, or if any of the said persons shall
predecease me, the sum directed to be paid to such persons ...
shall be paid by you to my heirs as described in paragraph IX of
my said Will....” This letter was written, dated and signed entirely

412
in the handwriting of the testator. No letter dated March 25, 1932,
was found among his effects.
The codicil to the will was executed November 25, 1933. It
made no changes in paragraph IV of the will and contained no
reference to the letter, but recited, “Except as expressly modified
by this Codicil, my Will of March 25th 1932 shall remain in full
force and effect.”
Esther Cohn's whereabouts was known to the testator's
executors immediately following his death, but she herself died a
week later. Respondent, as her executrix, claimed the $4,000
mentioned in the letter. This claim was challenged by appellants,
residuary legatees under Seeligsohn's will, and his executors
brought suit interpleading the disputants. From the agreed facts
the trial court drew conclusions of law and rendered judgment in
favor of the respondent. The chief question is whether the letter
was effectually incorporated by reference into the will.
It is settled law in this state that a testator may incorporate an
extrinsic document into his will, provided the document is in
existence at the time and provided, further, that the reference to it
in the will clearly identifies it, or renders it capable of identification
by extrinsic proof. Estate of Plumel, 151 Cal. 77, 90 P. 192, 121
Am.St.Rep. 100; Garde v. Goldsmith, 204 Cal. 166, 267 P. 104;
Estate of Martin, 31 Cal.App.2d 501, 88 P.2d 234; 16 Cal.L.Rev.
154. An attempt to incorporate a future document is ineffectual,
because a testator cannot be permitted to create for himself the
power to dispose of his property without complying with the
formalities required in making a will. Keeler v. Merchant's Loan &
Trust, 253 Ill. 528, 97 N.E. 1061.
In the case at bar the letter presumably was not in existence
when the will was executed, for the letter bore a date subsequent
to the date of the will. Code Civ.Proc., sec. 1963, subd. 23.
However, the letter was in existence at the time the codicil to the
will was executed. The respondent points out that under the law
the execution of a codicil has the effect of republishing the will
which it modifies (Prob.Code, sec. 25), and argues from this that
Seeligsohn's letter was an ‘existing document’ within the
incorporation rule. The only authorities cited by the parties on this
point are several English decisions. These cases hold that

413
although an informal document is not in existence when the will
referring to it is executed, a later republication of the will by codicil
will satisfy the ‘existing document’ rule and will incorporate it by
reference provided the testamentary instruments sufficiently
identify it. In re Goods of Lady Truro [1866] L.R. 1 P. & D. 201;
compare In re Goods of Smart [1902], L.R.Prob.Div. 238; 4
Calif.L.Rev. 356. The principle of republication thus applied is
unquestionably sound. In revising his scheme of testamentary
disposition by codicil a testator presumably reviews and reaffirms
those portions of his will which remain unaffected. In substance,
the will is re-executed as of that time. Therefore, the testator's
execution of the codicil in the present case must be taken as
confirming the incorporation of the letter then in existence,
provided the letter can be satisfactorily identified as the one
referred to in the will. And this is true, notwithstanding the codicil
made no reference to the letter and recited that the will should
remain in full force ‘except as expressly modified by this codicil’,
for the letter, if properly incorporated, would be an integral part of
the republished will.
We are also of the opinion that the trial court did not err in
concluding that the letter found with the will was the letter referred
to in the will. Conceding the contrary force of the discrepancy in
dates, the evidence of identity was, nevertheless, sufficient to
overcome the effect of that factor. The controlling authorities in
this state do not require that the informal document be identified
with exact precision; it is enough that the descriptive words and
extrinsic circumstances combine to produce a reasonable
certainty that the document in question is the one referred to by
the testator in his will. Estate of Miller, 128 Cal.App. 176, 17 P.2d
181; Estate of Martin, supra; In re Plumel's Estate, supra. Here
the letter was found in the safe deposit box with the will. It was
addressed to the executors, as the will stated it would be. No
other letter was found. Moreover, the letter is conceded to have
been written by the testator, and its terms conform unmistakably
to the letter described in the will. It identifies itself as the letter
mentioned in the will and deals with the identical subject matter
referred to in that portion of the will. All these circumstances leave
no doubt that the letter of July 3, 1933, is the one that the testator
intended to incorporate in paragraph four of his will.

414
 ...
The judgment is affirmed.
—————
Not all states recognize the doctrine of incorporation by
reference. California does, and it has codified the doctrine:
CPC §6130. Incorporation by reference
A writing in existence when a will is executed may be
incorporated by reference if the language of the will
manifests this intent and describes the writing sufficiently to
permit its identification.
The doctrine is straightforward. So long as the will references a
document that is outside the will, describes it so that the court can
identify it with reasonable certainty, and the proponents of the
intent in the document can prove that the document was in
existence at the time the will was executed, the courts typically
presume that by referring to the document the testator intended to
incorporate the document into his or her will. Historically the
element the courts were strictest on was proof that the document
was in existence at the time the will was executed. Why?

Notes
1. Independent doctrine: Incorporation by reference is its own
free-standing doctrine and need not overlap with republication by
codicil. That being said, the Simon case has the added benefit of
demonstrating how republication by codicil can overlap with other
wills doctrines, this time incorporation by reference. What if the
testator in Simon had not executed the codicil? Could the court
have still used incorporation by reference to give effect to the
intent expressed in the letter? Notice how by using incorporation
by reference the court was able to de facto expand the scope of
the will to give effect to testamentary intent expressed outside of
the will.
2. Incorporation by reference versus republication by codicil: In
states that do not recognize incorporation by reference, courts will
sometimes stretch republication by codicil to cover wills that were
defectively executed (and arguably have no testamentary life). In

415
California there is no real need to do that. Technically a codicil is
only a codicil if it amends and/or revises an existing will—a will
that currently has testamentary life (at the time the codicil is
executed). An existing will implies a will that, at the time the
codicil is executed, has some testamentary life. If the underlying
document has a defect that causes it to have no testamentary life,
typically it can still be given effect but through incorporation by
reference, not republication by codicil. If you are concerned about
whether the underlying will has any testamentary life at the time
the “codicil” is executed, argue both doctrines in the alternative
and let the court sort it out.
The principal difference between incorporation by reference
and republication by codicil is whether the underlying document
qualifies as a will with some testamentary life at the time the
codicil is executed. If you return to the opening sentence in the
above quote from the McCarty case (the indented material on the
second page of this chapter), the omitted material from that
sentence identified one of the principal differences between
incorporation by reference and integration. Now that you have a
better understanding of incorporation by reference, here is that
full, often repeated statement: “In the law of wills, integration, as
distinguished from incorporation by reference, occurs when there
is no reference to a distinctly extraneous document, but it is clear
that two or more separate writings are intended by the testator to
be his will.” (emphasis added; quoting from Estate of Wunderle,
30 Cal. 2d 274, 281 (1947)).
3. Strict compliance? In Simon, the testator's will described the
document to be incorporated as “... a letter that will be found in
my effects and which said letter will be addressed to Martin E.
Simon and Arthur W. Green (the executors) and will be dated
March 25, 1932.” In fact, the letter was dated July 3, 1933. Is the
court fudging on the requirement that the will “describes the
writing sufficiently to permit its identification”? Should the court
apply the same lax approach to the other requirements (that the
language of the will expresses the intent to incorporate the
document and that the document to be incorporated is “in
existence when a will is executed ...”)?

416
B. Modern Trend—Tangible Personal Property
List (Relaxation of Incorporation by
Reference)
Traditionally, the courts were rather strict in applying the
requirement that the document to be incorporated be in existence
at the time the will was executed. Moreover, the document could
be incorporated only as it existed at the time the will was
executed. Any subsequent changes to the document to be
incorporated could not be given effect, as it would de facto permit
a testator to revise or amend his or her testamentary intent
without executing a new will or codicil.
The drafters of Uniform Probate Code (UPC) decided that the
element of incorporation by reference requiring an existing writing
should be relaxed when it comes to disposing of less valuable
property. Not to stereotype, but anyone who has spent time with
an elderly relative knows that it is not uncommon for such relative
to constantly change their mind with respect to who should get
which items of tangible personal property. It is also not too
uncommon to find “sticky” notes on some of their tangible
personal property, and the sticky notes often change with each
family member's visit! If the law of wills were strictly enforced
against such an individual, every time the individual changed his
or her mind with respect to who should get what, the person
would have to execute a new will or at least a codicil. But often
the cost, and accompanying inconvenience, of doing so is greater
than the value of the item in question (the item often has great
sentimental value, but not significant market value).
The drafters of the UPC decided that in the typical scenario (as
described above), the benefits of requiring the person to execute
a new will or codicil each time he or she changed his or her mind
did not offset the cost of the new will or codicil. Accordingly, under
the UPC's “tangible personal property list” doctrine (UPC §2-513),
a testator is permitted to dispose of his or her tangible personal
property via a list not executed with Wills Act formalities, even if
the list was created after the testator executed his or her will, as
long as the will expressly states the intent to create such list. The
doctrine is essentially incorporation by reference but without the
“existing writing” requirement for the list disposing of the tangible

417
personal property. The idea here is that the testator can make
changes, from time to time, to the testamentary disposition of his
or her “small stuff” without incurring the costs and hassles of
executing a new will or codicil.
In 2007, California adopted its own version of the tangible
personal property list doctrine.
CPC §6132. Tangible personal property list
(a) Notwithstanding any other provision, a will may refer to a
writing that directs disposition of tangible personal
property not otherwise specifically disposed of by the will,
except for money that is common coin or currency and
property used primarily in a trade or business. A writing
directing disposition of a testator's tangible personal
property is effective if all of the following conditions are
satisfied:
(1) An unrevoked will refers to the writing.
(2) The writing is dated and is either in the handwriting of,
or signed by, the testator.
(3) The writing describes the items and the recipients of
the property with reasonable certainty.
(b) The failure of a writing to conform to the conditions
described in paragraph (2) of subdivision (a) does not
preclude the introduction of evidence of the existence of
the testator's intent regarding the disposition of tangible
personal property as authorized by this section.
(c) The writing may be written or signed before or after the
execution of the will and need not have significance apart
from its effect upon the dispositions of property made by
the will. A writing that meets the requirements of this
section shall be given effect as if it were actually contained
in the will itself, except that if any person designated to
receive property in the writing dies before the testator, the
property shall pass as further directed in the writing and, in
the absence of any further directions, the disposition shall
lapse.

418
(d) The testator may make subsequent handwritten or
signed changes to any writing. If there is an inconsistent
disposition of tangible personal property as between
writings, the most recent writing controls.
(e) (1) If the writing directing disposition of tangible personal
property omits a statement as to the date of its
execution, and if the omission results in doubt whether
its provisions or the provisions of another writing
inconsistent with it are controlling, then the writing
omitting the statement is invalid to the extent of its
inconsistency unless the time of its execution is
established to be after the date of execution of the
other writing.
(2) If the writing directing disposition of tangible personal
property omits a statement as to the date of its
execution, and it is established that the testator lacked
testamentary capacity at any time during which the
writing may have been executed, the writing is invalid
unless it is established that it was executed at a time
when the testator had testamentary capacity.
...
(g) The total value of tangible personal property identified
and disposed of in the writing shall not exceed twenty-five
thousand dollars ($25,000). If the value of an item of
tangible personal property described in the writing
exceeds five thousand dollars ($5,000), that item shall not
be subject to this section and that item shall be disposed
of pursuant to the remainder clause of the will. The value
of an item of tangible personal property that is disposed of
pursuant to the remainder clause of the will shall not be
counted towards the twenty-five thousand dollar ($25,000)
limit described in this subdivision.
(h) As used in this section, the following definitions shall
apply:
(1) “Tangible personal property” means articles of
personal or household use or ornament, including, but
not limited to, furniture, furnishings, automobiles, boats,
and jewelry, as well as precious metals in any tangible

419
 form, such as bullion or coins and articles held for
investment purposes. The term “tangible personal
property” does not mean real property, a mobilehome
as defined in Section 798.3 of the Civil Code, intangible
property, such as evidences of indebtedness, bank
accounts and other monetary deposits, documents of
title, or securities.
(2) “Common coin or currency” means the coins and
currency of the United States that are legal tender for
the payment of public and private debts, but does not
include coins or currency kept or acquired for their
historical, artistic, collectable, or investment value apart
from their normal use as legal tender for payment.

Problems
1. What was the legislature trying to accomplish with subsection
(b) of CPC Section 6132? What would you argue it means?
2. Testator Bob validly executes a will dated January 1, 2015, and
the will contains various dispositive provisions, standard
clauses regarding executors, etc. One of the dispositive
clauses, however, states that $50,000 as well as his Ferrari are
to be distributed to the individual who is identified in a letter that
is being held by the executor of Bob's estate. Bob dies and his
executor produces the referenced letter. The letter is dated
December 1, 2014, and states that the $50,000 and the Ferrari
are to be distributed to his pal, Pete. Bob's will does not provide
for the disposition of either the $50,000 or the car, but the
residue of his estate goes to charity. Who gets the Ferrari and
the $50,000?
3. Testator Tricia validly executes Will #1. Subsequently Tricia
validly executes Will #2 that expressly revokes Will #1. Tricia
then physically destroys Will #2. At some later date, Tricia
executes a “codicil” (conforming to required formalities) that
states, in part, “This is a codicil to Will #1 and by this codicil, I
leave my Porsche to my friend, Fumiko.” Assuming that Fumiko
was not named as a beneficiary in either of Tricia's wills, is she
entitled to receive the Porsche at Tricia's death?

420
4. Assume the same facts as Problem 2 but assume that the
letter produced by the executor is dated February 1, 2015. Is
Pete entitled to receive $50,000 and Bob's Ferrari? What if,
instead of a Ferrari, the car Bob was gifting to Pete is an old,
beat-up VW vanagon in need of lots of work (and the reference
in the will was to the VW vanagon, not the Ferrari). Might that
make a difference?

421
 V. Acts of Independent
Significance
Acts of independent significance3 is yet another doctrine that
can de facto expand the scope of the will and permit the probate
court to give testamentary effect to acts or events that occur
outside the four corners of the document. Acts of independent
significance is somewhat similar to dependent relative revocation
in that at first blush the name of the doctrine does not appear to
be very helpful: what acts, and significance independent of what?
The typical articulation of the doctrine can also be rather abstract.
Leading with an example might be helpful.
Assume the testator, a professor, has a validly executed will
that provides in pertinent part as follows: “I give $1,000 to
whomever is my research assistant at the time of my death.” The
will tells the probate court how much the beneficiary is to take, but
it does not identify the beneficiary by name. Instead, the
beneficiary is described generically, and more important, the
wording used inherently reflects the possibility that the identity of
the beneficiary may change in the future. Each year the professor
hires a third-year law student, who then graduates in the spring,
requiring the professor to hire a new research assistant each
year. The identity of the beneficiary changes with each new
research assistant. Normally, if a testator is changing a
beneficiary in her will, strict compliance would seem to require
that the testator execute a new will or a codicil for the change to
be valid.
The doctrine of acts of independent significance permits a
change in the beneficiary, or a change in the gift, without a need
for a codicil—so long as the reason for the change comes within
the scope of the doctrine. As long as the referenced act in the will
(i.e., here the referenced act is the change in who is the
professor's research assistant) is performed or occurs for reasons
independent of its effect on testator's probate estate, then the
referenced act is not really a testamentary act despite its
testamentary consequences. As long as the referenced act is
being performed primarily for reasons other than its effect on who

422
takes what when the testator dies, it can be given effect under
acts of independent significance. Here, the logical assumption is
that when the professor hires a new research assistant, it is
because he or she needs research assistance with his or her
writing projects. The professor is not hiring a new research
assistant primarily for the purpose of making a testamentary gift—
though that may be a testamentary consequence of the hiring
decision. Accordingly, the testator need not execute a new will or
codicil every time she changes her research assistant.
Although the doctrine of acts of independent significance was
originally a judicial doctrine, California has codified it:
CPC §6131. References to extrinsic acts and events
A will may dispose of property by reference to acts and
events that have significance apart from their effect upon the
dispositions made by the will, whether the acts and events
occur before or after the execution of the will or before or
after the testator's death. The execution or revocation of a
will of another person is such an event.
While the doctrine permits reference to acts and events that can
occur either “before or after” the will's execution, the doctrine
poses its greatest analytical issues when it is referring to acts or
events that occur in the future. Analytically, the keys to the
doctrine are: (1) identify the act or event referenced in the will that
is to occur outside the will, and then (2) analyze whether that act
or event has significance (i.e., meaning or consequences)
independent of its effect upon the testator's probate estate.
Typically, the independent significance will mean that the
referenced act has to be performed for some inter vivos reason,
though the doctrine can apply even if the referenced act has only
testamentary significance so long as the testamentary
significance affects something other than just the testator's
probate estate.
In the hypothetical above, the referenced act in the will is the
professor changing her research assistant. Is she performing that
act to affect who takes under her will, or is she performing that
referenced act for independent, inter vivos reasons? She is
changing research assistants because they graduate each year,
and she needs someone to help her with her research and

423
writing. Even without the will she would need a research
assistant. The referenced act clearly has its own inter vivos
significance, independent of its effect upon who takes what under
her will. Whoever is her research assistant at her death will be
able to claim the gift under her will.
Acts of independent significance typically applies to who takes
under the will (as the example above demonstrates); it can,
however, also apply to cases involving what a beneficiary takes.
Assume the testator validly executes a will that provides in
pertinent part as follows: “I give all the funds in my checking
account to my brother, Shehad.” Thereafter, the testator deposits
and withdraws funds from his checking account. Should he have
to execute a new will or codicil each time? No, because the
testator is making withdrawals and deposits for valid inter vivos
reasons (no doubt to pay his bills) and is not doing so to affect the
gift to his brother. Shehad should receive whatever funds are in
the checking account when the testator dies.

In re Tipler
10 S.W.3d 244 (Tenn. App. 1998)
HOLLY KIRBY LILLARD, Judge.
...
Mrs. Gladys S. Tipler (“Testatrix”) executed a formal will on
April 2, 1982. This will left the bulk of her estate to her husband,
James Tipler (“Husband”), upon the contingency that he survive
her. The will did not address the distribution of the estate in the
event that Husband predeceased Testatrix. Two days later,
Testatrix executed a holographic codicil to the formal will. The
codicil reads as follows:
Should my husband predecesse [sic] me I hereby declair
[sic] that his last Will and testament upon his death is our
agreement here to four [sic] made between us in Section III
of my Will. With the exception Mr. Tipler or myself can elect
to make any changes as we desire depending upon which
one predeceasest [sic] the other. If no changes are made
by either of us this will be our last will and testament.

424
Thus, the codicil indicated that if Husband predeceased Testatrix,
his last will and testament would control the disposition of her
estate. At the time the codicil was executed, Husband had not yet
executed a will. Husband died in 1990. His will, executed six
months prior to his death, created a trust for Testatrix, and
directed that upon her death the property be distributed to his
relatives. Testatrix died in 1994.
The beneficiaries under Husband's will sought enforcement of
Testatrix's codicil in Shelby County Probate Court. This action
was challenged by Testatrix' heirs, who would otherwise take
under the Tennessee intestacy statute. The Testratix' heirs
asserted that the holographic codicil should not be enforced
because it referred to a document not yet in existence, i.e.
Husband's will. They argued that Tennessee law requires that for
a holographic will to be enforceable, “all its material provisions
must be in the handwriting of the testator....” Tenn.Code Ann. §32-
1-105 (1984). Since Testatrix' holograph referred to Husband's
will, Testatrix' heirs maintained that material provisions were not
in Testatrix' handwriting.
At the trial, the beneficiaries under Husband's will introduced
evidence regarding Testatrix' intent. The testimony indicated that
Testatrix was not close to her family. One witness stated that
Testatrix described her sisters as “greedy,” indicating that “if
anything happened to her [Testatrix],” her sisters would be like “a
bunch of vultures” or “a bunch of barracudas....” Evidence
indicated that Testatrix “thought of Mr. Tipler's family as her
family.” Witnesses testified that Testatrix loved her husband
dearly and frequently said, “whatever Tippy [Husband] wants is
what I want.”
After the bench trial, the trial court issued a Memorandum
Opinion. The trial court found that the issue of incorporation by
reference was not applicable because Husband's will was not in
existence at the time Testatrix' codicil was written. The trial court
then stated:
The relevant inquiry is whether the doctrine of facts of
independent significance applies in the case at bar.
Tennessee recognizes the doctrine of independent
significance. Smith v. Weitzel, [47 Tenn.App. 375,] 338

425
 S.W.2d 628, 637 (Tenn.[App.]1960) (“As to the proposition
of independent significance ... we call attention to Sec. 54.2
of Scott on Trusts).
Scott on Trusts, 4th Edition, Section 54.2, page 9, states:
Section 54.2: Where disposition is determined by facts of
independent significance. There is another doctrine of the
law of wills that is sometimes confused with the doctrine of
incorporation by reference. Even though a disposition
cannot be fully ascertained from the terms of the will, it is
not invalid if it can be ascertained from the facts that have a
significance apart from their effect upon the disposition in
the will. Indeed, it is frequently necessary to resort to
extrinsic evidence to identify the persons who are to take or
the subject matter of the disposition.
Therefore, under the doctrine of independent significance, a court
may refer to extrinsic evidence to identify the persons who are to
take under the will. In the case at bar, Mrs. Tipler left her
residuary estate in Section III to her husband. However, in her
holographic codicil, she stated, in her handwriting, that if her
husband predeceased her, her residuary estate would pass
according to their agreement as indicated in his will.
***
A testator may [have] intended for his property to go the same
persons who are named in another person's will, and the gift of
the testator's property by his will can be upheld on the ground of
independent significance. This doctrine of independent
significance is an escape mechanism from the strict requirements
of incorporation by reference. 2 Bowe-Parker: Page on Wills,
Section 19.34, page 119.
***
In the case bar, Mrs. Tipler left her residuary estate to Mr. Tipler
in her Last Will and Testament, on April 2, 1982. Like the Klein
case, she modified that provision in her holographic codicil two
days later in order to give Mr. Tipler the privilege of naming the
persons who would take his part of her estate should he die first.
The doctrine of independent significance is satisfied because Mr.
Tipler's will had an independent significance of distributing his

426
estate and was not written with the intention of distributing Mrs.
Tipler's estate.
...
The trial court then ordered that Testatrix' residuary estate be
distributed in accordance with Husband's will, concluding as
follows:
The Court finds and holds that Mrs. Tipler's codicil
contained all of the material provisions necessary to
determine how her residuary estate would be distributed.
Her estate is to be distributed according to an agreement
which she identifies in her own handwriting. The identity of
the beneficiaries agreed upon can be determined from the
facts of independent significance contained in Mr. Tipler's
Will as well as from the testimony of Ms. Meredith and Mr.
May. The Court further rules that Mrs. Tipler intended to
dispose of her residuary estate to her husband; if her
husband predeceased her, she intended to dispose of her
estate to Mr. Tipler's relatives in the manner in which Mr.
Tipler distributed his estate in his will. Therefore, this Court
further finds and so holds that Mrs. Tipler's handwritten
document dated on April 4, 1982 was a valid holographic
codicil. This Court further finds and holds that the identity of
the beneficiaries and the percentage of their shares under
Mrs. Tipler's estate are found in Article V of Mr. Tipler's Last
Will and Testament. This Court finds and holds that this
extrinsic evidence found in Mr. Tipler's Will is incorporated
into Mrs. Tipler's will under the Tennessee recognized
doctrine of independent significance.
Testatrix' heirs, who would receive Testatrix' residuary estate if
the codicil were invalid, now appeal the decision of the trial court.
...
In sum, then, the doctrine of facts of independent significance is
applicable in this case to permit Testatrix' codicil to refer to
Husband's will, provided the document is a valid holographic
codicil. To determine whether the holograph contains all material
provisions in Testatrix' handwriting, the trial court properly
considered Testatrix' intent. Evidence preponderates in favor of

427
the trial court's finding that Testatrix was estranged from her
family and wanted her estate to go to Husband's family. Since
Testatrix wanted her estate to go to whomever Husband wished,
the codicil contained all material provisions in Testatrix'
handwriting, even though it stated only that her estate should go
to the beneficiaries under Husband's will and did not specifically
name beneficiaries. Therefore, the trial court did not err in
distributing Testatrix' estate to the beneficiaries under Husband's
will.
For the above reasons, we affirm the decision of the trial court.
Costs of appeal are assessed against the Appellants, for which
execution shall issue, if necessary.
—————

Problems
1. Testator's will states: “I leave the contents of my safe deposit
box to my brother, Bill.” Following testator's death, what, if
anything, does Bill receive?
2. Testator's will has a provision making a $10,000 gift to “each of
the persons I will identify in a letter that I will leave with my
executor.” Assume a letter—with names identifying the
beneficiaries—is left for and found by the executor. The letter is
dated after the date of the will. What, if anything, do the
beneficiaries receive?
3. Testator's will leaves “all of my household furniture to my
daughter, Diane, and the rest/residue of my property (my
estate) to my grandson, Grant.” Thereafter, Testator changes
out some of the household furniture (e.g., the testator buys a
beanbag chair for the TV room). What, if anything, is Diane
entitled to pursuant to Testator's will?
4. For purposes of this question only, assume the jurisdiction
does not recognize holographic wills.
X writes in her own handwriting an instrument that is dated,
states that it is her “last will and testament,” and she alone
signs. The instrument devises the residue of her estate to
UCLA. A year later, X's attorney drafts an instrument that
states that it is a “codicil” to the first instrument. The “codicil”

428
 bequeaths $50,000 to USC. The “codicil” refers to X's “will”
and states that the “codicil” otherwise affirms the terms of the
“will.” The “codicil” is duly signed and witnessed in compliance
with all the Wills Act formalities. A year later, X writes in her
own handwriting an instrument that is dated, states that it is
her “second codicil to her last will and testament,” and she
alone signs. The second codicil bequeaths $100,000 to USC.
The “second codicil” refers to X's “will and first codicil” and
states that the “second codicil” otherwise affirms the terms of
the “will and first codicil.” Six months later X dies. Assuming
the jurisdiction does not recognize holographic wills, and
assuming there is no other relevant evidence, what is the most
likely disposition of X's property? What instruments, if any,
control the disposition of X's property, and why?
5. Testator's will provided in pertinent part as follows:
“I give and bequeath unto my wife the sum of $50,000, for
the purposes set forth in a sealed letter that will be found
with this will.”
An undated letter directing testator's wife to pay $50,000 to
X was found with the will in decedent's desk drawer. What
is the most likely result, and why, with respect to the
$50,000?

429
 VI. Contracts Concerning
Wills
A promise to make a will is never admissible as a will. This is
the case even if the contract is in writing, witnessed, or made with
other execution formalities. For example, assume an aging
grandfather wants his grandson to move in with him and help run
the family business (or the family farm) and makes the grandson
an offer: move in with me and help me run the business, and I
promise to leave you the business in my will when I die.
Grandson fulfills his end of the bargain, grandfather dies, but his
will leaves nothing to the grandson. What, if anything, does the
grandson get?
This is a contracts question, not a wills issue. The contract
between the grandfather and his grandson does not serve as a
will. Under contract principles, however, the grandson has a
potential claim against his grandfather's estate and would file
such as a creditor of the estate. If the grandson is successful in
making his contract claim, the contract will be enforced against
the estate and he will receive property from the grandfather. To
that extent, a contract concerning a will can affect (and disrupt) a
testator's intent.
While there is not time to delve too deeply into the contracts
relating to wills material, a core question is: should the issue of
whether there is an enforceable contract be governed solely by
contract principles, or should the law of wills principles apply to
some degree? In particular, should oral contracts and/or doctrines
like equitable estoppel apply or should all such claims have to be
in writing, similar to a will?
The Uniform Probate Code has decided that all contract claims
relating to a will should have to be in, or at least evidenced by,
some type of a writing that was signed by the decedent:
UPC §2-701. Contracts concerning succession
A contract to make a will or devise, or not to revoke a will or
devise, or to die intestate, ... can be established only by (1)

430
 provisions of a will stating material provisions of the contract;
(2) an express reference in a will to a contract and extrinsic
evidence proving the terms of the contract; or (3) a writing
signed by the decedent evidencing the contract. The
execution of a joint will or mutual wills does not create a
presumption of a contract not to revoke the will or wills.
California essentially adopted UPC Section 2-701 in 1983 when
it enacted California Probate Code Section 150. One would have
thought this would have settled the issue of whether oral claims of
promises to make a will, or not to revoke a will, would be valid in
California. A California Court of Appeals described the legislative
history behind California Probate Code Section 150 as follows:
In proposing the statutory language in section 150, the
California Law Revision Commission (“Commission”)
recognized that under Civil Code section 1624, former
subdivision 6., the courts frequently enforced “oral
promise[s] to make or not to revoke a will in order to
avoid the harshness that would be caused by a strict
application of the Statute of Frauds.” (16 Cal.Law
Revision Com.Rep. (December 1982) p. 2348.) The
Commission, however, criticized this practice explaining
“[w]here an oral agreement to make or not to revoke a
will is alleged after promisor is deceased and unable to
testify, there is an opportunity for the fabrication of
testimony concerning the existence of the agreement.
Sound policy requires some form of written evidence that
such an agreement actually exists.” (Id. at pp. 2348–
2349) ... The Commission concluded “[t]he proposed law
... will provide a clearer, more detailed statutory
statement than the present Statute of Frauds and will
limit the opportunity for fraud by fabricated proof of an
oral agreement.”5 (16 Cal.Law Revision Com.Rep.,
supra, at p. 2350.)
Juran v. Epstein, 23 Cal.App.4th 882, 893–94 (1994).
Nevertheless, litigants continued to press their claims of oral
promises concerning wills, and even after the legislature adopted
the Uniform Probate Code language, the same California Court of

431
Appeal concluded that such oral claims should still be enforceable
if equity demanded it:
Examining section 150's statutory language and
legislative history, we do not believe the Legislature
intended to eliminate a court's authority to apply
equitable principles in the area of contracts to make (or
not to revoke) a will. It is a firmly rooted legal principle in
this state that “... the statute of frauds, having been
enacted for the purpose of preventing fraud, shall not be
made the instrument of shielding, protecting or aiding the
party who relies upon it in the perpetration of a fraud....”
(citations omitted).
Id.
The California legislature revisited the issue in 2000 when they
expanded the doctrine to include non-probate instruments. The
legislature also added subsections (a)(4) and (a)(5). Who ended
up winning the battle of whether oral contracts concerning wills or
other instruments are valid—the legislature or the courts?
CPC §21700. Contracts to make will, trust or transfer;
establishment; joint or mutual wills
(a) A contract to make a will or devise or other instrument, or
not to revoke a will or devise or other instrument, or to die
intestate, ... can be established only by one of the
following:
(1) Provisions of a will or other instrument stating the
material provisions of the contract.
(2) An expressed reference in a will or other instrument to
a contract and extrinsic evidence proving the terms of
the contract.
(3) A writing signed by the decedent evidencing the
contract.
(4) Clear and convincing evidence of an agreement
between the decedent and the claimant or a promise by
the decedent to the claimant that is enforceable in
equity.

432
 (5) Clear and convincing evidence of an agreement
between the decedent and another person for the
benefit of the claimant or a promise by the decedent to
another person for the benefit of the claimant that is
enforceable in equity.
(b) The execution of a joint will or mutual wills does not
create a presumption of a contract not to revoke the will or
wills.

Note
Joint or mutual will: A “joint will” or “mutual will” is a single will
validly executed by two people (typically husband and wife). The
intent is that the two parties agree on how they want their
property to be disposed, regardless of which one dies first, so
they decide to execute just one will for both of them. Assuming it
is not revoked, it is probated twice—following the death of each of
them as it applies to their respective estates upon death.
As a general rule, joint wills are not a good idea and the
overwhelming majority of estate planners would not use one. A
couple can achieve the same legal arrangement with mirror wills
(two wills, one for each party, with “mirror” dispositive provisions:
i.e., one simple but common example is where each will says “all
to my surviving spouse, if I have one, otherwise to our children
equally”).
The issues that arise most often with respect to joint wills are
beyond the scope of this class, except one. If a couple executes a
joint will, should that give rise to a contract not to revoke—or at
least a presumption of a contract not to revoke? Assuming the
joint will has an express contract not to revoke, does that mean
neither spouse can change their mind and revoke the will? Can
one spouse de facto “waive” their right to revoke their will?

1. Do not worry about the details of this doctrine, the pretermitted spouse
doctrine, at this point. It is covered in Chapter 10 (and the current California
approach is much different from this traditional approach). We are using the
doctrine here just to help you appreciate the potential overlapping
consequences of the republication by codicil doctrine.
2. Such statutes limiting a testator's right or ability to devise his or her estate
to a charitable organization were commonly referred to as mortmain statutes

433
and were derived from the traditional English statutes. Most states have
abolished their mortmain statutes. California abolished the mortmain
restrictions at issue in McCauley in 1971.
3. Some jurisdictions and authorities refer to it as facts of independent
significance. Either way, it is the same doctrine.

434
Chapter 9

435
Construing Time of Death
Gifts

436
 I. Introduction
Assuming there is what appears to be a validly executed will,
when, if ever, should a court admit extrinsic evidence with respect to
the will? In one of the following cases, the court admits the extrinsic
evidence (oral statements of the testator with respect to his
testamentary intent), while in the other case the court refuses to
admit the extrinsic evidence (testatrix's oral and written statements
with respect to “her testamentary intention”). Are the cases
reconcilable?

Mahoney v. Grainger
186 N.E. 86 (Mass. 1933)
RUGG, Chief Justice.
This is an appeal from a decree of a probate court denying a
petition for distribution of a legacy under the will of Helen A. Sullivan
among her first cousins who are contended to be her heirs at law.
The residuary clause was as follows: “All the rest and residue of my
estate, both real and personal property, I give, demise and bequeath
to my heirs at law living at the time of my decease, absolutely; to be
divided among them equally, share and share alike; ...”
... About ten days before her death the testatrix sent for an
attorney who found her sick but intelligent about the subjects of their
conversation. She told the attorney she wanted to make a will. She
gave him instructions as to general pecuniary legacies. In response
to the questions “Whom do you want to leave the rest of your
property to? Who are your nearest relations?” she replied “I've got
about twenty-five first cousins * * * let them share it equally.” The
attorney then drafted the will and read it to the testatrix and it was
executed by her.
The trial judge ruled ... “that the words heirs at law were words in
common use, susceptible of application to one or many; that when
applied to the special circumstances of this case that the testatrix
had but one heir, notwithstanding the added words ‘to be divided
among them equally, share and share alike,’ there was no latent
ambiguity or equivocation in the will itself which would permit the
introduction of the statements of the testatrix to prove her
testamentary intention.” Certain first cousins have appealed....

437
 There is no doubt as to the meaning of the words “heirs at law
living at the time of my decease” as used in the will. Confessedly
they refer alone to the aunt of the testatrix and do not include her
cousins. Gilman v. Congregational Home Missionary Society, 276
Mass. 580, 177 N. E. 621; Calder v. Bryant (Mass.) 184 N. E. 440.
A will duly executed and allowed by the court must under the
statute of wills (G. L. [Ter. Ed.] c. 191, §1 et seq.) be accepted as the
final expression of the intent of the person executing it. The fact that
it was not in conformity to the instructions given to the draftsman who
prepared it or that he made a mistake does not authorize a court to
reform or alter it or remold it by amendments. The will must be
construed as it came from the hands of the testatrix. Polsey v.
Newton, 199 Mass. 450, 85 N. E. 574, 15 Ann. Cas. 139. Mistakes in
the drafting of the will may be of significance in some circumstances
in a trial as to the due execution and allowance of the alleged
testamentary instrument. Richardson v. Richards, 226 Mass. 240,
115 N. E. 307. Proof that the legatee actually designated was not the
particular person intended by the one executing the will cannot be
received to aid in the interpretation of a will. Tucker v. Seaman's Aid
Society, 7 Metc. 188, 210. See National Society for the Prevention of
Cruelty to Children v. Scottish National Society for the Prevention of
Cruelty to Children, [1915] A. C. 207....
It is only where testamentary language is not clear in its
application to facts that evidence may be introduced as to the
circumstances under which the testator used that language in order
to throw light upon its meaning. Where no doubt exists as to the
property bequeathed or the identity of the beneficiary there is no
room for extrinsic evidence; the will must stand as written. Barker v.
Comins, 110 Mass. 477, 488; Best v. Berry, 189 Mass. 510, 512, 75
N. E. 743, 109 Am. St. Rep. 651.
In the case at bar there is no doubt as to the heirs at law of the
testatrix. The aunt alone falls within that description. The cousins are
excluded. The circumstance that the plural word “heirs” was used
does not prevent one individual from taking the entire gift. Calder v.
Bryant (Mass.) 184 N. E. 440.
Decree affirmed.
—————

Fleming v. Morrison

438
 72 N.E. 499 (Mass. 1904)
LORING, J.
All the rulings asked for at the hearing have been waived, and the
only contention now insisted upon by the contestants is that, on the
finding made at the hearing, the proponent of the will has failed to
prove the necessary animus testandi. We are of the opinion that this
contention must prevail. The finding that, before Butterfield and
Goodrich ‘parted,’ Butterfield told Goodrich that the instrument which
had been signed by Butterfield as and for his last will and testament,
and declared by him to be such in the presence of Goodrich, and
attested and subscribed by Goodrich as a witness, ‘was a fake,
made for a purpose,’ is fatal to the proponent's case. This must be
taken to mean that what had been done was a sham.... The whole
finding, taken together, amounts to a finding that Butterfield had not
intended the transaction which had just taken place to be in fact what
it imported to be; that is to say, a finding that when Butterfield signed
the instrument, and asked Goodrich to attest and subscribe it as his
will, he did not, in fact, then intend it to be his last will and testament,
but intended to have Mary Fleming think that he had made a will in
her favor to induce her to let him sleep with her.
We are of opinion that it is competent to contradict by parol
[evidence] the solemn statements contained in an instrument that it
is a will; ... For similar cases as to wills, see In the Goods of Hunt, L.
R. 3 P. & D. 250, where it was held that it could be shown by parol
that the instrument executed was executed by mistake, ... ‘The
momentous consequences of permitting parol evidence thus to
outweigh the sanction of a solemn act are obvious. It has a tendency
to place all wills at the mercy of a parol story that the testator did not
mean what he said,’ in the words of Sir J. P. Wilde in Lister v. Smith,
3 Sw. & Tr. 282, 288.... The punctum temporis in case of a will is
when it is signed, or, having been previously signed, when the
signature is acknowledged in the presence of three or more
witnesses. And where that is done before each witness separately,
as it may be done in this commonwealth (Chase v. Kittredge, 11
Allen, 49, 87 Am. Dec. 687), the animus testandi must exist when it
is signed or acknowledged before, and attested and subscribed by,
each of the necessary three witnesses. If this is not done, the
statutory requirements have not been complied with. Assuming that
the acknowledgment animo testandi of a signature not originally
made with that animus is enough, the will in the case at bar would
have been duly executed had Butterfield subsequently

439
acknowledged the instrument before three in place of two additional
witnesses. But he did not do so. The instrument, having been
acknowledged and attested and subscribed by two witnesses only, is
not a valid will, within Rev. Laws, c. 135, §1.
...
Decree to be entered reversing decree of probate court, and
disallowing the instrument as the will of Butterfield.
—————

Note
Why is the extrinsic evidence being offered in Mahoney? Why is
the extrinsic evidence being offered in Fleming? The first key to
analyzing whether extrinsic evidence is admissible is to determine
why it is being offered.

440
 II. Extrinsic Evidence to
Help Construe a Will
To the extent that a will constitutes the testator's expression of his
or her testamentary intent, why would a court need extrinsic
evidence to help construe that intent? Is not the testator's last will
and testament the best evidence of the testator's intent? In an ideal
world, a testator's will would be the best evidence of his or her
testamentary wishes, but we do not live in an ideal world. The
assertion that “the testator's will is the best evidence of testator's
intent” overlooks two realities: (1) humans make mistakes, and (2)
the circumstances surrounding a testator typically change between
the time of execution of the will and the time of the testator's death—
and those changes can create ambiguities as to what is to happen in
light of the changed circumstances.
If a will is properly drafted, then generally there should be nothing
for a court to construe—and in the vast majority of wills probated in
California, that is the case: the will is “clean,” and it effectively
disposes of the testator's property. While in theory extrinsic evidence
should not be needed to help construe a well-drafted will, not all wills
are well drafted. Not all attorneys are equal, and some non-estate
planning attorneys think they can dabble in will drafting. In addition,
California recognizes holographic wills. Few laypeople know how to
write a will to make sure it properly expresses their intent. Estate
planners have a saying: “You can pay me now (for drafting a well-
written will), or your estate can pay me later (for litigating issues
associated with probating a poorly written will).”
Drafting mistakes constitute the first category of ambiguities for
which different parties surrounding the testator at time of death
would like to offer extrinsic evidence to help the court “construe/re-
write” the ambiguity. How open to that extrinsic evidence should the
court be? Are the parties offering the court the extrinsic evidence to
help “construe” the will, or are they hoping the court will “re-write” the
will? Should the courts be open to “re-writing” the will? If not, what is
the difference between “construing” a will and “re-writing” a will? If
the courts should be open to re-writing a will, when should they re-
write a will? What should a party have to show before a court will re-
write a will?

441
 Second, even assuming, arguendo, a well-drafted will,
construction issues can arise because of changed conditions. A well-
drafted will tells the world who gets what—but not until the testator
dies. Because a will is an ambulatory document, the circumstances
surrounding the testator can change between time of execution of
the will and time of the testator's death. For example, a beneficiary
can predecease the testator, or property being gifted to a beneficiary
can be stolen. Such changes in a beneficiary's status or the
testator's property between time of execution and time of death can
create unexpected construction issues.1 Should extrinsic evidence
be admissible to help resolve such construction questions, and if so,
when?
Note that, unlike drafting mistakes, construction issues that arise
because of changed conditions are fairly common and foreseeable.
Two points follow from that difference. In theory, a well-drafted will
should address all possible changes that are reasonably
foreseeable. Change-in-circumstance construction issues can often
be avoided by taking the time to think through all possible scenarios
and to provide for them in the will. But assuming a will does not,
because the possible change-in-circumstance scenarios are fairly
typical and generic in nature (for example, a beneficiary may
predecease the testator, or a testator may sell property that is listed
as being given away in the will), the law has developed a set of
default construction rules for what should happen in these scenarios.
To the extent the law has developed the default construction rules,
the issue becomes whether extrinsic evidence should still be
admissible to help the court determine the testator's intent, or should
the testator have to accept the outcome under the default rule if he
or she does not draft around it?
In contrast, drafting ambiguities are so fact sensitive and unique
that it is difficult, if not impossible, to have a set of default rules for
them. The courts either are open to extrinsic evidence to help
construe the particular drafting mistake, or they are not. To put it
mildly, the courts have struggled with the issue, and the struggle
continues.
Look back at the Mahoney case: did it involve a drafting mistake or
an ambiguity that arose because of a change in circumstances
surrounding the testator between time of execution of the will and
time of death? Was the court open to extrinsic evidence or not?
Should it have been? When probating a will, should the court's goal

442
be to ascertain and give effect to the testator's intent, or to ascertain
and give effect to the testator's intent as expressed in the will? What
is the difference in those two statements? You might want to keep
them in mind as you move through the material in this chapter.

A. Drafting Mistakes
1. Common Law Approach
Consistent with its strict compliance mentality, the common law
was not amenable to admitting extrinsic evidence to help construe a
will. The common law approach, as evidenced by the Mahoney case,
applied a two-step process. First, the common law would admit
extrinsic evidence if the will contained a latent ambiguity (but not if
the ambiguity was a patent ambiguity). In addition, in determining
whether the will contained an ambiguity, the court applied the plain
meaning rule. The plain meaning rule provides that the words in the
will should be given their plain and ordinary meaning. If such a
reading reveals no ambiguity, no extrinsic evidence should be
admissible. The court's concern is the testator's intent as expressed
in the will, not the testator's true intent. As the court stated in In re
Beldon's Estate, 71 P.2d 326, 327 (Cal. Ct. App. 1937):
[I]t is a cardinal rule of construction that, where no ambiguity in
phraseology exists, the intention of the testator is to be
discovered in the express language which he used. Ryan's
Estate, 191 Cal. 307, 216 P. 366. As was said in Estate of
Ogden, 78 Cal.App. 412, at page 414, 248 P. 680, 681, “the
question for the court to determine is not what she intended to
declare in her will, but what she intended by what she did
declare therein.” Employment by a testator of language that is
clear and certain affords no justification for wresting an
unnatural meaning therefrom to save a will from
condemnation, however beneficial the testator's unexpressed
intention may have been. Doane's Estate, 190 Cal. 412, 213 P.
53. Indulgence in speculation and conjecture as to what a
testator's intention was affords no proper basis for a decree of
distribution [Estate of Zilke, 115 Cal.App. 63, 1 P.(2d) 475],
and a court is not permitted to adopt a construction founded
on conjecture or to supply an omission by rewriting a will in
order to avoid a conclusion of partial intestacy [Estate of
Hisey, 106 Cal.App. 678, 289 P. 889].

443
Moreover, as the court in Mahoney emphasized when discussing the
relationship between a latent ambiguity and the admissibility of
extrinsic evidence to help construe a will: “[it is] only where
testamentary language is not clear in its application to facts that
evidence may be introduced as to the circumstances under which
the testator used that language in order to throw light upon its
meaning” (emphasis added). Accordingly, a latent ambiguity arises
only if, when the personal representative goes to give effect to the
express words in the will, it is unclear: (1) who qualifies as the
beneficiary, or (2) what property is to be devised or bequeathed.
Two quick examples of two of the more common latent ambiguities
may help. The first is the misdescription scenario. Assume the
testator has a validly executed will that provides in pertinent part as
follows: “I devise my house, at 433 Tuxedo Bld., to my good friend,
Tanya.” On its face the will appears to be fine. But after the testator
dies and the executor goes to give effect to the gift, the executor
learns that the testator lived at 432 Tuxedo Blvd. The testator cannot
give away a house she does not own. This is a classic example of a
latent ambiguity. On the face of the will the gift appears fine; it is only
when the executor went to apply the language in the will to the facts
outside of the will that the ambiguity became apparent. Extrinsic
evidence is necessary to show the court that there is a problem with
the language in the will. Having opened the door to the extrinsic
evidence to show that there is a problem with the language in the
will, the court is open to admitting extrinsic evidence to resolve the
problem.
Under the common law approach, however, while the court is open
to construing the will, it is never to re-write a will. This logic underlies
the misdescription doctrine: if the court concludes that the will
contains a misdescription, rather than correcting the misdescription
(rewriting the “433” to read “432”), the court would strike the
language in the will that creates the misdescription and then analyze
whether the remaining language in the will provides enough
information for the court to give effect to the gift. Here, the court
would strike the number in the address and then re-read what is left
in the will to see if there is enough left so that, when applied to the
facts now, it is clear who gets what. Assuming the testator owned
only one home on Tuxedo Blvd., the court would give effect to the gift
as modified under the misdescription doctrine.
The second well-recognized latent ambiguity under the common
law approach is the equivocation scenario. Assume the testator has

444
a validly executed will that provides in pertinent part: “I give $1,000 to
my favorite 2011 Spring semester student Taurean.” Again, on the
face of the will the gift appears fine. But after the testator dies, and
the executor goes to give effect to the gift, it turns out the testator
had two students in his Spring 2011 class named Taurean. The fact
that there are two (or more) individuals who match the description in
the will creates an equivocation. To which “Taurean” was the
professor referring? The ambiguity is not apparent on the face of the
will (it is not a patent ambiguity); the ambiguity becomes apparent
only when the executor attempts to apply the language in the will to
the facts outside of the will (it is a latent ambiguity). Assume that
additional extrinsic evidence shows that one of the two Taureans was
the professor's research assistant, that the professor had served as
a reference for the student, and that the two had kept in contact even
after the student had graduated. There is no evidence that the
professor had any meaningful relationship with the other student
named Taurean. The most likely result is that the court would admit
the extrinsic evidence in question and give the gift to the student
named Taurean who was the professor's research assistant.
An equivocation can also apply to property in the sense that the
will devises an item of property and there are two or more items of
property that arguably match the express language of the will.
As should be apparent by now, a patent ambiguity is one that is
apparent on the face of the will—one that arises from the four
corners of the document, before and independent of any attempt to
apply the language to the facts outside of the will. Under the
traditional common law approach, inasmuch as extrinsic evidence
was not necessary to prove the existence of the patent ambiguity,
extrinsic evidence was not admissible to help resolve the patent
ambiguity.
Finally, even assuming, arguendo, extrinsic evidence is
admissible, to minimize the potential for fraud, the courts favored
admitting extrinsic evidence that was hard to fabricate—not evidence
that would be easy to fabricate. Accordingly, the courts would admit
extrinsic evidence of the circumstances surrounding the testator at
the time he or she executed the will, but not extrinsic evidence of
alleged oral statements made by the testator.
Thus, under the common law approach, with respect to extrinsic
evidence that a party seeks to admit to help the court construe a will:
(1) the extrinsic evidence was admissible only if there was a latent

445
ambiguity (but not a patent ambiguity); (2) in determining whether
there is an ambiguity in the will, the court applies the plain meaning
rule; and (3) even where the court is open to extrinsic evidence to
help it construe an ambiguity in a will, the court will not re-write a will.

2. Modern Trend Approach

The modern trend takes a very different approach to the
admissibility of extrinsic evidence to help a court construe a validly
executed will. Consistent with the modern trend's intent-based
approach (as evidenced by the substantial compliance and harmless
error doctrines), the modern trend takes a much more open view of
admitting extrinsic evidence. The modern trend abolishes the plain
meaning rule: extrinsic evidence is admissible to help establish that
there is an ambiguity in the will. The modern trend abolishes the
distinction between patent and latent ambiguities: extrinsic evidence
is admissible anytime there is an ambiguity in the will. The modern
trend abolishes the distinction between the different types of extrinsic
evidence: whether it appears to be hard to fabricate or easy to
fabricate. All of the relevant extrinsic evidence is admissible to help
construe the will, and it is up to the trier of fact to determine its
credibility. And finally, even in the absence of an ambiguity, the
modern trend authorizes the admissibility of extrinsic evidence to
help a court “reform” (i.e., rewrite?) a will:
to conform the text to the donor's intention if it is established
by clear and convincing evidence (1) that a mistake of fact or
law, whether in expression or inducement, affected specific
terms of the document; and (2) what the donor's intention was.
In determining whether these elements have been established
by clear and convincing evidence, direct evidence of intention
contradicting the plain meaning of the text as well as other
evidence of intention may be considered.
RESTATEMENT (THIRD) OF PROP.: WILLS & DONATIVE TRANSFERS §12.1
Reforming Donative Instruments To Correct Mistakes (2003).
Most states are somewhere in between the traditional common law
approach and the cutting-edge modern trend; they have done away
with most of the rigid formalistic rules that comprised the common
law approach, but most jurisdictions are reluctant to abolish the
distinction between construing a will and rewriting a will.

446
3. The California Approach
Estate of Taff
63 Cal. App. 3d 319 (Ct. App. 1976)
FRANSON, Associate Justice.
...
FACTS
Pearl Phyllis Taff signed her will on February 28, 1961. Prior to her
signing, she had instructed her attorney, T. N. Petersen, who
prepared the will, that the residue of her estate was to go to her
sister, Margaret M. Aulman; in the event Margaret M. Aulman did not
survive her, then Pearl Taff wanted the residue “to go to her own
family, her own blood relatives.” As part of her instructions, she told
Petersen that “she felt she was making adequate provision for
Harry's (her predeceased husband's) family in the two specific gifts
to Harry's sisters which she was providing in her will and she felt no
obligation to the other members of Harry's blood relations and was
making no gifts to them.”
On February 22, 1961, six days before signing her will, Pearl Taff
wrote to her sister, Margaret Aulman. In the letter Pearl Taff stated
that the residue of her estate was to pass “to my dear sister,
Margaret M. Aulman—or if she predeceases me in death—then to
her heirs.”
In the will as prepared, the residue of the estate is bequeathed to
decedent's sister, Margaret M. Aulman, but in the event Margaret M.
Aulman does not survive the decedent:
“... the residum (sic) of my estate, after payment of debts and
taxes and specific bequests as set forth, is to pass to my heirs
in accordance with the laws of intestate succession, in effect at
my death in the State of California, or in effect in such other
state or such other place as I may be a resident at the time of
my death.”
The decedent's sister, Margaret M. Aulman, predeceased the
decedent on January 9, 1966.
Pearl Taff died childless on January 27, 1975. Her will was
admitted to probate on February 18, 1975.

447
 Appellants are related to the decedent's predeceased husband,
Harry C. Taff, as sister, nieces, nephew and grandnephews.
Respondents are related to the decedent as blood nephews and
nieces. Three of the respondents are children of decedent's
predeceased sister, Margaret M. Aulman; one is the daughter of
decedent's predeceased sister, Stella Susan Wickert. Appellants
claim they are entitled to a portion of the residue of decedent's estate
pursuant to the California laws of intestate succession, specifically
Probate Code sections 228 and 229. Their claim is predicated upon
the residuary provision in decedent's will quoted above.
DISCUSSION
The sole issue is whether the trial court erred in admitting extrinsic
evidence to prove that the decedent intended her residuary estate to
go in a manner contrary to the seemingly clear and unambiguous
language used in her will....
The trial court heard testimony of decedent's attorney, T. N.
Petersen, to the effect that decedent had told him that she wanted to
leave the residue of her estate to her sister, Margaret Aulman, or in
the event that Margaret Aulman predeceased her, then to the
members of decedent's own family, “her own blood relatives.” This
declaration, of course, is contrary to the residuary clause as it
appears in decedent's will which was written by T. N. Petersen.
The trial court also received into evidence and considered a letter
written by the decedent to her sister six days before the decedent
signed her will and apparently after she had visited Petersen and
instructed him as to her wishes in drawing the will. This letter recited
that the residue of the decedent's estate was to pass to her sister,
Margaret M. Aulman—or if Margaret Aulman predeceased the
decedent—then to Margaret Aulman's heirs. This declaration also is
contrary to the residuary clause as it appears in the decedent's will.
Appellants rely on Estate of Watts (1918) 179 Cal. 20, 175 P. 415
(1921) 186 Cal. 102, 198 P. 1036, for the proposition that when the
language of intent in the testatrix's will is clear and unambiguous, “it
‘must be interpreted according to its ordinary meaning and legal
import, and the intention of the testator ascertained thereby.’” (179
Cal. at 23, 175 P. at 417; see also Prob.Code §106; Estate of Willson
(1915) 171 Cal. 449, 456, 153 P. 927.) In Watts, supra, the Supreme
Court excluded evidence of oral declarations by the testatrix to the
draftsman of her will that when she used the words ‘my heirs’ she

448
intended to refer only to her own kin. (186 Cal. at 104–105, 198 P.
1036.)
Under Watts, supra, if the words chosen by the testator had a
common, general and unambiguous meaning, evidence of a special
meaning which the testator actually attached to such words was
inadmissible. (See Prob.Code §106; Estate of Willson, supra, 171
Cal. at 456, 153 P. 927; Estate of Loescher (1955) 133 Cal.App.2d
589, 594, 284 P.2d 902.)
However, in Estate of Russell (1968) 69 Cal.2d 200, 70 Cal.Rptr.
561, 444 P.2d 353, our Supreme Court substantially abrogated the
“plain meaning” rule. (See 7 Witkin, Summary of Cal. Law, Wills and
Probate §162 pp. 5678–5679; 22 Hastings Law Journal (1971) pp.
1350–1355.) ... In approving the consideration of the extrinsic
evidence, the Supreme Court stated:
“... extrinsic evidence of the circumstances under which a will
is made (except evidence expressly excluded by statute) may
be considered by the court in ascertaining what the testator
meant by the words used in the will. If in light of such extrinsic
evidence, the provisions of the will are reasonably susceptible
of two or more meanings claimed to have been intended by
the testator, ‘an uncertainty arises upon the face of a will’ (s
105) and extrinsic evidence relevant to prove any of such
meanings is admissible (see §106)....” (69 Cal.2d at 212, 70
Cal.Rptr. at 569, 444 P.2d at 361.)
Under Russell, supra, extrinsic evidence is admissible both to show
that a latent ambiguity exists and to resolve the latent ambiguity.
(Estate of Flint (1972) 25 Cal.App.3d 945, 954, 102 Cal.Rptr. 345.)
“Extrinsic evidence is now admissible to show that the apparently
clear and unambiguous language of the will is in fact ambiguous ... If
... the extrinsic evidence does reveal a reasonable second
interpretation, the will is deemed to be ambiguous, and (Prob.Code)
section 105 will permit the admission of extrinsic evidence to
discover the testator's intent.” (22 Hastings Law Journal (1971) pp.
1353–1354.)
Although Russell, supra, did not expressly overrule Watts, supra, it
clearly ended the vitality of Watts insofar as the plain meaning rule is
concerned by permitting the trial court to consider extrinsic evidence
to prove a reasonable second meaning of the language used in the
will. Extrinsic evidence contradicting the express terms of a will will
be excluded today only where no reasonable ambiguity is made to

449
appear by the extrinsic evidence. (69 Cal.2d 208–212, 70 Cal.Rptr.
561, 444 P.2d 353.)
In the present case the declarations of the decedent to her
attorney and her sister exposed a latent ambiguity, i.e., that when the
testatrix used the term “my heirs” in her will, she intended to exclude
the relatives of her predeceased husband, Harry. Under Russell,
supra, the extrinsic evidence was properly received both to create
the ambiguity in the word “heirs” and to resolve the ambiguity.
(Estate of Flint, supra, 25 Cal.App.3d at 954, 102 Cal.Rptr. 345.)
Appellants argue that Probate Code section 105 precludes the
consideration of a testator's oral declarations as to his intent. Section
105 provides:
“When there is an imperfect description, or no person or
property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the
context of the will or from extrinsic evidence, Excluding the
oral declarations of the testator as to his intentions; ...
(Emphasis added.2)
However, it has long been held that oral declarations made by a
testator to the scrivener of the will are admissible to resolve a latent
ambiguity. In Estate of Dominici (1907) 151 Cal. 181, 90 P. 448, our
Supreme Court noted that the statute prohibiting admission of oral
declarations was contrary to the prevailing American and English law
and declared:
“(The prohibition) will not be extended, therefore, beyond its
actual language, and will be held to apply to the mere
incidental fugitive utterances or declarations of intent, as
distinguished from specific instructions as to testamentary
disposition which it may be proved were given.” ... [Citations
omitted.]
Appellants next argue that Probate Code section 106 and case law
require a trial court to interpret technical words used in a will drawn
by an attorney in their technical sense. Probate Code section 106
provides:
“... technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary intention,
or unless it satisfactorily appears that the will was drawn solely
by the testator, and that he was unacquainted with such
technical sense.”

450
The presumption of technical meaning established by section 106,
however, is subordinate to the dominant purpose of finding and
effecting the intent of the testator; the presumption is an aid to be
used in ascertaining that intent, not a tool by which the court
frustrates the testator's objectives.... [Citations omitted.]
...
Because the extrinsic evidence is not in conflict as to the
decedent's intention to exclude the relatives of Harry C. Taff from
taking any part of the residuary estate, and because the term “my
heirs” as used in the will is reasonably susceptible to mean that
decedent's heirs other than the relatives of Harry Taff, the trial court
properly decided as a matter of law that appellants have no right to
any portion of the residuary estate.
...
The judgment is affirmed.
—————

Notes
1. Estate of Russell: As the court in Taff notes, the Estate of
Russell case was the seminal ‘modern trend’ California case on the
admissibility of extrinsic evidence to help construe a will. In addition
to the language quoted in the Taff opinion, in Estate of Russell, the
Court made another statement that might be of interest:
When the language of a will is ambiguous or uncertain resort
may be had to extrinsic evidence in order to ascertain the
intention of the testator. We have said that extrinsic evidence
is admissible “to explain any ambiguity arising on the face of a
will, or to resolve a latent ambiguity which does not so appear”
In re Estate of Russell, 444 P.2d 353, 357 (Cal. 1968) (emphasis
added).
In Estate of Russell, the testatrix (Thelma Russell) had an “index
card will” that provided in pertinent part (the front side of the card) as
follows:
I leave everything
I own Real &
Personal to Chester
H. Quinn & Roxy Russell

451
 Thelma L. Russell'
Thelma's heirs (Augusta and Georgia) wanted to admit extrinsic
evidence to show that Roxy Russell was a dog (gifts to animals are
void, and so if the gift to Roxy failed it would fall to intestacy and
Thelma's heirs would take). Should the court admit their extrinsic
evidence?
In response to Augusta and Georgia's extrinsic evidence, Chester
wanted to admit: (1) “an address book of testatrix upon which she
had written: ‘Chester, Don't let Augusta and Georgia have one penny
of my place if it takes it all to fight it in Court. Thelma,’” and (2):
certain documentary evidence consisting of testatrix' address
book and a certain quitclaim deed ‘for the purpose of
demonstrating the intention on the part of the deceased that
she not die intestate.’ Of all this extrinsic evidence only the
following infinitesimal portion of Quinn's testimony relates to
care of the dog: ‘Q (Counsel for Quinn) Prior to the first Roxy's
death did you ever discuss with Miss Russell taking care of
Roxy if anything should ever happen to her? A Yes.’ Plaintiff
carefully preserved an objection running to all of the above line
of testimony and at the conclusion of the hearing moved to
strike such evidence. Her motion was denied.
Chester argued the evidence helped establish that Thelma intended
“to make an absolute and outright gift of the entire residue of her
estate to Quinn who was ‘to use whatever portion thereof as might
be necessary to care for and maintain the dog.’” Should the court
admit the extrinsic evidence?
The California Supreme Court ruled that “since ... the terms of the
will are not reasonably susceptible of the meaning claimed by Quinn
to have been intended by testatrix, the extrinsic evidence offered to
show such an intention should have been excluded by the trial
court.” See Estate of Russell, 444 P.2d at 363. While the California
Supreme Court clearly indicated that it was open to extrinsic
evidence to help it construe an ambiguity in the will, the court
appears to have concluded that the construction Chester was asking
it to adopt went too far, in essence asking the court to rewrite the will.
2. Construing a will versus rewriting a will: An issue implicitly
raised by the California Supreme Court's opinion in Estate of Russell
—but not addressed—is when does a court cross the line between
construing a will and rewriting a will. Following the Court's opinion in

452
Estate of Russell, that line was important because: (1) extrinsic
evidence was admissible only if there was express language in the
will that was ambiguous and that required construing, and (2) after
admitting the extrinsic evidence, the court's construction of the
ambiguity had to be consistent with one of the possible reasonable
interpretations of the express language in the will that was
ambiguous. Over time, the California courts stretched the concepts
of: (1) what constituted an express ambiguity in the will, and (2) what
constituted a reasonable interpretation of that ambiguity, but the
courts held firm to that approach, declining to embrace the
RESTATEMENT (THIRD) OF PROPERTY, Donative Transfers, position
authorizing courts to reform a will “if it is established by clear and
convincing evidence (1) that a mistake of fact or law, whether in
expression or inducement, affected specific terms of the document;
and (2) what the donor's intention was.”
The California Supreme Court was presented with an opportunity
to revisit that position recently when it decided the case of In re
Estate of Duke.

In re Estate of Duke
61 Cal. 4th 871 (2015)
CANTIL-SAKAUYE, C.J.
...
I. FACTS
In 1984, when Irving Duke was 72 years of age, he prepared a
holographic will in which he left all of his property to “my beloved
wife, Mrs. Beatrice Schecter Duke,” who was then 58 years of age.
He left to his brother, Harry Duke, “the sum of One dollar.” He
provided that “[s]hould my wife ... and I die at the same moment, my
estate is to be equally divided—[¶] One-half is to be donated to the
City of Hope in the name and loving memory of my sister, Mrs. Rose
Duke Radin. [¶] One-half is to be donated to the Jewish National
Fund to plant trees in Israel in the names and loving memory of my
mother and father—[¶] Bessie and Isaac Duke.”
Irving further provided in his will that “I have intentionally omitted
all other persons, whether heirs or otherwise, who are not specifically
mentioned herein, and I hereby specifically disinherit all persons
whomsoever claiming to be, or who may lawfully be determined to be
my heirs at law, except as otherwise mentioned in this will. If any

453
heir, devisee or legatee, or any other person or persons, shall either
directly or indirectly, seek to invalidate this will, or any part thereof,
then I hereby give and bequeath to such person or persons the sum
of one dollar ($1.00) and no more, in lieu of any other share or
interest in my estate.”
The will appointed Beatrice the executrix of the estate. The only
change Irving ever made to his will was the addition, in 1997, of the
statement that “[w]e hereby agree that all of our assets are
community property.” Beatrice died in July 2002, but the will was not
changed to select a new executor.
Irving died in November 2007, leaving no spouse or children. In
February 2008, a deputy public administrator for the County of Los
Angeles obtained the will from Irving's safe deposit box. In March
2008, two charities, the City of Hope (COH) and the Jewish National
Fund (JNF), petitioned for probate and for letters of administration. In
October 2008, Robert and Seymour Radin (the Radins) filed a
petition for determination of entitlement to estate distribution. The
Radins are the sons of Irving's sister, Rose Duke Radin, who
predeceased Irving. Their petition alleged that they are entitled to the
distribution of Irving's estate as Irving's sole intestate heirs.
The Radins moved for summary judgment. They did not challenge
the validity of the will. Instead, they asserted that the estate must
pass to Irving's closest surviving intestate heirs, the Radins, because
Irving did not predecease Beatrice, nor did Irving and Beatrice “die at
the same moment,” and there is no provision in the will for
disposition of the estate in the event Irving survived Beatrice. In
opposition to the motion, COH and JNF offered extrinsic evidence to
prove that Irving intended the will to provide that in the event
Beatrice was not alive to inherit Irving's estate when Irving died, the
estate would be distributed to COH and JNF. The probate court
concluded that the will was not ambiguous, and on that ground, it
declined to consider extrinsic evidence of Irving's intent, and granted
summary judgment for the Radins.
The Court of Appeal affirmed, ...
II. DISCUSSION
California law allows the admission of extrinsic evidence to
establish that a will is ambiguous and to clarify ambiguities in a will....
As COH and JNF acknowledge, however, California law does not
currently authorize the admission of extrinsic evidence to correct a

454
mistake in a will when the will is unambiguous.... To evaluate
whether there are circumstances in which this court should authorize
the admission of extrinsic evidence to correct a mistake in an
unambiguous will, we first consider whether the Legislature's actions
in this field preclude this court from altering the rule.
A. Statutory and judicial development of the law concerning
the admission of extrinsic evidence regarding wills
[Starting with the original Statute of Wills in 1950 and proceeding
up to the present, the Court traced the slow but steady movement
towards increasing the admissibility of extrinsic evidence with
respect to the construction of wills. The Court noted that the
movement has been the result of the interaction of both judicial and
legislative action. In particular, the Court discussed in detail its
decision in Estate of Russell, noting how the opinion significantly
changed the law with respect to the admissibility of extrinsic
evidence in California to help construe a will. As the Court noted,
“although the Legislature had codified the historical grounds on
which courts had authorized the admission of extrinsic evidence, we
did not perceive its provisions to be a limitation on the continued
development of the common law.” The Court went on to conclude:]
This history of statutory provisions concerning the admissibility of
evidence of a testator's intent reflects that the Legislature has
codified legal principles developed by the courts, and has taken
steps to ensure that its enactments do not restrict the admissibility of
extrinsic evidence beyond the principles established by the courts.
Nothing in this history suggests that the Legislature intended to
foreclose further judicial developments of the law concerning the
admissibility of evidence to discern the testator's intent, and “we see
no reason to interpret the legislation as establishing a bar to judicial
innovation.” (American Motorcycle Assn. v. Superior Court (1978) 20
Cal.3d 578, 601, 146 Cal.Rptr. 182, 578 P.2d 899.... Moreover, it
does not appear that the Legislature has addressed the issue of
reformation of wills. Therefore, as we did in Estate of Russell, supra,
69 Cal.2d 200, 70 Cal.Rptr. 561, 444 P.2d 353, we may continue to
develop the law concerning the admissibility of evidence to assist in
the determination of the testator's intent when the language of the
document is clear on its face.
B. No sound basis exists to forbid the reformation of
unambiguous wills in appropriate circumstances
...

455
 In California, extrinsic evidence is generally admissible to correct
errors in documents, including donative documents other than
wills....
In addition, California courts have admitted extrinsic evidence to
apply to the construction of a will to accomplish what is arguably or
has the effect of reforming a will. For example, ... Estate of Karkeet
(1961) 56 Cal.2d 277, 281–283, 14 Cal.Rptr. 664, 363 P.2d 896
[extrinsic evidence was admissible to establish that a will that named
the testatrix's good friend as executrix, but made no testamentary
disposition, was intended to leave the estate to the good friend];
Estate of Akeley (1950) 35 Cal.2d 26, 30, 215 P.2d 921 [evidence
that testatrix was unmarried, had no relatives, and drafted her will
herself was cited in support of ruling that three charities that were
each given one-quarter of the residue of the estate would each
receive one-third].)
Principles allowing the admission of extrinsic evidence to identify
and resolve ambiguities in wills have also been invoked to correct
attorneys' drafting errors and thereby to reform wills. For example, in
Estate of Taff (1976) 63 Cal.App.3d 319, 133 Cal.Rptr. 737, the
testatrix directed her attorney to provide that if the testatrix's sister
did not survive her, the residue of the estate would go to her sister's
children. Her will, however, stated that if her sister predeceased her,
the residue would go to “‘my heirs in accordance with the laws of
intestate succession.’” (Id. at p. 322, 133 Cal.Rptr. 737.) The court
found that the extrinsic evidence of the testatrix's instructions to her
attorney and statements to her sister “exposed a latent ambiguity,
i.e., that when the testatrix used the term ‘my heirs’ in her will, she
intended to exclude the relatives of her predeceased husband,
Harry.” (Id. at p. 325, 133 Cal.Rptr. 737.) ...
Extrinsic evidence is admissible not only to aid in the construction
of a will, but also to determine whether a document was intended to
be a will. (Halldin v. Usher (1958) 49 Cal.2d 749, 752, 321 P.2d 746
[parol evidence is admissible to prove a document was intended as a
will rather than a contract]; Estate of Sargavak (1950) 35 Cal.2d 93,
96, 216 P.2d 850 [evidence is admissible to prove a will was
executed in jest, as a threat to induce action, under the mistaken
belief it was a mortgage, to induce illicit relations, or in response to
annoyance from one who seeks to inherit].) In addition, courts have
long recognized that extrinsic evidence is admissible to prove that a
will has been lost or destroyed, and to prove its contents....

456
 Thus, extrinsic evidence is admitted to correct donative documents
other than wills after the donor's death. Moreover, myriad
circumstances exist in which California courts appropriately admit
evidence to establish a testator's intentions. Because extrinsic
evidence is not inherently more reliable when admitted for these
various purposes than when admitted to correct an error in a will,
Professors John Langbein and Lawrence Waggoner, leading
advocates of an extension of the doctrine of reformation to
unambiguous wills, conclude that evidentiary concerns do not
explain or justify the bar on reformation of wills. In their view, a
greater obstacle to reformation has been concern with the formalities
required in the execution of a will by the statute of wills. (Langbein &
Waggoner, Reformation of Wills on the Ground of Mistake: Change
of Direction in American Law? (1982) 130 U.Pa. L.Rev. 521, 524–
529 (hereafter Langbein and Waggoner).) ...
Applying the analysis developed with respect to the statute of
frauds, Langbein and Waggoner observe, “Whereas an oral will
instances total noncompliance with the Wills Act formalities, a duly
executed will with a mistakenly rendered term involves high levels of
compliance with both the letter and the purpose of the Wills Act
formalities. To the extent that a mistake case risks impairing any
policy of the Wills Act, it is the evidentiary policy that is in question.”
(Langbein & Waggoner, supra, 130 U.Pa. L.Rev. at p. 569, italics
added.) With respect to evidentiary concerns, the authors advocate
that reformation be allowed only in cases of clear and convincing
evidence of the alleged mistake and the testator's intent. (Ibid.) As
noted, we have previously imposed a clear and convincing evidence
standard to support a claim of inheritance based on equitable
adoption. (Estate of Ford, supra, 32 Cal.4th 160, 172, 8 Cal.Rptr.3d
541, 82 P.3d 747.)
In cases in which clear and convincing evidence establishes both
a mistake in the drafting of the will and the testator's actual and
specific intent at the time the will was drafted, it is plain that denying
reformation would defeat the testator's intent and result in unjust
enrichment of unintended beneficiaries. Given that the paramount
concern in construing a will is to determine the subjective intent of
the testator (Estate of Russell, supra, 69 Cal.2d at p. 205; 70
Cal.Rptr. 561, 444 P.2d 353 4 Page on Wills (Bowe-Parker rev.2004)
§30.1, p. 2), only significant countervailing considerations can justify
a rule categorically denying reformation.

457
 The Radins cite various factors in support of their contention that
reformation of wills should never be allowed, some of which we have
addressed above. First, they distinguish wills from other written
instruments, noting that probate of a will always occurs after the
testator's death, whereas contract litigation typically occurs when the
parties to the contract are alive, and trust administration “frequently”
begins before the testator's death. In addition, anyone may claim to
be an intended beneficiary of a will, but the parties to a contract
typically are few. We are not persuaded by these arguments in favor
of a categorical bar on reformation.... Categorically denying
reformation may result in unjust enrichment if there is a mistake of
expression in the will, and imposing a burden of clear and convincing
evidence of both the existence of the mistake and of the testator's
actual and specific intent at the time the will was drafted helps
safeguard against baseless allegations....
Second, the Radins express concern that reformation overrides
the formalities required to execute a will. The fact that reformation is
an available remedy does not relieve a testator of the requirements
imposed by the Statute of Wills. (See Prob.Code, §6111.) Therefore,
the formalities continue to serve various functions associated with
the rituals of will execution, such as warning the testator of the
seriousness of the act and clearly identifying the document as a will.
(See fn. 12, ante.) To the extent reformation is inconsistent with the
formalities' evidentiary purpose of establishing the testator's intent in
a writing, the inconsistency is no different from the tension between
reformation and the statute of frauds. As explained above, the
evidentiary concern is addressed by requiring clear and convincing
evidence of a mistake in expression and the testator's actual and
specific intent. We should not allow stringent adherence to
formalities to obscure the ultimate purpose of the statute of wills,
which is to transfer an estate in accordance with the testator's intent.
Third, the Radins assert that allowing reformation in circumstances
in which the estate would otherwise pass pursuant to the laws of
intestacy constitutes an attack on the laws of intestacy. We disagree.
The purpose of reformation is to carry out the wishes of the testator,
and the remedy reflects no judgment other than a preference for
disposition pursuant to the wishes of the testator. This preference is
consistent with the statutory scheme. (See Prob.Code, §§6110 [a will
that is not properly executed is enforceable if clear and convincing
evidence establishes it was intended to constitute the testator's will],
21120 [“Preference is to be given to an interpretation of an

458
instrument that will prevent intestacy or failure of a transfer, rather
than one that will result in an intestacy or failure of a transfer”].)
Fourth, the Radins assert that allowing reformation will result in a
significant increase in probate litigation and expenses. Claimants
have long been entitled, however, to present extrinsic evidence to
establish that a will is ambiguous despite the fact that it appears to
be unambiguous. (Estate of Russell, supra, 69 Cal.2d at pp. 206–
213, 70 Cal.Rptr. 561, 444 P.2d 353.) Therefore, probate courts
already receive extrinsic evidence of testator intent from claimants
attempting to reform a will through the doctrine of ambiguity.... The
task of deciding whether the evidence establishes by clear and
convincing evidence that a mistake was made in the drafting of the
will is a relatively small additional burden, because the court is
already evaluating the evidence's probative value to determine the
existence of an ambiguity. To the extent additional claims are made
that are based on a theory of mistake rather than a theory of
ambiguity, the heightened evidentiary standard will help the probate
court to filter out weak claims. Finally, fear of additional judicial
burdens is not an adequate reason to deny relief that would serve
the paramount purpose of distributing property in accordance with
the testator's intent....
Fifth, the Radins discount justifications for allowing reformation in
appropriate circumstances. They assert that Probate Code section
6110, subdivision (c)(2), which allows the probate of a will that was
not executed in compliance with statutory attestation requirements if
clear and convincing evidence establishes that the testator intended
the writing to be a will, was not intended to lessen required
formalities. Although section 6110 does not reduce the formalities of
attestation, it reflects a judgment that the formalities should not be
allowed to defeat the testator's intent when clear and convincing
evidence satisfies the evidentiary concerns underlying the formalities
of the statute of wills. The Radins also reject as a factor in support of
a reformation remedy the avoidance of unjust enrichment. They state
that no one has a right to inherit, and they recite various facts that
they believe reflect that it is more just for Irving's relatives to inherit
his estate than for the charities to receive it. If, however, a testator
did not intend to devise property to a particular party, that party's
receipt of the property as a result of a mistake constitutes unjust
enrichment.
In sum, the Radins identify no countervailing considerations that
would justify denying reformation if clear and convincing evidence

459
establishes a mistake in the testator's expression of intent and the
testator's actual and specific intent at the time the will was drafted.
...
D. The charities have articulated a valid theory that will
support reformation if established by clear and convincing
evidence
COH and JNF contend that Irving actually intended at the time he
wrote his will to provide that his estate would pass to COH and JNF
in the event Beatrice was not alive to inherit his estate when he died,
but that his intent was inartfully expressed in his will and thus there is
a mistake in the will that should be reformed to reflect his intent when
the will was drafted. Their contention, if proved by clear and
convincing evidence, would support reformation of the will to reflect
Irving's actual intent.
First, the alleged mistake concerns Irving's actual intent at the time
he wrote the will. As explained above, reformation of a document
that is subject to the statute of frauds or the statute of wills entails the
enforcement of the written document in a manner that reflects what
was intended when the document was prepared. If Irving's only
intent at the time he wrote his will was to address the disposition of
his estate in the circumstances in which he died before Beatrice or
they died simultaneously, his will accurately reflects his intent. In that
circumstance, his mistake, if any, would be in failing subsequently to
modify the will after Beatrice died, and that mistake would not be
related to the will he wrote and that COH and JNF seek to have
reformed. (See generally 1 Witkin, Summary of Cal. Law, supra,
Contracts, §278, p. 308.)
Second, the alleged mistake and intent are sufficiently specific.
The allegations are precise with respect to the error and the remedy:
the charities assert Irving specifically intended when he wrote his will
to provide that his estate would pass to COH and JNF not only upon
the simultaneous death of Irving and Beatrice, as the will expressly
states, but also in the event Beatrice was not alive to inherit the
estate at the time of his death. Although COH and JNF do not allege
that the error was merely clerical, but instead assert that Irving's
intent was inartfully expressed, their theory alleges “a mistake in the
rendering of terms that the testator has authored or approved. The
remedy in such a case has exactly the dimensions of the mistake.
The term that the testator intended is restored.” (Langbein &
Waggoner, supra, 130 U.Pa. L.Rev. at pp. 583–584.)

460
 The charities' theory, which sets forth a specific disposition of
assets Irving allegedly intended when he wrote his will, distinguishes
this case from circumstances in which it is alleged that the testator
had a more general intent regarding the disposition of the estate
which was not accomplished by the will as written. An example of an
error involving general intent would be a case in which a testator
intended in his or her will to provide adequate resources to one of
the will's beneficiaries to support that beneficiary for a lifetime, but
the specific gift set forth in the will proves to be inadequate for that
purpose. Thus, that will accurately sets forth the testator's specific
intent with respect to the distribution of assets, but due to a mistake
with respect to the value of those assets or the needs of the
beneficiary, the will fails to effect the testator's intent to provide
adequate assets to support the beneficiary. In contrast to cases in
which the alleged error is in the rendering of the specific terms
intended by the testator, cases in which the alleged error is in failing
to accomplish a general intent of the testator would require a court to
determine the testator's putative intent: if the testator had known of
the mistake, how would the testator have changed the will? The case
before us presents only the issue of whether a will may be reformed
when extrinsic evidence establishes that the will fails to set forth the
actual specific intent of the testator at the time the will was executed,
and we express no opinion on the availability of reformation in cases
involving claims of general and putative intent.
Finally, for the reasons discussed above, evidence of the testator's
intent must be clear and convincing. Among the evidence to be
considered is the will itself, but when reformation rather than
construction of a will is at issue, the rules of construction, which set
forth principles for determining disposition of estate assets where the
testator's intention is not reflected in the will (Prob.Code, §21102), do
not apply where extrinsic evidence supplies the missing terms.
(Langbein and Waggoner, supra, 130 U.Pa. L.Rev. at pp. 579–580.)
Other doctrines of interpretation are also supplanted by the remedy
of reformation. For example, although the terms of a will may be
inadequate alone to establish a dominant dispositive plan that would
warrant a gift by implication..., those aspects of the will that tend to
reflect an intent to make a particular gift should be considered
together with the extrinsic evidence of intent to determine whether
there is clear and convincing evidence of an intent to make a gift.
Similarly, although a disinheritance clause cannot prevent heirs from
inheriting pursuant to the statutory rules of intestacy (Estate of

461
Barnes, supra, at pp. 582–583, 47 Cal.Rptr. 480, 407 P.2d 656), any
intent reflected in such a clause may be relevant when reformation is
sought.
III. CONCLUSION
We hold that an unambiguous will may be reformed to conform to
the testator's intent if clear and convincing evidence establishes that
the will contains a mistake in the testator's expression of intent at the
time the will was drafted, and also establishes the testator's actual
specific intent at the time the will was drafted. We reverse the
judgment of the Court of Appeal and remand the matter to the Court
of Appeal with directions to remand the case to the trial court for its
consideration of extrinsic evidence as authorized by our opinion.
—————

Notes
1. Construing versus rewriting: What does the California Supreme
Court's opinion in Estate of Duke do to the traditional line between
construing an express ambiguity in a will and rewriting a will? To the
extent the opinion abolishes that line that authorizes a court to admit
extrinsic evidence in either case, does that mean that the distinction
between construing an express ambiguity in a will and rewriting the
will is abolished and has no legal significance?
2. Estate of Taff: Notice the Court's characterization in Estate of
Duke of the Appellate Court's opinion in Estate of Taff. Would the
Appellate Court in Estate of Taff agree with the Supreme Court's
characterization of its opinion? To the extent the Supreme Court is
saying that the Appellate Court in Estate of Taff stretched the law to
reach a decision it thought was fair and just, is that not always a risk
with any law? In the future, might lower courts reform a will to give
effect to what the court thinks is the decedent's “probable intent”
even if there is no clear and convincing evidence of the intent at the
time the will was executed? Is that really where the intent movement
(the movement the California Supreme Court described, including
the harmless error doctrine and the increasing admissibility of
extrinsic evidence concerning the decedent's intent) is headed?
Would it be good to acknowledge that many probate and appellate
courts are de facto applying a “probable intent” standard? Is that all
they are doing? Is that good as a matter of public policy?

462
 3. Burden of proof: What must the charities show on remand
before the probate court should reform the will? What if the only
evidence the charities have is: (1) the checks Irving gave to a senior
gift planning officer totaling $300,000 on three different occasions
over a six-month period from August 2003 to January 2004; and (2)
alleged oral statements Irving made to the senior gift planning officer
for one of the charities that he was “leaving his estate” to the
charities? What constitutes clear and convincing evidence? Should it
matter if the evidence is offered by only one of the interested
parties?
What is the temporal focus of the test the Court articulated in
Estate of Duke? Is evidence of the decedent's intent before that point
in time and/or after that point in time relevant to his or her state of
mind at that point in time?
How would you rule if you were the probate court judge hearing
the case on remand, and why?
The Estate of Duke case should give you a better feel for the
complexity of the issue of whether courts should reform wills and, if
so, under what conditions. For an interesting judicial discussion of
these issues, see Estate of Irvine v. Oaas, 372 Mont. 49 (2013)
(where the Montana Supreme Court adopted the RESTATEMENT
(THIRD) approach but then held that it would be inappropriate to apply
it to the facts of that case).

Problems
1. Dirk knew he was ill and drove to his attorney's office to have his
will prepared. When he arrived, Dirk remained in his car and his
attorney came out to him. Dirk told his attorney that he wanted his
property to go half to his wife, and half to his niece. The attorney
returned to her office, drew up the will, but failed to include the
devise to Dirk's wife.
After drawing up the will, the attorney took the will out to Dirk's
car. Two of the attorney's employees served as witnesses by
standing at the office window and waving to Dirk while they
watched him read and sign the will while he remained in the car.
There were no verbal communications between Dirk and the
witnesses. The will was then returned to the attorney's office,
where the employees signed it while standing at the window. The
witnesses knew Dirk and his signature.

463
 a. Should Dirk's will be admitted to probate?
b. Assuming, arguendo, Dirk's will is admitted to probate, if Dirk's
wife wishes to present extrinsic evidence to prove that she is
entitled to take under the will, is the evidence admissible? What
is the burden of proof she would have to satisfy for the court to
permit her to take? Has she met that burden?

2. Testatrix Thelma Russell handwrites and signs a valid holographic

will that provides as follows:
I leave everything
I own Real &
Personal to Chester
H. Quinn & Roxy Russell.
Thelma L. Russell
Assume (1) Roxy is a dog, and (2) California still applied the
traditional common law rule that if part of the residue fails, it falls
to intestacy. Chester wishes to admit extrinsic evidence to show
that Thelma's intent was for him to receive all of the property and
to use some of it to care for Roxy. Is the evidence admissible?
What is the burden of proof he would have to satisfy for the court
to permit him to take? Has he met that burden?
3. Testatrix tells her attorney that she wishes her estate to go to her
25 first cousins. The attorney drafts and has testatrix execute a will
that states that her estate will pass “to my heirs at law.” It turns out
that testatrix is survived by an aunt. The 25 first cousins seek to
admit extrinsic evidence that shows that testatrix's intent was for
them to take. Is the evidence admissible? What is the burden of
proof they would have to satisfy for the court to permit them to
take? Have they met that burden?
4. Consider the following fact pattern from the Massachusetts case
of Flannery v. McNamara, 738 N.E.2d 739 (Mass. 2000):
On September 30, 1995, the decedent died in Arlington. The
decedent's will, dated January 20, 1973, left his entire estate
to his wife, Katherine M. White (Katherine). The relevant part
of the will provides that:
“I give, devise, and bequeath all of the property of which I die
possessed real, personal, and mixed of nature and
wheresoever located to my beloved wife, Katherine M. White.”
The decedent's will failed to name a contingent beneficiary
and it did not contain a residuary clause.

464
Katherine died October 14, 1993, survived by the decedent
and her two sisters, the Flannerys. The couple had no
children. McNamara, the decedent's attorney, repeatedly
advised the decedent to let him review the will, but the
decedent never showed the will to McNamara. The decedent
died survived by his intestate heirs who were discovered
through a genealogical search. The heirs are the decedent's
first cousins, once removed.
The Flannerys make the following allegations. For almost five
decades, they had a close relationship with the decedent.
Moreover, after Katherine's death, the decedent relied heavily
on the Flannerys for advice and assistance with daily matters.
After the decedent died, he was buried in the Flannerys' family
plot. On several occasions, the decedent told members of the
Flannerys' family that his Arlington residence and its contents
“will be [theirs] some day.” Additionally, the decedent informed
McNamara that he understood that, if Katherine were to
predecease him, his will provided for his property to go to the
Flannerys. In contrast, the decedent did not have a close
relationship with the heirs.
Assuming, arguendo, that the fact pattern arose in California,
should the Flannerys' extrinsic evidence be admissible to
show that the testator's intent was that they were to take in the
event Katherine predeceased him? What is the burden of
proof they would have to satisfy for the court to permit them to
take? Have they met that burden?

465
 III. Types of Testamentary
Gifts; Failure
A will answers the question “Who gets a testator's property when
he or she dies?” A will expresses the testator's intent to make an at-
death gift of the property to the identified beneficiaries. Knowing the
different types of gifts that can be made in a will is important because
different rules apply to different types of at-death gifts.

A. Types of Testamentary Gifts

California has formally identified six types of “time-of-death”
transfers, four of which are relevant to our examination:
CPC §21117. Categories of ‘at-death’ transfers
At-death transfers are classified as follows:
(a) A specific gift is a transfer of specifically identifiable property.
(b) A general gift is a transfer from the general assets of the
transferor that does not give specific property.
(c) A demonstrative gift is a general gift that specifies the fund
or property from which the transfer is primarily to be made.
...
(f) A residuary gift is a transfer of property that remains after all
specific and general gifts have been satisfied.
While a gift's categorization is ultimately a question of the testator's
intent, the language in the will is the starting point for analyzing his or
her intent. Thus, the key to analyzing the type of gift in a testator's
will is to look to the description in the will of the property being gifted.
Assume the testator owns a 1987 Volkswagen Vanagon. His will
includes the following clause: “I give my best friend Bob my most
treasured item: my 1987 VW Vanagon. I know how much he has
always envied it and desired it.” The will specifically identifies a
particular asset the testator owns and that the testator wants to give
to the beneficiary. There is only one item in the world that matches
the description: “my 1987 VW Vanagon.” No other item can satisfy
the gift. This is a classic example of a specific gift.

466
 In contrast, a gift of an asset of a general description to be made
out of testator's general assets is a general gift. The testator does
not have in mind a specifically identified asset. Thus, the gift can be
satisfied by any asset that matches the general description of the
gift. The classic example of a general gift is a gift of money: “I give
$10,000 to Remi.” The testator has not specified which dollar bills in
particular are to be given to Remi, any $10,000 will do. The gift can
come from the testator's savings account, her checking account, or
from selling other assets. Any of the testator's general assets (assets
not specifically gifted) can be used to satisfy the gift. While gifts of
money are the classic example of a general gift, a general gift can be
of any nature. If the will provides “I give 1,000 shares of IBM stock to
Bert,” is that a general gift or a specific gift? The gift is of stock in a
particular company, but there are millions of shares of IBM stock
outstanding. Did the testator specify which 1,000 shares are to be
given to Bert?
A legal rule that follows from classifying a gift as a general gift is
that if, at time of death, the testator does not own an asset that
matches the general gift, the personal representative has a legal
duty to go out and purchase the asset and give it to the beneficiary.3
If the gift of IBM stock above is a general gift, and the testator does
not own 1,000 shares of IBM stock at time of death, the personal
representative has a duty to go out and purchase 1,000 shares of
IBM stock to give to the beneficiary. What if the testator's will
provides as follows: “I give a 2015 Tesla S to my love, Gerri.”
Specific or general gift? What if the testator does not currently own a
Tesla?
A residuary gift is a catch-all gift. It is the gift that gives away all of
the testator's property that has not already been given away as a
specific or general gift. Again, whether a gift is a residuary gift is a
question of intent. The classic language for a residuary clause gift is
“I give the rest, residue, and remainder of my property to Lulu.” The
intro clause (“I give the rest ...”) implies that the testator is giving
away the rest of his or her property after making the specific and
general gifts in the will. But what type of gift a testator is making is a
question of intent, and thus no special language is necessary. If the
will simply says, “I give all my property to Lulu,” the gift is a residuary
gift: it gives away all of the testator's property. There are no specific
or general gifts in such a simple will, but because the clause is giving
away all of the testator's property, it is a residuary gift.

467
 The fourth type of gift, the demonstrative gift, is a hybrid of the first
two types. It is a general gift from a specific source: “I give Bert
$10,000 from my checking account at Bank of America.” The first
half of the gift makes it look like a general gift, but the second half
makes it look like a specific gift. If the testator intended the charge to
be against the specific fund only, the gift is a specific gift. If, however,
the testator intended the charge to be against the general assets of
his or her estate in the event the specific fund failed, the gift is a
demonstrative gift. Legally, demonstrative gifts are treated as a
subset of general gifts. If the funds are no longer available from the
specifically referenced source, that is not a problem. Because
demonstrative gifts are a subset of the general gifts category, the
funds would simply be taken from the testator's general funds (i.e.,
from the property that would otherwise pass through the residuary
clause).

Problems
1. Testatrix's will provides in pertinent part as follows: “I give all my
jewelry to my daughter Kristin.” How would you classify the gift?
See Haslam v. Alvarez, 38 A.2d 158, 161–62 (R.I. 1944).
2. Testatrix's will provides in pertinent part as follows: “I give all the
shares of Amgen stock I inherited from my mother to my daughter
Carolyn.” How would you classify the gift? See Haslam v. Alvarez,
38 A.2d 158, 162 (R.I. 1944).
3. Testatrix's will provides in pertinent part as follows: “I give my
nephew $5,000 to be paid from the money, as and when received,
from my former husband in connection with our divorce, whereby
he is obligated to pay me $25,000.00.” It turns out testatrix's
husband was not obligated to pay her $25,000.00 under the
divorce decree and never paid this money. How would you classify
the gift to the nephew? Is he entitled to receive $5,000 from
testatrix's general assets?
4. Testator's will provides in pertinent part as follows: “I give my
grandson $12,000, contained in the bond that is in my safe deposit
box.” How would you classify the gift? If there is no bond in the
safe deposit box, is the grandson entitled to $12,000 out of the
testator's general assets? See In re Smallman's Will, 247 N.Y.S.
593, 609 (1931). What if the will had provided “I give my grandson
the bond that is in my safe deposit box.” Same case or different
case? How would you classify the gift?

468
5. Testator's holographic will provided in pertinent part as follows: “I
give all my property to Lulu.” How would you classify the gift?
6. Testator's holographic will provides in pertinent part as follows: “I
give all my baseball cards to my brother, Bob.” How would you
classify the gift?
7. The testator's lawyer drafted a will that provides in pertinent part
as follows: “I give 100 shares of Acadia Pharmaceuticals to my
brother, Siqi.” At the time of execution testator owns 100 shares of
Acadia Pharmaceuticals. How would you classify the gift? What
difference, if any, would it make if the will were a holographic will?
See In re Blackmun's Estate, 98 Cal. App. 2d 314 (1950).

B. Failure of Testamentary Gift

A testamentary gift can fail for any number of reasons: for
example, the gift was the result of an insane delusion, it was the
result of undue influence, it was the result of fraud, the beneficiary
disclaimed the gift, or the beneficiary failed to meet the survival
requirement. If a gift fails, what happens to the gift? On the one
hand, it can be argued that a failed gift creates an ambiguity in the
will, and the court should take extrinsic evidence to determine what
testator's intent would be if he or she had known that the gift would
fail. On the other hand, the courts can create default rules with
respect to what happens if a gift fails, and if a testator does not like
the default rule, he or she can draft around it.
Which approach is the better approach? Why? The modern trend
with respect to the will execution doctrines (substantial compliance
and harmless error) is to admit extrinsic evidence in the interest of
trying to determine and give effect to testator's intent. Should the
modern trend approach extend to construction issues? Should the
court take extrinsic evidence to determine the testator's probable
intent and give effect to it?

In re Estate of McFarland
167 S.W.3d 299 (Tenn. 2005)
WILLIAM M. BARKER, J.
...
On November 14, 1994, Ms. Merle Jeffers McFarland executed a
holographic will.... The will ... directed that the remainder of her

469
estate was to be divided among eighteen named individuals and
entities....
...
On October 12, 2001, seven years after making the will, Ms.
McFarland passed away at the age of eighty-four.... [T]hree of the
residuary beneficiaries named in the will, Minnis Rankin Jeffers,
Willie Lee Jeffers, and Mary Louise McFarland, had predeceased the
testatrix, Ms. McFarland. Also, none of these predeceased
beneficiaries had left a surviving spouse or issue. It was therefore
uncertain as to how these individuals' shares were to be distributed.
...
... The issue presented is whether the lapsed residuary gifts pass
to the testatrix's heirs at law or to the remaining residuary
beneficiaries. The estate administrator, along with the remaining
residuary beneficiaries, argue that the lapsed gifts should be divided
among the remaining residuary beneficiaries in proportion to their
interests granted in the will. In opposition, the surviving heirs argue
that the lapsed gifts pass by intestate succession.
...
Analysis
...
A gift or devise in a will which fails because the beneficiary
predeceases the testator is said to lapse. White v. Kane, 178 Tenn.
469, 159 S.W.2d 92, 94 (1942). To avoid this problem, Tennessee,
like many other states, has enacted an “anti-lapse” statute which
works to save lapsed gifts for the representatives of the predeceased
beneficiary....
This statute attempts to further the presumed intent of the testator
in the absence of any contrary intent expressed through the will.
Weiss v. Broadway Nat'l Bank, 204 Tenn. 563, 322 S.W.2d 427, 432
(1959). However, the anti-lapse statute saves the gift only if the
predeceased beneficiary has left issue surviving the testator;
otherwise, the statute has no application, and the gift lapses. See
Cox v. Sullins, 181 Tenn. 601, 183 S.W.2d 865, 866 (1944).
Another manner of disposing of lapsed gifts is through a will's
residuary clause. If the will contains specific gifts or devises of
property which lapse, these are deemed to fall into the residue and

470
are disposed of through the provisions of the residuary clause,
unless the testator has manifested a contrary intention. Milligan v.
Greeneville Coll., 156 Tenn. 495, 2 S.W.2d 90, 93 (1928). Yet a
particular problem arises when, as in the present case, the anti-lapse
statute is inapplicable, and the gift which has lapsed is already a part
of the residue. Under such circumstances, the traditional rule,
derived from the English common law, is that the lapsed gift falls out
of the terms of the will and passes by intestate succession to the
testator's heirs at law....
Despite its stability in our state, this rule has been much criticized
in other jurisdictions and by legal commentators, with the main
argument being that the rule defeats the most probable intent of the
testator in this situation. Due in part to this criticism, the Uniform
Probate Code adopts an alternative rule, often called the “modern”
rule, which directs that “if the residue is devised to two or more
persons and the share of one of the residuary devisees fails for any
reason, his share passes to the other residuary devisee, or to other
residuary devisees in proportion to their interests in the residue.”
Unif. Probate Code §2-606 (1974). The UPC rule has gained wide-
spread support, having been adopted, either by statute or through
case law, in the vast majority of other states. By contrast, the
common-law or Ford rule remains in effect in only a minority of
states, including Tennessee.
Nevertheless, although widely abandoned in other jurisdictions,
the Ford rule cannot fairly be termed either incorrect or illogical. The
reasons supporting the modern UPC rule are generally that it more
closely comports with the probable intent of the testator and that it
avoids partial intestacy. See In re Slack's Trust, 220 A.2d at 473–74;
Corbett, 207 P. at 822. However, in our view, it is just as likely that a
person would consider the implications of the traditional or Ford rule
when executing his or her will and thus implicitly intend that lapsed
gifts should pass to the heirs, rather than to the remaining residuary
beneficiaries. Therefore, neither of the rules is more logically correct
than the other. The two divergent rules simply represent two
competing schools of thought as to what a testator would most
probably desire to happen when a residuary gift lapses.
...
Conclusion
In summary, we hold that the lapsed residuary gifts at issue in this
case are not to be divided among the remaining residuary

471
beneficiaries. Rather, the lapsed gifts result in a partial intestacy and
therefore pass under the laws of intestate succession to the
testatrix's heirs at law....
—————

Note
Partial failure of residuary clause: Look back at the brief
description of the Estate of Russell case a few pages back. What
type of gift was the gift to Roxy and Chester? In light of the rule that
an animal is not an eligible taker under a will, the gift to Roxy failed.
Which approach did California apply at the time? Like Tennessee,
California revisited the issue statutorily (see below). Did California
join the majority, modern trend approach or did California stick with
the common law approach? How would the McFarland case come
out in California?
CPC §21111. Testamentary transfers that fail
(a) Except as provided in subdivision (b) and subject to Section
21110, if a transfer fails for any reason, the property is
transferred as follows:
(1) If the transferring instrument provides for an alternative
disposition in the event the transfer fails, the property is
transferred according to the terms of the instrument.
(2) If the transferring instrument does not provide for an
alternative disposition but does provide for the transfer of a
residue, the property becomes a part of the residue
transferred under the instrument.
(3) If the transferring instrument does not provide for an
alternative disposition and does not provide for the transfer
of a residue, or if the transfer is itself a residuary gift, the
property is transferred to the decedent's estate.
(b) Subject to Section 21110, if a residuary gift or a future
interest is transferred to two or more persons and the share
of a transferee fails for any reason, and no alternative
disposition is provided, the share passes to the other
transferees in proportion to their other interest in the
residuary gift or the future interest.
(c) A transfer of “all my estate” or words of similar import is a
residuary gift for purposes of this section.

472
Notice that CPC Section 21111 creates a default approach that
applies in the absence of express intent in the document. If the
decedent expressly states what he or she wants to happen if a gift
fails, the decedent's express intent controls. See CPC §21111(a)(1).
Historically the construction issues that arise because of a will's
ambulatory nature were governed by a set of judicially created
default presumptions that were collectively known as the “wills-
related” construction rules. The wills-related construction rules
govern the ambiguities that arise because of the changes that can
occur between the time a will is executed and the time the testator
dies that can affect the gifts in the will: for example, a beneficiary
may predecease the decedent, or a specific gift of property may no
longer be in the testator's estate at time of death.
The rest of this chapter examines the more common wills-related
construction rules, starting with how the law treats failed gifts. It
should be noted, however, that under the modern trend an issue has
arisen with respect to the scope of the wills-related construction
rules. To the extent the nonprobate instruments function very much
like a will, they are, in many respects, ambulatory documents similar
to a will. A person executes the nonprobate instrument at one point
in time, and for all practical purposes the gift under the instrument
does not take effect until some future date. Changes can occur
between time of execution and time of death that can create
ambiguities with respect to what should happen to the gift. To the
extent the same basic issues can arise under a nonprobate
instrument, should the wills-related construction rules apply only to
wills, or should they apply to the nonprobate instruments as well?
Look back at the terminology used in California Probate Code
Section 21111. How does it refer to the instrument in question? Look
at the section number. The general California probate intestate and
probate testate sections are in the 6400 series. The failed gifts
section is in the 21000 series. The 21100 series was adopted in
2003 and is titled “Construction of Wills, Trusts and Other
Instruments.” Section 21101 specifically provides as follows: “Unless
the provision or context otherwise requires, this part applies to a will,
trust, deed, and any other instrument.”
In California, are the wills-related construction rules limited to wills,
or do they now apply, as a general rule, to nonprobate instruments
as well? Note that Section 21104 creates something of an exception:
“As used in this part, ‘at-death transfer’ means a transfer that is

473
revocable during the lifetime of the transferor, but does not include a
joint tenancy or joint account with right of survivorship.”
Because, historically, these doctrines applied only to wills, most of
the cases and hypotheticals in this section will involve a will.
Nevertheless, you should keep in mind that California has adopted
the modern trend and now applies these construction rules to wills,
trusts, and other instruments (unless the provision or context
otherwise requires).

Problem
The terms of Settlor's trust provide that upon her death, all
remaining trust assets should be distributed in two equal shares.
One share is to go to her friend, Fran; but if Fran predeceases
Settlor her share is to go to Fran's surviving issue, by right of
representation. The other share is to go to her niece, Nina; but if
Nina predeceases Settlor, that share is to go to Settlor's friend Fran.
Both Fran and Nina predecease Settlor. Who gets the share that was
to go to Fran? Who gets the share that was to go to Nina? Who are
the parties that are fighting over the share that was to go to Nina?
Who should prevail with respect to each share, and why? See
Dilworth v. Gray Tiernan, No. A139476, 2014 WL 3353249 (Cal. Ct.
App. July 9, 2014).

474
 IV. Change in Beneficiary—
Default Construction Rules
Near the start of this chapter, the material pointed out that there
are essentially two categories of will construction scenarios: (1)
those that arise from drafting mistakes, and (2) those that arise from
a change in circumstances surrounding the testator. Because
testamentary instruments are by their nature ambulatory documents,
changes can occur between time of execution and time of death. The
most common change that can occur with respect to a
beneficiary/transferee is that he or she predeceases the decedent.

A. Lapse
As the court noted in McFarland, where a gift fails because a
beneficiary predeceases the testator, the gift is said to lapse.4 The
logic underlying the lapse doctrine is rather self-evident. The testator
intended the person to benefit from the gift. If the predeceased
beneficiary were still entitled to the gift, it would go into the
predeceased beneficiary's estate and end up going to someone else,
possibly someone the testator never met. Moreover, passing it
through the predeceased beneficiary's estate would subject the gift
to double probate. Thus, the lapse doctrine presumes that where the
beneficiary predeceases the testator, the testator would prefer that
the gift fail rather than go to the beneficiary's estate.

B. Anti-Lapse
But, as the court in McFarland also noted, the anti-lapse doctrine
presumes that under certain circumstances the testator might still
want the gift to go forward even if the beneficiary predeceased the
testator. What are those circumstances? California's anti-lapse
statute, immediately below, is fairly representative of most states'
approach to anti-lapse. Although written in classic legalese, which
will make the task harder than it needs to be, see if you can extract
from the statute the basic requirements and the logic behind the anti-
lapse doctrine.
CPC §21110. Transferee's death; taking by representation;
contrary intent in instrument

475
 (a) Subject to subdivision (b), if a transferee is dead when the
instrument is executed or fails or is treated as failing to
survive the transferor or until a future time required by the
instrument, the issue of the deceased transferee take in the
transferee's place in the manner provided in Section 240. A
transferee under a class gift shall be a transferee for the
purpose of the subdivision unless the transferee's death
occurred before the execution of the instrument and that fact
was known to the transferor when the instrument was
executed.
(b) The issue of a deceased transferee do not take in the
transferee's place if the instrument expresses a contrary
intention or a substitute disposition. A requirement that the
initial transferee survive the transferor or survive for a
specified period of time after the death of the transferor
constitutes a contrary intention. A requirement that the initial
transferee survive until a future time that is related to the
probate of the transferor's will or administration of the estate
of the transferor constitutes a contrary intention.
(c) As used in this section, “transferee” means a person who is
kindred of the transferor or kindred of a surviving, deceased,
or former spouse of the transferor.

Estate of Lensch
177 Cal. App. 4th 667 (Ct. App. 2009)
HAERLE, Acting P.J.
I. INTRODUCTION
...
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 12, 2008, at 2:30 a.m. Gladys Lensch died in a San
Mateo County nursing home. She was 98 years old. She left the
following three-sentence holographic will: “I Gladys Lensch do
hereby declare, being of sound mind, that my estate be equally
divided between my daughter Claudia and my son Jay. [¶] Claudia
being married has 2 daughters, and my son by a previous marriage
has 2 sons. They will provide for the well being of my grandchildren
in the event of my death or serious incapacity due to lengthy illness.
[¶] God Bless the Family. [¶] Gladys Clausen Lensch May 10, 1993.”

476
 Eleven hours after Gladys died, Jay, Gladys's son, was found dead
in his home in Trinity County. He had shot himself with a 12-gauge
shotgun. The time of death on Jay's death certificate was recorded
as the time his body was found: 1:15 p.m. on March 12, 2008. Jay's
body was cremated without an autopsy and his remains were buried
five days later.
In a 10-page handwritten will, with a four-page addendum, Jay
made small cash gifts to friends, and left another friend an
undeveloped parcel of land. The residue of his estate was left in
equal shares to the Unitarian Universalist Service Committee and
Direct Relief International. He left nothing in his will to his two sons,
appellants Jason and Ean Lensch.
On June 25, 2008, Jason and Ean Lensch filed a “Petition to
Determine Survival and to Determine Persons Entitled to
Distribution.” This petition was verified by petitioner's attorney
because petitioners reside “out of this county and state.”
The petition asked the court to find that “it cannot be determined
by clear and convincing evidence who died first, Gladys Mildred
Lensch or her son, Petitioner's father, Jay Alfred Lensch. Because it
cannot be determined who died first, Jay Lensch should not take
under Gladys Lensch's will and his issue, Petitioners, should take in
his place.”
The petition stated that “Shortly after noon [on the same day
Gladys Lensch died] the body of her son, Jay Lensch was found. Jay
Lensch died in his Trinity County home of a self-inflicted gunshot
wound. Petitioners and their attorney spoke to the Trinity County
Deputy Coroner who investigated Jay Lensch's death and the
Deputy Coroner said that he could not determine the precise time of
Jay Lensch's death. To Ean Lensch, the Deputy Coroner said that
Jay Lensch had been dead at least 24 hours before his body was
found and that death might have occurred two or more days earlier.
To Petitioner's attorney, the Deputy Coroner said that Jay Lensch
had last spoken to another person two days before his body was
discovered and that death could have occurred any time between
that conversation and the time of discovery. On the death certificate,
the Deputy Coroner used the time of discovery as the time of death,
as is customary in cases like this. The Deputy Coroner is certain that
Jay died earlier than the time stated on the death certificate, 1:15
p.m., but explained to Petitioner's counsel that there is no way to tell
what was the actual time of death.” Petitioners asked the court to find

477
that “it cannot be determined by clear and convincing evidence who
died fist, Gladys Clausen Lensch or Jay Alfred Lensch,” and that the
court deem Gladys to have survived Jay for the purpose of the
transfers created by Gladys's will and that the court rule that the
transfer made to Jay in Gladys's will fails.
On July 25, 2008, Jay's executor, respondent Darin Wright, filed an
opposition to Jason and Ean's petition to determine survival. He
argued that Jason and Ean had the burden of proving that Jay did
not survive Gladys. He also argued that survival was not required by
the terms of Gladys's will. Relying on the death certificate of both
decedents, respondent argued that because death certificates are
proof of time of death, and claimant's petition was based on
“inadmissible opinions, speculation, and hearsay,” the only evidence
of time of death was the death certificate.
...
The court denied the petition to determine survival. The court held
that “the evidence offered shows that decedent's will did not require
survival, but nevertheless, that Jay Lensch survived decedent
Gladys Mildred Lensch, and that no further evidentiary hearing is
required.”
This timely appeal followed.
III. DISCUSSION
A. Survivorship
Jason and Ean contend the trial court erred in denying their
petition on the basis that Gladys's will did not require that Jay survive
her in order to take under her will. We exercise de novo review in
interpreting the terms of Gladys's will (Estate of Edwards (1988) 203
Cal.App.3d 1366, 1371, 250 Cal.Rptr. 779) and conclude that,
although the trial court was correct in finding that Gladys's will
contains no survivorship requirement, it erred in denying appellants'
petition on this basis, apparently because it did not understand the
legal consequences of the lack of a survivorship requirement in
Gladys's will.
Gladys's will does not express any intent with regard to
survivorship. Nor does it contain any provision for an alternate
disposition in the event Jay predeceased her. In this situation, we
look to section 21109 and the anti-lapse statute, section 21110, for
guidance. Section 21109, subdivision (a), provides that “A transferee
who fails to survive the transferor of an at-death transfer or until any

478
future time required by the instrument does not take under the
instrument.” Section 21110, subdivision (a), provides that “Subject to
subdivision (b), if a transferee is dead when the instrument is
executed, or fails or is treated as failing to survive the transferor or
until a future time required by the instrument, the issue of the
deceased transferee take in the transferee's place in the manner
provided in Section 240.” Subdivision (b) provides, however, that
“[t]he issue of a deceased transferee do not take in the transferee's
place if the instrument expresses a contrary intention or a substitute
disposition. A requirement that the initial transferee survive the
transferor or survive for a specified period of time after the death of
the transferor constitutes a contrary intention. A requirement that the
initial transferee survive until a future time that is related to the
probate of the transferor's will or administration of the estate of the
transferor constitutes a contrary intention.”
Therefore, in the absence of any requirement of survivorship, “a
transfer that is to occur on the transferor's death lapses if the
transferee dies first.” (Burkett v. Capovilla (2003) 112 Cal.App.4th
1444, 1449, 5 Cal.Rptr.3d 817.) As the court explained in Estate of
Mooney (2008) 169 Cal.App.4th 654, 657, 87 Cal.Rptr.3d 115,
“[u]nder ... the antilapse statute, if a bequest is made to kindred, and
is not conditioned on survivorship and is not subject to an alternate
disposition, and the beneficiary predeceases the transferor, the
bequest passes to the predeceased beneficiary's issue.”
Here, as the probate court found, Gladys's bequest was not
conditioned on Jay's survival. Nor did she make an alternate
disposition. Therefore, under sections 21109 and 21110, if Jay died
before Gladys, then Gladys's bequest to Jay fails under section
21109 and passes to Jay's children, appellants, under section 21110.
Put simply, the court's finding that Gladys's will contained no survival
requirement was the beginning of the story, not the end.
Respondent, who seems to understand at this point in the
proceedings the significance of the fact that Gladys's will contained
neither a survival requirement nor an alternate disposition, argues
that Jay's will, in which Jay complains about his sons' conduct
toward him, constitutes extrinsic evidence from which the probate
court “could reasonably infer ... that Gladys knew and disapproved of
[Jason and Ean]'s conduct, and for that reason intended in her will to
give Jay complete discretion over his bequest whether he survived
her or not. In other words, respondent contends that the trial court
should have construed Gladys's will as containing a provision that

479
Jay was not required to survive her based on language contained in
Jay's will, which was written well after Gladys's. We disagree.
The rules for construing the meaning of a will are well established.
“‘The paramount rule in the construction of wills, to which all other
rules must yield, is that a will is to be construed according to the
intention of the testator as expressed therein, and this intention must
be given effect as far as possible.’ [Citation.] The rule is imbedded in
the Probate Code. [Citation.] Its objective is to ascertain what the
testator meant by the language he used.” (Estate of Russell (1968)
69 Cal.2d 200, 205–206, 70 Cal.Rptr. 561, 444 P.2d 353 (Russell).)
“[E]xtrinsic evidence of the circumstances under which a will is
made (except evidence expressly excluded by statute) may be
considered by the court in ascertaining what the testator meant by
the words used in the will. If in the light of such extrinsic evidence,
the provisions of the will are reasonably susceptible of two or more
meanings claimed to have been intended by the testator, ‘an
uncertainty arises upon the face of a will’ (§105) and extrinsic
evidence relevant to prove any of such meanings is admissible (see
§106) subject to the restrictions imposed by statute (§105). If, on the
other hand, in the light of such extrinsic evidence, the provisions of
the will are not reasonably susceptible of two or more meanings,
there is no uncertainty arising upon the face of the will (§105;
[citations]) and any proffered evidence attempting to show an
intention different from that expressed by the words therein, giving
them the only meaning to which they are reasonably susceptible, is
inadmissible. In the latter case the provisions of the will are to be
interpreted according to such meaning.” (Russell, supra, 69 Cal.2d at
p. 212, 70 Cal.Rptr. 561, 444 P.2d 353, fns. omitted.)
Finally, “it is ‘solely a judicial function to interpret a written
instrument unless the interpretation turns upon the credibility of
extrinsic evidence.’ ... Accordingly, ‘an appellate court is not bound
by a construction of a document based solely upon the terms of the
written instrument without the aid of extrinsic evidence, where there
is no conflict in the evidence, or a determination has been made
upon incompetent evidence. [Citations.]’ [Citations.]” (Russell, supra,
69 Cal.2d at p. 213, 70 Cal.Rptr. 561, 444 P.2d 353.)
Applying these principles to the case before us, we conclude that
the language in Jay's will expressing his disappointment in his sons
does not, as respondents contend, indicate that Gladys intended
that, should Jay predecease her, his children would not share in her

480
estate. Jay's will demonstrates only that Jay appears to have
disapproved of his sons when he wrote his will. There is no evidence
that Gladys was even aware of her son's difficult relationship with his
children or that she agreed with her son's assessment of his
children's behavior. To the contrary, her will explicitly mentions her
desire that Jay and his sister care for Gladys's grandchildren, which
would include appellants Jason and Ean. If anything, Gladys's will
indicates that it was her intent that her estate benefit her
grandchildren as well as her children.
Having correctly concluded that Gladys's will contained no
requirement that Jay survive her and in light of the fact that the will
also contains no provision for an alternate disposition, the next step
in the probate court's analysis was to consider the issue of whether
Jay did, in fact, survive Gladys. It is this issue to which we next turn.
...
—————

Notes
1. Degree of relationship: The lapse doctrine presumes that if a
beneficiary predeceases the testator/transferor, that the
testator/transferor would prefer that the gift fail than that it go to the
predeceased beneficiary's estate. Anti-lapse, however, creates a
contrary presumption if the predeceased beneficiary has issue who
survive the testator/transferor, and if the predeceased beneficiary
meets the degree of relationship test. The degree of relationship test
varies from jurisdiction to jurisdiction, depending on each state's
approach to the anti-lapse doctrine.
California has one of the broadest scopes of coverage with respect
to the degree of relationship test. What is it? Notice the coverage
casts a rather large net around the testator/transferor, catching
almost everyone even remotely connected by blood or marriage with
the testator/transferor with one notable exception: who, somewhat
surprisingly, is not included? (At least one professor likes to refer to
the scope of California's anti-lapse coverage as a “donut” doctrine if
that helps.) Does this exception make any sense? How so?
2. Anti-lapse—express contrary intent: In Lensch the court
discusses the implications of the lack of a “survivorship” clause in
Gladys's will and what this means for purposes of applying, or not
applying, California's anti-lapse statute. This is separate from the

481
issue of “survivorship” for purposes of determining whether a
beneficiary survived the testator. As most drafted wills contain some
form of “survivorship clause,” what effect, if any, should a
survivorship clause have on the application of anti-lapse?
Anti-lapse is based on the testator/transferor's presumed intent.
The logic is if the will expresses a contrary intent (an intent that is
inconsistent with the application of anti-lapse), the will's express
contrary intent should trump the anti-lapse doctrine's presumed
intent. Historically there were two classic forms of express contrary
intent: (1) an express gift over clause (a clause in the instrument that
expressly states what should happen to the gift if the gift should fail),
and (2) an express survival requirement. The logic for why each of
these should constitute an express contrary intent to anti-lapse is
rather straightforward. With respect to the express gift over clause,
such a clause evidences that the testator has contemplated to whom
he or she would like the gift to go if the beneficiary predeceases the
testator/transferor. The court does not need to invoke the presumed
intent of the testator/transferor via anti-lapse where the
testator/transferor has indicated his or her express intent as to what
should happen. Express intent should trump presumed intent.
As for an express survival requirement constituting an express
contrary intent barring application of anti-lapse, the logic is not quite
as direct, but historically it was nevertheless deemed compelling.
The logic was where the will expressly conditioned the gift on the
beneficiary surviving the testator, the testator had expressed his or
her intent as to what should happen to the gift if the beneficiary
should predecease the testator: the gift should not be made. In terms
of constituting an express contrary intent to anti-lapse, a survival
requirement is not as quite clear as an express gift over clause in
that the latter follows through and indicates where the gift should go
—a clear and direct express contrary intent. Nevertheless, a survival
requirement arguably constitutes an express condition precedent to
the gift being made in the first place. Testator's express intent with
respect to under what circumstances the gift should even be made
arguably should trump the presumed intent underlying the anti-lapse
doctrine. Hence, the traditional and general rule that an express
survival requirement in a will or nonprobate instrument constituted an
express contrary intent barring application of anti-lapse.
That traditional and general rule presumes, however, that the
testator/transferor actually talked with the drafting attorney about the
issue, understood the legal significance of the survival issue, and

482
then knowingly and deliberately used the survival language. In 1990,
the Uniform Probate Code, in one of its more controversial
provisions, adopted the position that an express survival requirement
in a will or nonprobate instrument is more likely the result of the
boilerplate language used by the drafter than an expression of the
testator/transferor's knowing and deliberate intent. See UPC §2-
603(b)(3) (“words of survivorship, such as in a devise to an individual
‘if he survives me,’ or in a devise to ‘my surviving children,’ are not,
in the absence of additional evidence, a sufficient indication of an
intent contrary to the application of this section.”). Some courts have
judicially adopted that position. See Ruotolo v. Tietjen, 93 Conn.
App. 432 (2006):
The argument can reasonably be extended to urge that the
use of words of survivorship indicates that the testator
considered the possibility of the devisee dying first and
intentionally decided not to provide a substitute gift to the
devisee's descendants. The negative inference in this
argument, however, is speculative. It may or may not
accurately reflect reality and actual intention. It is equally
plausible that the words of survivorship are in the testator's will
merely because, with no such intention, the testator's lawyer
used a will form containing words of survivorship....
Furthermore, words of survivorship “might very well be no
more than a casual duplication of the survivorship requirement
imposed by the rule of lapse, with no independent purpose.
Thus, they are not necessarily included in the will with the
intention of contradicting the objectives of the antilapse
statute.” Id., 1109–10.... Put simply, the intent of the testator
cannot definitely be discerned on the basis of words of
survivorship alone.
Id. at 445–46 (quoting from E. Halbach, Jr. & L. Waggoner, The
UPC's New Survivorship and Antilapse Provisions, 55 ALB. L. REV.
1091 (1992).). The policy argument is that anti-lapse is remedial in
nature, designed to prevent accidental disinheritance of a familial line
of descendants, and therefore anti-lapse should be construed and
applied broadly to minimize accidental disinheritance.
Where does California fall on this issue? With this fuller backdrop
and understanding of the issue, a careful re-reading of the California
anti-lapse statute should bring greater meaning to the legalese. Do
you agree with the California approach? Could a party, in good faith,

483
make a Ruotolo-type argument and ask a California court to adopt
the UPC approach judicially?
3. Will language: How much of the wording in a will is boilerplate
language that is included in virtually every will a lawyer drafts? To
what extent, if any, should that affect a court's construction of a will?
Increasingly, testators are going to the Internet and downloading and
completing form wills—should that affect a court's analysis of
whether a survival requirement in the instrument constitutes an
express contrary intent? Is it better to have one uniform and absolute
default approach in the event of poor drafting or should the court
take extrinsic evidence in each case?
4. Practitioner perspective: Virtually every estate planning
attorney-drafted testamentary instrument will cover the possibility of
a gift lapsing. Does that express language in the instrument
necessarily mean the attorney covered the possibility with the client?
How do you think the estate planning bar responded to the UPC
provision that an express survival requirement does not constitute
express contrary intent for purposes of the anti-lapse statute? If you
were in a jurisdiction that applied the UPC approach, how would you
draft around it?
Can a will defeat the application of the anti-lapse doctrine by a
clause such as the following?
Any failed gift shall lapse, and it is my intent that no provisions
of any anti-lapse statute shall apply to this will. Currently, at
the time of execution of this will, the anti-lapse statutory
provisions are in California Probate Code Sections 21110(a)–
(c).

Problems
1. D's will specifically bequeathed $10,000 “to my brother A if A
survives me, otherwise to my uncle B.” The residue devised to A's
domestic partner, C. A, B, and C all predecease D, and all are
survived by issue. Who most likely takes the $10,000, and why?
2. H and W execute a joint will giving the survivor “all the estate of
every description ... which either or both of us may own, ... and
upon the death of the survivor, all of such estate shall be the
property of” H's niece, N. H died, then N died survived by issue,
then W executed a codicil to the joint will devising all of her estate
to Santa Clara Law School. What are the arguments the

484
 respective parties will assert following W's death? Who is entitled
to the property, and why?
3. Testatrix's will left the bulk of her estate to her two sisters, Gerri
and Suzy. Both sisters predeceased her. Gerri is survived by four
children; Suzy by three. What's the issue raised by the fact
pattern? How should the property be distributed, and why? See In
re Estate of Mooney, 169 Cal. App. 4th 654 (Ct. App. 2008).
4. Assume the following facts:
Testatrix's will gives $100 to her church and provides that the
remainder of her estate should be distributed as follows: a
one-third interest to her sister Susan Dennis; a one-third
interest to her sister Kate Armstrong; a one-sixth interest to
her niece Dora Kirby; and a one-sixth interest to her niece
Marguerite O'Reilly.
Paragraph Four of her will provides as follows:
I have purposely made no provision for any other
person, whether claiming to be an heir of mine or not,
and if any person, whether a beneficiary under this will or
not, or mentioned herein, shall contest this will or object
to any of the provisions hereof, I give to such person so
contesting or objecting the sum of one ($1.00) Dollar and
no more, in lieu of the provisions which I have made, or
which I might have made, for such person so contesting
or objecting. In connection with this paragraph I
specifically have in mind all of my relatives not herein
specifically mentioned, and it is my will and wish that
none of my said relatives other than those specifically
herein mentioned receive anything from my estate.
The testatrix died on October 30, 1950, leaving no spouse and
no issue. Both Susan Dennis and Kate Armstrong
predeceased her. Kate Armstrong was survived by her
daughters, Dora Kirby and Marguerite O'Reilly, both of whom
were living when the testatrix died. The lineal descendants of
Susan Dennis, who were living at the time of testatrix's death,
include a son, five daughters, and four children of a deceased
son.
The will was admitted to probate, and in due course
Marguerite O'Reilly filed a petition to determine who was
entitled to distribution. Marguerite alleged that, except for the
gift to the church, she and Dora Kirby were entitled to all of the

485
 estate in equal shares. This claim was based on the argument
that since the survivors of Susan Dennis were not mentioned
in the will, they were excluded under Paragraph Four from
receiving any part of the estate. Dora Hecht, a daughter of
Susan Dennis, filed a claim on the ground that the lineal
descendants of Susan Dennis were entitled to her one-third of
the residue of the property of said estate.
How would you describe Marguerite and Dora's argument
(legally that is, in terms of Paragraph Four of testatrix's will
and how it relates to the lapse/anti-lapse doctrines)? How
would you rule on the argument? Who is entitled to the two-
thirds share that was gifted to the testatrix's sisters who were
alive at time of execution, and why? See In re Pfadenhauer's
Estate, 159 Cal. App. 2d 686 (Ct. App. 1958).

C. Class Gifts
Whenever there is a gift to more than one individual, there is a
potential for the gift to be considered a class gift. There is legal
significance to calling a gift a class gift, so it is good to have a sense
of when a gift to multiple individuals is a class gift as opposed to
merely a gift to multiple individuals.

Cain v. Dunn
241 So. 2d 650 (Miss. 1970)
ETHRIDGE, Chief Justice:
This case involves the question of whether a testamentary bequest
is a gift to named individuals only or to a class....
William E. Harreld, age 62, died suddenly and unexpectedly on
February 5, 1967, leaving a last will and testament dated July 25,
1961. Under the will a specific bequest was made to testator's
surviving wife of approximately one-half of the total estate, and
Article II(B) made the following residuary bequests:
The rest, residue and remainder of my estate I devise and
bequeath, in equal share, to my son, William E. Harreld, Jr.,
and each of my grandchildren, Malley Harreld, William E.
Harreld, III, Wilson Harreld, Eastland Harreld and John Cowan
Harreld as shall survive me, and in the event that my said son
or any of my said grandchildren shall predecease me, then I

486
 give, devise and bequeath the share of said deceased son or
grandchild in equal shares to my said son and/or
grandchildren per capita.
Testator's son, William E. Harreld, Jr., was appointed executor of
the will. He is the only surviving son of testator; one other child died
in 1959 without having married. William E. Harreld, Jr., had been
married to Ann Arrington Harreld for sixteen years. They had six
children, four boys and two girls, with the children ranging in age at
the time of trial from fifteen to seven years of age. The youngest
child, Lee Ann, was born December 4, 1961, about four months after
the will was executed. Lee Ann was born prematurely by about three
months, and although the mother was pregnant when the will was
signed, her condition was not apparent. Testator was not aware that
his sixth grandchild was on the way. The evidence shows that Mr.
Harreld was very close to and fond of all his grandchildren, including
Lee Ann after her birth.
The attorney who drafted the 1961 will said that testator intended
for him to draft a “temporary” will, and that after it was executed there
were numerous conferences about a more elaborate will, but the
details were never worked out to Mr. Harreld's satisfaction, so no
“permanent” testament was ever executed.
...
The principal question is whether the sixth grandchild, Lee Ann
Harreld, born after execution of the will, is entitled to participate in
the residuary estate along with the testator's son and other
grandchildren.... The intention of the testator is, of course, the
controlling factor.
The rule with which we are here concerned is outlined in 5
American Law of Property section 22.4 (1952):
The phrase “class gifts” is designed to suggest one
fundamental idea, and once this is fully grasped the concept
has some utility. That fundamental idea is simply this. A gift to
a class is involved when the beneficiaries of a disposition form
an entity or a unit and the gift is to that entity or unit rather
than to the separate and distinct individuals who comprise the
entity or unit. The idea may also be expressed in this way:
whenever the transferor is group-minded with respect to his
beneficiaries, rather than individual-minded, the gift is to them
as a class.

487
 When the beneficiaries of a will are specified by their individual
names, it may be reasonably inferred, prima facie, that the transferor
was thinking of them as separate and distinct individuals and not as
a group or an entity. Accordingly, a “construction preference” is said
to be that if transferees are specified by name the gift is one to
individuals and not to a class. Lee v. Foley, 224 Miss. 684, 80 So.2d
765 (1955); 5 American Law of Property §22.5 (1956). However,
even though the testator has named his beneficiaries individually,
additional evidence of a different intent may be present from the
terms of the will and surrounding circumstances which would require
a conclusion that the transferor was group-minded with respect to his
beneficiaries even though he named them individually.
In Shannon v. Riley, 153 Miss. 815, 121 So. 808, 75 A.L.R. 768
(1929), ... [the Court] recognized that the definition of class donees is
difficult, with a numberless variety in language and circumstances,
and then stated “a general or approximate description”:
All we shall attempt, therefore, is an approximation or general
description of what is meant by a gift to a class, which we shall
state thus: When there is a gift or grant to a number of
persons, although one or all of them may be named, if the
naming of them was intended merely as a matter of
identification, and these persons are united or connected by
some common tie, and it is clear that the donor was looking to
the body as a whole or as a group, rather than to the members
constituting the body as individuals, and that he intended that
the group might fluctuate in numbers, so that, to preserve the
group, if one or more of that body died during the period in
question, the survivors should take the gift between them,
either in equal or in some other naturally related portions, the
gift is to be construed as one given to them as a class. (153
Miss. at 826, 121 So. at 811).
The Court concluded that putting aside “labored technicalities,” the
donor's intent was to treat the beneficiaries “as a unified class.”
Significance was found in the provision that the survivors would take
the share of a brother or sister dying without issue, “for the naturally
interrelated fluctuations necessary * * * to preserve the unity of the
group * * *” The similarities between the gifts in Shannon and those
here, and the criteria described by Justice Griffith in Shannon are
applicable, we think, to the instant case.
...

488
 In favor of an interpretation that the instant gift is to the named
individuals is the prima facie rule; this gift is made to individuals by
name, testator's son and five of his grandchildren. 4 Page on Wills
§35.4 (Bowe-Parker Rev.1961). Also, the reference to “said
grandchildren” relates to those named. On the other hand, this
construction preference is offset by more significant factors
appearing in the will and from surrounding circumstances. Harreld
was not aware that a sixth grandchild was on the way when he made
his “temporary” will. He was at least equally fond of Lee Ann as of his
other grandchildren. There is no express statement in the will
indicating an intent to exclude her, and there was no reason to set
her apart for discriminatory treatment. Moreover, the testator could
have made clearly a class gift or one to individuals, simply by using
language expressing definitely that intention, and there would have
been no room for construction. His dominant, manifest purpose was
to leave the remaining one-half of his estate to his son and his
grandchildren as a group or unit.
The context of a will may show that the names of the beneficiaries
were added to the description of them as the members of a class for
the purpose of greater certainty. Page on Wills §35.4 (Bowe-Parker
Rev.1961). We think that is what occurred here, and where such
specific identities occur simply for the purpose of greater certainty,
the gift should be treated as one to a class.
Further, the last part of the bequest states that, if testator's son or
grandchildren predecease him, then he leaves the deceased's share
equally to his son and/or grandchildren per capita. A gift to persons
who are described as a class and who are also named, followed by a
provision that the share of one who dies without issue shall go to the
survivors of the group, has been held to be a gift to a class. It
indicates that the class, here the son and grandchildren, are all to
take in equal portions. 4 Page on Wills §35.3, p. 465 (Bowe-Parker
Rev.1961); 5 American Law of Property §22.8, p. 264 (1952). This
circumstance may justify, as here, a logical inference of an intent to
give to the class and its survivors, i.e., a purpose to maintain the
integrity of the class. [Citations omitted.] ...
The manifest objects of testator's bounty were his son and his
son's children. A reading of this will in its entirety discloses that
Harreld had worked out a general plan of distribution for his entire
estate, in which the major objective was an equal distribution of his
property, after providing for his wife, among a group consisting of his
son and his son's children. The gift to the survivors, if one or more of

489
this group predeceased testator, was for the preservation of his plan
of equality of distribution. His intent, and his love for his
grandchildren, are emphasized by the fact that he placed them on a
par with his son in the distribution. The fulfillment of a general plan of
distribution has often been held to be sufficient basis to justify the
conclusion that the gift is a class gift rather than to the named
individuals only. For all of these reasons, we conclude that the
testator was group-minded with respect to his beneficiaries, rather
than individual-minded, and that the gifts are to them as a class, the
testator's son and all of his grandchildren. 5 American Law of
Property §22.8, pages 266–267 (1952); see also Annot., 75 A.L.R.
773 (1931).
Affirmed.
—————

Notes
1. Class gift intent—relevant variables: As the court articulated in
Cain, the question of whether a gift is a class gift or a gift to multiple
individuals ultimately is a question of testator/transferor's intent. The
problem is that too often the instrument fails to expressly indicate the
testator's intent. Thus, courts are left to infer whether the gift is a
class gift or a gift to multiple individuals. As in Cain, the California
courts have noted that one of the central questions is whether the
testator/transferor appears to be have been “group-minded” with
respect to the beneficiaries: whether they were to constitute one
entity. In analyzing that question, the courts tend to focus on four
variables.
The first variable examines how the takers were described by the
instrument: by name or by generic reference? If the instrument
identifies the takers by name, that cuts against a finding of a class
gift, so much so that some courts hold specifically identifying takers
by name per se bars a finding of a class gift. The general rule,
however, is consistent with the court's position in Cain: that while
identifying the takers by name is an important variable, it is not a
dispositive variable.
The second variable examines how the instrument described the
gift. One of the legal consequences of finding a gift to be a class gift
is that a party's interest in the class gift is not set upon execution of
the instrument. Rather, a party's interest can fluctuate until the

490
testator/transferor's death. New members can enter the class, and
members can leave the class. A class gift is somewhat like a joint
tenancy in that if one member of the class dies before the
testator/transferor, one of the legal attributes of a class gift is that
that share is simply redistributed among the other class members.
Hence, a class member's share cannot be determined until the
testator/transferor's death. A gift that specifies each beneficiary's
fractional share or percentage cuts against a finding of a class gift.
The third variable examines whether the beneficiaries “are united
or connected by some common tie.” The notion of “group-
mindedness” implicitly assumes that there should be something
uniting or connecting the individuals; otherwise they are just a group
of individuals and not a class. Even where there is something
connecting the individuals, however, some courts look to see if there
is anyone who shares the connection who was left out. If there is,
some courts have found that this cuts against a finding of a class gift.
Finally, how does calling the gift a class gift—or not calling it a
class gift—fit within testator's apparent overall testamentary
scheme? When the class gift question arises in the contest of a
predeceased beneficiary, often the court will examine who would
take if the gift were called a class gift, who would take if the gift were
not called a class gift, and which outcome appears more consistent
with testator's overall intent. Courts will also look at how the testator
described that gift or other gifts to see if the testator's description
implies class gift-like significance. In Cain, the testator's express
intent was that if one of the takers died without issue, his or her
share would be distributed to the other takers. That express intent
was consistent with a finding that the testator intended a class gift.
2. Saving effect: The class gift doctrine is another way of trying to
save an otherwise failing gift. Under anti-lapse, an otherwise failing
gift is saved in favor of whom? Under a class gift, an otherwise failing
gift is saved in favor of whom?
3. Class gift—anti-lapse overlap: Assuming a member of a class
meets the degree of relationship test under anti-lapse and is survived
by issue, should anti-lapse apply to members of the class, or should
the creation of a class gift constitute an express contrary intent to
application of anti-lapse? For the California answer, see Probate
Code Section 21110(a).
4. Residue of the residue rule: What if the testator's will provides,
in pertinent part, as follows: “I leave my wife 70% of my estate, and I

491
leave the rest, residue and remainder of my estate, equally, to my
friend, Fran, my research assistant, Taurean, and my barber, Bob.”
Thereafter Bob dies. Who takes Bob's share? Circling back to the
question of what happens when part of a residuary clause fails, does
the modern trend treat every residuary clause to multiple individuals
as a de facto class gift regardless of testator's intent (as least for
purposes of what should happen if part of the residuary clause fails)?

Problems
1. Testatrix's will created a testamentary trust in favor of her
husband, for life. The will then went on to provide that upon the
death of her husband, the trust shall terminate and the trust
property shall be distributed as follows:
“[I]n equal shares to my following brothers and sisters:
Name Last Known Address
Rebecca Odessa, Russia
Reef
David Reef London, England
Percy Reef London, England
Lilly Reef Odessa, Russia
Frank Reef London, England
Jack Reef London, England
if they be living, or, if they be not living, in equal shares to the
then living children and grandchildren of my husband's
brothers, Vinton E. Newbert, Paul R. Newbert, Karl M.
Newbert, and my husband's sister, Rose M. Newbert Peters.”
Assume Percy Reef was the only brother or sister to survive the
testatrix and her husband. All of her other brothers and sisters
died without issue. What claim will Percy assert? Who will oppose
him? How would you rule, and why? See Estate of Newbert, 555
P.2d 1189 (Wash. Ct. App. 1976).
What difference, if any, would it make if some of the testatrix's
other brothers and sisters who predeceased her had surviving
issue?
2. Testatrix inherited an undivided one-fifth interest in approximately
260 acres of farmland from her husband when he passed away. In
her will, she provided as follows:
[B]elieving as I do that those farm lands should go back to my
late husband's side of the house, I therefore give; devise and

492
 bequeath my one-fifth (1/5) interest in said farm lands as
follows: One-half (1/2) of my interest therein to Stewart
Wilson, a nephew, now living in Birmingham, Michigan and
One-half (1/2) of my interest to Gene Burtle, a nephew, now
living in Mission, Kansas.
Testatrix devised the residue of her estate to two close friends.
Stewart Wilson and Gene Burtle were two of five nieces and
nephews who survived her husband. Thereafter, Gene
predeceased the decedent. Gene had no surviving issue.
What's the issue when testatrix dies? What will Stewart claim?
What will the residuary takers claim? What do you think the
outcome should be, and why? See Dawson v. Yucus, 239 N.E.2d
305 (Ill. App. Ct. 1968).

493
 V. Change in
Testator/Transferor's
Property—Default
Construction Rules
Just as there can be changes in a beneficiary's status between
when the instrument is executed and when it becomes effective,
there also can be changes in the testator's/transferor's property.
Such changes create ambiguities as to what should happen—what, if
anything, should the beneficiary take? Some of the scenarios are so
common the courts have developed a set of default rules to address
them. Again, inasmuch as the modern trend is to take more of an
intent-based approach, are the default rules consistent with that
approach? Should the courts be more open to extrinsic evidence to
ascertain and give effect to the testator's/transferor's true intent
under the circumstances?

A. Ademption
Ademption extinguishes a gift. There are two types of ademption:
(1) ademption by extinction (more commonly known as simply
“ademption,”) and (2) ademption by satisfaction (more commonly
known as “satisfaction”).

1. Ademption by Extinction (“Ademption”)

Ademption by extinction is one of those doctrines that is easy to
understand conceptually, but difficult to understand doctrinally. It is
easy to understand the issue underlying the doctrine because it
arises logically from a relatively simple scenario. Assume Testatrix
executes a will in which she provides: “I hereby give the car I now
own to my mom.” Thereafter, Testatrix sells her car. Years later,
Testatrix dies without revising the will. What, if anything, should her
mom get? (Notice that ademption by extinction applies only if the gift
is a specific gift; if the gift were deemed a general gift, the personal
representative would go out and buy mom another car.)

494
 At one end of the spectrum is the traditional approach to
ademption. Not surprisingly, the traditional approach takes a strict,
compliance-type approach. In a 1786 English case, Ashburner v.
MacGuire, 2 Bro. C.C. 108, 29 Eng. Rep. 62 (Ch. 1786), Lord
Thurlow articulated what has come to be known as the identity
approach to ademption: (1) is the gift a specific gift, and (2) if so, can
the particular item subject to the gift be identified in the testator's
estate following his or her death (i.e., is the item still there—can it be
identified?)? If the item is not in testator's estate (i.e., it is “extinct”),
that gives rise to a presumption of revocation, and extrinsic evidence
is not admissible to rebut the presumption. The gift is adeemed.
Under the traditional identity approach to ademption, there is no
analysis of testator's probable intent. There is no inquiry into why it is
not in the testator's estate. The identity approach adopts a bright-line
default rule that prioritizes efficiency over intent. Testators should
draft around the rule if they do not like the result. Better to put the
burden on the testator to clarify his or her intent than to have the
courts try to ascertain the testator's probable intent.
At the other end of the spectrum is the approach advanced by the
Uniform Probate Code. The UPC rejects the identity approach and
its presumption of revocation and instead adopts the “intent
approach,” which includes a presumption against revocation. If the
testator goes out and acquires a new item to replace the missing
item that was the subject of the specific gift, the beneficiary is entitled
to the replacement item. UPC §2-606(a)(5). If the testator is owed
any balance outstanding at the time of death as a result of the
missing item being transferred, the beneficiary is entitled to the
outstanding balance. UPC §2-606(a)(1)–(a)(4). Moreover, if neither
of the above provisions results in the beneficiary receiving a gift, the
beneficiary is entitled to a general pecuniary gift that is equal in value
to the gift if “it is established that ademption would be inconsistent
with the testator's manifested plan of distribution or that ... the
testator did not intend ademption of the devise.” UPC §2-606(a)(6)
(note that the beneficiary bears the burden of proof).
Although the traditional approach to ademption is still the general
rule, virtually all states have adopted a number of avoidance or
softening doctrines. Some jurisdictions follow the traditional
approach, but only where the presumption of revocation appears
consistent with the circumstances and reasons surrounding the
missing item no longer being in the testator's estate. Some courts
decline to apply the doctrine where the testator did not have a

495
reasonable opportunity prior to death to revise his or her will, to
express his or her intent with respect to what should happen.
Interestingly, the 1969 version of the UPC essentially accepted the
traditional approach, albeit begrudgingly. The 1969 UPC provision,
however, also codified a number of exceptions to the doctrine. The
1990 version of the UPC rejects the traditional “presumed
revocation” approach in favor of a presumption against revocation.
The jurisdictions cannot agree on which approach makes the most
sense. As such, where a particular jurisdiction falls on the ademption
spectrum typically requires close examination of the relevant
caselaw and statutory provisions to determine the interplay between
the traditional approach and that jurisdiction's particular exceptions
and softening doctrines.
The most widely recognized judicial exception to ademption is the
“change in form not substance” doctrine. This doctrine basically
accepts the logic underlying the traditional approach to ademption
but reasons that the item is really still there, it just looks a little
different—it has changed in form, but not substance. If the executor
looks hard enough, he or she will recognize it in its new form. A
classic example of a change in form not substance scenario is where
a will makes a specific gift of the testator's checking account at Bank
of America, and after executing the will the testator moves her
checking account to Chase Bank. Depending on how one construes
the will's description of the item being gifted, one could argue that
the item is still in the testator's estate. Is she gifting her checking
account at Bank of America (in which case the gift is adeemed
because that particular item is not longer part of her estate), or is she
gifting her checking account (in which case the item being gifted is
still part of her estate, but it has changed form from a checking
account at Bank of America to a checking account at Chase Bank)?
One of the problems with the change in form doctrine is the courts
run the spectrum on whether the doctrine should be applied narrowly
or broadly. Courts that apply it narrowly have held that moving funds
from a savings account to a certificate of deposit to get a higher
interest rate is a change in substance, not form, and the gift is
adeemed. In contrast, some courts that apply the doctrine broadly
hold that where the testator's will specifically gifts a house, and
thereafter the testator sells the house and deposits the proceeds in a
checking account, that is merely a change in form, not substance,
and the gift is not adeemed (the beneficiary receives the proceeds
from the sale). Go figure.

496
 California has not adopted the 1990 UPC ademption provision, but
California has a number of intent-based doctrines. Based on the
following case (and note material after it), where would you put
California on the ademption spectrum: closer to the traditional
common law approach or closer to the modern trend/UPC intent-
based approach?

Estate of Austin
113 Cal. App. 3d 167 (Ct. App. 1980)
ANDREEN, Associate Justice.
The testatrix, Lucille Ann Austin, executed her will on March 9,
1977. Two specific bequests were made to a friend, Betty Guldberg,
who is appellant herein. The first bequest was an oil portrait of the
testatrix' mother and the other was as follows:
“4(L) The promissory note which I own and hold, made by
GARY GRENZ, together with the deed of trust or mortgage
securing said promissory note, I give to my friend, BETTY
GULDBERG; ...”
The will is somewhat unique, in that it contains nine separate
legacies ranging from $2,000 to $15,000 to individuals and
organizations. In addition, there are three bequests; the two
mentioned above and a dog. The remainder of the estate is given to
the respondent Shrine Hospital for Crippled Children, which is also
the beneficiary of a $5,000 legacy.
The case is before us because the Grenz note given to Betty
Guldberg was paid in full on July 1, 1977, about four months after the
will was executed. The payoff was $17,065.88 and was made
contemporaneous with the sale of the property which was the
underlying security. The note did not include a due on sale clause.
Five days after the payoff, the note proceeds were placed in a
savings account which at that time had a balance of $7,727.67 (plus
a small amount of accrued but unposted interest).
Thereafter, on August 9, 1977, the testatrix withdrew $20,000 from
the account and loaned it to the Inmans. She received in return a
promissory note secured by a deed of trust. The note was due in six
months.
On January 14, 1978, about 10 months after the will was
executed, the testatrix died without having changed her will.

497
 The Inman note was paid off in full shortly thereafter, and the
proceeds rest in an estate savings account.
The short trial had no testimony as to extrinsic evidence of the
testatrix' intent.
The court below held that the legacy was specific and adeemed,
so that it fell into the residue of the estate and thus went to the
respondent hospital.
...
The parties have cited numerous authorities which purport to
assist one side or the other. We will discuss each of them.
The respondent hospital relies on Estate of Calori (1962) 209
Cal.App.2d 711, 26 Cal.Rptr. 281. The case is readily
distinguishable. The testatrix bequeathed a promissory note secured
by real property to appellant. There was no evidence as to the terms
of the note, whether it was payable in installments or in a lump sum
and whether the consent of the testatrix to its payment in full was
required or given. There was no evidence identifying the cash as part
of the estate at date of death. That is, the funds were not traceable
into an account or another promissory note.
The trial court's finding of ademption was affirmed. The reviewing
court found that there was nothing in the case to show that the
bequest was general rather than specific. Of assistance to
respondent here is the statement by the court that: “It is difficult to
regard full payment of the note as a mere change in form....” (Id., at
p. 713, 26 Cal.Rptr. 281.)
Estate of Calori has rested on the shelves since 1962 without
benefit of citation, except in Estate of Mason (1965) 62 Cal.2d 213,
42 Cal.Rptr. 13, 397 P.2d 1005. In the latter no ademption was
found.
Respondent cites Estate of Peyton (1956) 143 Cal.App.2d 379,
299 P.2d 897. However, that too is distinguishable. In Peyton, the
testator voluntarily sold his fractional interest in the land which was
the subject of a specific bequest to his sons. In the case at bench,
there was no voluntary sale.
Finally, respondent cites Estate of McLaughlin (1929) 97 Cal.App.
481, 275 P. 874 for the fact that if proceeds are commingled there is
an ademption. However, in the instant case there was but one

498
deposit into and one withdrawal from the account, so tracing is easy.
(Hicks v. Hicks (1962) 211 Cal.App.2d 144, 27 Cal.Rptr. 307.)
We turn to an examination of appellant's cases.
Estate of Mason, supra, 62 Cal.2d 213, 42 Cal.Rptr. 13, 397 P.2d
1005 is distinguishable. The testatrix devised her home to appellant.
Several years later, she became mentally incompetent and a
guardian was appointed of her estate which sold the home and used
all but $556.66 of the proceeds thereof for her support. The trial court
held that there was a partial ademption to the extent that the funds
had been spent, so only the remainder of the proceeds, the $556.66,
be distributed to appellant. The remainder of the estate, $6,808.08,
was ordered distributed to the residuary legatees. The high court
reversed and held that the residuary legatees must contribute in full
to satisfy the appellant's specific gift. To hold otherwise would permit
the guardian to frustrate its ward's testamentary plan. The court
found an analogy in the statutory rules governing abatement of
testamentary gifts to satisfy debts and expenses during probate or
for family allowance.
The case is significant, however, in that it sets a course away from
the strict rules of ademption, and draws a clear distinction between
an extinction of a legacy by some act of the testator and the act of a
third person. If the testator has disposed of a specific legacy, it may
be presumed that he intended that the gift fail. Where it is done by
act of a third person, in Mason a guardian, no such intent can be
presumed.
Estate of Ehrenfels (1966) 241 Cal.App.2d 215, 50 Cal.Rptr. 358
adds nothing to appellant's position. In it, a guardian exchanged
Standard Oil stock for stock in a mutual fund. The trial court held
there was no ademption and that the beneficiaries should receive the
stock in the mutual fund. This was affirmed on appeal.
In Estate of Newsome (1967) 248 Cal.App.2d 712, 56 Cal.Rptr.
874, certain real property was devised to the testator's wife and other
real property devised to his daughter. He then sold one of the parcels
of real property which had been devised to the wife. At time of death,
the proceeds were in a savings account. The court held that there
was no ademption because there was no residuary clause in the will,
evidencing an intent by the testator to dispose of all of his estate
through the specified devises and bequests and not to cause any
thereof to fail by his voluntary transmutation of the property. In the
instant case, of course, there is a residuary clause.

499
 Estate of Creed (1967) 255 Cal.App.2d 80, 63 Cal.Rptr. 80
involved a will which devised real property in trust for the testator's
grandchildren. For estate tax purposes, a corporation was formed to
hold the property, and the testator made inter vivos transfers of the
stock to the grandchildren to the maximum allowed by the
exemptions and exclusions under the federal gift tax law. The trial
court held and the appellate court affirmed that the intent of the
testator to have no ademption was manifest. There was merely a
change in form, whereby the real property was held through the
device of a corporation formed to effectuate the transfer to the
grandchildren with a minimum of estate taxes.
The above rather lengthy discussion of the authorities serves to
prove the wisdom of Witkin at 7 Witkin, Summary of California Law
(8th ed. 1975) Wills and Probate, section 159, pages 5675–5676
where the author states:
“In cases dealing with interpretation of wills, as in other
controversies, counsel and courts draw freely upon the
enormous volume of reported decisions. But in ascertaining
the intention of a particular testator decisions in other cases
are seldom controlling. ‘Of this class of questions it may be
said, with more truth, perhaps, than of any other, that each
case depends upon its own peculiar facts, and that precedents
have comparatively small value.’ (Estate of Henderson (1911)
161 C. (Cal.) 353, 357, 119 P. 496; see also Estate of Wilson,
supra, 184 C. (Cal.) (63) 67 (193 P. 581); Estate of Keller,
supra, 134 C.A. (Cal.App.) 2d (232) 238 (286 P.2d 889) (‘no
two wills are exactly alike and but few are sufficiently similar in
the wording of dispository provisions so that a decision
interpreting one would be of any great help in interpreting
another’).)”
In discerning the intent of the testatrix, we look first at the will. It is
remarkable for the number and diversity of the legacies and
bequests. It demonstrates a mind that enjoyed giving to many
beneficiaries. Although there is a residuary clause in the will, there is
a manifest intention to particularize the disposition of assets.
There is nothing in the record to suggest that the testatrix did
anything to initiate the payoff of the Grenz note. It was paid incident
to the sale of the property which was the security of the note.
There is nothing to show that the testatrix had a change of mind as
to the appellant being a proper beneficiary of her estate. The oil

500
portrait of the testatrix' mother remained a bequest to appellant.
She did nothing with reference to the proceeds except deposit
them in a manner which was easily traceable and invested them in
an almost identical type of asset—a promissory note secured by a
deed of trust.
In determining whether the change is in form only, California courts
have lately tended to avoid strict rules of ademption; rather they look
to the inferred or probable intent of the testator under the particular
circumstances. The reasoning of these more modern cases was
crystallized and confirmed by the following statement in Estate of
Mason, supra, 62 Cal.2d at page 215, 42 Cal.Rptr. 13, 397 P.2d
1005:
“‘“Ademption of a specific legacy is the extinction or withdrawal
of a legacy in consequence of some act of the testator
equivalent to its revocation, or clearly indicative of an intention
to revoke. The ademption is effected by the extinction of the
thing or fund bequeathed, or by a disposition of it subsequent
to the will which prevents its passing by the will, from which an
intention that the legacy should fail is presumed.”’ [Citations.]
A change in the form of property subject to a specific
testamentary gift will not effect an ademption in the absence of
proof that the testator intended that the gift fail. [Citations.] ...”
(See also Estate of Zahn (1971) 16 Cal.App.3d 106, 113, 93
Cal.Rptr. 810.)
In absence of proof of an intent that the gift fail, there should be no
ademption. (Estate of Mason, supra, 62 Cal.2d 213, 215, 42
Cal.Rptr. 13, 397 P.2d 1005; Estate of Stevens (1945) 27 Cal.2d 108,
116, 162 P.2d 918; Estate of Holmes (1965) 233 Cal.App.2d 464,
469, 43 Cal.Rptr. 693.)
We find that there is no indication of an intent by the testatrix to
adeem, and that the judgment must be reversed.
We turn to appellant's contention that she is entitled to the amount
of the Inman note, which was approximately $3,000 more than the
payoff of the Grenz note.
In Estate of Shubin (1967) 252 Cal.App.2d 588, 60 Cal.Rptr. 678,
the court held that there was no ademption and that the beneficiary
of the specific devise should receive a more valuable piece of
property. The will disposed of a piece of property which was
subsequently condemned and the decedent took the proceeds,

501
added approximately $2,000 to it and bought a new piece of property
within nine days. The court was aided in determining the testator's
intention because he had written the address of the new property in
the will next to the dispositive provision.
And in Estate of Cooper (1951) 107 Cal.App.2d 592, 237 P.2d 699,
the testator told his attorney simply “My car to Miss Hage.” The
attorney wrote “That certain Hudson Automobile, now owned by me.”
After the will was executed, the testator sold his car and a month
later bought a new Hudson, which he owned at his death. The court
had no difficulty in finding no ademption, citing a New York case
which held that a bequest of a diamond brooch would not be
adeemed where subsequent to the execution of the will the testatrix
traded it in on a more expensive diamond brooch.
Shubin and Cooper are of no assistance to appellant. In each,
once the court had found no ademption, it could do nothing other
than order the beneficiary to take the property in its present form.
The property was unique and there was no practical way to reduce
its value to that of the property described in the will.
On the other hand, in this case the note has been converted to
cash because it was paid off when due. Money is divisible, and the
precise amount of the unpaid balance at the date of death is
available.
The judgment is reversed and remanded. The trial court is directed
to order that there is no ademption and that appellant take the
amount of $17,065.88 by reason of subparagraph 4(L).
—————

Notes
1. Ambiguous language: From a beneficiary's perspective,
arguably the best way to avoid the ademption doctrine is to persuade
the court that the gift is a general (or residuary) gift. Ademption by
extinction applies to specific gifts only. Whether a gift is a specific or
general/residuary gift is a question of the testator's intent, but where
the gift is ambiguous some courts have acknowledged a preference
for a general gift to avoid ademption. Edmundson v. Morton, 420
S.E.2d 106, 111 (N.C. 1992). The viability of this argument, however,
depends on the express phrasing used in the will (or nonprobate
instrument) to describe the gift.

502
 2. California approach: Would you say that California leans more
toward the traditional, identity-based approach to ademption or more
toward the UPC “intent”-based approach? Would you say that
California appears to apply the “change in form, not substance”
doctrine narrowly or broadly?
3. Construe at time of death versus replacement doctrine: One of
the cases discussed near the end of the court's opinion is Estate of
Cooper. The general rule is that a will should be construed relative to
the circumstances surrounding the testator at the time the will is
executed. In re Pierce's Estate, 32 Cal. 2d 265, 268 (1948) (“It is
fundamental in the interpretation of wills that the testator's intent be
derived from the language of the will itself and, under Probate Code
section 105, when an uncertainty appears upon the face of the will,
from the circumstances under which it was executed.”) In Cooper,
the testatrix owned a 1941 Hudson at the time she executed her will.
She subsequently sold the car and bought a 1948 Hudson. As the
court in Austin stated, “The court had no difficulty in finding no
ademption....” Some have written that the court de facto adopted a
“construe at time of death, not execution” doctrine to avoid
application of ademption. Might this simply be an early judicial
example of what the UPC calls the replacement doctrine?
4. Outstanding balance doctrine: The UPC has adopted the
outstanding balance doctrine as part of its intent-based, ademption
avoidance scheme. California has adopted its own outstanding
balance doctrine—CPC Section 21133:
CPC §21133. Specific gifts; recipient's rights to unpaid balance
A recipient of an at-death transfer of a specific gift has a right to
the property specifically given, to the extent the property is
owned by the transferor at the time the gift takes effect in
possession or enjoyment, and all of the following:
(a) Any balance of the purchase price (together with any
security interest) owing from a purchaser to the transferor at
the time the gift takes effect in possession or enjoyment by
reason of sale of the property.
(b) Any amount of an eminent domain award for the taking of
the property unpaid at the time the gift takes effect in
possession or enjoyment.
(c) Any proceeds unpaid at the time the gift takes effect in
possession or enjoyment on fire or casualty insurance on or

503
 other recovery for injury to the property.
(d) Property owned by the transferor at the time the gift takes
effect in possession or enjoyment and acquired as a result of
foreclosure, or obtained in lieu of foreclosure, of the security
interest for a specifically given obligation.
The “outstanding balance” doctrine applies regardless of who owes
the decedent the funds (buyer or insurance company or public entity)
and/or regardless of why the transfer occurred (voluntary transfer
versus accidental loss versus condemned by the state). Ademption
applies to the funds the decedent received while alive, but there is no
ademption to any outstanding balance at time of death.
5. Conservatorship/Durable power of attorney exception:
Consistent with the intent-based approach to ademption, a number
of courts have declined to apply ademption where the transfer
occurred after the testator became incapacitated (either because it is
inappropriate to say it was the testator's intent and/or because the
testator did not have the opportunity to revise his or her will to
express his or her intent). California has adopted CPC Section
21134. To what extent is it consistent with these judicial concerns?
CPC §21134. Specific gifts; transfers by conservator or agent
acting under durable power of attorney; transferee's rights
(a) Except as otherwise provided in this section, if after the
execution of the instrument of gift specifically given property
is sold or mortgaged by a conservator or by an agent acting
within the authority of a durable power of attorney for an
incapacitated principal, the transferee of the specific gift has
the right to a general pecuniary gift equal to the net sale price
of, or the amount of the unpaid loan on, the property.
(b) Except as otherwise provided in this section, if an eminent
domain award for the taking of specifically given property is
paid to a conservator or to an agent acting within the authority
of a durable power of attorney for an incapacitated principal,
or if the proceeds on fire or casualty insurance on, or
recovery for injury to, specifically gifted property are paid to a
conservator or to an agent acting within the authority of a
durable power of attorney for an incapacitated principal, the
recipient of the specific gift has the right to a general
pecuniary gift equal to the eminent domain award or the
insurance proceeds or recovery.

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 (c) For the purpose of the references in this section to a
conservator, this section does not apply if, after the sale,
mortgage, condemnation, fire, or casualty, or recovery, the
conservatorship is terminated and the transferor survives the
termination by one year.
(d) For the purpose of the references in this section to an agent
acting with the authority of a durable power of attorney for an
incapacitated principal, (1) “incapacitated principal” means a
principal who is an incapacitated person, (2) no adjudication
of incapacity before death is necessary, and (3) the acts of an
agent within the authority of a durable power of attorney are
presumed to be for an incapacitated principal.
(e) The right of the transferee of the specific gift under this
section shall be reduced by any right the transferee has
under Section 21133.
Is it fair to say that the effect of the conservatorship exception to the
ademption doctrine is, by operation of law, to turn all specific gifts in
the incapacitated person's estate plan into general gifts? Note,
however, that the conservatorship exception has a temporal
limitation (see CPC §21134(c)). What is the logic behind the
limitation?
Review the section numbers and terminology used in the statutory
provisions above. What is the scope of the ademption and
ademption avoidance doctrines in California? Do they apply only to
probate testate gifts or to nonprobate gifts as well?
6. Exclusive remedy? The Austin case above reflects the
traditional California judicial approach. The statutory provisions
above were adopted in 1994. One issue that naturally arises is how
California's traditional judicial approach should be construed and
applied in light of the new statutory provisions. To the extent there
appears to be some conflict between the two, should the statutory
provisions be construed as revising the traditional approach or as
supplementing the traditional approach? California Probate Code
Section 21139 addresses that issue:
CPC §21139. Applicability of statutory sections
The rules stated in Sections 21133 to 21138, inclusive, are not
exhaustive, and nothing in those sections is intended to
increase the incidence of ademption under the law of this state.

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 Problems
1. Tess typed the following document:
“I leave all of my estate to my sister and her children. I name
my sister executor.”
The document was not dated or signed. Thereafter, Tess's sister
gave birth to a child, Jessica. Tess handwrote the following on the
bottom of the page that contained the above typed material:
“February 1, 1990. I am deeply touched by the birth of my
niece, Jessica. I hereby change my will to give Jessica the
diamond ring which my mother left me.”
Tess signed the second writing at the end. One month later, Tess
died.

a. If both parts of the page are offered for probate, what is the best
argument for admitting both parts of the page to probate, and
why?
b. Assuming, arguendo, both parts of the page are admitted to
probate, if the diamond ring is not found in Tess's estate, what, if
anything, does Jessica get?

2. Settlor created a valid inter vivos trust, the primary asset of which
was a 95 percent ownership interest in a privately held company,
Brown Electric. Settlor had two sons, Brown and Ross. Settlor's
Tenth Amendment to the Trust provided that upon Settlor's death,
10 percent of the company's stock was to be distributed to Brown,
90 percent to Ross, and the rest of the trust's assets were to be
distributed to Ross. Thereafter, a conservator was appointed for
Settlor, and said conservator was also appointed as successor
trustee. Thereafter, the conservator sold the business—as an
asset sale, not a stock sale—for $24 million, with the payment
ending up in the trust. Brown Electric was dissolved. Following
Settlor's death, Ross claimed that ademption applies to the gift of
stock. What is Brown's strongest argument? How would you rule?
See Brown v. Labow, 157 Cal. App. 4th 795 (2007).
3. Testator owned several parcels of real property that were his
separate property. His will devised certain parcels to his wife, and
other parcels to his daughter. The will contained no residuary
clause. Thereafter, testator sold one of the parcels devised to his
wife. He deposited the proceeds in a savings account. Testator
predeceased his wife. His daughter claimed the sale of the

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 devised parcel “adeemed the gift.” Has the gift been adeemed?
See Estate of Newsome, 248 Cal. App. 2d 712 (1967).

2. Gifts of Stock
Historically, gifts of stock have given the courts fits because stock
can inherently change in nature (companies can merge or be
acquired) and because stock can change in quantity even if the party
holding the stock does nothing (due to stock splits, stock dividends).
If the stock changes nature, should ademption apply? If the number
of shares of stock changes, should the beneficiary get the increased
shares (or, less common but possible, the decreased shares)?
At common law, the controlling variable was whether the gift of
stock was a specific gift or a general gift. If it was a specific gift,
ademption applied and if the number of shares changed, the
beneficiary received the benefit of the change. On the other hand, if
the gift of stock were deemed a general gift, then ademption would
not apply and the number of shares being gifted to the beneficiary
would not change (just as a gift of $1,000 to a beneficiary does not
change between time of execution and time of death because of any
intervening inflation).
The modern trend is to apply ademption to gifts of stock where the
change in the stock is initiated by the testator/transferor. Where,
however, the change (in nature or quantity) is initiated by a corporate
entity, the modern trend is to give the beneficiary the benefit of the
change in stock regardless of whether the gift is specific or general.
The logic is that it was the testator's intent to give the beneficiary a
certain percentage interest in the company, and where there has
been a change in the number of shares the testator has, the only
way to fulfill the testator's original intent is if the beneficiary gets the
benefit of the change in stock.
Not surprisingly, California has its own approach to gifts of stock.
First, the California Supreme Court weighed in on the issue in its
landmark opinion in In re Buck's Estate, 196 P.2d 769 (Cal. 1948).
Frank Buck owned 40,000 shares of stock in Belridge Oil Company.
He executed a will that bequeathed the stock as follows: 30,000
shares to his six children, 5,000 shares to Helen Peterson, and the
residue of his estate to his wife. Thereafter he transferred 10,000
shares of the stock to his wife. Following his death, one of the issues

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was whether the gifts of stock were specific or general. The Court
began its analysis by stating the general rules:
In determining whether a bequest is specific or general, the
fundamental and controlling factor is the intent of the testator
at the time the will was drafted.
Applying these rules to bequests of stocks, bonds and other
securities, it has been held that a gift of a certain number of
securities described by the name of the corporation, or by
value or quantity, but not indicating any particular lot of such
securities, will be construed as a general bequest if there is
nothing on the face of the will or in evidence of the
surrounding circumstances, where admissible, to indicate that
the testator intended a gift only of the securities owned by
him.... It has been held, however, that where there are
bequests of shares of a closely held corporation the nonpublic
character of the shares bequeathed is evidence of an intent to
make a specific gift. [Citations omitted.]
Id. at 770–71. Extrinsic evidence showed that of the 1,000,000
shares of stock the Belridge Oil Company had issues, 61 percent
was held in a voting trust that was controlled by only three families,
and testator's. Furthermore, when gifting the stock in the will, in each
gift the testator expressly referred to the stock as now “in my estate.”
The Court found that the gifts of stock were specific gifts.
In addition to the Court's guidance in Buck's Estate, the California
legislature weighed in on the issue of how to treat changes in stock
that occur after a will is executed and before the testator dies by
adopting Probate Code Section 21132. What is the controlling
variable as to whether the beneficiary gets the benefit of the change
in stock under the California approach? Is that the same as under
the traditional common law approach?
CPC §21132. Gifts of securities
(a) If a transferor executes an instrument that makes an at-
death transfer of securities and the transferor then owned
securities that meet the description in the instrument, the
transfer includes additional securities owned by the transferor
at death to the extent the additional securities were acquired
by the transferor after the instrument was executed as a
result of the transferor's ownership of the described securities
and are securities of any of the following types:

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 (1) Securities of the same organization acquired by reason of
action initiated by the organization or any successor,
related, or acquiring organization, excluding any acquired
by exercise of purchase options.
(2) Securities of another organization acquired as a result of
a merger, consolidation, reorganization, or other
distribution by the organization or any successor, related,
or acquiring organization.
(3) Securities of the same organization acquired as a result
of a plan of reinvestment.
(b) Distributions in cash before death with respect to a
described security are not part of the transfer.
Note that the statutory provision applies only if the change in the
stock is initiated by the corporate entity. If the change is initiated by
the testator/transferor, perform the usual California ademption
analysis.

Problems
1. Testatrix owned 1,212 shares of Standard Oil common stock. Her
will bequeathed varying amounts of the stock (often coupled with
gifts of her jewelry) to various beneficiaries, totaling 446 shares.
Thereafter, Standard Oil declared a three-for-one stock split,
causing testatrix's holdings to increase to 3,636 shares.
Thereafter, testatrix was declared incompetent and a guardian was
appointed for her. To diversify testatrix's investments, the guardian
exchanged the Standard Oil stock for 9,502 shares of
Diversification Fund—a mutual fund. Testatrix died without
regaining competency. Testatrix's will further provided as follows:
“The bequests of shares of stock of Standard Oil Company of New
Jersey are intended to be said shares as presently constituted.” In
the same paragraph, another provision provided that if, prior to her
death, said shares were changed by “splitting or otherwise” the
legacies were to be “satisfied with the changed shares
representing and being the equivalent of the presently outstanding
shares.”
With respect to the gifts of Standard Oil stock: (a) what stock, if
any, would the beneficiaries be entitled to following the three-for-
one stock split; (b) what stock, if any, would the beneficiaries be
entitled to following testatrix's death; and (c) what stock, if any,
would the beneficiaries be entitled to if no guardian had been

509
 appointed and testatrix had exchanged the Standard Oil stock for
the shares of stock in the Diversification Fund? See In re Estate
of Ehrenfel, 241 Cal. App. 2d 215 (Cal. Ct. App. 1966).
2. T's will provides: “I leave 100 shares of ABC Corp. to A, and I
leave $25,000 to B, payable out of the proceeds of the sale of my
100 shares of ABC Corp.” Applying general rules of will
construction, who gets what?

3. Ademption by Satisfaction (“Satisfaction”)

Ademption by satisfaction, commonly referred to simply as
“satisfaction,” complements ademption by extinction. Ademption by
extinction applies only to specific gifts, while ademption by
satisfaction applies primarily to general gifts. Like ademption, it is
easy to understand the issue underlying satisfaction because it
arises logically from a relatively simple scenario. Assume Testatrix
executes a will in which she provides: “I hereby give my mom a car.”
Thereafter the testatrix buys her mom a car. Should the inter vivos
gift of the car be presumed to be in place of the testamentary gift in
the will?
Phrased that way, one can see why satisfaction is a sibling
doctrine to the doctrine of advancement. Advancement addresses
the issue of whether an inter vivos gift should count against an heir's
share of the estate if the decedent dies intestate. Satisfaction
addresses the same basic issue if the decedent dies testate: should
an inter vivos gift from a testator to a beneficiary in the will count
against the donee/beneficiary's share of the testator's estate? Like
advancement, the common law created a presumption in favor of
satisfaction (or partial satisfaction as the case may be) where the
inter vivos gift was of the same nature as the testamentary gift. In
contrast, the modern trend UPC creates a presumption against
satisfaction (or partial satisfaction, as the case may be) unless there
is a writing expressing the intent for the inter vivos gift to count
against the time of death gift.
Which approach does California apply? Does it follow the common
law approach or the UPC approach?
CPC §21135. Lifetime gift counts as satisfaction of testamentary
gift; conditions justifying

510
 (a) Property given by a transferor during his or her lifetime to a
person is treated as a satisfaction of an at-death transfer to
that person in whole or in part only if one of the following
conditions is satisfied:
(1) The instrument provides for deduction of the lifetime gift
from the at-death transfer.
(2) The transferor declares in a contemporaneous writing that
the gift is in satisfaction of the at-death transfer or that its
value is to be deducted from the value of the at-death
transfer
(3) The transferee acknowledges in writing that the gift is in
satisfaction of the at-death transfer or that its value is to be
deducted from the value of the at-death transfer.
(4) The property given is the same property that is the
subject of a specific gift to that person.
(b) Subject to subdivision (c), for the purpose of partial
satisfaction, property given during lifetime is valued as of the
time the transferee came into possession or enjoyment of the
property or as of the time of death of the transferor, whichever
occurs first.
(c) If the value of the gift is expressed in the contemporaneous
writing of the transferor, or in an acknowledgment of the
transferee made contemporaneously with the gift, that value
is conclusive in the division and distribution of the estate.
(d) If the transferee fails to survive the transferor, the gift is
treated as a full or partial satisfaction of the gift, as the case
may be, in applying Sections 21110 and 21111 unless the
transferor's contemporaneous writing provides otherwise.
To the extent the California satisfaction doctrine appears to parallel
the California advancement doctrine, how do the two doctrines treat
a scenario where the donee predeceases the donor? Does the inter
vivos gift still count against the share of the person who will take in
the donee's place?
To date, there are no reported opinions applying or analyzing
California's new statutory approach to satisfaction. It parallels the
UPC approach in many respects, except for subsection (a)(4).

Notes and Problems

511
1. Testator Tina executes a will and it leaves $100,000 to each of her
two sons, A and B, her Cartier watch to her daughter C, and the
balance of her estate to her grandchildren. Assume that later, Tina
makes a gift of $60,000 to her son A, and gives her Cartier watch
to C. Tina then dies. Assume that Tina's assets, at her death, are
comprised of $500,000 cash, and a parcel of real estate (with a
value of $1 million). Thereafter Tina dies. Who would get what at
Tina's death?
Does subsection (a)(1) of the above statute have any relevance to
this problem? If not, what would be an example of its application?
2. Same fact pattern as Problem 1, only this time assume that there
is a valid writing by either Tina or A pursuant to subsections (a)(2)
and (a)(3), respectively. If this were the case, how would Tina's
property be distributed?
3. What does subsection (d) mean? When does it apply? It has no
relevance to our fact pattern, but how could you change the facts
to make it relevant? Whatever this subsection means, does
California's advancement doctrine, set forth in CPC Section 6409
(discussed in Chapter 4), have a comparable provision? If so, are
they consistent with one another?
4. Parent gave child X $10,000 during Parent's lifetime. Parent
thereafter executed a will leaving her estate valued at $110,000 to
her brother, B. Unbeknownst to Parent, B died before Parent
executed her will. Parent is survived by three children, X, Y, and Z,
and B is survived by issue I. Who takes how much of Parent's
estate, and why?

B. Exoneration
The doctrine of exoneration (also known as “exoneration of liens”)
addresses the issue that arises when a testator/transferor makes a
testamentary transfer (either by will or will substitute such as an
revocable living trust) of an asset that is encumbered with debt. For
example, testator devises a house that is subject to a mortgage, or a
car that is subject to a car loan. Should the default rule be that the
devisee takes the asset free and clear of the debt, or should the
devisee take the asset subject to the debt? If the devisee takes the
gift free and clear of any debt, where will the money come from to
pay off the debt?

512
 A well-drafted testamentary document (will or will substitute) can
address this issue and should clearly indicate the decedent's wishes
with respect to the debt. If he or she wants the asset to go to the
beneficiary free and clear, the testamentary document can
specifically provide that it goes without debt, instructing the
executor/trustee to pay the debt from the decedent's other assets
(typically the residue of the estate). Alternatively, the document can
specify that the loan goes with the asset (the beneficiary taking the
asset subject to the loan).
This is all fine, but what if the testamentary document (will or will
substitute) is not well drafted and it says nothing specific about the
debt attached to the asset? What should be the default rule?
Traditional common law provided that unless otherwise specified, the
beneficiary would take the property free and clear of any debt. The
proper terminology is to say that the beneficiary is exonerated from
the accompanying debt. The doctrine of exoneration is also known
as “exoneration of liens.”
The common law approach was heavily criticized as being unfair
to the decedent's residuary beneficiaries (they would be saddled with
paying the debt on property going to other beneficiaries—those
beneficiaries being exonerated of the debts). This led to what is now
the modern trend and general rule. The modern trend reverses the
default presumption. The prevailing approach is that unless
otherwise specifically indicated, a specific devise/bequest (it only
makes sense with specific gifts) with accompanying debt passes to
the beneficiary subject to such debt. The loan goes with the property
unless the testator/transferor adequately expresses a contrary intent.
Which approach does California apply?
CPC §21131. Specific gifts; right of exoneration
A specific gift passes the property transferred subject to any
mortgage, deed of trust, or other lien existing at the date of
death, without right of exoneration, regardless of a general
directive to pay debts contained in the instrument.

Problems
1. Testator's will provides that he devises his house to his daughter,
Daisy, and the remainder of his property to his son, Sam. When he
dies, he still owes $300,000 on the purchase money loan he used
to acquire the house. He dies with two principal assets: his house,

513
 worth approximately $500,000, and a bank account with $500,000
in it. Who gets what?
2. Tammie's validly executed will contains, in pertinent part, the
following provisions:
“I bequeath $1,000 to each of the following:
(a) any son- or daughter-in-law of mine at my death;
(b) my housekeeper at my death; and
(c) each of the persons listed on the paper I shall place with
this will.
I bequeath to my friend Fred:
(d) all of my household furnishings in my house at my death;
(e) the funds in my personal checking accounts; and
(f) all of my securities in my safe-deposit box.”
a. Tammie's spouse, Wendy, challenges the validity of each
provision, claiming each provision permits Tammie to affect
her testamentary disposition without complying with the
Wills Act formalities. Putting aside any community property
issue, which provisions, if any, are invalid in California, and
why?
b. At Tammie's death, there are no securities in Tammie's
safe-deposit box, but there are securities in Tammie's desk
at home. Who is most likely entitled to the securities, and
why?

C. Abatement
Assume the testator has a will (or will substitute such as a
revocable living trust) with various devises and/or bequests—some
specific and some general in classification. The testator dies. The
estate will most likely incur a variety of administration fees (probate,
lawyer, executor, trustee, appraisal, recording, etc.) and, possibly,
estate taxes. Now, for whatever reason, assume that the property in
the decedent's estate is not sufficient to fulfill all of the testator's
devises and/or bequests. Estate fees must be paid, but what
happens if there is not enough left to cover all of the testamentary
gifts? Sometimes a decedent has a reversal of fortune between
executing a will and dying, such that his or her will attempts to devise
more property than he or she has at the time of death.
After estate fees are covered, the doctrine of abatement sets forth
a default approach with respect to which of the testator's gifts will be

514
“short-changed” or abated if there is not enough property to “make
good” on all of the gifts. Should all of the testamentary gifts be
reduced proportionally (in proportion based on their relative amount
of the total of all gifts), or should some of the gifts get knocked-out
(abated) first?
Because abatement is a default doctrine, it is very common for a
professionally drafted will (or will substitute) to contain an
“abatement” clause that clearly spells out the method of abatement
should it be necessary to do so (of course, if there are sufficient
assets, there is no abatement problem). But what if the will (or will
substitute) contains no abatement clause—what is the default
approach? California's default approach is set forth in California
Probate Code Sections 21400, 21402:
CPC §21400. Scope of abatement doctrine
Notwithstanding any other provision of this part, if the
instrument provides for abatement, or if the transferor's plan or
if the purpose of the transfer would be defeated by abatement
as provided in this part, the shares of beneficiaries abate as is
necessary to effectuate the instrument, plan, or purpose.
CPC §21402. Order of abatement
(a) Shares of beneficiaries abate in the following order:
(1) Property not disposed of by the instrument.
(2) Residuary gifts.
(3) General gifts to persons other than the transferor's
relatives.
(4) General gifts to the transferor's relatives.
(5) Specific gifts to persons other than the transferor's
relatives.
(6) Specific gifts to the transferor's relatives.
(b) For purposes of this section, a “relative” of the transferor is a
person to whom property would pass from the transferor
under Section 6401 or 6402 (intestate succession) if the
transferor died intestate and there were no other person
having priority.
Abatement is a fairly mechanical doctrine that has much more
significance in probate and estate administration (and courses
related thereto).

515
 Problem
Testator wins $50,000,000 in the lottery (after taxes), and feeling
rather generous, validly executes a will that provides that he gives
each student in his current Wills, Trusts, and Estates class that year
$100,000. The rest, residue and remainder of his estate goes to his
lovely wife, Gerri. Thereafter, Testator goes to Las Vegas and blows
most of his wealth. Devastated, he commits suicide. At the time of
his death his estate had shrunk to $5,000,000. Assuming he had 100
students in his class, who takes what? Whose gift should be reduced
first, and why?

1. A sophisticated estate planner might argue that all possible scenarios should
be covered in a well-drafted will, but at some point the benefits of covering all
possible scenarios exceed the costs—at least for most testators.
2. [Editors' footnote] Emphasis added by the court writing this opinion.
3. There are exceptions to this rule, but they will be covered later.
4. A gift may lapse—or fail—for a variety of reasons (i.e., the beneficiary may not
accept the gift, or an express condition precedent that is tied to the gift may not
occur, etc.). The most common reason, and the focus of our examination, is that
the designated beneficiary predeceased the testator/transferor. The full scope of
the lapse doctrine is beyond the scope of the introductory class.

516
Chapter 10

517
Family Protection

518
 I. Introduction
To the extent the issue in this course is “who should get your
property when you die,” answering that question arguably is
easier for a single individual than a married individual. All of a
single person's property is his or her separate property. No one
has a claim to the property while the person is alive, so no one
has a claim to the property when he or she dies. But what if the
decedent is married? Should the fact that the decedent is married
make any difference? Should the surviving spouse have a right to
some of the decedent's property regardless of the decedent's
intent?

A. Marital Property and Spousal Protection at

Time of Death
Marriage is an interesting social and legal arrangement.
Marriage inherently involves two people blending their lives
together. How the parties blend their lives, and to what extent that
blending includes property rights, varies by couple. Inevitably,
however, all marriages end and an issue that naturally arises at
the end of the marriage is how to divide the couple's property.
Should that question be left exclusively to the parties to work out,
or should the state get involved to ensure the property is split
“fairly”? When a couple gets married, the assumption is they love
each other. If they love each other, one would expect each
spouse to leave most, if not all, of his or her property to the
surviving spouse. But while a marriage may begin full of love,
some marriages are running on fumes by the time the marriage
ends. For some couples, the assumption that they still love each
other, and that each spouse will leave a fair share of his or her
property to the surviving spouse, is a sham. Should the state step
in to protect the surviving spouse? If so, how? When? To what
extent?
The equities behind the question of spousal protection are even
more compelling when one considers the historical notion of the
“ideal” nuclear family. Historically, it was not uncommon for a

519
married couple to decide to start a family and for one spouse to
stay home and focus on raising the children. In the event a couple
opted for this traditional scenario, one spouse opted for the role of
being the financial provider for the family, and the other spouse
opted for the role of being the homemaker for the family. The risk
of opting into the role of homemaker, if there is no spousal
protection doctrine, is that in the typical marriage it potentially
leaves that spouse economically dominated and vulnerable. In
this traditional scenario, absent some form of spousal protection,
all of the couple's wealth would be in one spouse's name. Absent
some type of spousal protection, the working spouse could
completely disinherit the non-working spouse.
The modern trend focuses less on the possible inequities of the
stay-at-home spouse being disinherited and more on the
partnership model of marriage. Partners should share in the
property acquired as a result of the partnership. Each partner has
a right to a fair share of the property acquired by the partnership.
No matter how the institution of marriage is viewed
theoretically, a surviving spouse arguably has a right to some of
the property acquired during the marriage. Every state has some
form of a spousal protection/marital property sharing doctrine to
ensure that a surviving spouse is adequately provided for at the
time of death.
Nationally there are two basic default schemes with respect to
how marriage affects property rights between spouses:
community property and the common law separate property
approach. As covered in Chapter 2, California has adopted the
community property approach to marital property. The California
community property statutory scheme creates a general
presumption that any property acquired during marriage by either
spouse, other than by gift, devise, or inheritance, is community
property that is owned by the community and held in equal shares
(50-50) by the parties.1 To the extent that community property is a
form of spousal protection, that protection kicks in and applies the
moment the property is acquired by either spouse. Because
community property rights attach the moment the property is
acquired, the question in community property jurisdictions is
whether a surviving spouse is entitled to any more protection at
the time of death?

520
 While California has adopted the community property scheme,
the overwhelming majority of the states apply the common law,
separate property approach to marital property. Under that
approach, marriage has no immediate effect on a couple's
property rights. Just as a party's property acquired before
marriage is his or her separate property, property acquired after
marriage is his or her separate property. But while the common
law marital property approach has no immediate property
consequences, at the time of death the marriage gives rise to a
property right in the surviving spouse: the elective share (or the
forced share as it is called in some jurisdictions). The elective
share assumes that spouses will do the right thing at time of
death: that the first spouse to die will leave a fair share of his or
her property to the surviving spouse. But just in case the first
spouse to die does not leave the surviving spouse a fair share,
the surviving spouse had the right2 to come into probate court
and claim one-third of the deceased spouse's probate property
regardless of the terms of the deceased spouse's will.3
California, again, is a community property jurisdiction. There is
no elective share or forced share in California. Community
property rights attach the moment either spouse acquires
community property. Community property is then divided at the
time of death, with the surviving spouse automatically receiving
50 percent of the community property outright, and the deceased
spouse's half passing into his or her probate estate. Knowing the
basics of the traditional elective share doctrine is helpful,
however, to understanding the quasi-community property
doctrine, a doctrine created to solve the community property
problem created by migrating couples.

B. Migrating Couples
A migrating couple is a couple that spends some of their marital
years in a community property state and some of their marital
years in a non-community property state. Their migration from
one jurisdictional approach to the other highlights the latent
temporal differences between the two approaches. Property is
characterized as separate or community the moment the property
is acquired based upon the law of the state where the couple is

521
domiciled at the time of acquisition. The time of death spousal
protection/marital asset division doctrine (community property or
the elective share) that applies to a couple depends on the
domicile of the couple at the time of death of the first spouse to
die. Historically, this temporal difference created some interesting
problems for migrating couples.
The historical problems created by migrating couples can be
easily demonstrated by a few hypotheticals. Assume a traditional
married couple, where one spouse stays at home and works very
hard raising the children and caring for the home but who never
holds a job that brings in any money. The other spouse works
outside the home, earns all of the money acquired by the couple
during the marriage, and deposits that money in a bank account
in his or her name only:

1. If the couple lived their entire working careers in a non-

community property state, and the wage-earning spouse
accumulated $1,000,000 in a bank account (after family
expenses are covered), how would you characterize the
money in the bank account? Assume thereafter the couple
retires and moves to a community property state, establishes
domicile, and one week later the wage-earning spouse dies
with a will leaving all of his or her property to his or her alma
mater, Midwest U. Which spousal protection approach applies
to the couple? Assuming no migrating couple doctrine
applies, just the applicable spouse protection doctrines, to
how much of the $1,000,000 is the surviving spouse entitled?
2. Reverse the migration. If the same married couple lived their
entire working careers in a community property state, how
would you characterize the $1,000,000 bank account? The
couple retires and moves to a non-community property state,
establishes domicile, and a week later the wage-earning
spouse dies with a will leaving all of his or her property to his
or her alma mater. Which spousal protection approach
applies to the couple? Assuming no migrating couple doctrine
applies (just the applicable spouse protection doctrines) to
how much of the $1,000,000 is the surviving spouse entitled?

C. Quasi-Community Property

522
 To address the issues created by a migrating couple who
moves from a non-community property state to a community
property state, most community property states have adopted a
doctrine known as quasi-community property.

California Family Code §125. Quasi-community property2

“Quasi-community property” means all real or personal
property, wherever situated, acquired before or after the
operative date of this code in any of the following ways:
(a) By either spouse while domiciled elsewhere which would
have been community property if the spouse who acquired
the property had been domiciled in this state at the time of
its acquisition.
...
The California legislature first attempted to deal with the
problem created by couples migrating from a non-community
property state to California (a community property state), by
adopting legislation that applied quasi-community property
principles the moment a couple moved into the state. In Estate of
Thornton, 1 Cal. 2d 1 (1934), the California Supreme Court
declared such a statutory scheme unconstitutional on the grounds
that the limitation of the vested rights of one spouse in his or her
separate property was a denial of due process and an
abridgement of the privileges and immunities clause of the
Constitution. The Court concluded that just because the couple
had moved into the state, the state did not have a sufficient
interest to justify changing the property from one spouse's
separate property to quasi-community property. Justice Langdon,
however, in his dissent, argued that while moving into the state
did not provide a sufficient state interest, if the spouse had
subsequently died in California, the state's interest in regulating
succession of a deceased spouse's property would provide
sufficient state interest to justify imposing quasi-community
property status on the deceased spouse's separate property.
The legislature responded to Justice Langdon's dissent by
adopting Section 201.5 of the Probate Code, which read as
follows:

523
 Upon the death of either husband or wife one-half of all
property, wherever situated, heretofore or hereafter
acquired after marriage by either husband or wife, or both,
while domiciled elsewhere, which would not have been the
separate property of either if acquired while domiciled in
this state, shall belong to the surviving spouse; the other
half is subject to the testamentary disposition of the
decedent, and in the absence thereof goes to the surviving
spouse, subject to the debts of the decedent and to
administration and disposal under the provisions of Division
3 of this code.
In Paley v. Bank of America, 159 Cal. App. 2d 500, 510 (Ct.
App. 1958), Mrs. Paley's estate argued that the revised quasi-
community property legislation applied to Mr. Paley's separate
property, thereby entitling her to devise half of the separate
property he brought into the state as quasi-community property.
Mr. Paley objected on the grounds that the legislature did not
intend the statute to apply to the separate property of the living
spouse, and if the legislature did, such application would be
unconstitutional as the state did not have adequate state interest
to apply it to the separate property of the surviving spouse.
The Paleys were married in Illinois in 1906. After living back
east in Illinois and Pennsylvania (two non-community property
states), they moved to California in 1936.
Lillian died testate on January 2, 1954, survived by the
plaintiff. On her death she owned real and personal
property valued in excess of $1,750,000. At the time of
Lillian's death, plaintiff was the owner of property having a
value of about $8,000,000, none of which was community
property, all having been acquired as aforesaid, as his sole
and separate property. At the trial, defendant contended
that under section 201.5 of the Probate Code, Lillian had a
right to and did, by will, devise and bequeath to her
beneficiaries (who did not include plaintiff) not only her own
property but one-half of plaintiff's sole and separate
property.
In analyzing the scope and constitutionality of the revised quasi-
community property statute, the California Supreme Court began

524
by quoting from its earlier opinion in In re Miller, 31 Cal. 2d 191,
196, and from a Court of Appeal decision that had commented on
the legislation:
From the authorities cited it is clear that from the beginning
section 201.5 of the Probate Code was interpreted by our
courts strictly as a succession statute governing the
devolution, on death, of the property of a decedent and that
it was not intended to operate in such a way as to dispose
of the property of a living person which, in effect, would
rearrange the property rights of the spouses during their
lifetimes....
We conclude from its history, its language and from prior
judicial interpretation, that section 201.5 of the Probate
Code is strictly a statute of succession which does not
extend, nor purport to give, to one spouse the testamentary
power to dispose of the surviving spouse's separate
property, in which she has no interest, during the latter's
lifetime. Otherwise construed and applied to the facts in the
instant case, its operation would be unconstitutional.4
Current California Probate Code Section 101 does a better job
of clarifying that quasi-community property principles apply only to
the deceased spouse's property:
Upon the death of a married person domiciled in this state,
one-half of the decedent's quasi-community property
belongs to the surviving spouse and the other half belongs
to the decedent.
(Emphasis added.)

Problems
1. In 2003, Hagop and Wamil married in Nebraska (a common-
law/non-community property state). In 2010, they moved to and
became domiciled in California. This year, Hagop died with a
valid will giving all of his property to his friend, Fiona. One item
in contention is a painting that was purchased in 2014.

a. Without any additional information, what is the character of

the painting and how should it (or its value) be distributed?

525
 b. Assume the same facts, but for this question only, we have
additional information that the money used to buy the painting
came from funds Wamil saved from her 2013 wages. What
result?
c. Assume the same facts, but for this question only, we have
additional information that the money used to buy the painting
came from funds Hagop saved from his 2013 wages. What
result?
d. Assume the same facts, but for this question only, we have
additional information that the money used to buy the painting
came from funds Hagop saved from his post-marriage
Nebraska wages. What result?
e. Assume the same facts, but for this question only, we have
additional information that the money used to buy the painting
came from funds Hagop saved from his pre-marriage
Nebraska wages. What result?

2. How would your answers to Problem 1 and its subparts change

if, rather than Hagop dying, Wamil is the decedent (with a valid
will leaving all of her property to her sister, Setha)?
3. In addition to the painting in Problems 1 and 2, prior to moving
to and becoming domiciled in California, Hagop purchased a
parcel of raw land in Malibu, California, titling it solely in his
name. Who gets this land at Hagop's death, assuming that he
is the first to die (with his same will leaving everything to his
friend, Fiona)? Alternatively, what happens if Wamil is the first
to die (with her same will, leaving everything to her sister,
Setha)? Do your answers depend on when Hagop bought the
land or what funds were used to purchase it?
4. Edmund and Treva Fredericks were twice married. While
domiciled in Pennsylvania, they married in 1953 and divorced
in 1972. Edmund began receiving his military pension in 1973.
They then remarried in Pennsylvania in 1975, moved to
California in 1977, and divorced in 1981. Is Edmund's military
pension his separate property or quasi-community property?
See Fredericks v. Fredericks, 226 Cal. App. 3d 875 (Ct. App.
1991).

526
 II. Pretermitted Spouse
In Chapter Seven, we discussed revocation by operation of law
when a married testator (or one who is in a registered domestic
partnership) has a will (or will substitute) that provides for a
spouse (or domestic partner), and then the marriage (or domestic
partnership) dissolves, but the testator dies before any changes
were made to the will (or will substitute). You may recall that
generally, the law steps in to automatically revoke any such
testamentary disposition to whomever is, at the testator's death, a
former spouse. The pretermitted spouse doctrine is, generally, the
flip side of this. It is also, in a way, a form of revocation by
operation of law—but most scholars and attorneys prefer to think
of it in a more positive light, as do we, hence its coverage in this
part of the material.

Estate of Shannon
224 Cal. App. 3d 1148 (Ct. App. 1990)
HUFFMAN, Acting Presiding Justice.
...
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 1974, Russell, an unmarried widower, executed
his last will and testament, naming his daughter, Beatrice Marie
Saleski, executrix and sole beneficiary. The will also provided his
grandson, Donald Saleski, would inherit his estate in the event
Beatrice did not survive him for “thirty (30) days” and contained a
disinheritance clause which provided as follows:
“SEVENTH: I have intentionally omitted all other living
persons and relatives. If any devises, legatee, beneficiary
under this Will, or any legal heir of mine, person or persons
claiming under any of them, or other person or persons
shall contest this Will or attack or seek to impair or
invalidate any of its provisions or conspire with or
voluntarily assist anyone attempting to do any of those
things mentioned, in that event, I specifically disinherit such

527
 person or persons. [¶] If any Court finds that such person or
persons are lawful heirs and entitled to participate in my
estate, then in that event I bequeath each of them the sum
of one ($1.00) dollar and no more.”
On April 27, 1986, Russell married Lila. On February 22, 1988,
Russell died. He did not make any changes in his will after his
marriage to Lila and before his death. His 1974 will was admitted
to probate May 9, 1988, and Beatrice was named executrix of his
estate.
...
On March 24, 1989, the probate court issued its order denying
Lila's petition to determine heirship. She timely appealed only
from this latter order.
During the pendency of this appeal, Lila died and her son
Brown was named executor of her estate and substituted in her
place as appellant. He has objected to the distribution of Russell's
estate until after this appeal is decided.
DISCUSSION
On appeal, Lila contends she was a pretermitted spouse within
the meaning of section 6560 and does not fall under any of the
exceptions under section 6561 which would preclude her from
sharing in Russell's estate as an omitted spouse....
Section 6560, added to the Probate Code in 1983, amended in
1984 and applicable to estates of decedents who died on or after
January 1, 1985 (Stats.1983, ch. 842, §55; Stats.1984, ch. 892,
§45), states:
“Except as provided in Section 6561, if a testator fails to
provide by will for his or her surviving spouse who married
the testator after the execution of the will, the omitted
spouse shall receive a share in the estate consisting of the
following property in the estate: [¶] (a) The one-half of the
community property that belongs to the testator.... [¶] (b)
The one-half of the quasi-community property that belongs
to the testator.... [¶] (c) A share of the separate property of
the testator equal in value to that which the spouse would
have received if the testator had died intestate, but in no

528
 event is the share to be more than one-half the value of the
separate property in the estate.”
Section 6561 states:
“The spouse does not receive a share of the estate under
Section 6560 if any of the following is established: [¶] (a)
The testator's failure to provide for the spouse in the will
was intentional and that intention appears from the will. [¶]
(b) The testator provided for the spouse by transfer outside
the will and the intention that the transfer be in lieu of a
testamentary provision is shown by statements of the
testator or from the amount of the transfer or by other
evidence. [¶] (c) The spouse made a valid agreement
waiving the right to share in the testator's estate.”
...
It is well established section 6560 reflects a strong statutory
presumption of revocation of the will as to the omitted spouse
based upon public policy. (Estate of Duke (1953) 41 Cal.2d 509,
261 P.2d 235.) Such presumption is rebutted only if
circumstances are such as to fall within the literal terms of one of
the exceptions listed in section 6561. (See Estate of Sheldon
(1977) 75 Cal.App.3d 364, 142 Cal.Rptr. 119.) The burden of
proving the presumption is rebutted is on the proponents of the
will. (See Estate of Paul (1972) 29 Cal.App.3d 690, 697, 105
Cal.Rptr. 742.)
Here, Russell failed to provide for Lila in his will. Under the
language of section 6560, she is thus an omitted spouse and the
crucial inquiry becomes whether Beatrice met the burden of
rebutting this presumption. Specifically, the issues are whether
the will shows a specific intent to exclude Lila pursuant to section
6561(a) and whether Beatrice presented sufficient evidence to
show Russell had intended to otherwise provide for Lila outside of
his will in lieu of her taking under it pursuant to section 6561(b), or
to show Lila waived her rights to share in his estate under section
6561(c).
The will on its face does not evidence an intent on Russell's
part to disinherit Lila. As the presumption under section 6560 is
only rebutted by a clear manifestation of such intent on the face of
the will, “regardless of what may have been the wishes of the

529
[decedent]” (Estate of Basore (1971) 19 Cal.App.3d 623, 627–
628, 96 Cal.Rptr. 874; see also Estate of Duke, supra, 41 Cal.2d
509, 261 P.2d 235 and Estate of Paul, supra, 29 Cal.App.3d 690,
105 Cal.Rptr. 742), the section 6561(a) exception has not been
established.
Contrary to Beatrice's reliance on Estate of Kurtz (1922) 190
Cal. 146, 210 P. 959 to argue the language “any legal heir of
mine” in the disinheritance clause contained in Russell's will
somehow shows his intent to disinherit Lila, whom he married 12
years after executing the will, that case has been effectively
overruled by subsequent case law. (See Estate of Axcelrod
(1944) 23 Cal.2d 761, 769–770, 147 P.2d 1 (conc. opn. of Carter,
J.).) Estate of Axcelrod, supra, 23 Cal.2d at pp. 765–769, 147
P.2d 1 distinguished the Kurtz case and held a general provision
in a will that the testator “intentionally omitted all of my heirs who
are not specifically mentioned herein, intending thereby to
disinherit them”, may not be construed as mentioning a
subsequently acquired spouse in such a way as to show an
intention not to make provision for the spouse, where the testator
at the time the will was executed had no spouse who could
become “an heir.” (Id. at p. 767, 147 P.2d 1.)
Case law has also held exclusionary clauses in wills which fail
to indicate the testator contemplated the possibility of a future
marriage are insufficient to avoid the statutory presumption.
(Estate of Poisl (1955) 44 Cal.2d 147, 149–150, 280 P.2d 789;
Estate of Paul, supra, 29 Cal.App.3d 690, 105 Cal.Rptr. 742.)
Even testamentary clauses specifically disinheriting a named
individual whom the testator planned to marry and a clause
stating “any other person not specifically mentioned in this Will,
whether related by marriage or not” have been held insufficient to
disclose the explicit intention of a testator to omit provision for
another woman the testator married after executing the will either
as a member of the designated disinherited class or as a
contemplated spouse. (Estate of Green (1981) 120 Cal.App.3d
589, 593, 174 Cal.Rptr. 654.) As there is no mention of Lila or the
fact of a future marriage in the disinheritance clause of the will, it
does not manifest Russell's intent to specifically disinherit Lila as
his surviving spouse.

530
 Nor have the circumstances of section 6561(b) or (c) been
established. Beatrice asserts a retired California Highway
Patrolmen Widow's and Orphan's Fund from which $2,000 was
paid to Lila as Russell's beneficiary, coupled with a declaration of
Russell's attorney “[t]hat in the twelve months immediately
preceding [Russell's death, he] informed this declarant that he
had remarried and that his wife was independently wealthy and
that she had more than he had and that he wanted his daughter
to have his estate upon his death ...”, evidence Russell's intent to
provide for Lila outside the will in lieu of a testamentary provision
and satisfy the requirements of section 6561(b). In support of this
argument she cites a New Mexico case, Matter of Taggart (1980)
95 N.M. 117, 619 P.2d 562, which held the omission of an after-
acquired spouse in a will can be shown to be intentional by a
transfer outside the will such as life insurance or other joint
arrangement based on evidence of the testator's statements, the
amount of the transaction, or other evidence. She claims
Russell's intent she take his entire estate is paramount and the
presumption under section 6560 must yield to that intent. (See
Estate of Smith (1985) 167 Cal.App.3d 208, 212, 212 Cal.Rptr.
923.)
However, as Lila notes, the evidence of the widow's and
orphan's trust fund benefits and Beatrice's attorney's declaration
were excluded from evidence at the court hearing on the probate
heirship matter making it impossible for the court to base its
determination on such claimed transfer.
Even assuming the evidence were properly before the probate
court at the time of the hearing, such was insufficient to rebut the
presumption of section 6560 because it does not show Russell
provided the trust fund benefits for Lila in lieu of sharing in his
estate.
Moreover, the facts presented at the probate hearing that
Russell and Lila kept their property separate during the course of
their marriage is not sufficient to show “a valid agreement waiving
the right to share” in each other's estate pursuant to section
6561(c). (See Estate of Butler (1988) 205 Cal.App.3d 311, 318,
252 Cal.Rptr. 210.)

531
 Beatrice has simply not met her burden of proving Russell's
intent to disinherit Lila and rebut the presumption of revocation
under section 6560. The probate court therefore erred in denying
Lila's petition to determine heirship.
DISPOSITION
The order denying Lila's petition for heirship is reversed and
remanded for further proceedings consistent with this opinion.
—————

Notes
1. Presumed intent versus spousal protection: Is the
pretermitted spouse doctrine a corrective doctrine based on
presumed intent (correcting decedent's mistake of not revising his
or her will after getting married to provide for his or her new
spouse), or is it a spousal protection doctrine, a doctrine intended
to ensure that a surviving spouse is adequately provided for?
Which view of the doctrine does the court in Estate of Shannon
appear to favor?
2. Scope: California's pretermitted spouse doctrine was moved
from the 6560s to the 21600s. What does that tell you about the
scope of the current pretermitted spouse doctrine in California?
Read Section 21601 in particular to gauge the scope of the
revised doctrine:
CPC §21601. “Testamentary instruments,” “estate”
(a) For purposes of this part, “decedent's testamentary
instruments” means the decedent's will or revocable trust.
(b) “Estate” as used in this part shall include a decedent's
probate estate and all property held in any revocable trust
that becomes irrevocable on the death of the decedent.
CPC §21610. Share of omitted spouse
Except as provided in Section 21611, if a decedent fails to
provide in a testamentary instrument for the decedent's
surviving spouse who married the decedent after the
execution of all of the decedent's testamentary instruments,

532
 the omitted spouse shall receive a share in the decedent's
estate, consisting of the following property in said estate:
(a) The one-half of the community property that belongs to
the decedent under Section 100.
(b) The one-half of the quasi-community property that
belongs to the decedent under Section 101.
(c) A share of the separate property of the decedent equal in
value to that which the spouse would have received if the
decedent had died without having executed a
testamentary instrument, but in no event is the share to be
more than one-half the value of the separate property in
the estate.
CPC §21611. Spouse not to receive share; circumstances
The spouse shall not receive a share of the estate under
Section 21610 if any of the following is established:
(a) The decedent's failure to provide for the spouse in the
decedent's testamentary instruments was intentional and
that intention appears from the testamentary instruments.
(b) The decedent provided for the spouse by transfer outside
of the estate passing by the decedent's testamentary
instruments and the intention that the transfer be in lieu of
a provision in said instruments is shown by statements of
the decedent or from the amount of the transfer or by
other evidence.
(c) The spouse made a valid agreement waiving the right to
share in the decedent's estate.
CPC §21612. Manner of satisfying share of omitted spouse;
intention of decedent
(a) Except as provided in subdivision (b), in satisfying a
share provided by this chapter:
(1) The share will first be taken from the decedent's estate
not disposed of by will or trust, if any.
(2) If that is not sufficient, so much as may be necessary
to satisfy the share shall be taken from all beneficiaries
of decedent's testamentary instruments in proportion to

533
 the value they may respectively receive. The proportion
of each beneficiary's share that may be taken pursuant
to this subdivision shall be determined based on values
as of the date of the decedent's death.
(b) If the obvious intention of the decedent in relation to
some specific gift or devise or other provision of a
testamentary instrument would be defeated by the
application of subdivision (a), the specific devise or gift or
provision may be exempted from the apportionment under
subdivision (a), and a different apportionment, consistent
with the intention of the decedent, may be adopted.

Notes and Problems

1. What if the following fact pattern, from Ganier's Estate v.
Ganier's Estate, 418 So. 2d 256 (Fla. 1982), had occurred in
California?
[Emma Kennedy and Frederic Ganier] met in 1973, when she
was 79 years old and he was 76 years old. They became close
friends and eventually shared a joint bank account from which
they paid their living expenses. In January 1977, Mrs. Kennedy
executed a will that included a provision bequeathing two of
her personal bank accounts to Fred Ganier. Mrs. Kennedy and
Mr. Ganier were married approximately eighteen months after
this will was executed, in July 1978. Shortly after the marriage,
Emma Ganier suffered a stroke. She was declared
incompetent in November 1978; and, on December 16, 1978,
Mr. Ganier was appointed her guardian. In October, 1978,
before she was found incompetent, Mrs. Ganier closed one of
the bank accounts she had bequeathed to Mr. Ganier. After he
became his wife's guardian, Mr. Ganier had the second
account she had bequeathed to him transferred to Mrs.
Ganier's guardianship account. Mr. Ganier expended almost all
the funds from the guardianship account prior to Mrs. Ganier's
death on January 7, 1979.
Following Emma's death, Frederick claimed that he was a
pretermitted spouse. How would his claim most likely come out
in California?

534
2. Testator, Todd, executed his will when he was single. It has all
of his probate property going to his parents and siblings (in
varying percentages). Thereafter Todd executed and funded a
revocable trust, granting himself a life estate interest and his
alma mater, UC-Nirvana, the remainder outright. Then Todd
purchased a life insurance policy, with a one-time purchase
payment, and designated his friend Fran the beneficiary.
Thereafter Todd married Pauline. He did not change his will, his
trust, or the beneficiary of his life insurance policy after
marrying Pauline. Assume that the couple has community
property and that Todd has substantial separate property.
How much, if anything, will Pauline be entitled to receive
following Todd's death? What property is subject to the
statutory share?
3. The share of assets to which a pretermitted spouse is entitled
pursuant to CPC Section 21610 is often referred to as a
“statutory share.” Carelessly, it is sometimes referred to as an
“intestate share.” What is the distinction? How would you
change the fact pattern in Problem 2, above, to show the
difference between the statutory share and the intestate share?
4. California Probate Code Section 21611(a) provides that an
otherwise qualifying pretermitted spouse cannot successfully
invoke the doctrine if the deceased spouse intentionally omitted
the surviving spouse “and that intention appears from the
testamentary instruments.” In Shannon, Russell's will contained
a standard disinheritance clause that provides in pertinent part
as follows: “I have intentionally omitted all other living persons
and relatives.” Nevertheless, the Court held that the clause did
not constitute an adequate expression of Russell's intent to
disinherit Lila.
What would Russell's will have had to say to constitute an
adequate expression of Russell's intent to disinherit Lila?
Would Pauline be entitled to a statutory share if Todd's will
contained one of the following alternative clauses?

a. I have intentionally omitted all heirs not specifically mentioned

and disinherit any such omitted heir.
b. I am thinking about marrying Pauline [properly identified with
full name]. It is my intent not to make any gift, bequest,

535
 devise, etc. to her in this will [or trust] notwithstanding any
future marriage to her. Therefore, I intend for this provision to
act as evidence of my contrary intent so as to defeat the
application of California Probate Code Section 21610 to my
estate, probate or nonprobate as the case may be.
c. I am presently not married, but if I ever marry, I have
purposefully intended to omit my spouse.
d. I am presently not married, but if I ever marry, I give my
spouse $10,000.00.

5. Assuming a spouse qualifies as a pretermitted spouse and is

entitled to his or her statutory share, how is it funded?
Inasmuch as property will inevitably have to be taken from
other takers, are the gifts to the other takers under the
instrument(s) abated or taken pro rata?

536
 III. Pretermitted
Child/Accidentally
Omitted Child
There is a parallel doctrine to the pretermitted spouse doctrine,
the pretermitted child doctrine. While the logic underlying the
doctrines and the basic approach to the doctrines are very similar,
there are a handful of differences between the two doctrines to
reflect the differences between a spouse and a child.

Estate of Mowry
107 Cal. App. 4th 338 (Ct. App. 2003)
HASTINGS, J.
Toni Mowry MacDonald, the adopted daughter of decedent
Paul Randall Mowry Jr., was omitted from his holographic will.
Pursuant to Probate Code section 11700, she filed a petition to
determine entitlement to distribution of decedent's estate as an
omitted heir....
FACTS
The facts are not in dispute. Appellant was adopted by
decedent, Paul Mowry, Jr., in 1974. Appellant's mother, Joanna
Ruth Mowry, was married to decedent at the time. Decedent
subsequently married Mildren Mowry, who passed away in 1989
leaving no issue.
On December 7, 1990, decedent executed a handwritten will.
The entire testamentary portion of the will states: “I Paul Randall
Mowry Jr. declare this to be my last will and testament, revoking
all former wills and codicils. [¶] I hereby give all my estate real
and personal to my brother, Joe Allen Mowry. [¶] I hereby appoint
my brother Joe Allen Mowry to be the executor of my estate. No
bond shall be required of my executor.”
Decedent died on September 25, 2000....

537
 Before the hearing scheduled for the first and final report and
petition for distribution, appellant filed her petition to determine
entitlement to distribution. Her petition established that she was
decedent's only child and that decedent had failed to provide for
her in his will or in any other testamentary instrument. She filed a
declaration in support of her petition stating that her omission
from her father's will must have been unintentional given their
close relationship from the time decedent married appellant's
mother up to his death.
Appellant's petition was denied.... The court granted
respondent's petition for final distribution of decedent's estate. A
timely appeal was noticed.
DISCUSSION
...
The probate court relied upon section 21620 in denying
appellant's petition. That section states: “Except as provided in
Section 21621, if a decedent fails to provide in a testamentary
instrument for a child of decedent born or adopted after the
execution of all of the decedent's testamentary instruments, the
omitted child shall receive a share in the decedent's estate equal
in value to that which the child would have received if the
decedent had died without having executed any testamentary
instrument.” (Italics added.)
Recognizing that this section, by itself, precludes a
determination that she is an omitted heir, appellant argues that
section 21620 must be read in conjunction with section 21621,
subdivision (a), which states: “A child shall not receive a share of
the estate under Section 21620 if any of the following is
established: [¶] (a) The decedent's failure to provide for the child
in the decedent's testamentary instruments was intentional and
that intention appears from the testamentary instruments.”
Citing to Estate of Torregano (1960) 54 Cal.2d 234, 248, 5
Cal.Rptr. 137, 352 P.2d 505, and Smith v. Crook (1984) 160
Cal.App.3d 245, 249, 206 Cal.Rptr. 524, appellant points to the
prior public policy against unintentional omission of a child from a
parent's will. Relying on this policy, appellant urges that the only
way subdivision (a) of section 21621 makes sense in the context

538
of section 21620 is to apply section 21620 to children, like her,
who are living at the time the testator executes his will. We cannot
agree.
Because section 21621 follows directly after section 21620, and
is referenced within that section, it is manifest that section 21621
is meant to apply only when section 21620 is applicable: where a
child is born or adopted after execution of the testamentary
document.
Appellant's reliance on the longstanding policy of this state to
protect omitted heirs is misplaced. That policy was recognized in
connection with prior section 90 and was legislatively repealed by
enactment of sections 6570 and 6571. Those sections were
themselves repealed in 1997 and replaced by sections 21620 and
21621, respectively. Except for the section numbers referenced in
the statutes, the language of the two statutes remains the same.
This change in policy was discussed in Estate of Della Sala
(1999) 73 Cal.App.4th 463, 86 Cal.Rptr.2d 569 (Della Sala).
Della Sala dealt with an heir who claimed to qualify as an
omitted heir under section 6572, now section 21622. That section
provided: “If at the time of execution of the will the testator fails to
provide in the will for a living child solely because the testator
believes the child to be dead or is unaware of the birth of the
child, the child shall receive a share in the estate equal in value to
that which the child would have received if the testator had died
intestate.” (Della Sala, supra, 73 Cal.App.4th at p. 467, 86
Cal.Rptr.2d 569.) The petitioner in Della Sala contended that his
father believed he was deceased when his father's will was
executed. The trial court ruled that he had failed to prove his case
and denied his petition. On appeal, as here, the son cited and
relied upon authorities predating enactment of sections 6570 and
6572. The Court of Appeal explained the change in public policy
effected by the Legislature:
“It has been declared both legislatively and judicially that
the paramount concern in the construction of wills is to
ascertain and give effect to the intent of the testator, as far
as possible. [Citations.] Although testamentary intent is not
always easy to ascertain [citation], there is a strong
assumption that a parent would not wish to inadvertently or

539
mistakenly disinherit his or her progeny. [Citation.] In our
omitted children statutes, the Legislature has attempted to
balance the possibility of inadvertent disinheritance against
the freedom of testamentary disposition of property with
respect to the paramount concern of carrying out the
testator's intent.
“Most of the authorities upon which petitioner relies
involved the former omitted child statute, section 90, which
was enacted upon codification of the Probate Code in
1931. [Citation.] Former section 90 provided: ‘When a
testator omits to provide in his will for any of his children, or
for the issue of any deceased child, whether born before or
after the making of the will or before or after the death of
the testator, and such child or issue are unprovided for by
any settlement, and have not had an equal proportion of
the testator's property bestowed on them by way of
advancement, unless is appears from the will that such
omission was intentional, such child or such issue
succeeds to the same share in the estate of the testator as
if he had died intestate.’
“This broadly worded statute made no distinction between
children with respect to their time of birth or the testator's
awareness of their existence, and required affirmative
indications in the will of an intent to disinherit.
“Over the years, section 90 provided difficult and
inconsistent in application and came under criticism. In
1943, Professor Evans, who served as a draftsman for the
Probate Code, asserted that the statute did at least as
much harm as good and suggested that, if the statute
serves to frustrate the testator's wishes, it should be
repealed. [Citation.] Similar criticism was iterated in Niles,
Probate Reform in California (1979) 31 Hastings L.J. 185,
197, in suggesting that a statutory scheme based upon
Uniform Probate Code section 2-302, which distinguishes
between after born or adopted children and children living
when a will is executed, would be preferable.
“The Legislature took notice of these criticisms and enacted
sections 6570 to 6572, which are based upon Uniform
Probate Code section 2-302. With respect to the statutory

540
 treatment of a living child under section 6572, the Law
Revision Commission explained: ‘When the omission is not
based upon such a mistaken belief, it is more likely than
not that the omission was intentional.’ [Citation.]
“Petitioner nonetheless would have us return to the
standard applicable under former section 90, by requiring a
proponent of the will to prove that, at the time of executing
his will, the testator had his living child in mind and
intentionally disinherited him. [Citation.] This we may not
do. We must presume that, by repealing section 90 and
replacing it with the current statutory scheme, the
Legislature intended to change the law. [Citations.] The
legislative history we have recounted confirms an intent to
change the law.” (Della Sala, supra, 73 Cal.App.4th at pp.
468–469, [86 Cal.Rptr.2d 569], fns. omitted.)
Accordingly, a child living at the time of a parent's execution of
his or her will has the burden of proof regarding the parent's intent
in omitting the child from the will. (Della Sala, supra, 73
Cal.App.4th at p. 467, 86 Cal.Rptr.2d 569.) Appellant failed to do
so here, instead relying on the former presumption created by
section 90.
Citing Estate of Katleman (1993) 13 Cal. App. 4th 51, 16 Cal.
Rptr. 2d 468, appellant urges that the former presumption against
unintentional omission of children remains. That case concerned
an omitted spouse claim made by decedent's wife. A year after
decedent divorced her, he executed a will with a no-contest
clause, that is, a provision disinheriting anyone who contested the
will. Four years later, decedent remarried his wife. (Id. at pp. 56–
57, 16 Cal.Rptr.2d 468.) Quoting Estate of Torregano, Katleman
stated that the policy underlying pretermission statutes “guards
against the omission of surviving spouses and children by reason
of oversight, accident, mistake, or unexpected change of
condition.” (Id. at p. 65, 16 Cal.Rptr.2d 468.) This general
statement is correct, but it was applied in Katleman because the
will at issue was drafted before Katleman's remarriage to his wife.
The Court of Appeal explained: “[A] testator's intention to
disinherit his ‘heirs’ or ‘legal heirs’ is determined as of the date of
execution of the will. A person who was not then an heir or legal
heir, and whose subsequent relationship was not yet known or

541
contemplated, could not then have been considered by the
testator to be such.” (Estate of Katleman, supra, 13 Cal.App.4th
at p. 60, 16 Cal.Rptr.2d 468.) This is consistent with our current
statutes involving omitted children who are born or adopted after
execution of the testamentary document.
Because appellant was adopted before execution of decedent's
will, and failed to prove mistaken omission, she does not qualify
for treatment as an omitted heir.
—————

Notes
1. Terminology: Historically, like the traditional doctrine that
protected one who became a spouse after execution of the will,
the doctrine that protected a child born after execution of the will
was known as the pretermitted child statute. In the interest of
eliminating needless legalese, in states that recognize only one
child protection doctrine, that doctrine has been re-named the
omitted child doctrine. As the court's opinion in Mowry
acknowledges, however, California has two different doctrines
that protect against a child being accidentally omitted from a
parent's testamentary instruments. Because California has the
two different doctrines, to facilitate distinguishing between them it
might be helpful to retain the traditional “pretermitted child
doctrine” terminology for the traditional doctrine, and use the term
“accidentally omitted child doctrine” for the other doctrine. Our
material has adopted that approach in the interest of trying to
minimize the confusion between the two doctrines.
2. Property subject to claim: California Probate Code Section
21610, set forth above with the pretermitted spouse statutory
material, provides the definition for the term “decedent's
testamentary instruments” as it applies to the pretermitted and
omitted child doctrines as well.
3. Pretermitted versus accidentally omitted child: What is the
difference between the pretermitted child and the accidentally
omitted child doctrines? Carefully read Sections 21620 and 21622
below for the differences between the doctrines.

542
CPC §21620. Pretermitted child (subsequently born or
adopted)
Except as provided in Section 21621, if a decedent fails to
provide in a testamentary instrument for a child of decedent
born or adopted after the execution of all of the decedent's
testamentary instruments, the omitted child shall receive a
share in the decedent's estate equal in value to that which
the child would have received if the decedent had died
without having executed any testamentary instrument.
CPC §21621. Exceptions to pretermitted child doctrine
A child shall not receive a share of the estate under Section
21620 if any of the following is established:
(a) The decedent's failure to provide for the child in the
decedent's testamentary instruments was intentional and
that intention appears from the testamentary instruments.
(b) The decedent had one or more children and devised or
otherwise directed the disposition of substantially all the
estate to the other parent of the omitted child.
(c) The decedent provided for the child by transfer outside of
the estate passing by the decedent's testamentary
instruments and the intention that the transfer be in lieu of
a provision in said instruments is show by statements of
the decedent or from the amount of the transfer or by
other evidence.
CPC §21622. Accidentally omitted living child
If, at the time of the execution of all of decedent's
testamentary instruments effective at the time of decedent's
death, the decedent failed to provide for a living child solely
because the decedent believed the child to be dead or was
unaware of the birth of the child, the child shall receive a
share in the estate equal in value to that which the child
would have received if the decedent had died without having
executed any testamentary instruments.
4. Presumption—rebuttable or irrebuttable? Both the
pretermitted child and the accidentally omitted child statutory
schemes create a de facto presumption that if the conditions are

543
present, the child was unintentionally omitted and therefore is
entitled to his or her statutory share. Is the presumption rebuttable
or irrebuttable? (That question is a good exercise in statutory
construction—read carefully.)
If the presumption is rebuttable, look back at the problem above
for the pretermitted spouse and try to determine what language—
if any—in a decedent's will (or will substitute) would be sufficient
to prevent the application of the child protection doctrine. Would a
boilerplate clause such as “I have intentionally omitted all heirs
not specifically mentioned and disinherit any such omitted heir” be
sufficient to defeat the doctrine? How about something like: “I
have no children, but even if I ever do have any children, I
purposefully intend that they are not to receive any of my property
at my death.” Where, on the spectrum of clauses that may defeat
a claim that the child was accidentally omitted, would you put the
following clause? “I currently have [no or x number of children]
and have [or have not] provided for them in this testamentary
instrument. Should I have any children [additional children],
including any adopted children, I purposefully intend to not
provide for said children. By this provision I purposely intend to
prevent the application of California Probate Code Sections
21620 or 21622 to my estate, probate or nonprobate as the case
may be.” An estate planning attorney can never be too cautious in
his or her drafting efforts at expressing the decedent's intent that
the child protection doctrines not apply, but there is no case law in
California to date on what would qualify as an adequate
expression of intent to defeat a claim that the child was
accidentally omitted.
5. Omitted child's share: Assuming a child qualifies under one
of the two child protection doctrines, what is the statutory share to
which the child is entitled? What if the decedent had one or more
children when he or she exercised the testamentary instruments,
and each child who was alive at the time the testamentary
instruments were executed are receiving the same, small token
gift. Does that/should that affect the statutory share the protected
child is entitled to? Do you think that might affect how a court
applies the doctrine—making it more or less likely that the court
would find that the doctrine applies? How is the statutory share
funded?

544
CPC §21623. How share of pretermitted/accidentally omitted
child is funded
(a) Except as provided in subdivision (b), in satisfying a
share provided by this chapter: (1) The share will first be
taken from the decedent's estate not disposed of by will or
trust, if any. (2) If that is not sufficient, so much as may be
necessary to satisfy the share shall be taken from all
beneficiaries of decedent's testamentary instruments in
proportion to the value they may respectively receive. The
proportion of each beneficiary's share that may be taken
pursuant to this subdivision shall be determined based on
values as of the date of the decedent's death.
(b) If the obvious intention of the decedent in relation to
some specific gift or devise or other provision of a
testamentary instrument would be defeated by the
application of subdivision (a), the specific devise or gift or
provision of a testamentary instrument may be exempted
from the apportionment under subdivision (a), and a
different apportionment, consistent with the intention of the
decedent, may be adopt.
6. The case of the DHL founder: For a fascinating tale of the
effects the child protection doctrines can have on a decedent's
estate plan, consider the case of Larry Lee Hillblom, co-founder of
the DHL Corp. courier service (he is the “H” in DHL). A graduate
of UC-Berkeley law school, he came up with an ingeniously
simple idea for transporting time-sensitive documents to delivery
ports before the goods arrived, thereby saving cargo companies
tens of thousands of dollars. In rather short order he became a
self-made billionaire. He promptly moved to Saipan, a tropical
island near Guam (and a U.S. Commonwealth), to enjoy his
newfound wealth, where prostitution was legal and each taxpayer
received a 95 percent rebate on his or her income taxes.
Hillblom's activities often pushed the envelope of what was
legal, both professionally and personally. Although prostitution
was legal, he reportedly had a preference for virgins, including
underage ones. He allegedly boasted of having claimed the
virginity of 132 women and of having spent more than $10 million
on women. Another of his passions was flying vintage aircraft,

545
often flying from one Micronesian island to another. In May 1995,
he and two friends were reportedly flying a World War II-vintage
Seabee plane when it crashed into the North Pacific Ocean. The
bodies of the two passengers were found, but Hillblom's was not.
Hillblom died testate with an estate valued at close to $750
million. He devised his estate to a charitable trust he created, with
instructions that it be used primarily to support research
conducted at the University of California medical schools. Despite
the size of his estate, his will was rather simple. It was only 11
pages long, and its primary focus appears to have been avoiding
taxes (it contains 20 references to not paying taxes). What it did
not contain was a disinheritance clause—and that is when the fun
really began, at least from a legal perspective. Word got out about
his rumored sexual exploits, and everyone knows no form of birth
control is perfect. As a U.S. Commonwealth, Saipan had a
standard pretermitted child statute. Hillblom was a life-long
bachelor. With no surviving spouse, the intestate share of any
issue would be enough to catch the eye of a number of
professional heir finders and plaintiff's lawyers who scoured the
bars in the Philippines, Vietnam, and Micronesia asking if anyone
had spent time with him.
Eventually, eight children came forward and asserted claims to
Hillblom's estate. At one time more than 200 lawyers were
working on the case, more than 100 for the estate alone and
close to 10 per child. Inasmuch as Hillblom was deceased, there
were issues of paternity, but the claimants sued to obtain DNA
samples from his siblings. In the end, the parties settled. The
details of the settlement were never released, but if the leaks are
accurate, four children received anywhere from $50 to $90 million
each, with the remainder going to the charitable trust. And
because of the children's claims, approximately $180 million
ended up being paid to cover federal estate and income taxes—
despite Hillblom's last wishes.
All for want of a well-drafted disinheritance clause.
For more details of the fascinating, bizarre, and sad life of Larry
Lee Hillblom, see Susannah Cahalan, One Man Is an Island, NY
POST (January 15, 2012) http://nypost.com/2012/01/15/one-man-
is-an-island/; Mary Curtius, 4 Children Get Part of DHL Founder's

546
Estate, LA TIMES (January 11, 1998),
http://articles.latimes.com/1998/jan/11/news/mn-7237; and Mary
Curtius, Asian Children Finally Get Part of $550-Million Estate, LA
TIMES (May 20, 1999),
http://articles.latimes.com/1999/may/20/news/mn-39088. For
those interested in even more details, there is also a book by
James D. Scurlock, titled KING LARRY: THE LIFE AND RUINS OF A
BILLIONAIRE GENIUS (2012); and a documentary film, Shadow
Billionaire.
Still think wills and trusts issues are boring?

Problems
1. In 2000, Pete is married to Gerri. They have no children, and
Pete has no will. In 2002, Pete has an affair with Lulu. In 2003,
Lulu gives birth to a child, Sunshine. In 2005, Pete agrees to
submit to a DNA test that shows there is a 99.9 percent chance
that Sunshine is his daughter. Thereafter Pete executes a will
that provides in pertinent part as follows: “I leave all my
property to my loving—and long suffering—wife, Gerri. In the
event she predeceases me, I leave my property to my heirs at
law.” In 2007, Lulu instituted legal proceedings seeking to have
Pete declared Sunshine's father and seeking child support
payments. Later that year, the court granted her petition. In
2009, Pete and Gerri separated, and Pete moved in with Mary
Anne. In 2013, Mary Anne had a child, Fred. Pete dies,
mysteriously, in 2015. What claims do you expect would be
asserted against his estate? Who should get his property, and
why? See Bailey v. Warren, 319 S.W.3d 185 (Tex. Ct. App.
2010).
2. Pete and Gerri are married. They have four children: Carolyn,
Paul, John, and Kristin. Pete dies, and Gerri marries Bob (Bob
was then a happy man). Gerri executes a will that leaves all of
her property to Bob. Thereafter, Gerri and Bob have a child,
Sam. Thereafter, Gerri and Bob divorce. Then Gerri dies. Who,
in good faith, can assert a claim of pretermitted child against
her estate? How would you analyze the claim? See Gray v.
Gray, 947 So. 2d 1045 (Ala. 2006).

547
 1. This general presumption can be rebutted, however, by a number of other
doctrines and special presumptions. A common example of this is the doctrine
of tracing. Under tracing, the general presumption of community property can
be rebutted if the funds used to acquire the asset were separate property
funds. The details of tracing, and the other doctrines and special presumptions
that can rebut the general presumption of community property, are best left to
the Community Property class.
2. The elective share is a discretionary right in that the surviving spouse has
to claim the right. It is at his or her discretion that the doctrine applies—or not. If
the surviving spouse does not receive one-third of the deceased spouse's
estate, but the surviving spouse decides not to claim the elective share, the
deceased spouse's property passes as provided in his or her will.
3. The elective share doctrine has evolved over time, and (to put it mildly) its
evolution has been convoluted and complex. The elective share doctrine sets a
floor for how the first spouse to die should treat the surviving spouse. It sets a
minimum amount that the surviving spouse is entitled to, and if the surviving
spouse does not receive that amount, he or she can elect to claim his or her
statutory share and come into court to force the decedent's estate to give him
or her his or her statutory share. At common law, the surviving spouse was
entitled to one-third of the deceased spouse's probate estate (based on the
common law dower/curtesy concept), regardless of how long they had been
married, regardless of when the deceased spouse acquired the property
(before marriage or during the marriage), and regardless of how it was
acquired (by gift or earned). Over time, devious spouses began to realize they
could avoid the elective share doctrine by putting their property in non-probate
arrangements. Initially states responded by adopting a variety of doctrines that
attempted to analyze whether the nonprobate transfers were inappropriate
attempts to avoid the elective share (in which case the property was subject to
the elective share despite being a nonprobate transfer) or whether the
nonprobate transfer was a valid nonprobate transfer (in which case the
property in question was not subject to the elective share).
To foreclose this avoidance technique, and to eliminate the costs of
administration associated with the judicial approaches that attempted to
distinguish the appropriate from the inappropriate nonprobate transfers, the
UPC expanded the scope of the property subject to the elective share doctrine
from the decedent's probate estate to the decedent's “augmented estate.” As
initially enacted, the augmented estate included the decedent's probate
property, the decedent's nonprobate transfers, and even some of the
decedent's inter vivos transfers. As initially enacted, the UPC still granted the
surviving spouse a one-third interest in the decedent's augmented estate,
regardless of the length of the marriage or when or how the property was
acquired.
In a rather interesting development, the 1990 version of the UPC elective
share doctrine decided to apply a community property conceptual approach to
the non-community property elective share doctrine. The drafters of the UPC

548
decided that the share of the deceased spouse's estate the surviving spouse
should be able to claim under the elective share should approximate the
amount of property the surviving spouse would be entitled to if the surviving
spouse were entitled to half of the marital property the couple had acquired
(i.e., the amount the surviving spouse would have received under a community
property approach). The drafters of the 1990 UPC elective share doctrine then
reverse engineered a complicated formula where the property subject to the
elective share includes all assets owned by either spouse. The percentage of
the property the surviving spouse is entitled to claim depends on how long the
couple has been married (starting at 3% if the couple has been married
between one and two years) and capping out at 50% (for couples married
fifteen years or longer). The resulting share of the couple's augmented estate is
intended to approximate half of the marital property that a typical couple
married for that number of years would have accumulated. Because California
is a community property jurisdiction, we will spare you the details and
mechanics of the new UPC elective share doctrine.
2. The Family Code provision for quasi-community property is commonly
used as the general definition of quasi-community property. The Family Code,
however, applies where the marriage ends in dissolution (divorce). There is an
almost identical definition in the California Probate Code at Section 66. The
slight variance is, in reality, a non-definitive limitation respecting California's
lack of in rem jurisdiction with respect to real property located outside of
California (application to real property located “in this state” versus the Family
Code more expansive real property “located anywhere”). This subtle difference
can sometimes, but not always, lead to rather complex “choice of law” issues.
As we will see in the trust-specific chapters later in the book, this typically
becomes irrelevant if a decedent's testamentary document is the classic will
substitute—a revocable living trust.
4. For couples who acquire property in a community property state and then
move to a non-community property state and one spouse dies, the Uniform
Law Commission has adopted the Uniform Disposition of Community Property
Rights at Death Act to address the potential for a surviving spouse to “double
dip” in the two time-of-death spousal protection doctrines. The Act addresses
the rights of the respective spouses in any community property brought into the
non-community property state:
§3. Disposition of Community Property Upon Death
Upon death of a married person, one-half of the property to which this
Act applies is the property of the surviving spouse and is not subject to
testamentary disposition by the decedent or distribution under the laws
of succession of this State. One-half of that property is the property of
the decedent and is subject to testamentary disposition or distribution
under the laws of succession of this State. With respect to property to
which this Act applies, the one-half of the property which is the property
of the decedent is not subject to the surviving spouse's right to elect
against the will.

549
Chapter 11

550
Nonprobate Transfers

551
 I. Overview
Historically, there were four legally recognized nonprobate
transfers: (1) life insurance contracts, (2) joint tenancies, (3) legal
life estate and remainders, and (4) inter vivos trusts. If the
instrument did not qualify as one of these four nonprobate
arrangements, the attempted testamentary transfer would fail and
fall into the decedent's probate estate, no matter how clear the
decedent's intent.
The modern trend, intent-based approach seeks to facilitate
nonprobate transfers by expanding the definition of an acceptable
nonprobate transfer, thereby facilitating time-of-death transfers and
honoring the decedent's intent. For each of the four traditional
nonprobate transfers, keep an eye on whether there is a modern
trend expansion of the exception and, if so, the scope of that
expansion.

552
 II. Life Insurance Contract
Exception
A. Traditional Common Law Approach
Wilhoit v. Peoples Life Ins. Co.
218 F.2d 887 (7th Cir. 1955)
MAJOR, Circuit Judge.
The plaintiff, Robert Wilhoit, instituted this action against the
defendants, Peoples Life Insurance Company (sometimes referred
to as the company) and Thomas J. Owens, for the recovery of
money held by the company. Roley Oscar Wilhoit was the insured
and Sarah Louise Wilhoit, his wife, the beneficiary in a life
insurance policy in the amount of $5,000, issued by Century Life
Insurance Company and later reinsured in Peoples Life Insurance
Company of Frankfort, Indiana. Mr. Wilhoit died prior to October 22,
1930 (the exact date not disclosed by the record), without having
changed the beneficiary designated in the policy, and the proceeds
thereof became due and payable to Mrs. Wilhoit. The amount due
was paid to her and the policy surrendered, as is evidenced by the
following receipt appearing on the back of the policy:
“$4,749.00 Indianapolis, Ind.,
Oct. 22-1930.
Received from Century Life Insurance Company Forty Seven
hundred forty nine Dollars in full for all claims under the within
policy, terminated by death of Roley O. Wilhoit.
Sarah Louise Wilhoit.”

The main body of the policy contained a provision entitled ‘The

Investment,’ as follows:
“Upon the maturity of this policy, the amount payable
hereunder, or any portion thereof, not less than One
Thousand Dollars, may be left on deposit with the Company,
and the Company will pay interest annually in advance upon
the amount so left on deposit at such rate as the Company

553
 may declare on such funds so held by it, but never at a rate
less than three per cent, so long as the amount shall remain
on deposit with the Company. The said deposit may be
withdrawn at the end of any interest year; or upon the death
of the payee the amount of said deposit will be paid to the
executors, administrators or assigns of said payee.”
On November 14, 1930, Mrs. Wilhoit (twenty-three days after she
had acknowledged receipt of the amount due her under the policy)
from her home in Indiana signed and addressed a letter to the
company in the same State, which in material parts reads as
follows:
“I hereby acknowledge receipt of settlement in full under
Policy No. C172 terminated by the death of Roley O.
Wilhoit, the Insured, and I direct that the proceeds of
$4,749.00 be held ... by the Peoples Life Insurance
Company under the following conditions:
“(1) Said amount or any part thereof (not less than
$100.00) to be subject to withdrawal on demand of the
undersigned.
“(2) While on deposit, said amount or part thereof shall
earn interest at the rate of 3 1/2%, compounded annually,
plus any excess interest authorized by the Board of
Directors of the Company. Interest may be withdrawn at the
end of each six months period or whenever the principal of
the fund is withdrawn or may be allowed to accumulate
compounded annually. Interest on this ... fund shall begin
as of October 9th, 1930.
“(3) In the event of my death, while any part of this ...
fund is still in existence, the full amount, plus any accrued
interest, shall be immediately payable to Robert G. Owens
(Relationship) Brother.”
The proposal contained in this letter was, on November 17, 1930,
accepted by the company in the following form:
“The above agreement creating a ... fund is hereby
accepted and we acknowledge receipt of the deposit of
$4,749.00 under the above specified conditions.”
Robert G. Owens, a brother of Mrs. Wilhoit and the person
mentioned in her November 14 letter to the company, died January

554
23, 1932, and Mrs. Wilhoit died April 12, 1951, each leaving a last
will and testament. The will of the former by a general clause
devised all his property to Thomas J. Owens, a defendant, and was
admitted to probate in Marion County, Indiana. The will of Mrs.
Wilhoit was admitted to probate in Edgar County, Illinois, and
contained the following provision:
“I now have the sum of Four Thousand Seven Hundred
Forty Nine Dollars ($4,749.00), or approximately that
amount, which is the proceeds of an insurance policy on
the life of my deceased husband, Oscar Wilhoit, on deposit
with the insurance company, the Peoples Life Insurance
Company of Frankfort, Indiana. This I give and bequeath to
Robert Wilhoit, now of Seattle, Washington, who is another
son of my said stepson, the same to be his property
absolutely. * * *”
The fund in controversy, deposited with the company by Mrs.
Wilhoit on November 17, 1930, remained with the company
continuously until the date of her death, April 12, 1951. The
company refused to recognize the claim to the fund made by the
executor of her estate....
The company, after the institution of the action, paid the fund into
court by interpleader and is no longer an active party to the
litigation. The parties on both sides filed motions for a summary
judgment.... The District Court, on March 11, 1954, without opinion
sustained the motion of the plaintiff [Robert Wilhoit] for summary
judgment and at the same time denied the motion of the defendant,
Thomas J. Owens, and the intervenor, Emmelman. Thereupon,
judgment was entered in favor of the plaintiff in the sum of
$4,749.00, together with interest and costs. From this judgment the
defendant, Thomas J. Owens, and the intervenor, Emmelman,
appeal.
Defendants (this includes the intervenor-appellant) advance two
theories in support of their argument for reversal, both of which are
firmly grounded upon the premise that the agreement of November
17, 1930, between Mrs. Wilhoit and the company, was an insurance
contract or a contract supplemental thereto. Thus premised, they
argue (1) that the rights of the parties must be determined by the
law of insurance and not by the statute of wills, and (2) that Mrs.
Wilhoit as a primary beneficiary named Robert G. Owens as the

555
successor beneficiary irrevocably, without right to revoke or change
and without a ‘pre-decease of beneficiary’ provision, and that as a
result the rights of such successor beneficiary upon his death prior
to the death of the primary beneficiary did not lapse but passed on
to the heirs and assigns of such successor beneficiary.
On the other hand, plaintiff argues, in support of the judgment,
that the disposition of the fund is not controlled by the law of
insurance because the agreement between Mrs. Wilhoit and the
company was not an insurance contract or a supplement thereto
but was nothing more than a contract of deposit, and that the
provision in the agreement by which Robert G. Owens was to take
the funds in the event of her death was an invalid testamentary
disposition. Further, it is argued that in any event any interest
acquired by Robert G. Owens was extinguished upon his death,
which occurred prior to that of Mrs. Wilhoit.
...
Obviously, defendants' contention is without merit and the cases
cited in support thereof are without application unless we accept the
premise upon which the contention is made, that is, that the
agreement between Mrs. Wilhoit and the company was an
insurance contract or an agreement supplemental thereto. While
there may be room for differences of opinion, we have reached the
conclusion that the premise is not sound, that the arrangement
between the parties was the result of a separate and independent
agreement, unrelated to the terms of the policy....
The “investment” provision was an offer by the company by which
Mrs. Wilhoit, on maturity of the policy, could have left the proceeds
with the company on the terms and conditions therein stated. It is
plain, however, that she did not take advantage of this offer.
Instead, she accepted the proceeds, surrendered the policy and
receipted the company in full ‘for all claims under the within policy,’
and presumably the proceeds were paid to her at that time. At any
rate, it was not until twenty-three days later that she, by letter, made
her own proposal to the company, which differed materially from
that contained in the policy. The company proposed to pay interest
annually in advance on the amount left on deposit, at a rate of
interest not less than 3%. Her proposal provided for interest at the
rate of 3 1/2%, compounded annually, with a right to withdraw
interest at the end of any six-month period. The company proposal

556
provided that Mrs. Wilhoit could withdraw the deposit only at the
end of any interest year, it made no provision for the withdrawal of
any amount less than the total on deposit, while the offer of Mrs.
Wilhoit provided for the right to withdraw, on demand, any amount
or part thereof (not less than $100). Undoubtedly the company was
obligated, upon request by Mrs. Wilhoit, to comply with the terms of
the investment provision and, upon refusal, could have been forced
by her to do so. On the other hand, it was under no obligation to
accept the proposal made by her and, upon its refusal, she would
have been without remedy.
...
... Mrs. Wilhoit deposited her money with the company, which
obligated itself to pay interest and return the principal to her on
demand. Only “in the event of her death” was the deposit, if it still
remained, payable to Robert G. Owens. If Mrs. Wilhoit had
deposited her money with a bank rather than with the insurance
company under the same form of agreement, we think that it would
have constituted an ineffectual disposition because of failure to
comply with the Indiana statute of wills.
In conclusion, we think it not immaterial to take into consideration
what appears to have been the intention of the parties.... As already
shown, Robert G. Owens, through whom defendants claim, died in
1932, and in his will made no mention of the funds in controversy.
After the death of Mrs. Wilhoit almost twenty years later, the estate
of Robert G. Owens was reopened for the express purpose of
making claim to the fund. On the other hand, Mrs. Wilhoit in her will
specifically devised the fund in controversy to plaintiff, Robert
Wilhoit. It thus appears plain that Mrs. Wilhoit did not intend that the
fund go to the successors of Robert G. Owens but that after his
death she thought she had a right to dispose of the fund as she saw
fit, as is evidenced by the specific bequest contained in her will. We
recognize that the intention of the parties or the belief which they
entertained relative to the fund is not controlling, but under the
circumstances presented, we think it is entitled to some
consideration.
The judgment of the District Court is
Affirmed.
—————

557
 The issue in Wilhoit is whether the November 1930 agreement
between Mrs. Wilhoit and the life insurance company is (1) a life
insurance contract (or a contract supplemental thereto), which
would make it a valid will substitute, or (2) a deposit agreement,
which would make the attempted disposition at death of the
remaining funds in the account an invalid attempted testamentary
transfer because it was not executed with Wills Act formalities. The
court's analysis is very formal: in which category does the
agreement fit—the life insurance category or the deposit agreement
category? The court does not engage in an analysis of why it
should matter. That rigid, formalistic analytical approach is typical of
the common law courts. Either the instrument in question was one
of the four valid nonprobate instruments or the attempted
testamentary disposition was invalid and fell to probate.
A life insurance contract, however, is nothing more than a third-
party beneficiary contract with a payment on death (“P.O.D.”)
clause. The insured and the insurance company enter into a
contract for the benefit of a third party, the specified beneficiary,
with the proceeds to be paid upon the insured's death. One could
also argue that the deposit agreement in Wilhoit is nothing more
than a third-party beneficiary contract with a P.O.D. clause. The
deposit agreement was between Mrs. Wilhoit and the insurance
company, and the P.O.D. clause was for the benefit of the specified
beneficiary: Robert G. Owens. Any remaining funds in the account
at Mrs. Wilhoit's death were to be paid to Robert G. Owens. Why
should it matter if the contract is called a life insurance contract or a
deposit agreement? Both are third party beneficiary contracts with a
P.O.D. clause. Should all contracts with a P.O.D. clause be valid will
substitutes? Would that be more consistent with the intent based
modern trend, or would that create too much of an exception to the
requirement that if property is going to be transferred at death it
needs to go through probate and there needs to be a valid will?

B. Modern Trend Approach

The modern trend has been to expand the definition of what
constitutes a valid nonprobate transfer, thereby promoting the
nonprobate revolution. The case below, while not a California case,
might as well be. California has adopted similar statutory provisions
to those applied by the court. How far has the law come since the
Wilhoit case?

558
 In re Estate of Lahren
886 P.2d 412 (Mont. 1994)
NELSON, Justice.
This is an appeal from a Sixth Judicial District Court, Park
County, order determining that the certificates of deposit at issue
were held in joint tenancy with right of survivorship by Sylvester L.
Lahren's (S.L. Lahren's) granddaughter, Signe Lahren (Signe). We
affirm in part and reverse in part.
ISSUES
There are two issues on appeal:
I. Did the District Court err in determining that the bank
certificates of deposit, which designate one depositor and one
“P.O.D.” beneficiary, are joint tenancy instruments?
II. Did the District Court err in determining that the P.O.D.
designations on the bank certificates of deposit act to transfer the
certificates outside of the probate estate at the time of the
depositor's death as a non-testamentary transfer?
FACTUAL AND PROCEDURAL BACKGROUND
S.L. Lahren died testate on June 25, 1992. He bequeathed the
residue of his estate, less items of personal property which he had
specifically devised, to three of his four sons, namely Larry, Daniel
and S.L. Lahren Jr. However, the bulk of S.L. Lahren's estate
consisted of four bank certificates of deposit (CDs) at American
Bank, formerly known as First Security Bank.
The four CDs include: Certificate Number 32989, issued on
January 15, 1985, Certificate Number 33220, issued on June 15,
1989, Certificate Number 33493, issued on March 9, 1990, and
Certificate Number 34197, issued on October 8, 1991. On three of
the four CDs, the depositor was listed as S.L. Lahren P.O.D. Signe
Lahren. The fourth CD named as depositor, S.L. or Signe Lahren.
Signe is not only S.L. Lahren's granddaughter, but also the personal
representative of S.L. Lahren's estate.
...
[The District Court concluded that the CDs were joint tenancy
property.]

559
 ISSUE I—JOINT TENANCY
Appellants argue that the District Court erred in determining that
the three CDs at issue were joint property with right of survivorship.
(The fourth CD which named the depositor as, S.L. Lahren or Signe
Lahren, is not at issue on this appeal.) They contend that Signe did
not have a present interest in the CDs and therefore, she had no
joint tenancy or joint interest in the CDs.
In a fairly recent opinion, Matter of Estate of Shaw (1993), 259
Mont. 117, 855 P.2d 105, we provided some guiding principles for
determining whether property is held in joint tenancy. In Shaw, we
held that the creation of a joint interest or joint tenancy in property is
by Montana statute. Shaw, 855 P.2d at 111. “Sections 70-1-307 and
70-1-314, MCA, mandate that if parties want to create a joint
tenancy (same as joint interest) in property, they must make an
express declaration that they intend to create a joint tenancy or joint
interest.” Shaw, 855 P.2d at 111. (Emphasis added.) Absent an
express declaration of intent that the ownership interest be held in
joint tenancy or joint interest, then a tenancy in common or interest
in common is created. Shaw, 855 P.2d at 111.
...
... We are left to determine whether S.L. Lahren made an express
declaration that the property was to be held in joint tenancy or joint
interest, thus creating a joint tenancy or joint interest in the property.
The certificates state on the front in printed form:
‘You’ means the depositor(s) named above.... If more than
one of you are named above, you will own this certificate as
joint tenants with right of survivorship, (and not as tenants in
common.) (You may change this ownership by written
instructions.) We will treat any one of you as owner for
purposes of endorsement payment of principal and interest,
presentation (demanding payment of amounts due), transfer
and any notice to or from you. Each of you appoints the other
as your agent, for the purposes described above. We will use
the address on our records for mailing notices to you. You
cannot transfer or assign this certificate or any rights under it
without our written consent.
Signe argues that this is the express declaration required under
Shaw to create a joint tenancy or joint interest. However, also
included on the face of the CDs is the written designation under

560
depositors which states “S.L. Lahren P.O.D. Signe Lahren.” The
P.O.D. designation is not the same as a designation that the
property is held in joint tenancy or joint interest. The dissimilarity in
the two designations makes the document ambiguous. In Shaw, we
stated unequivocally that in the absence of an express and
unambiguous declaration, no joint tenancy or joint interest is
created. Therefore, in the instant case, no joint tenancy or joint
interest was created because there was no express and
unambiguous declaration creating a joint interest on the documents.
Moreover, “the essential characteristic of a joint tenancy is the
right of survivorship. The right of survivorship—the indispensable
ingredient and characteristic of the estate, and not a mere
expectancy or possibility, as for example, is the inchoate right of
dower—accrues as a vested right when and as soon as the joint
tenancy is created....” Casagranda v. Donahue (1978), 178 Mont.
479, 483, 585 P.2d 1286, 1288. (Citation omitted.) A joint interest or
joint tenancy, then, assumes a present interest in the property.
A P.O.D. designation provides that the beneficiary receives an
interest in the CD only at the death of the depositor. See Official
Comments to §§72-6-211 and 213, MCA, Annotations. The P.O.D.
certificate of deposit is akin to an insurance policy—the proceeds
cannot be claimed by the beneficiary until death. At any time before
the depositor's death, the depositor can change the beneficiary or
withdraw the account and use the funds. However, the P.O.D.
beneficiary has no such right. See Official Comments to §§72-6-211
and 213, MCA, Annotations. Therefore, a P.O.D. designation does
not entitle the beneficiary to a present interest in the CDs and
accordingly, the accounts cannot be held in joint tenancy or as a
joint interest.
Finally, the face of the documents contain a pre-printed statement
which provides that the CDs are owned in joint tenancy but the
written designation of “S.L. Lahren P.O.D. Signe Lahren” indicates a
different status of ownership. Sections 1-4-105 and 28-3-205, MCA,
state that when an instrument contains partly written words and
partly language in pre-printed form, the written words control the
pre-printed form. In the instant case, the written words which
designate a P.O.D. beneficiary would control over the pre-printed
form purporting to create a joint tenancy or joint interest in the CDs.

561
 We hold that, because there was no express and unambiguous
declaration that the instrument be held in joint tenancy or joint
interest, and because Signe Lahren held no present interest in the
subject CDs while S.L. Lahren was alive, no joint tenancy or joint
interest was created in the CDs. Signe Lahren is not entitled to the
proceeds of the CDs at issue under a theory of joint interest or joint
tenancy. Accordingly, we reverse the District Court on this issue.
ISSUE II—P.O.D. DESIGNATION
Appellants also argue that the P.O.D. designation on the three
CDs was invalid ... [that] the P.O.D. designation is an invalid attempt
at a non-testamentary transfer.
Signe counters that the non-testamentary transfer of the CDs by
the P.O.D. designation was valid under §72-1-110, MCA. She states
that at the time the CDs were issued and S.L. Lahren died, and the
estate was probated, §72-1-110, MCA, controlled the disposition of
the CD proceeds because the CDs were “deposit agreement[s].”
... The statute was revised by the 1993 Legislature and now
reads:
Nonprobate transfers on death. (1) A provision for a
nonprobate transfer on death in an insurance policy,
contract of employment, bond, mortgage, promissory note,
certificated or uncertificated security, account agreement,
custodial agreement, deposit agreement, compensation
plan, pension plan, individual retirement plan, employee
benefit plan, trust, conveyance, deed of gift, marital
property agreement, or other written instrument of a similar
nature is nontestamentary. This subsection includes a
written provision that:
(a) money or other benefits due to, controlled by, or
owned by a decedent before death must be paid after the
decedent's death to a person whom the decedent
designates either in the instrument or in a separate writing,
including a will, executed either before or at the same time
as the instrument or later....
Section 72-6-111, MCA, (1993).
Essentially, the statute remains the same, and at all times
applicable, provided the authority to conclude that the P.O.D.
designation on the face of the CDs serves to create a valid non-

562
testamentary transfer. As stated in the Official Comments to §72-6-
111, MCA,
This section is a revised version of former Section 6-201 [72-
1-110, repealed 1993] of the original Uniform Probate Code,
which authorized a variety of contractual arrangements that
had sometimes been treated as testamentary in prior law. For
example, most courts treated as testamentary a provision in
a promissory note that if the payee died before making a
payment, the note should be paid to another named person;
or a provision in a land contract that if the seller died before
completing payment, the balance should be canceled and the
property should belong to the vendee. These provisions often
occurred in family arrangements. The result of holding such
provisions testamentary was usually to invalidate them
because not executed in accordance with the statute of wills.
On the other hand, the same courts for years upheld
beneficiary designations in life insurance contracts. The
drafters of the original Uniform Probate Code declared in the
Comment that they were unable to identify policy reasons for
continuing to treat these varied arrangements as
testamentary. The drafters said that the benign experience
with such familiar will substitutes as the revocable inter vivos
trust, the multiple-party bank account, and United States
government bonds payable on death to named beneficiaries
all demonstrated that the evils envisioned if the statute of
wills were not rigidly enforced simply do not materialize. The
Comment also observed that because these provisions often
are part of a business transaction and are evidenced by a
writing, the danger of fraud is largely eliminated.
Because the modes of transfer authorized by an instrument
under this section are declared to be nontestamentary, the
instrument does not have to be executed in compliance with
the formalities for wills prescribed under Section 2-502 [72-2-
522]; nor does the instrument have to be probated, nor does
the personal representative have any power or duty with
respect to the assets.
The sole purpose of this section is to prevent the transfers
authorized here from being treated as testamentary.
Applying §72-1-110, MCA, we conclude that the CDs at issue are
“deposit agreement[s],” or “other written instrument[s] effective as a

563
contract” and are a valid non-testamentary instrument. See, Malek
v. Patten (1984), 208 Mont. 237, 244, 678 P.2d 201, 205. Moreover,
“th[e] money ... controlled or owned by [the] decedent shall be paid
after his death to [the] person designated by the decedent in ... the
instrument ... executed at the same time as the instrument or
subsequently.” Section 72-1-110(1)(a), MCA. The three CDs
naming Signe Lahren as the P.O.D. beneficiary, are valid non-
testamentary transfers. Accordingly, the sums at issue belong to
Signe Lahren as the P.O.D. beneficiary.
...
—————

Notes
1. Joint tenancy versus contract with P.O.D. clause: By adopting
Section 6-201, the Uniform Probate Code greatly expanded the
scope of the first nonprobate exception to the Wills Act formalities,
which went from including only contracts that qualified as a life
insurance contract to all contracts with a P.O.D. clause. From a
public policy perspective, is this a good development? What is the
purpose and focus of a life insurance policy? When a party enters
into any other type of contract, is their focus the payment on death
provision, or is the P.O.D. clause more likely a throw-in clause just
in case the party dies before the contract has been fully performed?
Does the party signing the contract give the P.O.D. clause the same
thought and attention as a party signing a life insurance contract?
Does the party signing the contract give the P.O.D. clause the same
thought and attention as a testator signing a will?
2. California approach: California has adopted the logic
underlying UPC 6-201:
CPC §5000. Written instruments with payment on death
provision
(a) A provision for a nonprobate transfer on death in an
insurance policy, contract of employment, bond, mortgage,
promissory note, certificated or uncertificated security,
account agreement, custodial agreement, deposit
agreement, compensation plan, pension plan, individual
retirement plan, employee benefit plan, trust, conveyance,
deed of gift, marital property agreement, or other written

564
 instrument of a similar nature is not invalid because the
instrument does not comply with the requirements for
execution of a will, and this code does not invalidate the
instrument.
(b) Included within subdivision (a) are the following:
(1) A written provision that money or other benefits due to,
controlled by, or owned by a decedent before death shall
be paid after the decedent's death to a person whom the
decedent designates either in the instrument or in a
separate writing, including a will, executed either before
or at the same time as the instrument, or later.
(2) A written provision that money due or to become due
under the instrument shall cease to be payable in event of
the death of the promisee or the promisor before payment
or demand.
(3) A written provision that any property controlled by or
owned by the decedent before death that is the subject of
the instrument shall pass to a person whom the decedent
designates either in the instrument or in a separate
writing, including a will, executed either before or at the
same time as the instrument, or later.
(c) Nothing in this section limits the rights of creditors under
any other law.

Problem
Assume Testatrix is unmarried. She owns real property and
personal property, including a number of different types of financial
accounts. Thereafter she adds a payment-on-death clause to the
following assets she holds, gifting the asset in question to her old
law school classmate Edrina:

a. Her checking account at Chase Bank.

b. Her savings account at Chase Bank.
c. Her pension account.
d. Her 401(k) account.
e. Her investment account with her brokerage company.
f. Her stock account at Merrill Lynch.
g. She lent $300,000 to a neighbor, Ned. She amends the
promissory note to add her good friend, Edrina, as the

565
 beneficiary in the event there is any money still owed under the
note when she dies.
h. She is a partner in an investment club. She amends her club
agreement to insert a payment-on-death clause that provides
that any benefits she is entitled to upon her death are to be paid
to Edrina.
i. She validly executes a deed that purports to transfer the
property to her niece, Katherine. She puts the deed in her safe
deposit box where it is found after her death.

Which assets, if any, now constitute valid nonprobate transfers?

Which assets, if any, do not constitute valid nonprobate transfers?
See Estate of O'Brien v. Robinson, 749 P.2d 154 (Wash. 1988).
Later in the chapter you will see that California recently adopted a
transfer on death deed statute that sets forth rather detailed
requirements regarding the validity of a deed that purports to
transfer real property upon death of the grantor. Does that
legislative action affect, in any way, your analysis of subpart (i)
above?

566
 III. Joint Tenancy
A. Introduction
The basic concurrent estates are covered in the first-year
Property course. Arguably the two most common concurrent
estates are joint tenancy and tenancy in common.1 With both of
these concurrent estates, the tenant owns the property in whole
while also owning a fractional share. The key characteristic of joint
tenancy is the right of survivorship. If one joint tenant dies, his or
her interest is extinguished under the right of survivorship. The
interest does not pass into probate. Technically no property interest
passes at death. That is why property held in joint tenancy was
deemed nonprobate property.
On the other hand, the key characteristic of tenancy in common is
that there is no right of survivorship. When one tenant in common
dies, his or her fractional share passes into probate where it is
subject to the probate process. If the tenant in common dies testate,
he or she can devise his or her share of the property. If the tenant in
common dies intestate, his or her share passes to his or her heirs.
From an estate planning perspective, a joint tenancy has been an
important estate planning vehicle because, for all practical
purposes, it transfers property at death while avoiding probate.2 To
properly use a joint tenancy as an estate planning vehicle, one
needs to know how to create a joint tenancy. In most jurisdictions,
including California, whether a joint tenancy has been created is
primarily a question of intent, but what evidence of that intent is
admissible depends on whether the property in question is real
property or personal property (intangible property—checking
accounts, savings accounts, and/or financial accounts).

B. Creation—Real Property
Historically, the type of asset most commonly held concurrently
was real property; i.e., a farm. Common law presumed that it made
more sense to keep the farm intact when one co-owner died (as
opposed to breaking it up into smaller interests and pieces).
Accordingly, at time of creation, common law favored a joint

567
tenancy concurrent estate over a tenancy in common.3 The modern
trend presumes concurrent owners prefer to have the right to
transfer their interest at death. Consistent with that presumption, the
modern trend favors a tenancy in common. The modern trend and
prevailing approach is that the default concurrent estate is the
tenancy in common. A joint tenancy is not created unless the
instrument creating the concurrent estate (typically a deed)
adequately expresses the intent to create a joint tenancy.
In California, Section 683 of the Civil Code is the starting point for
how to create a joint tenancy in real property. Does California
require an express declaration that the real property be held in joint
tenancy for a joint tenancy to arise?
Cal. Civil Code §683. Joint tenancy; definition; creation
(a) A joint interest is one owned by two or more persons in
equal shares, by a title created by a single will or transfer,
when expressly declared in the will or transfer to be a joint
tenancy, or by transfer from a sole owner to himself or
herself and others, or from tenants in common or joint
tenants to themselves or some of them, or to themselves or
any of them and others, or from a husband and wife, when
holding title as community property or otherwise to
themselves or to themselves and others or to one of them
and to another or others, when expressly declared in the
transfer to be a joint tenancy, or when granted or devised to
executors or trustees as joint tenants. A joint tenancy in
personal property may be created by a written transfer,
instrument, or agreement.4
(b) Provisions of this section do not apply to a joint account in
a financial institution if Part 2 (commencing with Section
5100) of Division 5 of the Probate Code applies to such
account.
While historically the prototypical joint tenancy asset was a piece
of real property, no doubt that was in large part because the
principal form of wealth at common law was real property. As wealth
has shifted from real property to personal property (stocks, bonds,
checking accounts, savings accounts, and other financial
instruments), increasingly the prototypical joint tenancy asset is a
financial account of some sort. Should the same rules apply to both
types of property? Jurisdictions disagree on that question. How

568
does California answer that question? (See subsection (b) of Civil
Code Section 683, above.)

Problems
1. Consider the following facts from a recent, unpublished California
opinion. Ernie (“Ernell”) Velarde has two daughters, Laura Torres
and Nancy Gonzales, and a son, Alfredo Velarde:

a. On February 24, 1993, Rebecca C. Osborne, a widow,

conveyed the Rome Street property to “Ernie A. Velarde, an
unmarried man” by quitclaim deed.
b. On April 1, 1999, Ernell executed a deed transferring a one-half
interest in the Rome Street property to “Laura Velarde Torres ...
in joint tenancy.”
c. On July 19, 2006, Ernell executed a deed transferring his “one
half interest” in the property to Nancy Velarde Gonzales “as a
co-owner.”
d. On July 22, 2007, Ernell, Laura, and Nancy executed a deed
transferring the property to “Ernell A. Velarde + Laura Velarde.”
No language appeared next to or after their names designating
the grantees as co-owners, tenants in common, joint tenants, or
referring to a right of survivorship. The form deed was entitled
“GRANT DEED.” Underneath the title the following form
language appears: “The undersigned grantor(s) declare(s): [¶]
Documentary transfer tax is __________ [¶] ( ) computed on full
value of property conveyed, or [¶] ( ) computed on full value
less of liens and encumbrances remaining at time of sale. [¶] ( )
Unincorporated area: ( ) City of __________.” In the blank
space for writing in the amount of the documentary transfer tax,
Ernell hand-printed the words “Joint Tenancy.” The parties
dispute whether Ernell wrote those words on the deed before or
after Nancy signed it.

Estate of Velarde, No. A133760, 2013 WL 364305 (Cal. Ct. App.

2013). Is the deed from Ernell to Nancy in 2006 sufficient to
create a joint tenancy in the interest being conveyed? Is the
deed from Ernell to Laura in 1999 sufficient to create a joint
tenancy? Is the deed from Ernell, Laura, and Nancy to Ernell and
Laura in 2007 sufficient to create a joint tenancy?
2. James and Vonda England, husband and wife, own Greenacres
in true joint tenancy. Thereafter, James handwrites out and signs

569
 a document that provides in pertinent part as follows: “I hereby
terminate my joint tenancy interest in Greenacres and devise my
interest therein and contents to my son William J. England. I also
give the residue of my estate to my son William.” James signed
the document. The document was neither notarized nor recorded.
Is the document a valid will? Does the document validly sever the
joint tenancy and devise his interest in Greenacres to his son?
See Estate of England, 233 Cal. App. 3d 1 (Ct. App. 1991).
3. James and Vonda England, husband and wife, own Greenacres
in true joint tenancy. Thereafter, James handwrites out and signs
a document that provides in pertinent part as follows: “I hereby
terminate my joint tenancy in Greenacres and convey my interest
therein to my son William J. England.” The document is neither
notarized nor recorded. Thereafter James dies with a will that
leaves the rest of his estate to his wife, Vonda. Who is entitled to
James's interest in Greenacres? See Riddle v. Harmon, 102 Cal.
App. 3d 524 (Ct. App. 1980); Cal. Civ. Code Section 683.2
(footnote 4 above). What difference, if any, would it make if the
instrument James handwrote purported to convey his interest in
Greenacres to himself, and then, in his will, he specifically
devised it to his son William?

C. Creation—Multiple-Party Financial Accounts

As wealth shifted from real property to personal property, people
increasingly opened checking and savings accounts at their local
banks or financial institutions. Just like real property, these accounts
could be put in joint tenancy, but early on the courts acknowledged
that the original owner of the account might have added the second
party to the account for a variety of reasons:

1. The original owner might have wanted to create a true joint

tenancy, thereby granting the newly added second party a half-
interest in the account, with the right to withdraw and use the
funds in the account as the newly added second party deemed
appropriate, and with absolute ownership of any remaining
funds upon death under the joint tenancy's right of survivorship;
2. The original owner might have wanted to create an agency
account or convenience account, thereby granting the newly
added second party no ownership interest in the account, only
the right to withdraw and use the funds in the account for the

570
 benefit of the original party (i.e., to help pay bills), and the newly
added party was to have no interest in the account when the
original owner of the account died (i.e., all remaining funds at
time of death would go into the original party's probate estate);
or
3. The original owner might have added the second party solely
as an attempt to avoid probate; i.e., an illegal attempt at a
payment-on-death arrangement where the second party was to
have no interest in the account while the original owner was
alive, but upon the original owner's death, any and all funds
remaining in the account should be paid to the second party
(though at one point this would have been an illegal attempt at
avoiding probate because payment-on-death accounts were not
recognized early on).

While the original owner of the account might have different

reasons for wanting to add a second party to his or her financial
account, the bank or other financial institution typically offered the
original party only one type of multiple-party account: a joint
tenancy account. The bank or other financial institution favored this
type of account because it protected the bank if it granted the
second party full access to the funds both inter vivos and following
death.
Early on, the courts realized that the boilerplate language in the
bank's paperwork might not truly reflect the decedent's intent. In
fact, the bank might have known that its paperwork did not reflect
the party's intent but nevertheless insisted on the decedent signing
the joint tenancy paperwork. Accordingly, the courts deemed the
paperwork as creating only a presumption of a true joint tenancy
account. If there was clear and convincing evidence that the
depositor had a different intent in adding the second party to the
account, the depositor's intent would control the disposition of the
property5—not the bank's paperwork.
While this approach protected and promoted the decedent's
intent, the courts quickly realized the high costs of administration
associated with it. Opening the door to extrinsic evidence of the
decedent's intent led to increased litigation and heightened the
potential for fraudulent claims. Some jurisdictions decided that the
cure was worse than the problem and accordingly have reverted to
the rule that the bank's paperwork controls and no extrinsic

571
evidence is admissible to counter it. Most jurisdictions have
modified the situation by adopting a series of statutes that create
new presumptions with respect to the parties' interests in situations
with multiple party financial accounts (granting the parties different
interests inter vivos versus at time of death).
Note that California Civil Code Section 683, above, expressly
exempts joint accounts held by a financial institution from its
requirements. Those types of multiple-party accounts are governed
by Part 2 of the Probate Code, an implicit acknowledgement of their
increasing importance in estate planning. Probate Code Section
5203 recognizes the different types of joint financial accounts that
one can create in California:
CPC §5203. Joint financial accounts; creation; wording; effect
(a) Words in substantially the following form in a signature
card, passbook, contract, or instrument evidencing an
account, or words to the same effect, ... create the following
accounts:
(1) Joint account: “This account or certificate is owned by
the named parties. Upon the death of any of them,
ownership passes to the survivor(s).”
(2) P.O.D. account with single party: “This account or
certificate is owned by the named party. Upon the death
of that party, ownership passes to the named pay-on-
death payee(s).”
(3) P.O.D. account with multiple parties: “This account or
certificate is owned by the named parties. Upon the death
of any of them, ownership passes to the survivor(s). Upon
the death of all of them, ownership passes to the named
pay-on-death payee(s).”
(4) Joint account of husband and wife with right of
survivorship: “This account or certificate is owned by the
named parties, who are husband and wife, and is
presumed to be their community property. Upon the death
of either of them, ownership passes to the survivor.”
(5) Community property account of husband and wife: “This
account or certificate is the community property of the
named parties who are husband and wife. The ownership
during lifetime and after the death of a spouse is

572
 determined by the law applicable to community property
generally and may be affected by a will.”
(6) Tenancy in common account: “This account or certificate
is owned by the named parties as tenants in common.
Upon the death of any party, the ownership interest of
that party passes to the named pay-on-death payee(s) of
that party or, if none, to the estate of that party.”
(b) Use of the form language provided in this section is not
necessary to create an account that is governed by this part.
If the contract of deposit creates substantially the same
relationship between the parties as an account created
using the form language provided in this section, this part
applies to the same extent as if the form language had been
used.
While California Probate Code Section 5203 recognizes the
different types of multiple-party accounts one can create in
California, as well as the time of death consequences of each
account, Probate Code Section 5301 addresses the inter vivos
consequences of opening (or adding such language to) a financial
account:
(a) An account belongs, during the lifetime of all parties, to the
parties in proportion to the net contributions by each, unless
there is clear and convincing evidence of a different intent.
...
(d) In the case of a P.O.D. account, the P.O.D. payee has no
rights to the sums on deposit during the lifetime of any party,
unless there is clear and convincing evidence of a different
intent.
What was the common law default presumption (inter vivos and at
time of death) if a second party's name was added to a bank
account (or other similar financial account)? What is the default
presumption (inter vivos and at time of death) under the current
California statutory approach if a second party's name is added to a
bank account (or other similar financial account)?
The threshold issue in In re Estate of Lahren, above, was
whether the instruments in question might be construed as having
created a joint tenancy and, if not, whether it could be construed as

573
a valid P.O.D. account. How would the issues have been analyzed
in California?

Problems
1. Anna Brezinski is an 87-year-old Polish immigrant with limited
command of the English language. She has no car. When she
was younger, she could walk the two miles into town to do her
banking, but these days she is too old to walk to town.
Accordingly, she puts Henry, one of her two sons, on the account
so that he can handle her banking. The bank has her complete
the paperwork for a true joint tenancy bank account. Thereafter,
Henry comes down with a mysterious illness. He pulls all the
funds out of the joint account and puts them in a joint tenancy
account that is in his name and his wife's name. Thereafter,
Henry dies. Anna sues to recover the funds. What is the most
likely result? See Brezinski v. Brezinski, 463 N.Y.S.2d 975 (1983).
2. Sadie Rust had a savings account at Farmer's Bank. Sadie: (1)
directed the bank to add Mildred Howard to the account, (2)
signed a signature card acknowledging that the account was a
joint account, and (3) instructed the bank not to tell Mrs. Howard
that she had been added to the account. Mrs. Howard never
signed a signature card. Following Sadie's death, Sadie's
executor argued that Sadie's intent was clearly to make a
testamentary transfer and such transfer should fail because it
fails to comply with the Wills Act formalities. How would you rule,
and why? See Farmer's Bank of State of Del. v. Howard, 258
A.2d 299 (Del. Chan. 1969).
3. Henri, a California resident, is unmarried with no children. Over
the years, he developed a close relationship with his niece,
Marion, who lives in Texas. He came to depend on her to manage
his affairs when he was unable to do so. In 1992, he opened a
joint financial account with Dreyfus and transferred his prior
existing account into it. Henri added her name to 34 of his stock
certificates. Thereafter Henri suffered a heart attack. After two
weeks in a hospital in San Francisco, Marion moved him to
Texas. Understandably, Henri was unhappy in Texas. Despite
Marion's loving care, Henri moved back to San Francisco roughly
a month later. Henri then contacted the different entities holding
his assets and asked that Marion's name be removed from the
different accounts and stock certificates. Dreyfus and the different

574
 corporate entitles refused to do so absent Marion's consent.
Marion refused to consent. Thereafter, Henri died. Henri's estate
sued, claiming sole and complete ownership of all the assets in
all the accounts. Who is entitled to the property, and why? See In
re Estate of Leleu, No. A092532, 2002 WL 1839249 (Cal. Ct.
App. 2002).

D. Marital Property: Taking Title as Community

Property versus Joint Tenancy
In California, the default form of marital property is community
property. The general presumption is that all property acquired
during marriage is community property. Community property is a
form of concurrent ownership that is limited to spouses (and
registered domestic partners). If title to the property is taken as
community property, inter vivos the spouses have equal ownership
interests in the property. At time of the first spouse's death, his or
her interest is considered a probate asset that may be devised to
whomever the decedent wishes.
While community property is the default form of holding marital
property in California, spouses may opt to hold property as joint
tenancy. Joint tenancy between spouses is a bit complicated
because it is both a form of concurrent ownership, and a form of
separate property—separate in the sense that it is not community
property. Joint tenancy between spouses is also a bit complicated
because of a number of statutory presumptions that apply
depending on how the marriage ends. If the marriage ends in
dissolution, a special statutory presumption arises that, despite the
form of title stating that the property was held in joint tenancy, the
property is deemed and treated by the court as community property.
On the other hand, if the marriage ends in death, the presumption is
that the form of title controls (i.e., if the paperwork says the real
property is held in joint tenancy, the property is presumed to be a
true joint tenancy with right of survivorship).
Historically, married couples in California had a tough decision to
make when they purchased their first home or condo. Should they
take title to the property as community property or as joint tenants?
Usually their real estate agent would recommend that they take title
as joint tenants to avoid probate upon the death of the first spouse.
But if they take title as community property, while the property is

575
subject to probate (generally presumed to be a negative, but not
always), community property status has certain tax advantages.
If a married couple purchases a house (or condo), their purchase
price typically serves as their basis in the property (the basis is
used to determine whether they make a profit when they sell it).
Because they own the house 50-50 (whether they hold it as
community property or as joint tenancy), each party's basis in the
property is deemed his or her share of the purchase price. If the
property appreciates, and then they sell the property, the couple
typically will have to pay taxes on the gain realized by the sale (the
sale price minus the purchase price—their basis). If, however, the
couple holds on to the property until the death of the first spouse
and the surviving spouse sells the property, significant tax
differences can arise depending on whether they held the house as
joint tenants or as community property.
Upon the death of the first spouse, if the property is held as
community property, both spouses' interests in the property are
stepped up to the fair market value at the time of the death of the
first spouse. If the surviving spouse then sells the property the next
day, because of the stepped-up basis, there would be no profit on
the sale of the property. Because there was no profit, there would
be no tax due on the sale. On the other hand, if the married couple
took title to the property as joint tenants with right of survivorship,
upon the death of the first spouse, only his or her basis in the
property would receive a stepped-up basis. For tax purposes, the
basis of his or her share in the property would be stepped up to his
or her share of the fair market value at time of death, but the basis
of the share of the surviving spouse would remain the same (his or
her half of the purchase price). Assuming the surviving spouse sold
the property the next day (the day after the other spouse died), if
the property has appreciated between time of purchase and time of
death of the first spouse, there would be gain following the sale, a
gain which it is assumed would be subject to tax—a gain that could
be avoided if the title had been held in community property.

E. Community Property with Right of

Survivorship
In 2001, the California legislature decided to let the residents of
California “have their cake and eat it too”:

576
Cal. Civil Code §682.1. Community property with right of
survivorship
(a) Community property of a husband and wife, when
expressly declared in the transfer document to be
community property with right of survivorship, ... shall, upon
the death of one of the spouses, pass to the survivor,
without administration, pursuant to the terms of the
instrument, subject to the same procedures, as property
held in joint tenancy. Prior to the death of either spouse, the
right of survivorship may be terminated pursuant to the
same procedures by which a joint tenancy may be
severed....
(b) This section does not apply to a joint account in a financial
institution to which Part 2 (commencing with Section 5100)
of Division 5 of the Probate Code applies.
(c) This section shall become operative on July 1, 2001, and
shall apply to instruments created on or after that date.

577
 IV. Legal Life Estate and
Remainders
A. Common Law Approach
Possessory estates and future interests typically are covered in
the first-year Property course. Just as property can be divided
physically, property can be divided temporally. If O owns
Greenacres, a hundred-acre woods, O could divide the property
and give 50 acres to Christopher and 50 acres to Winnie. Or O
could give all 100 acres to Christopher for life, and when
Christopher dies, it would go to Winnie. Christopher would have a
life estate (the right to possess and enjoy the hundred-acre woods
during his life), and upon Christopher's death, Winnie would own
the property and would have the right to do whatever he pleased
with it. Then, upon Winnie's death, his interest would be
transmissible (inheritable and/or devisable).
Assuming the property is real property, the instrument O would
most likely use is a deed. A deed transfers legal title to the property
to the grantees. Assuming the deed is properly executed and
delivered, Christopher would hold a legal life estate, and Winnie
would hold a legal remainder interest in fee simple absolute.
England, the country that created possessory estates and future
interests, does not permit legal possessory estates and future
interests. Possessory estates and future interests can be created
only in a trust, in which case the interests are called equitable
possessory estates and future interests (more on this in the next
chapter). America, however, is the land of the free. Accordingly, the
United States permits legal life estates and future interests as
created by a deed. But while they are permissible, it is generally not
a good idea, for a number of reasons beyond the scope of this
material, to create legal possessory estates and future interests.
Such interests should be created in a trust.

Problem
Olivia owns Greenacres. She validly executes and records a
deed that provides in pertinent part as follows: “I, Olivia Owner, do

578
hereby convey Greenacres as follows: To Olivia Owner for life, then
to my friend Edrina Nazaradeh and her heirs; but grantor hereby
reserves the right to revoke this deed and/or to sell Greenacres
during her life estate, and such sale shall revoke Edrina's remainder
interest. If Grantor sells the property, Grantor has the right to use
and/or devise the funds as she wishes.” Several years later, Olivia
dies with a will devising all her property to a different friend,
Katherine Kilmer. Katherine sues Edrina, claiming: (1) that the
power to revoke made the deed indistinguishable from a will (an
attempted testamentary transfer), and (2) because the deed did not
meet the requirements of the Wills Act formalities, it is invalid (it
gets ugly between them). Who is entitled to Greenacres? See
Tennant v. John Tennant Memorial Home, 167 Cal. 570 (1914).

Note
In first-year Property you learned that, in order for a deed to be
effective, it not only has to be validly executed, but it also needs to
be “delivered.” What constitutes “delivery” is a term of art best left to
that course. The paradigm example of delivery is when the when
the physical piece of paper (the deed) is handed over to the grantee
or recorded. In light of the modern trend approach to P.O.D. written
instruments, which do not have to be delivered in order to be valid
gifts, does that doctrine moot the common law delivery requirement
for a deed to be valid, particularly if it grants a remainder interest to
the grantee? Should California Probate Code Section 5000
(reproduced above), based on UPC 6-201, be deemed to have
waived the delivery requirement for deeds, at least as applied to a
deed creating a legal life estate and future interest? See First Nat.
Bank of Minot v. Bloom, 264 N.W.2d 208 (N.D. 1978). Is this debate
moot in light of California's new transfer-on-death deed statutory
provisions?

B. Modern Trend Approach

1. Transfer-on-Death Deed
The modern trend approach to P.O.D. contracts as being
nontestamentary transfers has been extremely successful in
permitting decedents to transfer personal property at death with
significant ease and minimal expense. Demand is growing for a
comparable nonprobate means of transferring real property at the

579
time of death. The proposed estate planning vehicle is something
called a “Transfer on Death” deed (“TOD deed”). Conceptually, a
transfer on death deed is a deed that essentially would not become
effective until death. It would indicate who gets title to the real
property when the owner dies, but it would not become effective
until the owner dies—and it would be revocable. In that respect,
functionally it would be similar to a will, but without the costs and
hassles of a will—and it would be a nonprobate transfer. Another
way to conceptualize the transfer on death deed is it would basically
create a revocable life estate and remainder: the effect of executing
the deed would be to grant the owner a life estate interest in the
property and the “grantee” a remainder in fee simple (but with no
present rights). The grantee would have the right to take
possession and enjoy the property when the owner dies, as is the
case with a life estate and remainder, but with a TOD deed it would
be a revocable remainder.

In re Estate of Roloff
143 P.3d 406 (Kan. Ct. App., 2006)
GREEN, J.
[Henry Roloff planted a number of crops on his farm during the
spring of 2004. Later that summer he properly executed a transfer
on death deed (TOD deed) with respect to the farm, naming a long
time employee, Charles Schletzbaum, as grantee beneficiary. The
deed made no express reference to the crops. The deed was
properly recorded in June, and less than a month later Roloff died
intestate. Thereafter the crops were harvested and sold for a net
profit of $67,424.65.
As a general rule, a conveyance of real property with no express
reservations conveys all of the grantor's interest, including all
growing crops. Where farmland is transferred as part of a
decedent's probate estate, and the real property includes growing
crops, Kansas statutory law provides that the growing crops pass
as personalty to the decedent's administrator or executor and not to
the heirs or devisees otherwise entitled to the real property. K.S.A.
59-1206. The statutory provision does not apply, however, where
the taker is not an heir or devisee. The issue was whether the
statutory provision should apply to a TOD deed scenario. In

580
analyzing the question of first impression, the Kansas Court of
Appeals included the following comments concerning TOD deeds:]
... [A] TOD deed creates basically the same interest that is
created by the survivorship attribute of a joint tenancy deed—an
interest with the right of survivorship:
“Survivorship is the distinctive characteristic and the grand
incidence of an estate in joint tenancy. On the death of a joint
tenant the property descends to the survivor or survivors and
the right of survivorship terminates only when the entire
estate, without the tenants having disposed of their title or
otherwise terminating the tenancy, comes into the hands of
the last survivor.” Eastman, Administrator v. Mendrick, 218
Kan. 78, 82, 542 P.2d 347 (1975) (quoting Johnson v. Capitol
Federal Savings & Loan Assoc., 215 Kan. 286, Syl. ¶3, 524
P.2d 1127 [1974]).
“... [U]nder a joint tenancy agreement ... a surviving joint
tenant ... does not take as a new acquisition from the
deceased joint tenant under the laws of descent and
distribution, but under the conveyance or contracts by which
the joint tenancy was created, his estate merely being freed
from the participation of the other. [Citations omitted.]” In re
Estate of Shields, 1 Kan.App.2d at 692, 574 P.2d 229.
“Property held by a decedent and another in joint tenancy
passes to the survivor, and the property is not part of
decedent's probate estate.” [Citation omitted.] In re Estate of
Harrison, 25 Kan.App.2d 661, 669, 967 P.2d 1091 (1998),
rev. denied 267 Kan. 885 (1999).
A TOD deed has many of the same survivorship characteristics
as a joint tenancy deed. These characteristics are as follows: (a)
that the record owner's interest automatically transfers to the
grantee beneficiary upon the death of the record owner, K.S.A. 59-
3501(a) and K.S.A. 59-3504(a); (b) that no other action or
procedure is required to transfer full title to the grantee beneficiary,
K.S.A. 59-3501(a) and K.S.A. 59-3504; (c) that any attempt by the
record owner to revoke or convey the record owner's interest in real
estate subject to a TOD deed by the record owner's will is invalid,
K.S.A. 59-3503(c); (d) that because title in the real estate vests
immediately in the grantee beneficiary upon the death of the record
owner under K.S.A. 59-3501(a) and K.S.A. 59-3504(a), the real
estate is not included in the record owner's probate estate; and (e)

581
that the transfer of the real estate by a TOD deed is not
testamentary in nature under K.S.A. 59-3507, and is not subject to
the provisions of the probate code.
When a joint tenant dies, title to the property under the joint
tenancy deed immediately vests in fee simple to the surviving joint
tenants. In re Estate of Mater, 27 Kan.App.2d 700, 704–07, 8 P.3d
1274, rev. denied 270 Kan. 898 (2000). The deceased joint owner
does not die seized of any heritable interest in the property under
the joint tenancy deed that could be distributed under the terms of
the deceased joint tenant's will. Upon the death of a joint tenant, no
title passes to such joint tenant's heirs. Instead, fee simple title
vests in the surviving joint tenants under the deed. As a result, a
court does not have authority to distribute the joint tenancy property.
27 Kan.App.2d at 706–07, 8 P.3d 1274. The same result occurs
with a TOD deed. A grantor of a TOD deed does not die seized of
any heritable interest in the real estate that could be distributed
under the terms of the grantor's will.... Moreover, no title to the real
estate passes to the grantor's heirs; fee simple title vests in the
grantee beneficiary upon the record owner's death, and a court has
no authority to distribute the real estate....
[The Kansas Court of Appeals ruled that the grantee beneficiary
under the transfer on death deed was entitled to the crops, not the
decedent's estate.]
—————
Conceptually the idea of a transfer on death deed is relatively
simple: it basically takes the payment-on-death concept that has
worked so well for personal property and applies it to real property.
The problem, however, is that the law concerning the transfer of
real property is much more complex. The challenge is how to fit the
transfer on death deed concept into the existing legal framework. In
addition, as is the case with most all non-probate arrangements, the
arrangement may be treated more like a non-probate transfer for
certain purposes, but more like a probate transfer for other
purposes. For example, what should be the capacity requirement
for executing a transfer on death deed? Should it be the default
inter vivos standard of contractual capacity, or should it be the
default testamentary capacity that is used for a will? What rights, if
any, should creditors have in the property subject to a TOD deed?
What rights does the transferor retain after executing a TOD deed?

582
What rights, if any, does a transferee acquire after a TOD deed has
been executed? Is that interest a property interest or more like an
expectancy?
There are a plethora of overlapping legal doctrines that make the
idea of transfer on death deeds more difficult than it appears at first
blush. Estate of Roloff is just one example of such an overlap—note
that the Kansas Court of Appeals decided the TOD deed was more
like an inter vivos transfer for purposes of who is entitled to the
crops growing on the land at the time of the transferor's death.
The following case is a good example of some of the more subtle
complexities that can arise with respect to TOD deeds.

Sheils v. Wright
357 P.3d 294 (Kan. Ct. App. 2015)
LEGEN, J.
Kevin Wright appeals the district court's ruling that invalidated a
transfer his uncle, Richard Sheils, made of an ownership interest in
Richard's home. Shortly before Richard's death, he transferred his
home to himself and Kevin as joint tenants with rights of
survivorship. But when Richard died, his brother, Charles Sheils,
claimed the property because Richard had previously signed a
deed that would transfer the property to Charles upon Richard's
death.
The district court held that because Richard had not revoked the
transfer-on-death deed, the property became Charles' on Richard's
death. [Kevin appealed, arguing that Richard was free to transfer
the property during his lifetime, and that the joint transfer to himself
and Kevin—with rights of survivorship—was therefore valid and
meant that the property became Kevin's upon Richard's death.]
FACTUAL AND PROCEDURAL BACKGROUND
Richard signed a transfer-on-death deed to his house in 2010,
providing that the house would become Charles' upon Richard's
death. That deed was properly recorded in 2010.
Three years later, on July 12, 2013, Richard signed a quitclaim
deed for the same property, transferring the property to himself and
his nephew Kevin as joint tenants with the right of survivorship—a
type of ownership in which the property passes to the surviving

583
tenants when one tenant dies. The quitclaim deed wasn't recorded
before Richard's death but was delivered to Richard's attorney,
Chris Montgomery. Montgomery said after Richard's death that
Richard had given him the quitclaim deed with instructions to record
it with the register of deeds.
Richard died on September 6, 2013, and the quitclaim deed was
recorded on September 20, 2013.
In March 2014, Charles and his wife, Sheryl, filed suit claiming
title to the house. (They claimed title on behalf of a personal trust in
which they held various assets.) They sued both Kevin and his wife,
Nittaya; although the wives were not involved in the deeds, they
were presumably included in the suit to resolve any potential
interest they might have in the property. Kevin filed a counterclaim
claiming he owned the property.
Both sides filed motions for summary judgment, and the district
court ruled in Charles' favor. The court said that Richard had not
revoked the transfer-on-death deed or recorded the quitclaim deed
before his death. Based on those findings, the court held that
Charles took the property under the transfer-on-death deed.
Kevin has appealed to this court.
ANALYSIS
A person may use one or more of several legal mechanisms to
transfer property to an intended recipient upon the owner's death.
Some use wills and trusts. Others use simpler methods, like the
transfer-on-death deed or joint tenancy with rights of survivorship
for real property. For personal property, similar methods include the
transfer-on-death registration for vehicles or the payable-on-death
designation for financial accounts. When a person uses more than
one method—with conflicting directions—for the same piece of
property, the matter often gets resolved in court. And so it is for
Richard's home.
Either of the methods Richard used could have effectively
transferred his home. Had only the transfer-on-death deed existed,
the property would have transferred to Charles on Richard's death.
Similarly, had there been only the deed transferring ownership
jointly to Richard and Kevin with rights of survivorship, the property
would have transferred to Kevin's sole ownership on Richard's
death.

584
 Charles asserts that he took ownership under the transfer-on-
death deed, so let's begin by considering what that deed could have
transferred here. The district court correctly ruled that the transfer-
on-death deed had not been revoked. This is so even though
Richard put a provision into the quitclaim deed saying that it
revoked the transfer-on-death deed. Transfer-on-death deeds are
authorized by statute, and they may be created—or terminated—
only as provided by statute. The revocation of a transfer-on-death
deed requires that the revocation be recorded with the register of
deeds during the owner's lifetime. K.S.A. 59-3503(a). Since that
wasn't done (the quitclaim deed wasn't recorded until after
Richard's death), the transfer-on-death deed remained in effect at
Richard's death.
But this doesn't answer the question that ultimately decides our
case: Did any property remain to be transferred under the transfer-
on-death deed at the time of Richard's death? If Richard retained
the power to transfer the property out of his own ownership during
his lifetime, then there might be nothing left to transfer to Charles at
Richard's death.
This question is answered by statute too. K.S.A. 59-3504(b)
provides that those receiving property through a transfer-on-death
deed, called “grantee beneficiaries,” take their interest subject to all
conveyances the owner may yet make during his or her lifetime:
“Grantee beneficiaries of a transfer-on-death deed take the
record owner's interest in the real estate at death subject to all
conveyances, assignments, contracts, mortgages, liens and
security pledges made by the record owner or to which the record
owner was subject during the record owner's lifetime including, but
not limited to, any executory contract of sale, option to purchase,
lease, license, easement, mortgage, deed of trust or lien, claims of
the state of Kansas for medical assistance..., and to any interest
conveyed by the record owner that is less than all of the record
owner's interest in the property.” K.S.A. 59-3504(b).
So whatever Charles was to receive through the transfer-on-
death deed could be diminished by Richard during his lifetime.
And that's just what Richard did—he conveyed the entire interest
in the property to himself and Kevin as joint tenants with rights of
survivorship. In a joint tenancy, the remaining joint tenant becomes
owner of the full property interest upon the other's death. Since

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Richard conveyed all of the property away during Richard's lifetime,
there was nothing to transfer on his death via the transfer-on-death
deed.
The district court also noted that the quitclaim deed transferring
the property to joint-tenancy ownership between Richard and Kevin
wasn't recorded. But the lack of recording does not made that deed
ineffective. As our court held in Reicherter v. McCauley, 47
Kan.App.2d 968, 974, 283 P.3d 219 (2012), a deed transfers title
when it is effectively delivered during the grantor's life. In
Reicherter, as in our case, the grantor delivered the signed deed to
his attorney for recording. That made the deed effective between its
parties—Richard and Kevin—even though it wasn't recorded.
An unrecorded deed isn't effective with respect to someone who
takes action (like granting a mortgage or purchasing the property)
after the unrecorded transfer without knowledge of it. See
Reicherter, 47 Kan.App.2d at 974–75, 283 P.3d 219. But that rule
does not apply to Charles, who took no action here—he was merely
the beneficiary of an act undertaken by Richard. Charles certainly
took no action after the signing and delivery of the quitclaim deed;
he simply remained as the beneficiary of the transfer-on-death
deed. That status did not entitle him to any notice of the quitclaim
deed. The transfer-on-death-deed statutes do not require notice to
the beneficiary when the grantor revokes the transfer-on-death
deed altogether. K.S.A. 59-3503(a), (b). In addition, K.S.A. 59-
3501(b) provides that “notice to a grantee beneficiary of a transfer-
on-death deed shall not be required for any purpose during the
lifetime of the record owner.” (Emphasis added.) For these reasons,
the failure to record this quitclaim deed did not make it ineffective.
The district court erred when it granted summary judgment to
Charles and denied summary judgment to Kevin. The district court's
judgment is reversed, and we remand with directions to grant
Kevin's motion for summary judgment.
—————

Notes
1. Revocation versus ademption: One way to think about the
issue in the Wright case is whether the latter deed was an attempt
to revoke the TOD deed or whether the latter deed was merely a
transfer of the property interest, which meant the TOD deed had no

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property interest upon which it could act—i.e., in “wills” terminology,
whether the latter deed adeemed the property interest subject to the
TOD deed. Because the TOD deed is purely a statutory creature,
analysis of most all issues starts—and often ends—with the
authorizing statutory language.
2. The TOD deed movement: To the extent TOD deeds are purely
statutory creatures, the risk is that is that TOD deed validity and
legal consequences may vary state by state based on the nuanced
language employed by each legislature. The first TOD deed statute
was adopted by Missouri in 1989. The second statutory adoption
was not until 1997 when Kansas adopted the doctrine. Since then,
the pace has picked up, but the progress has still been slow.
Moreover, the nuances of the doctrine are in the details, which
themselves tend to vary from state to state. To minimize such
differences, in 2009 the Uniform Law Commission adopted and
promulgated the Uniform Real Property Transfer on Death Act
(URPTDA), but some states are still adopting the doctrine without
adopting the URPTDA.

C. The California Approach

1. Background
In 2005, the California legislature passed a bill directing the
California Law Revision Commission to study the pros and cons of
the TOD deed. Between 2005 and 2015, several bills were brought
to the floor of the California legislature proposing that California
adopt some version of the TOD deed doctrine, but the bills were
repeatedly sent back for further study. It was not until September 9,
2015, that the California legislature passed California Assembly Bill
No. 139, adopting the TOD deed doctrine.6 While the California
TOD doctrine is consistent with the Uniform Real Property Transfer
on Death Act in many respects, California did not adopt the uniform
law. Moreover, the California legislature must still have some
reservations about the TOD deed doctrine because one could
argue that the current California approach is more of an experiment
than a long-term provision. The bill the Governor signed authorizes
the use of revocable TOD deeds only until January 1, 2021, at
which time the doctrine is repealed unless the legislature acts again
before that date (and the bill requires the California Law Revision
Commission to study and make recommendations to the legislature

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by January 1, 2020). It is likely the TOD deed doctrine will become
an important tool in the estate planning field and will be continued.
Anyone working in the estate planning field should be familiar with
the basics of the California approach.

2. Creation
California now officially recognizes a TOD deed as a valid
nonprobate transfer even though the deed is not executed with
Wills Act formalities. Cal. Prob. Code §5000. The doctrine applies to
a TOD deed executed by a transferor who dies on or after January
1, 2016, regardless of when the deed was executed. Cal. Prob.
Code §5600(a). California prefers to call the instrument a
“revocable transfer on death deed” and the grantee named in the
deed a “beneficiary.” Cal. Prob. Code §§5614, 5608. Although the
revocable TOD deed is a nonprobate transfer, to be valid the
transferor must have contractual capacity at the time he or she
executes it (or revokes it). Cal. Prob. Code §§5620, 5630. The TOD
deed is not effective unless (1) the deed identifies the beneficiary by
name, Cal. Prob. Code §5622; (2) the transferor signs and dates
the deed and acknowledges the deed before a notary, Cal. Prob.
Code §5624; and (3) the deed is recorded within 60 days of its
execution (traditional “delivery” and “acceptance” of the deed during
the transferor's lifetime is not required), Cal. Prob. Code §5626. If
more than one revocable TOD deed is recorded with respect to the
same property, the later executed and recorded deed controls. Cal.
Prob. Code §5628(a). If more than revocable TOD is recorded, and
the later executed deed is revoked, the statute provides that the
revocation “does not revive an instrument earlier revoked by
recordation of that deed.”7 Cal. Prob. Code §5628(b).

3. Consequences of Recording
After a revocable TOD deed has been executed and recorded,
the transferor retains all the same ownership rights, duties, and
benefits as if the revocable TOD deed had not been executed. Cal.
Prob. Code §5650. Conversely, following proper execution and
recording of a revocable TOD deed, neither a beneficiary nor the
creditors of a beneficiary acquire any rights, legal or equitable, in
the property until the transferor dies. Cal. Prob. Code §5650. Upon
the transferor's death, all of the transferor's interest in the property

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(subject to any limitations—i.e., any liens, encumbrances, leases,
easements, etc.) is transferred automatically and by operation of
law, immediately subject to the beneficiary's right to disclaim. Cal.
Prob. Code §5652. Where there is more than one beneficiary, they
hold the property as tenants in common. Id. There is an implied
survivorship requirement for each beneficiary. Where the
beneficiary fails to survive the transferor, the transfer lapses (and
anti-lapse does not apply); but where there is more than one named
beneficiary, the other beneficiaries share the lapsed share equally.
Id.
As noted above, one of the more challenging issues concerning
TOD deeds is how to fit the transfer on death deed concept into the
existing legal framework. In particular, where there are multiple
deeds and one or more of them is a revocable TOD deed, which
one controls and why? That basically was the issue in the Wright
case above. Like Kansas, California has a statute that indirectly
addresses that issue. Section 5650 states that while the transferor
is alive, executing and recording a revocable TOD deed does “not
affect the ownership rights of the transferor, and the transferor or
the transferor's agent or other fiduciary may convey, assign,
contract, encumber, or otherwise deal with the property....” Cal.
Prob. Code §5650(a). The language in Section 5650, however,
needs to be juxtaposed with the language in Section 5660:
CPC §5660. TOD deed and other instrument disposing of the
same property—controlling instrument
If a revocable transfer on death deed recorded on or before 60
days after the date it was executed and another instrument
both purport to dispose of the same property:
(a) If the other instrument is not recorded before the
transferor's death, the revocable transfer on death deed is
the operative instrument.
(b) If the other instrument is recorded before the transferor's
death and makes a revocable disposition of the property, the
later executed of the revocable transfer on death deed or the
other instrument is the operative instrument.
(c) If the other instrument is recorded before the transferor's
death and makes an irrevocable disposition of the property,
the other instrument and not the revocable transfer on death
deed is the operative instrument.

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You may recall from first-year Property that a validly executed deed
is effective upon delivery. The deed need not be recorded; but if it is
not, the grantee's title is vulnerable because a subsequent grantee
may qualify for protection under the jurisdiction's recording act (in
which case, the subsequent party may trump the first-in-time
grantee). Most recording acts require the subsequent party to be a
subsequent bona fide purchaser without notice of the first-in-time
party to qualify for protection under the act. Does that traditional
approach still apply if one of the instruments is a revocable TOD
deed? How would the Wright case come out in California? Why?
Does it make a difference if the “other instrument” is executed and
delivered before or after the revocable TOD deed is recorded?
Should it? What if the other instrument is a deed transferring the
property to a revocable trust?

4. TOD Deed's Effect on Concurrent Estate

One of the overlapping areas of law that generated significant
discussion is what if the property interest in question is part of a
concurrent estate; i.e., the party interested in executing a TOD deed
is a co-tenant in a joint tenancy, or a spouse holding property as
community property with right of survivorship, or a tenant in
common? What difference, if any, should that make? In particular,
the traditional common law view of the right of survivorship is that it
becomes effective the moment the party dies, and his or her
interest is extinguished. If it is extinguished, there is nothing to
transfer (hence the logic for why joint tenancy and property held as
community property with right of survivorship is non-probate). On
the other hand, as the court's discussion above in Estate of Roloff
evidences, one way to think of a revocable TOD deed is that it also
becomes effective immediately upon the transferor's death and that
is why it operates as a nonprobate transfer. If the transferor
executes a revocable TOD deed with respect to his or her interest
in property held in joint tenancy or as community property with right
of survivorship, should the execution and recording of the revocable
TOD deed “sever” the property interest and thereby destroy the
right of survivorship? At death, should the original joint
tenancy/community property with right of survivorship control, or
should the revocable TOD deed?

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CPC §5664. Property held in joint tenancy or as community
property with right of survivorship
If, at the time of the transferor's death, title to the property
described in the revocable transfer on death deed is held in
joint tenancy or as community property with right of
survivorship, the revocable transfer on death deed is void. The
transferor's interest in the property is governed by the right of
survivorship and not by the revocable transfer on death deed.
Is California Probate Code Section 5664 consistent with the general
intent-based movement that dominates the modern trend? Is it
defensible?
The general rules applicable to nonprobate transfers of
community property apply to TOD deeds as well. Cal. Prob. Code
§5666. A spouse generally has the right to transfer his or her share
of community property, whether that transfer is a probate or
nonprobate transfer, without giving notice to the other spouse
and/or without the other spouse's consent. Cal. Prob. Code §5010
et seq.

5. Revocation
A transferor can unilaterally revoke a revocable TOD deed. The
instrument revoking a revocable TOD deed must meet the same
creation and recording requirements as apply to the creation of a
revocable TOD deed.8 Cal. Prob. Code §5628(b).

6. Disqualification
The validity of a revocable TOD deed may be attacked on the
same grounds as other instruments that effectuate an at-death
transfer: lack of capacity, insane delusion, undue influence, and/or
fraud. Cal. Prob. Code §5696. Moreover, the statutory presumptions
of undue influence and/or fraud apply to TOD deeds as well. Cal.
Prob. Code §5690.

7. Creditor's Rights
A particularly tricky area of TOD deeds is creditor's rights. While
an important part of the law, it is not a focus of a Wills, Trusts, and

591
Estates course. The most important creditor's rights provision in the
California TOD deed statutes is Probate Code Section 5670. It
unambiguously makes clear that a properly evidenced creditor of
the transferor has priority over any and all creditors of the
beneficiary:
Notwithstanding any other statute governing priorities among
creditors, a creditor of the transferor whose right is evidenced
at the time of the transferor's death by an encumbrance or
lien of record on property transferred by a revocable transfer
on death deed has priority against the property over a
creditor of the beneficiary, regardless of whether the
beneficiary's obligation was created before or after the
transferor's death and regardless of whether the obligation is
secured or unsecured, voluntary or involuntary, recorded or
unrecorded.
The subsequent statutory provisions go on to elaborate on the issue
of creditors' rights, in particular on when a beneficiary is liable for
the unsecured debts of the transferor, but the details of creditors'
rights as they apply to revocable TOD deeds is beyond the scope of
this material.

Problems
1. Testatrix owns Blackacres. She validly executes a transfer-on-
death deed for Blackacres, designating her friend Pat as the
beneficiary. She does not record the deed, but sends it to Pat
instead (who does not record it). Thereafter, Testatrix executes a
will devising all of her property to her alma mater, Nirvana
University. Following testatrix's death, who is entitled to
Blackacres? What arguments would each party make? See In re
Estate of Scott, 842 N.E.2d 1071 (Ohio Ct. App. 2005).
2. Harold and Wilma are married. They own Greenacres as
community property with right of survivorship. Thereafter Wilma
found out that Harold was having an affair with his assistant, Lulu.
Wilma moved out of the house. While divorce proceedings were
underway, she learned that she had a terminal illness. Wanting to
make sure that Harold did not take any more from her, she
executed and recorded a transfer on death deed that specifically
provided that it severed Greenacres and granted her interest in
the property to her sister, Sally. Following Wilma's death, who
owns Greenacres, and why?

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 V. Inter Vivos Trusts
An inter vivos trust is a trust that is created while the settlor (the
party who creates the trust) is alive. It is a subset of the general law
of trusts, which is such an important and complex area of law that it
is the subject of the rest of this book. Only property transferred into
the trust inter vivos avoids probate. What is necessary to transfer
property to a trust is the subject of general trust law.
The modern trend is not so much to expand the scope of the inter
vivos trust exception to the Wills Act formalities as it is to facilitate
the creation of an inter vivos trust. By making it easier to create an
inter vivos trust, the modern trend is de facto expanding its use by
making it more accessible to more people. Historically, the trust was
a specialized legal instrument used almost exclusively by the
wealthy. Increasingly the trust is becoming the principal estate
planning instrument for most people, including people of modest
means. It is an indispensable tool in the estate planner's tool belt,
one with which every estate planner must be very comfortable.

A. Inter Vivos Trust as a Will Substitute

An inter vivos trust is created during an individual's lifetime.
Typically, the party who creates the trust makes it for his or her
benefit during his or her lifetime, and at the individual's death,
provides dispositive instructions with respect to the property in the
trust. In this way, it functions similarly to a will. If the trust is
revocable, it “feels” even more like a will. While all of the
nonprobate instruments function, more or less, like a will (in that for
all practical purposes they transfer property at death), the revocable
“living” trust is the paradigm “will substitute.” Like a will, a revocable
living trust can be simple: “at my death, all of my property goes to
X.” Or it can be very complex (disposing of multiple property
interests, to multiple takers, with some of the transfers outright and
some in trusts to take effect at death, etc.). Accordingly, at one
level, the primary purpose of both a will and a revocable living trust
is the same: to transfer a party's property at death to the takers, and
in the manner and form, that the party wishes. How the two estate
planning vehicles transfer the property interests at death, however,
is very different: property transferred via a will generally passes

593
through probate, while property transferred via a revocable living
trust does not.
In light of the similarities and differences between a will and
revocable living trust, which legal arrangement is the “better”
mechanism to use to transfer property at death? As with most
questions in law school, the best answer is “it depends”—it depends
on each individual's circumstance and what he or she wishes to
achieve with his or her estate plan. While a full examination of this
topic is beyond the scope of this course, a few words are in order.
Historically the will was the primary vehicle for estate planning.
Today, however, the revocable living trust is fast becoming the
primary vehicle for estate planning. This is because of its perceived
benefits, which include, among others: (1) costs, (2) time, (3) asset
control, (4) privacy, (5) out-of-state real property, and (6) incapacity.
These benefits stand in contrast to what are often perceived as the
“horrors” of the probate process—the process through which wills
must pass. A few words about each of the claimed benefits should
give you a sense of the “will versus revocable living trust” debate.

B. Costs
There are threshold costs associated with properly drafting the
necessary documents for wills and most all revocable living trusts.
These costs are usually higher for a revocable living trust.9
Moreover, a trust must be properly funded—a process that involves
changing title to assets, which implicates various additional costs.10
There are no comparable costs with the use of a will. The up-front
costs associated with creating a simple trust typically are greater
than the up-front costs of creating a simple will. The costs
associated with the creation of a will versus a revocable living trust,
however, typically are a relatively small part of the overall cost
associated with the respective estate planning vehicles.
There are also costs associated with administering an estate,
irrespective of whether one's assets are distributed via a will or a
living trust. When someone dies with a will, the will is subject to
probate and the estate incurs various probate costs—lawyer and
executor fees,11 state appraisal fees,12 and court costs. These
costs reduce the assets that will be available to be distributed to the
decedent's beneficiaries. With a living trust, however, “all such
probate costs are completely eliminated.” That statement goes a

594
long way toward explaining the widely held belief that for the typical
individual with a simple estate, the costs associated with
administering a revocable living trust are cheaper than are the costs
associated with probating a will. Yet that statement, while true, can
also be misleading if not kept in context.
The “administration” of a decedent's estate though a revocable
living trust is not without costs. The executor's role in the probate
setting is replaced by the trustee's role in the trust setting. While the
fees paid to a trustee can be less than an executor's fees, they can
also be greater (depending on the nature and complexity of the trust
property). In addition, while typically a trustee is not required to
seek legal assistance, the more complex the trust dispositions the
more likely a prudent trustee will retain an attorney to ensure proper
compliance with the trust provisions. Again, while the fees paid to
the trust's attorney may be less than those paid to a probate
attorney, they can be greater. Moreover, while there are no judicial
filing fees with a revocable living trust, appraisal fees, title fees, and
other logistical administrative costs are a part of administering an
estate, regardless of whether the estate passes through a will or a
revocable living trust. Thus, while the total cost of creating and
administering a revocable living trust typically is lower for the
average individual with a fairly simple estate and estate plan, one
should not assume that this is always the case.
The topic of taxes deserves a quick word. One of the most
enduring misunderstandings associated with revocable living trusts
is that they result in tax savings. This is not the case. The use of a
will or a revocable living trust has absolutely no relevance, nor does
it create any difference, in income, estate, or gift taxes. The
misconception likely arises because of an incorrect belief that
because assets avoid probate, they also avoid inclusion in a
decedent's estate for estate tax purposes. For estate tax purposes,
the value of all assets in a decedent's revocable living trust are
included in his or her gross estate. Avoiding probate has absolutely
nothing to do with avoiding inclusion of assets in a decedent's gross
estate for tax purposes. Either vehicle—a will or a revocable living
trust—is equally compatible for creative, tax-sensitive estate
planning. Whether a decedent's assets do or do not go through
probate, however, is irrelevant in determining what is included in a
decedent's estate for estate tax purposes.

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C. Time
Another important variable in the will versus revocable living trust
debate is time: How long does it take following a decedent's death
before the assets in question are distributed? Again, the best
answer is “it depends”: it depends on the decedent's circumstances
and what he or she wishes to achieve with his or her estate plan.
Nevertheless, some general observations can be made.
There is no denying that the probate process does take some
time and can vary dramatically from state to state—and obviously it
also depends on the complexity of a decedent's estate. The current
trend of court delays due to budget constraints can exacerbate the
situation. To properly assess the benefits of avoiding probate,
however, one should keep in mind the primary purpose of the
probate process. In probate, the court serves as a disinterested
third party that ensures that the decedent's assets are distributed
according to the testator's wishes. Probate was not designed as a
form of state interference, but rather as a form of protection for the
decedent. Part and parcel of this process is the orderly distribution
of his or her estate: the estate must be inventoried, creditor claims
against the decedent must be resolved, and remaining assets must
be distributed—and the court must ensure that the
executor/administrator is properly performing their duties. These
core functions take some time.
If the decedent has a validly created revocable living trust, the
general rule is that there is no judicial involvement in the trust
administration. That does not necessarily mean, however, that the
trustee will immediately distribute the trust property to the
beneficiaries upon the settlor's death. While the trustee may have
the power to make immediate distributions, most trustees will not
act with such haste. The trustee's duties in administering a
decedent's trust estate include most of the aforementioned
components of the probate process, albeit without having to work
through the judicial process and without court oversight.
Where a decedent's trust estate is fairly simple and his or her
wishes fairly straightforward, a trustee typically can take advantage
of the nonprobate process to distribute the trust property to the
beneficiaries more quickly. Where, however, a decedent's trust
estate is fairly complex, and/or his or her testamentary wishes are
fairly complex, proper administration of the decedent's estate—

596
even through a revocable living trust—takes time. A prudent trustee
will be sensitive to the situation to avoid adverse results.

D. Control
In the probate versus non-probate/will versus revocable living
trust debate, the issue of asset control, or loss thereof, often
accompanies the discussion of “time.” With a revocable living trust,
a trustee carries out various duties during the administration of the
trust pursuant to the instructions in the trust document, and, unless
otherwise specified by the trust, the trustee acts without
supervision, court or otherwise. If the trust document so permits,
assets may be sold, debts incurred, etc., during this period without
a court's permission (but always circumscribed by trustee fiduciary
duties13). The trustee has control over the trust assets, subject only
to the terms of the trust.
In the probate process, the executor/administrator of an estate,
during its administration period, usually performs most functions
without court approval, but may be required to petition the court for
certain actions such as selling or encumbering estate assets. Most
wills, however, authorize an executor to bypass court permission for
most such actions pursuant to the Independent Administration of
Estates Act (adopted in California and a number of states). Yet
while the executor/administrator may be able to minimize court
administrative approval, the executor/administrator cannot
completely avoid probate court supervision.
While there is greater loss of control over the assets during the
probate process, that loss of control is part and parcel of the
protective function of probate. The probate court serves as a
disinterested third party to oversee the disposition of the decedent's
assets. This is an ex ante layer of safeguarding the proper
distribution of a decedent's estate. While not perfect, and often a bit
cumbersome, this protection generally does not exist with a
revocable living trust. At best, the protection accorded the
beneficiaries under a revocable living trust is an ex post claim of
breach of trust. Depending on the situation, such ex post protection
may be more in theory than reality. In no event, however, should the
issue of control be equated to how a decedent's estate should be
distributed. A probate court cannot override the wishes in a
decedent's validly executed will, just as a trustee, acting within

597
prescribed duties, cannot override the dispositive provisions in a
revocable living trust.
Not surprisingly, the advice of a professional estate planner is
helpful in: (1) assessing the risks of asset mismanagement and/or
misconduct inherent in a party's personal situation and with respect
to his or her testamentary wishes, and (2) determining when, in light
of the party's personal situation and wishes, the party would be
better served with ex ante probate protection versus ex post breach
of trust protection.

E. Privacy
A will filed with a probate court is, in most instances, a “public
document” and can usually be viewed by anyone. A visit to the
county court probate clerk with a case number or the decedent's
name and date of death is usually all that is required. In contrast, a
revocable living trust remains private because it is not probated. For
some individuals, the privacy issue is a great concern (especially for
high-profile individuals) and he or she may not wish the world to see
the dispositive details of his or her estate. If privacy is a valid
concern, then a revocable living trust is, at the time of death,
superior to a will.
If privacy is an overriding concern, one needs to be sensitive to
the inter vivos attributes of a revocable living trust. A revocable
living trust requires “funding” during one's lifetime.14 Funding
involves transferring title of such assets, accounts, etc., while the
individual is alive, from the individual to the trust. The trustee then
has control over the assets. The institution in which such assets or
accounts are held, however, will generally want documentation for
their files showing that the trustee has the authority to manage such
assets—i.e., a copy of the trust. If a copy of the entire trust is
provided, the issue of privacy has been compromised. To prevent
disclosure of the entire trust, most states require the inquiring
institution to accept a shortened version of the trust. This shortened
version of the trust is commonly called an abstract, certificate, or
memorandum of trust. Key provisions of the trust, including the
trustee's powers over the property, are included in such shortened
versions, but dispositive and other sensitive provisions are not. In
California, it is commonly called an abstract of trust, and if certain

598
statutory requirements are met, institutions must accept it in lieu of
the entire trust document.15

F. Out-of-State Real Property

An individual, domiciled in one state, may die owning real
property located in another state. This raises in rem jurisdiction, an
issue typically covered in first-year Civil Procedure. A California
court, for example, typically does not have the jurisdiction to decide
and effectuate the disposition of real property located outside of
California. A revocable living trust has the clear-cut advantage over
a will in this situation.
For a will, the lack of in rem jurisdiction will generally mean that a
separate probate must be opened in the state in which the real
property is located. This ancillary probate is in addition to the
primary probate procedure in the decedent's home state. Not only
does this create added expense and complexity (an attorney
licensed in that state generally must be involved), but the state
conducting the ancillary probate may use their state's laws in
various dispositive matters, instead of the laws of the decedent's
home state. This is a “choice of law” matter beyond the scope of the
coverage in this introductory course. Needless to say, opening
probate in every state in which the decedent owns real property is,
at a minimum, costly and cumbersome.
A revocable living trust, if properly drafted and funded,
circumvents the in rem jurisdiction problems associated with out-of-
state real property. The trustee is the legal owner of all trust
property and has the ability to manage and ultimately distribute the
decedent's property in the manner prescribed by the trust document
without the need to open ancillary probate. In addition, “choice of
law” issues can be avoided because the trust will be administered
using the laws of only one state (the trust document typically
identifies the applicable state law and this is usually that of the state
in which the decedent was domiciled).

G. Incapacity
1. Managing Assets
With Americans living longer and longer, the potential for
incapacity has become a major estate planning issue. In the event

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that an individual becomes incapacitated and can no longer take
care of his or her affairs, and if there has been no advanced
planning, a court will appoint a conservator to manage and maintain
his or her assets. Laws relating to conservatorship are quite
involved and the appointment of a conservator is, in most instances,
not the preferred solution to what is a difficult situation.
If an individual's primary testamentary document is a will, a
durable power of attorney is typically also executed in order to
prevent a conservatorship in the event of incapacity.16 The maker of
a durable power of attorney (also known as the “principal”) appoints
an agent (also known as the “attorney-in-fact”), to act on the
maker's behalf, effectively stepping in to manage the maker's
assets when he or she is unable, or unwilling, to do so.
The durable power of attorney for asset management comes in
many forms, including, in California, a user-friendly “statutory”
durable power of attorney.17 The scope of financial matters for
which the agent/attorney is legally authorized to act is governed by
the document. Again, while a complete discussion of the subject is
well beyond the scope of this course, a durable power of attorney
for asset management can be an extremely important document
and one that, generally, is relatively easy to create. It is important to
remember that this document, like other documents discussed
throughout this book, must be validly executed before the time
when such a document becomes necessary. If an individual already
lacks the capacity to make such a document, then it is too late to do
so (and one must go to court for the appointment of a
representative).
The durable power of attorney for asset management has, to an
increasing degree, been supplanted with the ever-increasing use of
revocable living trusts. Revocable living trusts not only work as a
“will substitute” for disposition of one's property at his or her death,
but they also double as a durable power of attorney-like instrument.
The trustee of such a trust has the legal authority to handle and
manage trust assets, and if the original maker/settlor (who often
also serves as the initial trustee) is unable, or unwilling, to serve, a
“successor” trustee steps in to assume such duties (the successor
trustee typically is named in the trust document). In effect, this third
party has the authority, like an agent/attorney-in-fact in a durable
power of attorney, to handle legal matters associated with trust

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assets. Nonetheless, it is prudent, for various reasons, to still have
a durable power of attorney for asset management.

2. Health Care Decisions and End-of-Life

Instructions
Incapacity can not only affect one's ability to make decisions
concerning one's assets, but incapacity can also affect one's ability
to make decisions relating to one's health care and end-of-life
decisions. Increasingly, good estate planning covers such
contingencies. Comprehensive coverage of the subject is beyond
the scope of this course, but a quick look at the basics is warranted.
This area of practice deals with some of life's most difficult issues
and, sadly, affects most families at some point. A loved one is in a
serious state of decline, ravaged by the relentless progression of
Alzheimer's disease or some other debilitating medical condition. A
family member has been in a terrible accident and now, sadly, is in
a persistent vegetative state with little hope of recovery. However
difficult it is to even imagine such situations, let alone be touched by
them in real life, this is a subject that requires planning. And this
planning must be done before the debilitating illness or accident.
With respect to the issue of health care and end-of-life
instructions, neither a revocable living trust nor a will is equipped to
handle such matters. These issues include:

1. Who should make the necessary medical decisions for an

individual who is unable to do so for himself or herself? Who
should “give the OK” for proceeding with surgery or other
medical procedures?
2. What are the individual's thoughts and wishes with respect to
end-of-life or “ultimate health decisions”? Does he or she wish
to be kept alive at all costs, or is it his or her desire not to
prolong life?

Traditionally, the first issue above was handled with a document

called a durable power of attorney for health care.18 As with all
durable powers of attorney, the maker (called the “principal”)
appoints an agent (called the “attorney-in-fact”), to act on the
maker's behalf. In effect, the appointed representative

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(agent/attorney-in-fact) acts as a surrogate for the maker, stepping
in to make medical decisions when the maker is unable to do so.
The durable power of attorney for health care has, at least in
California, become somewhat of a relic—at least as a stand-alone
document. With many states adopting the “Uniform Health Care
Decision Act” (including California in July 2000), this form of durable
power of attorney has been combined with a document typically
used for end-of-life, or ultimate health care matters (issue two,
above). Historically, one would have executed a durable power of
attorney for health care (giving an agent/attorney-in-fact the power
to make health care decisions on behalf of the maker/principal), and
a separate document for end-of-life matters. The latter has gone by
many names, including a “living will” (this does not address property
dispositions and is not to be confused with a regular will or
revocable living trust), a “directive to physicians,” and a health
“declaration.”
Most states, including California, authorize the use of a document
that is commonly known as an “Advanced Health Care Directive.”
The advanced health care directive combines into one form what
was the traditional durable power of attorney for health care, and a
declaration of one's end-of-life wishes. Thus, an individual can
name an agent/attorney-in-fact and express his or her end-of-life
wishes regarding prolongation (or not) of one's life in a single form.
An advanced health care directive form comes in numerous
varieties and covers a wide spectrum, from attorney-prepared
documents to ready-to-use pre-printed forms (statutory forms and
forms from various organizations, usually related to the medical
profession). It is advisable to use a pre-printed advanced health
care directive form, preferably one with which doctors/hospitals will
be familiar. The time when such a document needs to be used is
usually in a time of crisis—typically when time is of the essence—so
the last thing a family needs is to have medical personnel not
accept the form because they need to have the document approved
by their (or a hospital's) legal counsel. In California, the version
most widely recognized by those in the medical profession is the
California Medical Association's (CMA) Advanced Health Care
Directive. It comes in “kit” form (instructions, wallet reference card,
etc.), available from the California Medical Association. It is
relatively easy for most individuals to complete. An attorney is
generally unnecessary and, while it may mean some income loss

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for estate planning attorneys, it is common for them to have a shelf
full of these forms that are given to clients at no cost. Clients enjoy
getting free forms and legal help from an attorney and, more
important, the form can play an invaluable role should the
unfortunate situation arise when it needs to be used.

1. Technically community property is a concurrent estate as well. Most people

tend not to think of it that way because it is marital property and thus not an option
for all parties. Because community property typically is not included in the general
discussion of the concurrent estates that are available to all parties, we will adopt
that approach for now as well.
2. The risk with using joint tenancy as an estate planning vehicle, however, is
that it does pass an irrevocable property interest the moment the joint tenancy is
created. Assume O owns Greenacres, and O decides that O wants A to have
Greenacres when O dies. If O puts Greenacres in joint tenancy with A, when O
dies A will own Greenacres and it will avoid probate. But the moment O validly
executes and delivers the deed to A, A becomes a joint tenant with O. A and O
both own Greenacres in whole and in shares (A holds a 50 percent interest in the
property) and, unlike a will, the joint tenancy is irrevocable. If O changes her
mind, O's only option would be to sever the joint tenancy and turn it into a tenancy
in common. O's share would then drop into O's probate estate when O died.
3. You may recall from first-year Property that, at common law, to create a joint
tenancy all that was necessary was that the four unities of time, title, interest, and
possession were intact at the time of the conveyance. The typical conveyance
from O, an owner, to A and B, the grantees, meets the four unities, so a joint
tenancy would be created unless the parties expressly opted out or they made
sure the four unities were not present.
4. Depending on the situation, knowing how to sever a joint tenancy may be
just as important as knowing how to create a joint tenancy. Civil Code Section
683.2 governs severance of a joint tenancy:
(a) Subject to the limitations and requirements of this section, in addition
to any other means by which a joint tenancy may be severed, a joint
tenant may sever a joint tenancy in real property as to the joint
tenant's interest without the joinder or consent of the other joint
tenants by any of the following means:
(1) Execution and delivery of a deed that conveys legal title to the joint
tenant's interest to a third person, whether or not pursuant to an
agreement that requires the third person to reconvey legal title to
the joint tenant.
(2) Execution of a written instrument that evidences the intent to sever
the joint tenancy, including a deed that names the joint tenant as
transferee, or of a written declaration that, as to the interest of the
joint tenant, the joint tenancy is severed.
(b) Nothing in this section authorizes severance of a joint tenancy
contrary to a written agreement of the joint tenants, but a severance

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 contrary to a written agreement does not defeat the rights of a
purchaser or encumbrancer for value in good faith and without
knowledge of the written agreement.
(c) Severance of a joint tenancy of record by deed, written declaration, or
other written instrument pursuant to subdivision (a) is not effective to
terminate the right of survivorship of the other joint tenants as to the
severing joint tenant's interest unless one of the following
requirements is satisfied:
(1) Before the death of the severing joint tenant, the deed, written
declaration, or other written instrument effecting the severance is
recorded in the county where the real property is located.
(2) The deed, written declaration, or other written instrument effecting
the severance is executed and acknowledged before a notary
public by the severing joint tenant not earlier than three days before
the death of that joint tenant and is recorded in the county where
the real property is located not later than seven days after the
death of the severing joint tenant.
(d) Nothing in subdivision (c) limits the manner or effect of:
(1) A written instrument executed by all the joint tenants that severs
the joint tenancy.
(2) A severance made by or pursuant to a written agreement of all the
joint tenants.
(3) A deed from a joint tenant to another joint tenant....
5. The depositor's intent should control assuming the intent was legal. If the
depositor was intending an illegal POD account, the court would not give effect to
the intent, but it would not give effect to the joint tenancy either, because that was
not decedent's intent. The property in question would fall into probate as a result
of the attempt at an illegal nontestamentary transfer.
6. Governor Brown signed it on September 21, 2015, to be effective starting
January 1, 2016.
7. It is a bit unclear, however, whether the statute absolutely and always bars
revival or if it merely says that revival does not automatically apply absent the
proponent of revival meeting the requirements of that doctrine.
8. Interestingly, however, the statutory provision on revocation expressly says
the revoking instrument must be recorded “before the transferor's death” while the
creation statutory provision says only that the deed must be recorded within 60
days of being executed—it makes no reference to “before the transferor's death.”
9. The simple trust document typically costs significantly more than a simple will
—and, as discussed later, ancillary documents should also be prepared, such as
a pour-over will.
10. Trust funding issues are covered in Chapter 12.
11. In probate, executor and attorney fees are the two that are most prominent.
In many jurisdictions, including California, these fees are set by statute and are a
sliding scale based on the estate's value.

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 12. In California, a “probate referee” is assigned by the court for probate asset
appraisals. Probate referee fees depend on the value of estate assets. It is
probably fair to say that for larger estates, non-probate appraisal fees charged by
private appraisers can be substantially higher than those of a state probate
referee.
13. The fiduciary duties of a trustee are discussed in more detail in Chapter 14.
14. Funding, along with the other requirements to create a valid trust, are
covered in detail in Chapter 12.
15. California Probate Code §18100.5.
16. A durable power of attorney for asset management is sometimes called a
“financial durable power of attorney.”
17. See California Probate Code §4401. The California Continuing Education of
the Bar (CEB) publishes a great practitioner's book on the subject—CALIFORNIA
POWERS OF ATTORNEY AND HEALTH CARE DIRECTIVES.
18. A separate, distinct document from the previously discussed durable power
of attorney for asset management.

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Chapter 12

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Trusts: Creation and
Revocability

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 I. Overview
The trust has been called the most flexible legal arrangement
there is in the law. It can be used for a plethora of different
purposes—so many, in fact, that its flexibility creates problems for
many students. Most students start the course with a good
conceptual understanding of a will. While they do not know the
law of wills, they know that a will is a document that disposes of a
decedent's property. Understanding the will's purpose makes it is
easier to master the law of wills. In contrast, a trust is such an
abstract and amorphous legal arrangement that it can be difficult
for some students to wrap their minds around it.
Trusts can run the spectrum from the very simple to the very
complex. The best way to get comfortable with the law of trusts,
and what a trust is, is to start with a simple trust: a traditional
gratuitous private trust (as opposed to a public or charitable trust).
A traditional gratuitous private trust is nothing more than another
way of making a gift. In fact, the law of trusts evolved out of the
law of gifts.

A. Conceptual Understanding
1. Inter Vivos Gift—Outright Gift
The traditional paradigm private trust is nothing more than
another way of making a gift. Envision the typical gift. One party
(the donor) physically hands over an item to another party (the
donee) with the intent to make a gift. The gift is completed
quickly; upon delivery. The law of gifts reflects the paradigm gift
scenario. A valid gift requires intent, delivery, and acceptance.
The intent to make a gift is the present intent to relinquish all
dominion and control over the property being gifted. Delivery
depends on the item being gifted. At common law, if physical
delivery was possible or practical, it was the only form of
acceptable delivery. If physical delivery was impossible or
impracticable, constructive or symbolic delivery was acceptable
(no preference between the two).

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 Constructive delivery is physical delivery of something that
would give control over the property being gifted. If the donor
wants to gift a car, giving the keys to the car would be a classic
example of constructive delivery. The keys give control over the
item being gifted—the car.
Symbolic delivery is physical delivery of something that
symbolizes the property being gifted. There is overlap between
constructive delivery and symbolic delivery. For example, the
keys to a car can also constitute symbolic delivery. The keys
symbolize the car. The paradigm and most common form of
symbolic delivery is a piece of paper. The paper symbolizes the
item being gifted. A classic example of symbolic delivery is a
deed. If a donor wants to gift Greenacres to a donee, the donor
cannot pick up Greenacres and physically hand it over. And
technically the donor is gifting title, an abstract bundle of rights
that similarly cannot be physically delivered. At early common
law, when most people were illiterate, the livery of seisin
ceremony constituted symbolic delivery. The grantor would reach
down and hand over a piece of dirt or twig from the property.
Delivery of the piece of dirt, or the twig, constituted symbolic
delivery. As people became more literate, it made more sense
and became more common to use the deed as the form of
symbolic delivery. But the law was very clear: a deed is not
effective until it is delivered. Only delivery of the deed could
transfer title.
The final requirement of the law of gifts is acceptance: the
donee must accept the property being gifted. If, however, the
property is of value, acceptance is presumed. Thus, for all
practical purposes, acceptance is a non-issue unless there is
reason to assume that a reasonable person would not accept the
property.

2. Inter Vivos Gift in Trust

a. The Trust as a Bifurcated Gift
While most students are comfortable with the concept, and law,
of gifts, they are uncomfortable with the concept, and law, of
trusts. There are two key differences between a gift and a trust

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that are critical to mastering what a trust is and the law of trust.
First, the typical trust is nothing more than a bifurcated gift; and
second, the typical trust is nothing more than an ongoing gift.
In the gift scenario, there are two parties: the donor and the
donee. A gift is a conveyance of a property interest. The donor
delivers the property being gifted to the donee—and the gift is
completed. Once delivered, the gift is the donee's property. The
typical duration of an outright gift is, at most, however long it
takes to complete the delivery.
A gift in trust is a bifurcated—or split—gift. First, a trust involves
three parties: the settlor, the trustee, and the beneficiary. The
settlor (or “trustor”) is the donor—the law simply changes the
party's name to reflect that this is a gift in trust as opposed to an
outright gift. A gift in trust is a bifurcated gift in that the trustee
takes legal title to the property being gifted, and the beneficiary
takes equitable title to the property. The trust splits the legal and
equitable interests in the property being gifted or conveyed.
But what, exactly, does it mean to say that the trustee takes
legal title while the beneficiaries take equitable title? The
bifurcated nature of a trust is rather abstract, so an example might
help. Historically, a classic example of a private, gratuitous trust
was a trust for widows or orphans. Back when wives often stayed
home and raised the children, some husbands assumed that their
wives were not capable of (or, in the alternative, some husbands
did not want to burden their wives with task of) managing the
husband's accumulated property. Rather than giving the property
outright to his surviving spouse, the husband could create a trust.
The trustee of the trust would take legal title of the property in
question—along with the duty to hold and manage the trust
property for the benefit of the beneficiaries: the surviving widow
and children. The surviving widow and children would hold the
equitable interest in the property—they would have the right to
receive and enjoy the property in trust pursuant to the terms of
the trust (i.e., the settlor's intent). Conceptually, the trust
beneficiaries get all the benefits of the property in the trust with
none of the hassles. It is the trustee's job, because he or she
holds legal title, to tend to the hassles associated with the
property. Thus, a trust is a bifurcated gift in that the donee is
bifurcated (split) into the trustee (who holds legal title to the

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property) and the beneficiaries (who hold the equitable interest in
the property).
Second, a gift in trust is a bifurcated gift in that the property
being conveyed is bifurcated between the property initially gifted
to the trust by the settlor (often referred to as the corpus or res),
and the income generated by that property. The income
generated by the property conveyed to the trust speaks to the
second distinguishing characteristic of the typical gratuitous
private trust: that it is an “ongoing” gift. The ongoing nature of a
trust is also implicit in the description of the trustee's job: to hold
and manage the trust property. The words “hold” and “manage”
implicitly have a temporal component. Unlike the traditional
outright gift, which is completed upon delivery, the gift in trust
starts with the settlor's delivery of the property to the trustee, but
because the trustee has a duty to hold and manage the property
for the duration of the trust, the trust is an ongoing gift that
continues until the trustee delivers all of the property in the trust to
the beneficiaries. So long as there is property in the trust, the
trustee has a fiduciary duty to hold and manage the property in
the best interests of the beneficiaries. One of the sub-duties
inherent in that fiduciary duty is to make the trust property
profitable so that it grows (historically, so that it produced income
and/or generated interest). De facto, this meant that there are two
types of property in a trust—the original property (called the
corpus, res, or principal) and the income.
Third, a gift in trust is a bifurcated gift in that, at the equitable
level (the beneficiaries' interest), the equitable interest invariably
is split into some combination of possessory estates and future
interests. Possessory estates and future interests typically are
covered in the first-year Property course. At many law schools,
however, Property has been reduced from two semesters to one,
and coverage of possessory estates and future interests is one of
the parts of the course that has been cut or significantly reduced.
If that was the case at your law school, do not worry. All you need
to know for this introductory coverage of trusts is the life estate
and remainder combination. When we say that someone “owns” a
piece of property, there is a temporal component to that
ownership. When a person “owns” Greenacres, the law of
possessory estates and future interests calls that type of

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ownership “fee simple absolute.” From a temporal perspective, a
party who holds property in fee simple absolute has the right to
own it forever, but obviously he or she cannot live forever.
Instead, holding fee simple absolute means that the party's death
does not terminate his or her property interest. He or she can
devise the property to whomever he or she wishes, and if there is
no will, the party's fee simple absolute interest will pass to his or
her heirs (who will then hold fee simple absolute).
The law of possessory estates and future interests governs
how property interests can be split over time. That material is
beyond the scope of this course, but a sense of it is important.
The simplest and most common possessory estate and future
interest is a life estate (the possessory estate) and a remainder
(the future interest). A simple example will bring that combination
to life. Assume a married couple (H and W) with two young
children, C and D. Assume H learns that he has terminal cancer.
His doctors tell him to get his financial affairs in order. He could
execute a will leaving all of his property to his wife (a will typically
devises the testator's fee simple absolute to the beneficiaries,
each of whom takes a fee simple absolute). Or, the day after
learning the news, H could create an inter vivos trust, funded with
all of his property. At the equitable level, he could stipulate that
the trust was for his benefit for the rest of his life (a life estate),
then for his wife's benefit for the rest of her life (remainder in life
estate), and then upon her death, any remaining property should
be distributed outright to his surviving children (remainder in fee
simple absolute). Because a trust is an ongoing gift that can last
for years, if not decades, invariably the equitable interest is split
between some combination of possessory estates and future
interests.
Now you should have a better understanding of why some say
that a trust is a bifurcated gift: (1) it splits the property being gifted
between the trustee, who receives the legal title, and the
beneficiaries, who receive the equitable interest; (2) it splits the
property into the principal (the corpus or res) and the income
generated by the principal over time (because a trust is also an
ongoing gift); and (3) it splits the equitable interest into some
combination of possessory estates and future interests (typically,
a life estate and remainder). There are, however, other ways to

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conceptualize a trust. For example, a trust can be viewed as
nothing more than a legal receptacle (i.e., a legal “bucket”). The
trustee holds the bucket. The trustee puts the property in the
bucket, but there really are two compartments in the bucket: one
for the principal and one for the income. The terms of the trust
(the settlor's intent) tell the trustee when he or she can or must
reach into the bucket, grab some of the property, and give it to
one or more of the beneficiaries. A beneficiary's interest in the
trust can be either mandatory (if the terms of the trust require the
trustee to give some of the property to the beneficiary at certain
points in time), or discretionary. Finally, the beneficiary's interest
can be in either the principal, or the income, or both.
With that conceptual understanding of a trust, it is easy to
understand how the law of trusts (at least the law that governs the
creation of a trust) evolved out of the law of gifts. To have a valid
gift there must be intent, delivery, and acceptance—although
because acceptance is presumed, one could argue that, for all
practical purposes, there are only two requirements: intent and
delivery. One can argue that the requirements for a valid trust are
no more than the requirements for a valid gift, modified to reflect
the fact that a trust is a bifurcated gift.

b. Requirements to Create a Trust

The first requirement to create a trust is intent. While similar to
the intent to make an outright gift (in that there must be a present
intent to relinquish dominion and control of the property in
question), unlike the intent to make an outright gift, here the intent
is to make a gift in trust: the intent to transfer the property to a
trustee to hold and manage for the benefit of a third party—the
beneficiaries. In light of the differences between an outright gift
and a gift in trust (a bifurcated gift), the nuanced difference
between the intent to make an outright gift and the intent to create
a trust should now make sense.
The second requirement to create a trust is delivery. While
similar to the delivery requirement for an outright gift in that a
property interest must be conveyed, the law of trusts “bifurcates”
the delivery into two requirements to reflect the bifurcated nature
of the trust. One-half of the bifurcation (the second overall

613
requirement for a valid trust) is that the trust must be funded (i.e.,
property must be delivered to the trustee). An empty bucket is not
a trust. A trust is not created unless and until there is property in
the trust for the trustee to hold and manage. So the first delivery
requirement for a valid trust is that property must be delivered to
the trust/trustee. The second half of the delivery bifurcation
becomes the third trust requirement: ascertainable beneficiaries.
Because of the bifurcated nature of a trust (i.e., inasmuch as the
trustee takes only legal title), we need to know who holds the
equitable interest—we need to know who has standing to enforce
the terms of the trust against the trustee. The third requirement
for a valid trust is that there must be ascertainable beneficiaries
(i.e., the court must be able to name the parties that hold the
beneficial interest).
Conceptually, one could argue that the requirements for a trust
are the same as the requirements for a gift (intent and delivery).
That being said, because a gift in trust is a bifurcated gift, the law
bifurcates the delivery requirement: it requires delivery of the legal
interest to the trustee (funding), and delivery of the equitable
interest to the beneficiaries (ascertainable beneficiaries). Some
commentators assert that there may be a fourth requirement for a
valid trust: it may have to be in writing. A writing requirement,
however, may also apply to outright gifts because some outright
gifts have to be in writing to be valid. Whether an outright gift
must be in writing depends on if it is an inter vivos gift (in which
case the Statute of Frauds may require it to be in writing) or a
testamentary gift (in which case the Wills Act formalities will
require it to be in writing). Similarly, whether a trust has to be in
writing to be validly created is not really a function of trust law;
rather, it is a function of the trust as an inter vivos trust holding
real property (in which case the Statute of Frauds will require it to
be in writing) or a testamentary trust (in which case the Wills Act
formalities will require it to be in writing).

Hermann v. Brighton German Bank Co.

16 Ohio N.P. (N.S.) 47 (1914)
OPPENHEIMER, J.

614
 The plaintiff, who is an invalid, resided for some time prior to
March 18, 1909, with his sister, Rose B. Boone. On that date Mrs.
Boone went to the Brighton German Bank, in this city, and stated
to the cashier of that institution that she desired to deposit some
money for her brother, who was unable to come to the bank in
person. Accordingly a deposit was made in the savings
department in the name of “Rose B. Boone for L. P. Hermann,”
and a bank book was issued in the same name.
....
No money was ever withdrawn from the bank by Mrs. Boone,
but additional deposits were made from time to time in the same
account, and the interest upon the deposits was permitted to
accumulate until, at the time of her death in 1912, the entire
deposit aggregated $1,046.77. Upon her death the book was
found in the safety deposit box heretofore mentioned, to which
plaintiff had access as her deputy, and two other books covering
deposits in her own name in other banks were likewise found.
Mrs. Boone left a will in which she made a number of bequests,
including one of $1,000 to plaintiff. But her funeral expenses and
the expenses incurred in connection with her last illness, together
with other debts incurred by her in her lifetime, exceeded the
residue of her estate.
....
We are now called upon to determine whether the deposit of
the money by Mrs. Boone under the circumstances related
operated either as a gift to Louis P. Hermann or as a valid,
executed trust in his favor. If it did, then the fund must now be
awarded to him; if not, it will pass to the executrix or administrator
and become subject primarily to the payment of the debts of Mrs.
Boone's estate.
... We shall therefore first consider the essentials of a gift inter
vivos, and endeavor to ascertain whether, under the
circumstances indicated by the testimony, such gift was made in
this case.
A gift inter vivos is an immediate, voluntary and gratuitous
transfer of property by one person to another. To constitute a valid
gift, the intention of the donor to make the gift must be clearly and

615
satisfactorily established. Worthington v. Redkey, 86 Ohio St. 128
[99 N. E. 211]. But mere intention, however clearly and positively
it may be made to appear, is not sufficient. It must be
consummated and carried into effect by such acts as are
necessary to divest the donor of all right of property in the res
which is the subject of the gift and to invest the donee therewith.
Worthington v. Redkey, supra; Martin v. Funk, 75 N. Y., 134;
Wadd v. Hazelton, 137 N. Y., 215 [33 N. E. 143]. A complete
unconditional delivery is essential to the perfection of the gift, but
the manner of delivery will, of course, depend upon the character
of the thing which is given. The donor must part not merely with
the possession, but also with the domination and control of the
property, and they must thereafter vest exclusively in the donee.
Flanders v. Blandy, 45 Ohio St. 108 [12 N. E. 321]; Harrison
Banking Co. v. Miller, 190 Mo. 640 [89 S. W. 870; 1 L. R. A. (N.
S.) 790]. It is not necessary, however, that the property be
physically transferred from the possession of the donor to that of
the donee. In some instances the property is already in the
possession of the donee who holds it as agent for the donor, and
in such case it is sufficient that the donor relinquish all domain
over the property and recognize the possession of the donee as
being in his own right. Muir v. Gregory, 158 Fed. 122; 168 Fed.
641; Allen v. Cowen, 23 N. Y., 502; Newman v. Bost, 122 N. C.
524 [295 S. E. 848]. In other instances the property will remain in
the possession of the donor, it being sufficient that he cease to
hold in his original character as owner and thereafter hold as
representative of the donee. Yonken v. Hicks, 93 Ill. App., 667;
Martin v. Funk, supra. There are still other cases where the
delivery will be made, not to the donee himself but to a third
person as agent or trustee, for the use of the donee, and under
circumstances which unmistakably indicate an intention on the
part of the donor to relinquish all right to the control of the
property and to vest the present title in the donee.
Moreover the property may be of such a character as to make a
manual delivery impossible. If such be the case, a constructive or
symbolical delivery is sufficient. Gano v. Fisk, 43 Ohio St., 462 [3
N. E. 532; 54 Am. Rep. 819]; Flanders v. Blandy, supra. There
are some cases which hold that, to perfect either a gift or a trust,
the beneficiary must be informed of the donor's intention. Gerrish
v. New Bedford Inst. for Sav., 128 Mass., 159 [35 Am. Rep. 365];

616
Bartlett v. Remington, 59 N. H., 364. The weight of authority,
however, favors the proposition that knowledge on the part of the
beneficiary is not essential to the efficacy of the transfer, and that
acceptance of the benefit of the trust will be presumed, because
of the fact that ordinarily it is advantageous to him. Thus, it has
been said in the case of Harvey v. Gardner, 41 Ohio St., 642,
649:
“In general, any gift by deed, will, or otherwise, is supposed
prima facie, unless the contrary appears, to be beneficial to
the donee. Consequently the law presumes, until there is
proof to the contrary, that every gift, whether in trust or not,
is accepted by the person to whom it is expressed to be
given.”
There is a large class of cases which have to do with gifts of
bank deposits. Where a donor deposits money in the name of the
donee, and delivers to him or to a third person for him, a pass-
book therefor, it is manifestly his intention to pass the legal title
and control of the fund, and the gift is as complete as it would be
if the money were manually transferred to the donee himself. But
frequently the intention is not so apparent, and it is then
necessary to examine the circumstances very carefully in order to
ascertain, if possible, the purpose of the donor.
In the case at bar, plaintiff was, because of his physical
afflictions, dependent upon Mrs. Boone. He lived with and was
supported by her. She evidently realized that if anything were to
happen to her, he would necessarily become a charge upon
others, and so she determined to make some provision for him.
There can be no doubt that she desired him to benefit by these
deposits and that they were set apart for that purpose. The form
in which they were made indicates this, as does the fact that she
had several bank accounts in her own name in which she might
have deposited this money, if she had been content that plaintiff
should wait until her death to receive what she might leave him by
will. The only doubt arises out of the fact that she retained control
over the fund by keeping it in such form as to make it impossible
for anyone except herself to draw the money and then placing the
book in her own safety deposit box. It seems but natural,
however, for her to arrange that only she might draw the money,
for she knew that her brother was unable at all times to look after

617
his own affairs. Moreover, she continued to make deposits in the
same account, for which purpose it was necessary that she retain
the book. Then, too, she may have desired to resume possession
of the funds if he himself were to die. Duffy, In re, 127 App. Div.
74 [111 N. Y. S. 77], and the retention of the bank book was not in
any event conclusive, even if she may be said to have retained it
when she placed it in the box to which he had access as her
deputy.
After much deliberation, we have reached the conclusion that
even if the testimony does not show clearly and unequivocally
that the transfer was effective as a gift inter vivos, it was
nevertheless effective as a voluntary and irrevocable trust created
by Mrs. Boone for the use and benefit of plaintiff. The distinction
between such gift and trust may be said to be of a purely
technical nature. In the case of a gift, the legal title passes to and
vests in the donee; while in a trust, the equitable title vests in the
cestui que trust,1 while the naked legal title carrying with it the
control of the property, rests in the trustee, Bath Savings Inst. v.
Hathorn, supra. But though the distinction is technical, it is
nevertheless recognized by our Supreme Court in the case of
Flanders v. Blandy, supra, the court quoting (at pages 114–115)
with approval from the opinion of the Court of Errors and Appeals
of New York in the case of Young v. Young, 80 N.Y., 422, 430 [36
Am. Rep. 634], as follows:
“The transaction is sought to be sustained in two aspects,
first, as an actual executed gift, and secondly, as a
declaration of trust. These positions are antagonistic to
each other, for if a trust was created, the possession of the
bonds and the legal title thereto remained in the trustee. In
that case there was no delivery to the donee, and
consequently no valid executed gift, while if there was a
valid gift, the possession and legal title must have been
transferred to the donee, and no trust was created.”
The word “for” upon the deposit book and card is, in our
opinion, equivalent to “trustee for.” It unquestionably indicates a
fiduciary relationship between the parties or a representation of
one by the other. It also indicates beyond a doubt that Mrs. Boone
intended, by making the deposit, to renounce her previous

618
unqualified ownership of the money, and to retain the control in a
purely representative capacity only.
This view is in accordance with the equitable principle that no
particular form of words is necessary to create a trust.
“It is not essential that a trust should be labeled a trust to
make it such legally. The absence of that term is only a
circumstance, and often one of very little value and
influence. There is no stereotyped collection of words for
the edification of a trust. In equity there is no idolatry of
words. Rights are the principals, remedies the accessories;
the democracy of substance is preferred to the tyranny of
form; the thing stated is more important than the statement
of the thing.” Central Trust Co. v. Burke, 2 Dec. 96 (1 N. P.,
169.)
....
In Hallowell Sav. Inst. v. Titcomb, 96 Me. 62 [51 Atl. 638], it is
said:
“The creation of a trust is but a gift of an equitable interest.
An unequivocal declaration as effectually passes the
equitable title to the cestui que trust as delivery does the
legal title to the donee of a gift inter vivos. One may
constitute himself trustee by a mere declaration.”
....
We are of the opinion that the fund in this case should be
awarded to plaintiff, and a decree may be entered to that effect.
—————
Now that you have a conceptual understanding of a trust, and
of the requirements for creating a valid trust, it is time to put the
material under the microscope to gain a better appreciation of the
issues that can arise with respect to the creation of a trust.

619
 II. Trust Creation
A. Intent to Create a Trust
Inasmuch as the typical trust is a gratuitous trust, a trust is
nothing more than an alternative way of making a gift. Not
surprisingly, then, one needs to be careful to indicate whether
one's intent is to make an outright gift or a gift in trust. If one's
intent is unclear, it can lead to needless litigation.

In re Kearns' Estate
225 P.2d 218 (Cal. 1950)
GIBSON, C. J.
This appeal is taken by Marjorie Mallarino and Lois Graham
from an order of the probate court which instructed respondent
executrix with respect to the interpretation of the holographic will
of George A. Kearns, the material portions of which are as
follows:
“1-I hereby bequeath to my beloved and devoted fiance
Emma Traung Hammersmith of the City and County of San
Francisco, California, all my real and personal property and
belongings that I possess of are due me of whatsoever
nature.
“2-I hereby appoint my fiance Emma Traung Hammersmith
sole executor of my Estate and to perform such duties
without bond.
“3 I hereby bequeath to my brother, William L. Kearns
$1.00 also to my niece Mrs. Marjorie Mallarino $1.00 and
my niece Mrs. Lois Graham $1.00 and should any or either
of them contest this will it shall avail them nothing.
“4 I hereby direct my Executor, Emma Traung
Hammersmith to provide for my brother William L. Kearns,
during his life and I depend entirely on her judgment,
kindness, honesty and generosity to act as his provider in
illness and in health.

620
 “5-I hereby direct my Executor Emma Traung
Hammersmith to provide for my nieces Mrs. Marjorie
Mallarino and Mrs. Lois Graham as her judgment, kindness
and honesty sees fit to do, and likewise to provide for any
other kin or close friend which in her judgment warrants
same.”
At the hearing on the petition for instructions, after refusing to
admit extrinsic evidence on the ground that the will is not
ambiguous, the court instructed the executrix that clause 5 does
not create any interest in favor of appellants.
Appellants contend that the provisions of clause 5 are
mandatory rather than precatory and create a trust or equitable
charge for appellants' benefit. They also argue that the court
erred in refusing to admit extrinsic evidence to aid in construing
the will. Respondent contends that the will, without ambiguity,
shows a clear intent to make an absolute bequest to her and to
repose in her an uncontrolled discretion to use the property for
her own benefit or to assist others in accordance with the
testator's recommendations.
In order to warrant a holding that either a trust or equitable
charge was created it must appear that the testator intended to
impose mandatory duties upon respondent. It is obvious that
clause 1 of the will, standing alone, would operate to bequeath
the property to respondent absolutely. On the other hand clause 5
directs respondent to provide for appellants as she sees fit, and
the first question to be answered is whether the words used
therein limit the estate created in clause 1 and impose
enforceable duties on respondent, or whether they merely place
her under a moral obligation to provide for appellants.
The authorities all agree that where, as here, an absolute
estate has been conveyed in one clause of will, it will not be cut
down or limited by subsequent words except such as indicate as
clear an intention therefor as was shown by the words creating
the estate. Estate of Marti, 132 Cal. 666, 672, 61 P. 964, 64 P.
1071. This rule is codified in section 104 of the Probate Code,
which provides: “A clear and distinct devise or bequest cannot be
affected by any reasons assigned therefor, or by any other words
not equally clear and distinct, or by inference or argument from

621
other parts of the will, or by an inaccurate recital of or reference to
its contents in another part of the will.”
There can be no question that the intention expressed by the
testator in clause 5 is not on its face as clear and unequivocal as
that shown by the absolute bequest in clause 1. Clause 5
contains language having both mandatory and precatory
implications. The expression “I hereby direct” is ordinarily treated
as mandatory, but it must not be read out of context, and if it
appears from other provisions of a will that the testator intended
by the use of the phrase to express only a wish, desire, or
recommendation, those words will be treated as precatory rather
than mandatory.
In determining whether the intent was to impose a legally
enforceable duty or a mere moral obligation, the courts have
taken into consideration whether the direction or request is given
to an executor or legatee. Where the person addressed is the
executor even language which might otherwise be considered as
being merely precatory has been treated as being mandatory. On
the other hand, under certain circumstances the expression “I
direct” has been held to be merely precatory when addressed to a
legatee. Where the person directed to carry out the wishes of the
testator is both executor and legatee, the courts in construing the
effect of the language have refused to follow the strict rule which
imposes a mandatory duty on the executor and have apparently
treated the words as being addressed to him in his capacity as
legatee. In the present case, although clause 5 is directed to “my
executor Emma Traung Hammersmith,” she is both legatee and
executrix, and the term “executor” may not have been used in its
technical sense to designate the capacity in which she was to act
in exercising her discretion. Words must be construed in
conformity with the intention of the testator, and especially where,
as here, the will is not drawn by an attorney, that intention should
not be defeated by strict adherence to the technical sense of the
words used. If the words are repugnant to the clear intention
disclosed by the other parts of the instrument, they may be
regarded as surplusage or restricted in application.
The question is also presented whether, looking at the whole of
clause 5, any implication of a command arising from the opening
words is weakened by the remainder of the clause under which

622
respondent is to provide for appellants ‘as her judgment, kindness
and honesty sees fit to do.’ Respondent argues that the broad
discretion given to her in clause 5 is inconsistent with an intent to
create a trust or equitable charge and in support of her position
relies upon the early case of Lawrence v. Cooke, 1887, 104 N.Y.
632, 11 N.E. 144. In that case the testator gave the residue of his
estate to his daughter and in a separately numbered clause
stated: “I enjoin upon her to make such provision for (my)
grandchild out of my residuary estate now in her hands, in such
manner, at such times, and in such amounts as she may judge to
be expedient and conducive to the welfare of said grandchild, and
her own sense of justice and Christian duty shall dictate.” It was
held that no trust was created.
Appellant, on the other hand, relies on Colton v. Colton, 127
U.S. 300, 8 S.Ct. 1164, 32 L.Ed. 138, a diversity of citizenship
case arising in California, where it was held that a trust was
created although the legatee was given broad discretionary power
and the words addressed to her were less imperative than those
used in Lawrence v. Cooke, supra. In the Colton case a gift to the
wife of all of the testator's property was immediately followed by
the provision: “I recommend to her the care and protection of my
mother and sister, and request her to make such gift and
provision for them as in her judgment will be best.” The
interpretation of wills, of course, is not a question upon which the
federal courts control the state courts, and some California cases
have said that since the words addressed to the legatee in the
Colton will were only recommendatory in character, that decision
is out of harmony with the modern rule and does not represent
the view of the courts in this state.... The case has also been
distinguished upon the ground that, as stressed in the opinion,
the bequest there involved was immediately followed by the
words which were held to create a trust. Estate of Marti, 132 Cal.
666, 670–671, 61 P. 964, 64 P. 1071. An important factor,
however, which has apparently been overlooked in cases which
criticize the Colton decision, is that the court there had before it
extrinsic evidence of the circumstances under which the will was
made and relied upon such evidence in construing the instrument
and holding that a trust was intended.

623
 The cases sometimes reach contrary results in construing
similar language, and it is difficult, if not impossible, to harmonize
them, although they all agree that the primary object is to
ascertain and give effect to the intention of the testator. The
differences in result may in many instances be explained by the
particular circumstances surrounding the execution of the will.
It appears to be settled in California that if the intention of the
testator is to leave the whole subject as a matter of discretion to
the good will and pleasure of the legatee, and if his directions are
intended as mere moral suggestions to aid that discretion but not
absolutely to control or govern it, the language cannot be held to
create a trust.... The fact, however, that a legatee is given broad
discretionary powers will not defeat a trust if it is clear that one is
intended and the terms are sufficiently certain to permit their
enforcement. (See Estate of Davis, 13 Cal.App.2d 64 [56 P.2d
584]; 25 Cal.Jur. 319.)
It is apparent from the foregoing discussion that clause 5 of the
will is not on its face equally as clear as the provision in clause 1,
and accordingly, in view of section 104 of the Probate Code, it
cannot be said that a trust or equitable charge has been created
which would limit the absolute bequest to respondent unless the
intent of the testator to do so can be shown by extrinsic evidence.
Section 104 must be read with section 105 of the Probate Code
which provides that “when an uncertainty arises upon the face of
a will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking into
view the circumstances under which it was made, excluding ...
oral declarations” of the testator as to his intentions. As we have
seen there is an uncertainty upon the face of the will as to the
application of clause 5, which contains language having both
mandatory and precatory implications, and evidence of the
circumstances under which the will was made was therefore
admissible. In cases involving a similar problem it has been said
that the trier of fact may consider such matters as the size of the
estate, the property involved in the gift, the circumstances of the
parties, and their relation to each other and to the testator.
At the hearing on the petition for instructions the trial judge
stated that the will was not ambiguous and that he did not wish to
hear any extrinsic evidence. Accordingly, no witnesses were

624
called, but a statement was made of the proof which appellants
could produce if permitted to do so. Respondent asserts that
some of the evidence which appellants state they could produce
is not relevant and that some is incompetent under section 105 of
the Probate Code. We need not, however, discuss in detail the
different items of proof because it is apparent from the record that
respondent objected to the admission of any extrinsic evidence
and that it was the purpose of the court to exclude all such
evidence. Although the statement made by appellants did not
amount to a formal offer of proof, none was necessary since the
trial court had declared the will was unambiguous and had clearly
intimated that no extrinsic evidence would be received....
The order is reversed.
—————

Notes
1. Precatory language: One way to think about the law of gifts
is that at one end of the spectrum are outrights gifts, where the
donee has no legal duty to use the property in question for the
benefit of anyone else, and at the other end of the spectrum are
gifts in trust, where the trustee has a legal duty to use the
property in question for the benefit of a third party (the trust
beneficiaries). While proper drafting can easily distinguish
between the two, too often there is sloppy, precatory language
included, which muddies the waters. Precatory language is
language that expresses the wish or hope that the second party
should use the property for the benefit of a third party, but it is
unclear whether the language in question rises to the level of
imposing a legal duty on the second party to use the property in
question for the benefit of a third party—i.e., whether the
language in question expresses the intent to create a trust as
opposed to an outright gift.
2. Terminology versus intent: Where a grantor uses any of the
official terminology associated with a trust (i.e., “trust,” “trustee”),
the courts will almost always assume the settlor know what he or
she was doing and find an intent to create a trust. There are,
however, a handful of exceptions where the court has found no
trust even in the presence of trust terminology. See In re

625
Doescher's Estate, 217 Cal. App. 2d 104 (1963). The more
common terminology versus intent scenario, however, is where
the party fails to use any of the traditional trust terminology but
creates a scenario where a second party arguably is to hold the
property for the benefit of a third party (as was the case in
Kearns' Estate). Whether such language rises to the level of
adequately expressing the intent to create a trust is extremely fact
sensitive, and as the court's ruling in Kearns' Estate indicates, the
courts are not limited to the settlor's language in trying to resolve
the ambiguity.

Problems
1. Paragraph 5 of testator's valid will provides as follows:
I intentionally give all of my property and estate to my said
father, H.A. Bolinger, in the event that he shall survive me,
and in the event he shall not survive me, I intentionally give
all of my property and estate to my step-mother, Marian
Bolinger, in the event she shall survive me, and in that
event, I intentionally give nothing to my three children,
namely: Harry Albert Bolinger, IV, Wyetta Bolinger and
Travis Bolinger, or to any children of any child who shall not
survive me. I make this provision for the reason that I feel
confident that any property which either my father or my
step-mother, Marian Bolinger, receive from my estate will
be used in the best interests of my said children as my said
beneficiaries may determine in their exclusive discretion.
After testator's death, testator's children sued claiming
Paragraph 5 conveyed the testator's estate in trust for their
benefit. Does Paragraph 5 express the intent to create a trust?
See Matter of Estate of Bolinger, 943 P.2d 981 (Mont. 1997).
2. Alex Rugo started Rugo Construction Company. When he died,
he devised the company to his three sons as follows: Joseph
(40%), Guido (40%), and Leonard (20%). Joseph was the
President of Rugo Construction, Guido was the Treasurer, and
Leonard was the clerk. In 1929 the three brothers agreed to
establish a fund “to help out the company” with Guido in charge
of it.

626
 The court found that the brothers had agreed “the money in
the fund was to be kept in cash, and controlled and managed
by Guido; that ownership was to be 40 per cent each in Guido
and Joseph, and 20 per cent in Leonard; that from 1929 on,
the brothers made contributions to the fund, and loans were
made to the company, which gave notes payable to Guido,
that the money belonged to the brothers and not to the
company; that from 1929 until November 1, 1945, the total
contributions to the fund were $1,145,037, including the profit
from stock transactions; and that the fund was controlled,
managed, and held by Guido ... for the benefit of the three
brothers in the above percentages.”
This arrangement worked well, and the company did well, until
the early 1940s when the brothers began to feud. Their
disputes included the characterization of the fund of money
held by Guido. Joseph and Leonard argued the fund
constituted a trust for the benefit of the three brothers in
proportion to their ownership of the company. Guido argued
that it was a “wage fund” for the company, that it could not be a
trust because there was never any writing expressing an intent
to form a trust, nor did the brothers ever orally refer to it as
such, and that he was merely custodian of it.
Does Guido hold the fund as trustee of a trust? See Rugo v.
Rugo, 91 N.E.2d 826 (Mass. 1950).
3. Back in the 1930s and 1940s, it was a Polish tradition that
when the minor children began to work and earn money, they
would turn the money over to their mother, with such allowance
as she wished to give them for spending money—with the
understanding that upon marriage, the mother would gift some
or all of the money, as she deemed appropriate, back to the
child as a wedding gift.
Pelagia and Joseph Wojkowiak had eight children. As each of
the children began to earn money, starting at the age of 12 or
13, he or she turned the money made over to their mother.
When the first three of the children married, the Wojkowiaks
made substantial wedding gifts to each. With the fourth and
fifth children (Wallace and Genevieve), however, tensions
arose. The sometimes-violent parent-child arguments became
so bad that the two children moved out of the house.

627
 Subsequently, they sued Pelagia, claiming that when they
were 12 and 13, they had entered into an agreement with their
mother that if they obtained employment and turned their
earnings over to her, she would deduct $5.00 a week for room
and board and keep the remainder in trust for their benefit, to
be turned over after they reached the age of majority and
demanded said funds. Wallace claimed he had turned over
$25,000 to his mother over the years; Genevieve claimed she
had turned over $11,000. Pelagia denied any such agreement
and refused to turn over any money the children had
contributed to the family expenses.
Does Pelagia hold the funds transferred to her, in trust, for the
benefit of the respective children? See Wojtkowiak v.
Wojtkowiak, 85 N.Y.S.2d 198 (1947).

B. Trust Funding
Funding requires that the property interest in question be
transferred to the trust/trustee. Assuming a gratuitous trust,
funding means that the property is being gifted to the trust. Gifting
requires the property to be delivered. What constitutes delivery
depends on the type of property in question. Delivery is an
interesting mix of intent, act, and formalities.

1. Third Party as Trustee

Uber v. Hoffmann
No. D037208, 2002 WL 199735 (Cal. Ct. App. Feb. 8,
2002)
McCONNELL, J.
This trust proceeding arises from defendant Horst W.
Hoffmann's attempts to satisfy a judgment he obtained against
Lloyd D. Uber in an underlying action. Hoffmann appeals a
judgment for plaintiff Gordon T. Uber, trustee of the Alma
Goettsche Uber Trust (the trust), and an order denying his motion
for a new trial. Hoffmann contends the court erred by determining
the trust is valid, all real and personal property of the trustor was
transferred to the trust and Lloyd disclaimed his beneficial interest

628
in the assets of the trust. We agree that stock certificates not
endorsed by Alma, or by Lloyd as her attorney-in-fact during her
lifetime, were not properly transferred to the trust. We reverse the
judgment insofar as it concerns the stock certificates and affirm it
in all other respects. We affirm the order denying the motion for a
new trial.
FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 1986, Alma executed a revocable living trust
naming her sons, Gordon and Lloyd, as beneficiaries. The trust
stated that its assets included real properties on Sterne Street
and Tecumseh Way in San Diego County, as described in Exhibit
A, and “any other property, real, personal or mixed” that Alma
transferred to Lloyd as trustee. On Alma's death the trust assets
were to be distributed as follows: a diamond and gold ring to
Lloyd, the Tecumseh Way property to Gordon and the balance of
assets in equal shares to Gordon and Lloyd. On the same date,
Alma signed a will and a durable power of attorney designating
Lloyd as her attorney-in-fact to manage her real and personal
property.
On May 2, 1989, Lloyd was named conservator of Alma
because of her incompetency. On May 29, 1989, he signed a
document disclaiming “any interest” in the trust estate. On the
same date, he signed deeds as Alma's attorney-in-fact,
quitclaiming her interest in the Sterne Street and Tecumseh Way
properties to him as trustee. The deeds were recorded on June
21, 1989.
Alma died in May 1995. Her will was not filed and no probate
proceeding was commenced.
On July 2, 1996, Lloyd, as trustee, signed deeds quitclaiming
the Sterne Street and Tecumseh Way properties to Gordon. The
deeds were recorded on August 28, 1996.
In 1993 Hoffmann obtained a default judgment of $110,792.57
against Lloyd, a former attorney, in a malpractice action....
...
A trial was held in May 2000. Hoffmann's theory was that the
trust was invalid because it was not properly funded....

629
 The court determined the trust was valid, all of Alma's assets
were transferred to the trust and Lloyd effectively disclaimed his
interest in the trust. Judgment for Gordon was entered on
September 14, 2000....
...
Validity of Trust and Trust Res
A
“An express trust is generally created in one of two ways: (1) a
declaration of trust, by which the owner of property declares that
he [or she] holds it as trustee for some beneficiary; (2) a transfer
in trust, by which the owner transfers to another as trustee for
some beneficiary, either by deed or other transfer inter vivos, or
by will. [Citations.]” (11 Witkin, Summary of Cal. Law (9th ed.
1990) Trusts, §26, p. 911; Prob.Code, §15200.) The essential
elements of a trust are the “intention of the settlor to create a
trust, trust property, a lawful trust purpose, and an identifiable
beneficiary. [Citations.]” (Chang v. Redding Bank of Commerce
(1994) 29 Cal.App.4th 673, 684, 35 Cal.Rptr.2d 64; Prob.Code,
§§15201–15205.) The term “‘[p]roperty’ means anything that may
be the subject of ownership and includes both real and personal
property and any interest therein.”(Prob.Code, §62.)
When the trustee is a third party, rather than the settlor, as
here, property must be transferred to the trustee to be considered
trust property. (Osswald v. Anderson (1996) 49 Cal.App.4th 812,
820, 57 Cal.Rptr.2d 23.) “If a transfer to a trust is invalid, the legal
title to the property remains in the grantor.” (Ibid.) “[O]nly assets
that have been transferred to the trust during the settlors' lifetimes
will benefit from the advantages of a revocable trust, e.g., probate
avoidance.” (Cohan, Drafting California Revocable Living Trusts
(Cont.Ed.Bar 3d ed.1995), §21.2, p. 581.)
...
Lloyd testified that he prepared the trust and at the time of its
execution Alma intended to transfer “[e]verything that she had” to
it. Lloyd also testified that “[s]hortly after the formation of the
trust,” or at the latest within 60 days of its execution, he took
physical possession of Alma's diamond and gold ring, “household
contents and personal effects,” checking and savings accounts

630
and two stock certificates for 100 shares each of The Price
Company stock that Alma purchased in the mid-1980's. Lloyd
also said that within 30 days of the trust's execution he opened a
trust checking account. Further, he explained that immediately on
the trust's execution he began receiving, as trustee, rent from
Alma's properties. He used the funds to pay her health care and
other living expenses, and beginning in 1989 the expenses of a
series of in-house convalescent facilities. Lloyd had no written
records to support his testimony, but it was uncontradicted.
Personal property can ordinarily be transferred by delivery,
actual or constructive. (Wheelon v. Patco, Inc. (1968) 258
Cal.App.2d 71, 74, 65 Cal.Rptr. 533.) For instance, in Logan v.
Ryan (1924) 68 Cal.App. 448, 454, 456–457, 229 P. 993, the
court held that jewelry the settlor physically delivered to the
trustee became property of the trust. Moreover, “a trust may be a
valid instrument when funded by minimal sums (e.g., $100).”
(Cohan, Drafting California Revocable Living Trusts, supra, §21.2,
p. 581.)
... We conclude the trust was implemented by Alma's actual
delivery of her diamond and gold ring and other tangible personal
property to Lloyd as trustee.
B
Hoffmann contends the two certificates for The Price Company
stock, which remained in Alma's name at her death, were not
properly transferred to the trust and are thus not assets of the
trust. He relies on California Uniform Commercial Code sections
8401 through 8407, which govern the transfer and registration of
securities held in certificate form. (Cohan, Drafting California
Revocable Living Trusts, supra, §21.18, p. 609.) Section 8401
provides in part: “(a) If a certificated security in registered form is
presented to an issuer with a request to register [a] transfer..., the
issuer shall register the transfer as requested if the following
conditions are met. [¶] ... [¶] (2) The endorsement ... is made by
the appropriate person or by an agent who has actual authority to
act on behalf of the appropriate person.”(Italics added.) Stock
certificates may also be transferred by an assignment separate
from the certificate. (Ibid; §8402, subd. (a)(1); Martinez v.

631
Dempsey-Tegeler & Co., Inc. (1974) 37 Cal.App.3d 509, 511, 112
Cal.Rptr. 414.)
An “appropriate person” for endorsing a stock certificate is
defined in section 8107. “The person's status as to
appropriateness is determined as of the date the endorsement is
made.” (2 California Decedent Estate Practice (Cont.Ed.Bar
2001) §21.5, p. 21-5; §8107, subd. (e).) “For purposes of
transferring securities after a death, the personal representative
of the decedent or the decedent's successor taking under other
law (e.g., surviving joint tenant) or an authorized agent of either is
an appropriate person to endorse a security.” (2 California
Decedent Estate Practice, supra, §21.5, p. 21-5; §8107, subd. (a)
(4).) “If securities are registered in the name of an individual and
the individual dies, the law of decedent's estates determines who
has the power to transfer the decedent's securities. That would
ordinarily be the executor or administrator.” (Ca. U. Com.Code
com., 23C West's Ann. Ca. U. Com.Code (2002 supp.) foll.
§8107, p. 21.)
The trial court found the stock certificates were effectively
transferred to the trust by mere physical delivery, because Lloyd
had a durable power of attorney authorizing him to “buy, sell,
endorse, transfer, hypothecate, and borrow against any shares of
stock, bonds, or other securities defined as such under California
law.” We agree that Alma's intent to include the stock certificates
in the trust is evidenced by their physical delivery to Lloyd in
conjunction with the durable power of attorney. However, that
does not resolve the issue of whether the stock certificates were
properly transferred to the trust. As Gordon concedes, Lloyd's
authority as attorney-in-fact terminated on Alma's death.
(Prob.Code, §4152, subd. (a)(4).)
In his respondent's brief, Gordon cites no authority for the
proposition that stock certificates can be effectively transferred to
a trust absent compliance with the California Uniform Commercial
Code....
We decline to accept Gordon's unsupported position that
compliance with the formalities of the California Uniform
Commercial Code is not required to transfer stock certificates to a
trust. We conclude that because no endorsement of the

632
certificates was made during Alma's lifetime, the purported
transfer to the trust was ineffective.
C
We reject Hoffmann's contention that the transfer of the Sterne
Street and Tecumseh Way properties to the trust was ineffective
because Lloyd did not execute quit claim deeds until after Alma
was declared incompetent and placed under a conservatorship....
Under Probate Code section 15206, the applicable statute of
frauds, “[a] trust in relation to real property is not valid unless
evidenced by one of the following methods: [¶] (a) By a written
instrument signed by the trustee, or by the trustee's agent if
authorized in writing to do so. [¶] (b) By a written instrument
conveying the trust property signed by the settlor, or the settlor's
agent if authorized in writing to do so.” Exhibit A to the trust
expressly described the Sterne Street and Tecumseh Way
properties, and Lloyd, as Alma's attorney-in-fact, quitclaimed her
interest in the properties to himself as trustee. “All acts done by
an attorney-in-fact pursuant to a durable power of attorney during
any period of incapacity of the principal have the same effect ...
as if the principal had capacity.” (Prob.Code, §4125.) Accordingly,
an inter vivos transfer of the real properties to the trust was
accomplished. (See Reagh v. Kelley (1970) 10 Cal.App.3d 1082,
1094, 89 Cal.Rptr. 425.)
...
DISPOSITION
The judgment is reversed insofar as it determines the two stock
certificates for The Price Company stock are assets of the trust.
In all other respects, the judgment is affirmed....
—————

Note
Adequate property interest: The general rule is that a trust is
not created until it is funded (i.e., until some property has been
transferred to the trust/trustee). Virtually any property interest will
qualify as an adequate property interest. As the court noted in
Uber, “[t]he term ‘[p]roperty’ means anything that may be the

633
subject of ownership and includes both real and personal property
and any interest therein.” (Prob. Code §62.) Virtually anything you
can think of when you think of property qualifies as an adequate
property interest such that if transferred to a trustee, it would fund
the trust. The courts, however, have recognized two types of
interests that are not property interests for purposes of funding a
trust: (1) an expectancy, and (2) future profits. See Brainard v.
Comm'r of Internal Revenue, 91 F.2d 880 (7th Cir. 1937) (holding
that future profits did not constitute an adequate property interest
for purposes of a gift in trust). But see In re Pascal's Will, 182
N.Y.S.2d 927 (1959) (holding that future profits constituted an
adequate property interest for purposes of an outright gift).

2. Settlor as Trustee
Where the settlor and the trustee are two different people, what
constitutes delivery is analogous to what constitutes delivery for
purposes of an outright gift. Moreover, it is fairly easy to visualize
what constitutes delivery where the two parties are different:
either the item itself or something that legally qualifies as the item
(symbolic or constructive delivery) must pass from one party to
the other.
Where the settlor and the trustee are the same person,
however, what constitutes delivery becomes a much more difficult
issue. Does it make sense to require someone to transfer
something from himself or herself to himself or herself? What
constitutes a “transfer” where the same party is on both sides of
the transfer? Should the party have to use a “straw party” to fulfill
the transfer/delivery requirement? What if the person throws it up
in the air and catches it? Has the item been “delivered”?
The courts have struggled with the issue over time. The
following case is the seminal California decision on funding an
inter vivos trust, and it is fairly representative of the modern trend
approach (so should you expect more of a focus on formalities or
intent?).

Estate of Heggstad
16 Cal. App. 4th 943 (1993)

634
PHELAN, Associate Justice.
...
On May 10, 1989, decedent Halvard L. Heggstad ... executed a
valid revocable living trust, naming himself as the trustee and his
son Glen, the successor trustee (hereafter the Heggstad Family
Trust). All the trust property was identified in a document titled
schedule A, which was attached to the trust document. The
property at issue was listed as item No. 5 on schedule A, and was
mislabeled as “Partnership interest in 100 Independence Drive,
Menlo Park, California.”
... This property remained in decedent's name, as an unmarried
man, and there was no grant deed reconveying this property to
himself as trustee of the revocable living trust. Both sides agree
that decedent had formally transferred by separate deeds, all the
other real property listed in Schedule A to himself as trustee of
the Heggstad Family Trust.
About one month after executing these documents, the
decedent married appellant Nancy Rhodes Heggstad. She was
not provided for in either the will or the trust documents, and all
parties agree that she is entitled to one-third of the decedent's
estate (her intestate share) as an omitted spouse pursuant to
Probate Code section 6560. She takes nothing under the terms of
the trust and makes no claim thereto.
Decedent died on October 20, 1990, and his son was duly
appointed executor of his estate and became successor trustee
under the terms of the Heggstad Family Trust....
During the probate of the will, Glen, the successor trustee,
petitioned the court for instructions regarding the disposition of
the 100 Independence Drive property. The trustee claimed that
the trust language was sufficient to create a trust in the subject
property and that the property was not part of his father's estate.
In pertinent part, article 1 of the trust provided: “HALVARD L.
HEGGSTAD, called the settlor or the trustee, depending on the
context, declares that he has set aside and transfers to HALVARD
L. HEGGSTAD in trust, as trustee, the property described in
schedule A attached to this instrument.”

635
 ...
To create an express trust there must be a competent trustor,
trust intent, trust property, trust purpose, and a beneficiary.
(Prob.Code, §§15201–15205; Walton v. City of Red Bluff (1991) 2
Cal.App.4th 117, 124, 3 Cal.Rptr.2d 275.) The settlor can
manifest his intention to create a trust in his property either by: (a)
declaring himself trustee of the property or (b) by transferring the
property to another as trustee for some other person, by deed or
other inter vivos transfer or by will. (11 Witkin, Summary Cal. Law
(9th ed. 1990) Trusts, §26, p. 911; see also Getty v. Getty (1972)
28 Cal.App.3d 996, 1003, 105 Cal.Rptr. 259 [“An inter vivos trust
can be created either by agreement or by a unilateral declaration
of the person who assumes to act as trustee.” (Emphasis in
original.) ].)
These two methods for creating a trust are codified in Probate
Code section 15200: “(a) A declaration by the owner of property
that the owner holds the property as trustee,” and “(b) A transfer
of property by the owner during the owner's lifetime to another
person as trustee.” (§15200; see also Rest.2nd Trusts, §17.)
Where the trust property is real estate, the statute of frauds
requires that the declaration of trust must be in writing signed by
the trustee. (§15206; accord Rest.2d, Trusts, §40, com. b, at p.
105.) Here, the written document declaring a trust in the property
described in Schedule A was signed by the decedent at the time
he made the declaration and constitutes a proper manifestation of
his intent to create a trust. Contrary to appellant's assertion, there
is no requirement that the settlor/trustee execute a separate
writing conveying the property to the trust. A review of pertinent
sections of the Restatement Second of Trusts, illustrates our
point. This consideration is particularly appropriate, since the Law
Revision Commission Comment to section 15200 indicates: “This
section is drawn from section 17 of the Restatement (Second) of
Trusts (1957).” (Deering's 1991 Probate Code Special Pamphlet,
p. 963.)
Section 17 of the Restatement provides that a trust may be
created by “(a) a declaration by the owner of property that he
holds it as trustee for another person; or [¶] (b) a transfer inter
vivos by the owner of property to another person as trustee for

636
the transferor or for a third person....” The comment to clause (a)
states: “If the owner of property declares himself trustee of the
property, a trust may be created without a transfer of title to the
property.” (Ibid.)
Illustration “1” of that same section is instructive. It reads: “A,
the owner of a bond, declares himself trustee of the bond for
designated beneficiaries. A is the trustee of the bond for the
beneficiaries. [¶] So also, the owner of property can create a trust
by executing an instrument conveying the property to himself as
trustee. In such a case there is not in fact a transfer of legal title to
the property, since he already has legal title to it, but the
instrument is as effective as if he had simply declared himself
trustee.” (Emphasis added.)
Section 28 of the Restatement announces the rule that no
consideration is necessary to create a trust by declaration. This
rule applies both to personal and real property, and it also
supports our conclusion that a declaration of trust does not
require a grant deed transfer of real property to the trust.
Illustration “6” provides: “A, the owner of Blackacre, in an
instrument signed by him, gratuitously and without a recital of
consideration declares that he holds Blackacre in trust for B and
his heirs. B is not related to A by blood or marriage. A is trustee of
Blackacre for B.”
More directly, comment m to section 32 (Conveyance Inter
vivos in Trust for a Third Person) provides in pertinent part:
“Declaration of trust. If the owner of property declares himself
trustee of the property a transfer of the property is neither
necessary nor appropriate....” (Second emphasis added.)
Additionally, comment b to section 40 (statute of frauds)
establishes that a written declaration of trust, by itself, is sufficient
to create a trust in the property. Comment b states: “Methods of
creation of trust. The Statute of Frauds is applicable whether a
trust of an interest in land is created by the owner's declaring
himself trustee, or by a transfer by him to another in trust.”
(Second emphasis added.)
Finally, Bogert, in his treatise on trusts and trustees observes:
“Declaration of Trust [¶] It is sometimes stated that the transfer by
the settlor of a legal title to the trustee is an essential to the

637
creation of an express trust. The statement is inaccurate in one
respect. Obviously, if the trust is to be created by declaration
there is no real transfer of any property interest to a trustee. The
settlor holds a property interest before the trust declaration, and
after the declaration he holds a bare legal interest in the same
property interest with the equitable or beneficial interest in the
beneficiary. No new property interest has passed to the trustee.
The settlor has merely remained the owner of part of what he
formerly owned.” (Bogert, Trusts and Trustees (2d ed. rev. 1977)
§141, pp. 2–3, fn. omitted.)
These authorities provide abundant support for our conclusion
that a written declaration of trust by the owner of real property, in
which he names himself trustee, is sufficient to create a trust in
that property, and that the law does not require a separate deed
transferring the property to the trust.
...
The probate court's order declaring that the property identified
as “100 Independence Way, Menlo Park, San Mateo County,” is
included in the living trust is affirmed.
—————

Notes
1. Real property formalities: Although the court in Heggstad
facilitated the funding of self-settled trusts, there are still some
formalities with which the settlor should comply. In Garatie-
Symons v. Levenson, No. B203156, 2009 WL 258102 (Cal. Ct.
App. Aug. 24, 2009), the decedent hired an attorney to prepare
an inter vivos trust, a will with a pour-over clause leaving the
probate property to the trust, and a general assignment
instrument assigning all of his property to the trust. His property
included two pieces of real property he inherited when his mother
died: the Canoga Park parcel and the California City parcel. The
decedent signed the declaration of trust and the assignment but
not the will.
Following his death, the decedent's widow filed a “Heggstad
petition” to confirm that the two parcels of real property were part
of the trust res based on the general assignment. The court,

638
however, distinguished Heggstad, noting that in the case at bar,
there was no asset schedule describing the Canoga Park and
California City properties as part of the trust. The declaration of
trust simply recited that it was being funded with $100 and left
open additional funding by will or other instrument of transfer.
While the general assignment constituted an instrument of
transfer, it simply recited that it was assigning the husband's
“property.” No attempt was made to describe the property being
transferred. Both the trial court and the court of appeals ruled that
notwithstanding Heggstad, “the statute of frauds ... requires that
an express trust of real property not only be in writing but
describe the real property so that it can be identified with
reasonable certainty.”
While the opinion is unpublished, both the trial court and the
court of appeal agreed that even where the settlor is the trustee,
for real property to be transferred to the trust, either the
declaration of trust or the general assignment must include a
reasonable description of the real property the settlor intends to
transfer to the trust. A generic reference to the settlor's property in
a general assignment is not good enough. Moreover, the court
declined to be swayed by appeals to the decedent's clear intent to
include the parcels as evidenced by his overall testamentary
intent. The court also rejected his widow's argument that parol
evidence should be admissible to provide the missing description.
2. Asset-specific formalities: Using a general blanket
assignment to transfer assets to an inter vivos trust can be risky.
In In re Brown, No. O.C.NO.1435 IV, 2005 WL 3753142 (Pa.
Com. Pl. Dec. 29, 2005), the decedent executed a blanket
assignment that purported to transfer all of her extensive property
holdings to her inter vivos trust: (1) tangible personal property
(including the furnishings in her house and two cars); (2)
intangible personal property (four bank accounts); (3) two real
estate parcels; and (4) several nonprobate assets (three life
insurance policies and three retirement accounts). After her
death, her children (parties of interest under her estate) conceded
that the blanket assignment validly transferred the decedent's
household furnishings, but challenged the validity of all the other
purported transfers.

639
 The court ruled that the blanket assignment was valid with
respect to the cars only if the certificate of title to each car was in
her name alone (the state of the titles with respect to the cars was
unclear). As to the bank accounts, those that were in joint names
with her children were presumed to be joint accounts with right of
survivorship and the general assignment was not deemed to
overcome that presumption as neither the decedent nor the
trustee made any attempt to change the joint accounts while she
was still alive. As to the other accounts in her name alone, each
banking institution had procedures that governed how accounts
were to be changed. Inasmuch as neither the decedent nor the
trustee made any attempt to change the accounts inter vivos in
accordance with the bank's procedures, the court ruled the
blanket assignment did not deliver the accounts in question to the
trust inter vivos. As to her real property, the court ruled that the
blanket assignment's express reference to “all of her right, title
and interest in and to assets of every kind, including but not
limited to real property....” was a sufficient description to constitute
delivery of the real property she owned to the trust. With respect
to the life insurance policies, again there was no evidence that
either the decedent or the trustee made any attempt to contact
the insurance companies inter vivos to initiate the process of
executing the necessary change of beneficiary forms. The
decedent's retirement accounts had similar provisions requiring
change of beneficiary forms to be delivered to the company
before any change of beneficiary would be valid, and again, the
decedent's and the trustee's failure to even attempt to comply
with the applicable change of beneficiary procedures inter vivos
meant the assets had not been delivered inter vivos to the trust.
In Kucher v. Kucher, 192 Cal. App. 4th 90 (2011), the California
Court of Appeal had an opportunity to analyze whether a general
assignment should be deemed effective to transfer the settlor's
real property and stock holdings. As to the real property, the court
ruled: “The General Assignment was ineffective to transfer the
Trustor's real property to the Trust. To satisfy the statute of frauds,
the General Assignment was required to describe the real
property so that it could be identified.” Id. at 691–92. As to the
stock, the court ruled: “The statute of frauds does not apply to
such a transfer. (Civ.Code, §1624.) There is no California
authority invalidating a transfer of shares of stock to a trust

640
because a general assignment of personal property did not
identify the shares. Nor should there be.” Id. at 692. But see
Ukkestad v. RBS Asset Finance, Inc., 235 Cal. App. 4th 156
(2015) (holding the express language in a revocation trust that the
settlor was conveying “all his real and personal property” to
himself, as trustee, notwithstanding the absence of any additional
description of the two parcels of real estate which settlor owned
and the absence of any separate writing conveying the parcels to
the trust).

Problems
1. Mabee owns two parcels of real estate: (1) 1025 East Bobier
Drive, in Vista, California; and (2) 80501 Avenue 48, Space
114, in Indio, California. Mabee validly executes in writing an
inter vivos trust instrument that appoints him trustee and that
declares that he transfers “all his personal and real property” to
the trust. The trust otherwise makes no express reference to
either parcel of real property nor does he execute any other
instrument that purports to transfer either parcel to the trust.
Has Mabee's personal property been properly transferred to the
trust? Have the parcels of real estate been validly transferred to
the trust? See Ukkestad v. RBS Asset Finance, Inc., 235 Cal.
App. 4th 156 (2015); Kucher v. Kucher, 192 Cal. App. 4th 90
(2011).
2. Gala Gerber validly executed a trust that appointed her son,
Forest, trustee. Paragraphs II and V of the trust provide as
follows:
“II. FUNDING OF TRUST. This Trust shall be funded with
assets transferred to this Trust by the Grantor at the time
of creating this Trust, or at any later time....
“V. DEATH OF THE GRANTOR. Upon the death of the
Grantor, and after the payment of the Grantor's just debts,
funeral expenses, and expenses of last illness, the
following distributions shall be made: [¶] A. Specific
Distributions. The following specific distributions shall be
made from the assets of the Trust. [¶] 1. 4535 Bellflower
Boulevard, Long Beach, CA. 90808. Tract Number, 19989
Lot Number 6 shall be distributed to Forest Randal Gerber
and Thelma Sue Tutorow (nee Gerber)....”

641
 The trust makes no other reference to the real property.
Thereafter Gala executed a deed that purported to transfer the
Long Beach real property to her friend, Daisy. Thereafter Gala
died testate, with a will devising all her property to the trustee
of her trust, to hold and distribute pursuant to the terms of her
trust.
Has the Long Beach real property been properly transferred to
the trust? See Tutorow v. Gerber, No. B155752, 2002 WL
984777 (Cal. Ct. App. 2002).

C. Ascertainable Beneficiaries
It is often said that a trust is a bifurcated gift: legal title is
transferred to the trustee, and the equitable interest is transferred
to the beneficiaries. While at first blush that wording implies that
some thing should be delivered to the beneficiaries to constitute
symbolic or constructive delivery of their equitable interest,
nothing could be further from the truth. Instead, the common law
courts decided that so long as it could identify to whom the
equitable interests had been transferred, that was sufficient.
No separate delivery of anything is needed; all that is needed is
that the beneficiaries be ascertainable. That obviously begs the
question: what constitutes ascertainable?

1. “Ascertainable”
Armington v. Meyer
236 A.2d 450 (R.I. 1967)
PAOLINO, Justice.
...
I. Pertinent Provisions of the Will
Simon W. Wardwell, hereinafter referred to as the “testator,”
died in Providence on February 19, 1921.... Under the Tenth
paragraph of his will he left his entire estate to four persons
named therein as trustees under the trust established therein for

642
the benefit of certain persons or classes of persons, during their
respective lives....
The testator provided for the distribution of up to $50,000 of the
annual net income from the trust estate in specified amounts
among (1) his wife and after her death to one of her brothers and
three daughters of another brother; (2) testator's sisters and
brother and after their respective deaths to their daughters and
granddaughters; and (3) his trustees. Paragraph Tenth disposes
of annual net income in excess of $50,000 according to the
following provision:
“That all net income in excess of fifty thousand dollars
($50,000.00) be administered in trust and distributed by my
trustee (sic) aforesaid at their discretion and will for the
benefit of all aforesaid persons and for any and all men and
women among my employees and acquaintances known to
my said trustees to have been loyal to me and my
inventions during the hard, up-hill struggle to establish my
Wardwell Braiding Machine business.”
...
V. The Questions
...
We consider next the question whether the provision in clause
Tenth providing for the distribution of income among the
“employees and acquaintances” of the testator is void for
indefiniteness and uncertainty. It appears from an affidavit
executed on July 27, 1966, by Arthur A. Armington, the sole
surviving original trustee, that he knew of only two former
employees who were living in 1965 who were loyal to the testator
and his inventions during the period in question, namely, Louis
Shulver and Lucien Jules Geoffroy. The pertinent language of the
clause in question reads as follows:
“That all net income in excess of fifty thousand dollars
($50,000.00) be administered in trust and distributed by my
trustee (sic) aforesaid at their discretion and will * * * for
any and all men and women among my employees and
acquaintances known to my said trustees to have been
loyal to me and my inventions during the hard, up-hill

643
 struggle to establish my Wardwell Braiding Machine
business.”
The general rule is that in order to create a valid private trust,
the instrument must set forth the person or class of persons who
will be the beneficiaries thereunder, and in the absence of a
definite and ascertainable beneficiary or class of beneficiaries,
adequately described, the trust will be void for uncertainty. Bogert,
Trusts (2d ed.), §§161, 162; 2 Scott, Trusts (2d ed.), §§112, 120,
122; 1 Restatement, Trusts 2d, §§112, 120, 122. See also Gunn
v. Wagner, 242 Iowa 1001, 48 N.W.2d 292.
Employees and acquaintances known by the testator's trustees
to have been loyal to him and his inventions do not constitute a
definite and ascertainable class of beneficiaries capable of taking
under the trust. ‘Loyal’ is a word of broad application. We have no
way of determining what the testator meant when he used this
word.
We conclude, therefore, that a sufficient criterion has not been
furnished to the trustees or the court to govern the selection of
individuals from amongst the testator's employees and
acquaintances. See Clark v. Campbell, 82 N.H. 281, 133 A. 166,
45 A.L.R. 1433. In that case a gift by the testator to his trustees to
be disposed of among “such of my friends as they * * * shall
select” was declared void for this very reason. See also Murdock
v. Bridges, 91 Me. 124, 39 A. 475, where the court refused to
enforce a provision in a will which directed the testator's trustee to
distribute his property to those people the trustee felt cared for the
testator. Compare Early v. Arnold, 119 Va. 500, 89 S.E. 900. It
follows that an attempted gift to employees and acquaintances
under the clause in question is void for vagueness and
indefiniteness.
...
—————

Notes
1. General rule: The Court in Armington correctly states the
general rule: for an express private trust there must be definite
and ascertainable beneficiaries. As a practical matter that means

644
the trust must either name the beneficiaries or contain a formula
or class description that permits them to be objectively
ascertainable (“made capable of identification by the terms of the
instrument creating the trust”). Young v. Redmon's Trustee, 300
Ky. 418, 421 (1945). As the court in Meyer states, gifts to “my
employees and acquaintances known to my said trustees to have
been loyal to me” and gifts to “my friends” are too subjective—
they are not capable of identification from the terms of the
instrument. What about gifts to “my heirs” or “my relatives”?
2. Exceptions: Despite the apparent absolute wording of the
requirement, the courts have created exceptions to it. The first is
for unborn children (or grandchildren). A settlor may create an
inter vivos trust for his or her unborn children; a testator's will may
create a testamentary trust for unborn grandchildren. As long as it
is possible that a qualifying beneficiary may be born, the trust is
valid and the courts will uphold the trust (for as long as permitted
under the rule against perpetuities or until it is clear the possibility
cannot materialize). If a qualifying beneficiary is not born, the
courts will impose a resulting trust and order the property
distributed back to the settlor's estate. A “not-yet-created”
corporation is analogous to an unborn child in that a trust created
for it would be upheld for a period of time as permitted under the
rule against perpetuities. See RESTATEMENT (THIRD) OF TRUSTS §44
(comment c) (2003).

Problems
1. Settlor executed a valid will that contains a testamentary trust.
The dispositive provision of the trust provided as follows:
I direct my Trustee to distribute all of my estate according
to my instructions which I may give to him from time to
time in my own handwriting or otherwise, but nonetheless
signed or initialed by me. In the event, by whatever
circumstance, I fail to leave such instructions to my
Trustee, then I direct my Trustee to distribute my estate
according to his discretion, bearing in mind the many
conversations we have had together in which I have
named those who are the objects of my generosity.

645
 Assuming settlor gives the trustee no further instructions, are
the beneficiaries ascertainable? See In re Estate of Boyer, 868
P.2d 1299 (N.M. Ct. App. 1994).
2. Settlor executed an inter vivos trust. The dispositive provision
of the trust provided as follows:
A. During the lifetime of the Grantor, the Trustee shall
manage the trust property and shall make distributions of
income and principal in accord with the provisions of this
Trust for the benefit of the Grantor. After Grantor's death,
the Trustee shall manage the trust property and shall
make distributions of income and principal in accord with
the provisions of this Trust for the benefit of Grantor's
children and the natural born children of Grantor's
children, and others as the Trustee in his discretion may
deem appropriate.
Following the settlor's death, the takers under the residuary
clause in settlor's will challenged the validity of the trust on the
grounds that the trust beneficiaries are not ascertainable. Are
they? See Kunce v. Robinson, 469 So. 2d 874 (Fla. Dist. Ct.
App. 1985).

2. Honorary Trusts—Noncharitable Purpose

Trusts
In re Voorhis' Estate
27 N.Y.S.2d 818 (1941)
DELEHANTY, Surrogate.
Deceased died in 1922 leaving a will which named Arthur J.
Martin as executor and trustee. Mr. Martin died in November,
1924. Thereafter Samuel W. Maguire was appointed successor
trustee. By separate order he was appointed to administer the
trust created by the twenty-fourth paragraph of deceased's will.
The text of this paragraph and that of the twenty-fifth paragraph,
which is pertinent thereto, follows:
“Twenty-fourth: I give and bequeath to my said trustee the
sum of Ten thousand Dollars, to be used by him to place a

646
 memorial window, or some other memorials, to cost any
sum in his discretion up to the sum of One thousand
Dollars, in Christ Church Cathedral, at St. Louis, Mo., and
to place monuments and markers in my family subdivision
of the Clark and Glasgow plot in the Bellefontaine
Cemetery, at St. Louis, Mo.
“Twenty-fifth: I give and bequeath to Bellefontaine
Cemetery Association of St. Louis, the sum of Four
thousand Dollars, in trust, for the perpetual endowment
care and maintenance of my family subdivision of the Clark
and Glasgow plot in the Bellefontaine Cemetery, at St.
Louis, Mo., according to the rules and regulations of said
Association. Such interest as may be allowed on said
bequest shall be applied to the care, maintenance,
improvement and embellishment of my said plot and for the
preservation, repair, restoration, or replacement of any
monumental or other stone work on my said plot, should
the occasion therefor arise.”
... In the Bellefontaine Cemetery in St. Louis, Mo., the family of
which deceased was a member owns a circular plot 92 feet in
diameter. Its area is stated to be 6,647 square feet. Twenty-nine
persons are there interred. In the plot are eighteen granite
monuments and markers many of which are of substantial
dimensions. The main and most imposing monument
memorializes General William Clark of Lewis and Clark
Expedition fame. Julia C. Voorhis was a granddaughter of
General Clark. General Clark died in 1838 and the monument to
his memory was unveiled in 1904. Its reproduction cost is
$60,000. This monument is exposed to possible damage or
destruction by smoke, falling trees and high winds. To provide
against these and other contingencies Mr. Maguire from and after
December, 1926, procured insurance on which to the date of the
present account premiums aggregating $619.50 were paid. It is
stipulated that neither the cemetery association nor the fund in
the hands of Mr. Maguire under paragraph twenty-fourth of the
will could replace the William Clark monument in the event of its
destruction. It is also stipulated that since deceased's burial in
1922 one other member of the family has been interred in the

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family plot and that other members of the family may be buried
there in the future.
...
In the absence of statute a bequest or devise to a trustee for
erection of monuments and markers on private burial grounds is
an anomalous gift. As a private trust it is defective because it has
no specified beneficiary. As a public or charitable trust it is
defective because it lacks even unascertained beneficiaries and
is not for public purposes. Such a gift is analogous to the bequest
considered in the leading case of Morice v. Bishop of Durham, 9
Ves.Jr. 399, 32 English Reprint 656, affirmed 10 Ves.Jr. 522, 32
English Reprint 947, where a gift was made to the Bishop
accompanied by a direction that it should be applied to such
objects of ‘benevolence and liberality’ as might be selected by
him in his absolute discretion. Sir William Grant and Lord Eldon
agreed that this gift produced a resulting trust with beneficial
ownership in the cestuis thereof in no way limited by the power of
disbursement which deceased purported to give to the Bishop.
The circumstances that the Bishop was willing to carry out the
intention of the deceased was deemed immaterial. Since there
was no way of enforcing the Bishop's obligation (his duty resting
on his honor rather than on someone's rights) the courts held that
the testamentary scheme must fail.
Trust gifts wholly lacking in beneficiaries are treated by the law
writers as honorary or incomplete trusts. Prof. Scott and Dean
Ames are sharply critical of the doctrine of Morice v. Bishop of
Durham in itself and as extended to gifts in trust to erect
monuments and markers while Gray and Prof. Bogert are equally
emphatic in supporting it (Scott: Control of Property by the Dead,
65 Pa.Law Rev. 527, 537, 538; 1 Scott on Trusts, section 124.2;
Ames: The Failure of the Tilden Trust, 5 H.L.R. 389; Gray: Gifts
for a Non-Charitable Purpose, 15 H.L.R. 510; 1 Bogert on Trusts
and Trustees, sections 164–166). The actual point of
disagreement between these scholars does not relate to whether
a resulting trust is created by such gifts. The question they debate
is whether the trustee of the resulting trust which is assumed to
arise can divest the cestui of his interest in whole or in part by
undertaking freely to discharge the honorary obligations of the
trust. In this connection it is Scott's opinion that ‘there is nothing

648
illogical in allowing him to perform, although he cannot be
compelled to do so; there is nothing unreasonable in holding that
there is not an immediate and unconditional resulting trust for the
next of kin (or residuary legatees), but that there is a resulting
trust for them subject to a condition precedent of the failure of the
(legatee) to perform’. 65 Pa.Law Rev. 527, 538. This seems to be
a valid comment on the principle involved (Cf. Honorary Trusts
and The Rule against Perpetuities, 30 Col.L.R. 60, 69) if the
comment is understood to concede the immediate vesting of
rights in the cestuis subject to defeat if the trustee acts within his
powers.
...
—————

Notes
1. Cemeteries: Cemeteries are not only where we take our
loved ones to rest after their lives have come to an end,
cemeteries also tell the history and stories of the people who lived
in that village, town, or city. Typically the size of the monument or
marker of an individual or family burial plot provides the threshold
information about the status of that individual or family and/or how
important they were in their day. Only with the passing of time,
however, can we determine whose lives truly left the greatest
mark on history.
St. Louis, Missouri has two cemeteries in particular that tell the
story of this fine city: Bellefontaine and Calvary. Bellefontaine is a
non-profit, non-denominational cemetery, while Calvary is a
Catholic cemetery run by the St. Louis Archdiocese. Both of these
cemeteries were designed in the mid-1800s to meet the needs of
a rapidly growing St. Louis population. Bellefontaine Cemetery
was designed in 1849 and modeled after Pere Lachaise
Cemetery in Paris. General William Clark, of the Lewis and Clark
expedition, is buried in this cemetery, and a 35 feet high granite
obelisk marks his grave. Perhaps the most notable St. Louis
family buried here is the Busch family from the famous Anheuser-
Busch brewery. Attached to the wrought iron front gate of the
Busch Mausoleum are, interesting enough, beer bottle caps.

649
 The slightly larger Calvary Cemetery is located right across the
road from Bellefontaine Cemetery. While Calvary does not claim
as many financially prominent residents as Bellefontaine, it does
hold the remains of several St. Louisans who have left an
indelible mark on U.S. history and the literary world. Dred Scott,
who unsuccessfully sued for his and his family's freedom from
slavery in the now famous Dred Scott Decision, was put to final
rest in Calvary even though he was not Catholic. Scott passed
away shortly after he was freed by his owner in 1857 and was
buried in Calvary because it permitted the burial of non-Catholic
slaves by their Catholic owners. Visitors to his gravesite often
place Lincoln pennies on top of his tombstone for good luck.
Calvary is also home to playwright Tennessee Williams and short
story writer and novelist Kate Chopin, arguably America's first
feminist author.
2. Failed trust for lack of ascertainable beneficiary: At first
blush, the court's comment that as “a private trust it is defective
because it has no specified beneficiary” might seem strange in
that the trust clearly has a beneficiary: the family burial site. Why
should that not qualify as a beneficiary? One of the reasons trust
beneficiaries need to be ascertainable is because the court needs
to know who has standing to come into court to sue to enforce the
terms of the trust. In Voorhis' Estate, the trust purpose was to
maintain the family burial grounds in Bellefontaine Cemetery, a
specific and honorable purpose, but it is nevertheless an invalid
purpose because it lacked an ascertainable beneficiary. The
intended beneficiary, the family burial grounds, cannot come into
court to seek enforcement of the terms of the trust if the trustee
fails to honor the settlor's intent. Technically the trust fails, and
therefore, by operation of law, a resulting trust should arise.
3. Pet trusts—traditional view: A similar problem arises with pet
trusts—a trust created by the settlor for the settlor's pet. Many
people consider their pets a member of the family. It should come
as no surprise, then, that many people wish to leave property to
their pets to ensure that they are provided for after they die.
Obviously a settlor cannot give the property outright to the pet
because an animal lacks legal capacity to hold property. Can a
settlor leave his or her property in trust to care for his or her pets?
Historically trusts for the care of one's pets were analogous to

650
trusts for the maintenance of one's burial plot. While intended for
a specific and honorable purpose, a pet cannot come into court
and enforce the terms of the trust against the trustee. Technically
the trust fails, and a resulting trust arises unless the court
recognizes the trust as an honorary trust.
4. Failure as a charitable trust: In Voorhis' Estate, after noting
that the trust in question failed as an express private trust
because it lacked a definite and ascertainable beneficiary, the
court went on to note that “[a]s a public or charitable trust it is
defective because it lacks even unascertained beneficiaries and
is not for public purposes.” Charitable trusts are covered in
Chapter 15, but there are two key distinctions between private
trusts and public/charitable trusts. The first is the purpose: a
charitable trust must be for a charitable purpose. The second is
that a charitable trust must not be for the benefit of a specific
ascertainable beneficiary:
The requisites of a valid private trust and one for a
charitable use are materially different. In the former there
must be not only a certain trustee who holds the legal title,
but a certain specified cestui que trust [i.e., trust
beneficiary], clearly identified, or made capable of
identification by the terms of the instrument creating the
trust, while it is an essential feature of the latter that the
beneficiaries are uncertain, a class of persons described in
some general language, often fluctuating, changing in their
individual members, and partaking of a quasi-public
character.
Young v. Redmon's Trustee, 300 Ky. 418, 420–21 (1945) (quoting
from AM. JUR. Vol. 10, Section 6, page 589).
A trust to maintain cemeteries generally might qualify as a valid
public/charitable trust, but that clearly was not the trust purpose or
scope in Voorhis' Estate. As the court noted, the trust was for a
specific purpose—the maintenance of a specific family burial plot
—not for a general charitable purpose. Accordingly, the trust
failed to qualify as a valid private trust because it did not have an
ascertainable beneficiary who could come into court and enforce
the terms of the trust; it also failed to qualify as a charitable trust

651
because it had too specific of a purpose to be charitable and too
specific of an intended benefit to be public in nature.
Similarly, a trust for the benefit of animals generally might
qualify as a valid public/charitable trust, but a trust for the benefit
of a decedent's pet(s) would not. The typical “pet trust” is for a
specific purpose—the care of a specific pet, not for animals
generally. Accordingly, historically pet trusts were held to be
invalid: failing to qualify as a private trust because it did not have
an ascertainable beneficiary who had standing to come into court
and enforce the terms of the trust, and failing to qualify as a
charitable trust because it had too specific of a purpose to be
charitable and too specific of an intended benefit to be public in
nature.
5. Resulting trust: A resulting trust is not really a trust at all—it
is a judicial remedy. A resulting trust arises by operation of law
anytime a trust fails, in whole or in part, at attempted creation or
at any other point in time. The paradigm resulting trust scenario
assumes that property has been delivered from the settlor to the
trustee, but then the trust fails. The issue that naturally arises is if
the trust fails, should the trustee be permitted to keep the
property, and if not, to whom should the property be delivered?
The trustee holds legal title, but is it equitable to permit the trustee
to keep the property if the trust fails? The resulting trust doctrine
basically says “no,” the trustee should have to give the property in
question back to the settlor (or if the settlor is dead, to his or her
estate). By operation of law the court will impose a resulting trust
on the trustee in favor of the settlor/settlor's estate and order the
property to be disbursed (i.e., returned) to the settlor/settlor's
estate. Anytime a trust fails in whole or in part, a resulting trust
should arise by operation of law to prevent the trustee from being
unjustly enriched.
That last way to think about a resulting trust, to prevent the
trustee from being unjustly enriched, overlaps with the rationale
underlying the constructive trust (the other type of trust that arises
by operation of law). Like resulting trusts, constructive trusts are
not really trusts but rather are judicial remedies. In the Mahoney
case (see Chapter 4), where the one spouse killed the other
spouse and was convicted of manslaughter, the court ruled that a
constructive trust should be imposed if it were determined that the

652
one spouse voluntarily and intentionally killed the deceased
spouse. A constructive trust is an equitable remedy that courts
may use to prevent unjust enrichment. It is not a true trust that
arises because of the settlor's intent; it is a judicial remedy the
courts created to justify ordering the party who currently holds
legal title to transfer the property to another party who holds a
stronger equitable right to the property. Under the constructive
trust, the wrongdoer is, by operation of law, de facto treated as if
he or she is a “trustee” who holds legal title for the benefit of the
party who has the stronger equitable claim to the property. The
“trustee” is then ordered to disburse/transfer the property to the
party with the stronger equitable claim, and the “trust” is
terminated. The constructive trust doctrine analogizes to the trust
model to justify ordering one party to transfer property to another
party to prevent unjust enrichment. Whether a constructive trust
should be imposed is a matter of judicial discretion, but it typically
is imposed only where unjust enrichment would arise as a result
of wrongful conduct.
6. “Purpose” trusts: Historically, trusts were broken into two
types: private trusts (for individuals) and public trusts (for
charitable purposes). Trusts, however, can also be categorized as
trusts for charitable purposes and trusts for noncharitable
purposes. A trust for a charitable purpose is just another way of
saying a charitable trust (to be examined in greater detail in
Chapter 15). Trusts for noncharitable purposes—i.e., private
trusts—historically required ascertainable beneficiaries in order to
be valid.
Phrased another way, historically there were two types of
noncharitable purpose trusts: private trusts for ascertainable
beneficiaries, which were permitted; and private trusts for
noncharitable purposes, which lacked ascertainable beneficiaries
and were therefore invalid. Should the law of trusts permit trusts
for noncharitable purposes even in the absence of an
ascertainable beneficiary?
One way to think about the Voorhis case is that it raises that
precise issue: should the court recognize a private trust for
noncharitable purposes even though it lacked ascertainable
beneficiaries? In Voorhis, the trust was not for the benefit of an
individual. Rather, the trust was for a purpose: to care for the

653
settlor's family burial site. But because that purpose was
noncharitable, it ran afoul of traditional trust law, which dictated
the trust either had to be for charitable purposes or have
ascertainable beneficiaries.
7. Judicial relief—honorary trust: People often want to create
trust-like arrangements to achieve specific, good purposes (e.g.,
to maintain a burial plot or take care of one's pets). Technically,
however, under traditional trust law, the arrangement typically
would fail to meet the requirements of either a private trust
(because it lacks ascertainable beneficiaries) or of a
public/charitable trust (because it lacks a charitable purpose).
Whenever a trust fails, a resulting trust arises. But early on, the
common law decided that some trusts that failed for want of an
ascertainable beneficiary, but that were for a specific and
honorable purpose, should be permitted to continue so long as
the trustee voluntarily agreed to honor and carry out the terms of
the trust. The courts created the “honorary trust” doctrine to carry
out that purpose.
An honorary trust is often defined as a noncharitable trust for a
specific purpose that is neither illegal nor contrary to public policy.
The classic examples of an honorary trust are trusts to maintain a
gravesite, a trust for one's pet, or a trust for religious services for
a period of time after one's death. Under strict application of
traditional trust doctrine, an honorary trust is not really a trust at
all. It is a judicial fiction where the court essentially agrees to look
the other way and not declare a failed trust invalid so long as the
trustee in question is willing to carry out the terms of the trust. If
the trustee fails to honor the terms of the trust, or if the trustee is
unable or unwilling to carry out the terms of the trust, the courts
will not compel the trustee to comply, nor will the courts appoint a
successor trustee. Instead, a resulting trust kicks in, and the
honorary trust is terminated. The trust in Voorhis' Estate is a
classic example of an honorary trust.
The development of the honorary trust was the first crack in the
traditional way of thinking that private, noncharitable trusts are
valid only if there is an ascertainable beneficiary. As the court
noted: “Trust gifts wholly lacking in beneficiaries are treated by
the law writers as honorary or incomplete trusts.” In hindsight, we
can see that the honorary trust was the law of trust's first step

654
toward recognizing a private trust for noncharitable purposes
even where there is no ascertainable beneficiary.
8. Statutory relief—non-charitable private trust without an
ascertainable beneficiary: Although the honorary trust offered
some relief for private trusts that lacked ascertainable
beneficiaries, it was not a perfect solution because most
jurisdictions held that honorary trusts were still subject to the
dreaded Rule Against Perpetuities. In applying the Rule Against
Perpetuities, the courts struggled with what constituted the
“measuring life” for purposes of analyzing non-charitable private
trusts. The resulting uncertainty effectively limited the
development of the honorary trust doctrine. That failure, however,
created pressure for the law to find another solution to permit
such non-charitable trusts despite the absence of ascertainable
beneficiaries.
The response was piecemeal and limited to specific purposes.
In 1852, Kentucky became the first state to adopt legislation
specifically permitting trusts to maintain a gravesite despite the
fact that such trusts lacked an ascertainable beneficiary. Now
almost all states have such a statute. More recently, states have
increasingly adopted statutes that expressly recognize a pet trust
as a valid purpose trust that is not subject to either the
ascertainable beneficiary requirement or the Rule Against
Perpetuities.
The Uniform Probate Code and Uniform Trust Code have
adopted a broader approach. Both uniform laws expressly permit
noncharitable purpose trusts for any and all lawful purposes even
though the trust has no ascertainable beneficiary. Unif. Probate
Code §2-907; Unif. Trust Code §409. Such trusts, however, may
last for a maximum of only 21 years. This statutory movement
clarifies the legality of noncharitable purpose trusts, eliminating
the need for litigation over whether they qualify as honorary trusts
and whether they are valid under the Rule Against Perpetuities.
Moreover, while the trustee's duties were de facto “discretionary”
under the honorary trust doctrine (in that honorary trusts last only
so long as the trustee is willing to honor the terms of the trust),
the trustee's duties are mandatory under the express
noncharitable private trust doctrine, as they would be for any
other type of trust (in that if the trustee is unwilling to honor the

655
terms of the noncharitable purpose trust, the court will appoint a
successor trustee to honor the terms).2
9. The California approach: Consistent with the national trend,
California recognizes honorary trusts, but in addition the
California legislature has provided statutory relief as well.
California statutorily permits private trusts for the maintenance of
one's gravesite. See Cal. Health & Safety Code §8737. California
statutorily permits private pet trusts. See CPC §15212. And more
generally, California permits trusts for noncharitable purposes:
CPC §15211. Private trusts for noncharitable purposes
A trust for a noncharitable corporation or unincorporated
society or for a lawful noncharitable purpose may be
performed by the trustee for only 21 years, whether or not
there is a beneficiary who can seek enforcement or
termination of the trust and whether or not the terms of the
trust contemplate a longer duration.

Problem
Testator gave his home, garage, contents, pets, and flower
garden to his friend, Fran. Then he gave his residuary estate to
his executrix in trust “for the maintenance of my pets [a dog and a
parrot], which I leave to her kind care and judgment, and for their
interment upon their respective deaths ... Upon the death and
interment of the last of my pets to survive, I give, devise and
bequeath my entire residue estate so held in trust to Fran,
absolutely and in fee.” Has testator created a valid testamentary
trust? See In re Lyon's Estate, 67 Pa. D. & C.2d 474 (1974).

D. Writing Requirement
The final consideration for whether a trust has been validly
created is whether the trust terms must be in writing. This variable
is not really a function of the law of trusts. Rather it is a function of
the either the Statute of Frauds or the Wills Act formalities,
depending on whether the trust is an inter vivos trust or a
testamentary trust. A trust is not created until it is funded.
Accordingly, an inter vivos trust requires that property be
transferred to the trustee while the settlor is alive. If the property

656
being transferred includes real property, the general and
traditional rule is that the Statute of Frauds required the trust
terms be in writing. If the property being transferred to the trustee
is purely personal property, the general and traditional rule is that
the terms of the trust do not have to be in writing. Finally, if the
trust were a testamentary trust, to be funded with probate
property being distributed from the decedent's estate, the terms of
the trust need to be in the testator's will. Inasmuch as the Wills
Act requires wills to be in writing, testamentary trusts need to be
in writing.
The writing requirement for a trust is simple enough. That is not
the issue. The issue is what should happen if the settlor fails to
meet the writing requirement, but there appears to be a transfer
(or in the case of a will, an attempted transfer) of the property in
question. Should the trustee be permitted to keep the property as
a grantee/transferee/devisee?

1. Failed Inter Vivos Trust

Steinberger v. Steinberger
140 P.2d 31 (Cal. 1943)
PETERS, Presiding Justice.
...
The facts are as follows: In 1929, or prior thereto, Mary Louise
Steinberger, grandmother of Earle and a relative of William
Steinberger, deeded the property, ... to William, Earle and to
Earle's brother. William was the uncle of Earle. Each of the
grantees received an undivided one-third interest in the property.
On September 12, 1930, Earle, at the request of William,
executed a grant bargain and sale deed of his one-third interest
to his uncle William. This deed was executed on the uncle's oral
promise to reconvey upon the request of Earle. This promise was
subsequently orally renewed and orally acknowledged. William
died on February 8, 1940. Prior to that time there had been no
request to reconvey. The administrator refused to recognize
Earle's interest in the property. The present action was brought

657
some time prior to June 10, 1941, the amended complaint having
been filed on that date.
The court found that a confidential relationship existed between
Earle and his uncle; that on the date of the deed Earle was about
to leave San Francisco for Los Angeles for an indefinite period;
that the uncle requested Earle to execute the deed in order to
make it more convenient for William to take care of and manage
the property; that the uncle promised that if Earle would execute
the deed, he, the uncle, would take care of and manage the
property for the benefit of Earle and of himself, and that he would
reconvey Earle's one-third interest upon request; that in
compliance with such request, and because the plaintiff reposed
the utmost trust and confidence in his uncle, and because he
believed and relied upon the promise to reconvey, Earle executed
the deed in question; that the deed was executed without
consideration; that from the date of the execution of the deed until
the time of his death William continuously and on repeated
occasions recognized that he was holding the one-third interest in
trust for Earle; that William at no time repudiated the trust; that the
defendant administrator has refused to reconvey upon demand of
Earle.
On this appeal the administrator, while not denying that the
evidence supports the finding of the oral agreement to reconvey
and its subsequent acknowledgement, contends that all such
evidence was inadmissible as being in violation of the parol
evidence rule, and of the statute of frauds....
...
Under the parol evidence rule a party is prohibited from varying
the terms of a written instrument by oral testimony. In the instant
case plaintiff deeded the property to William by a grant bargain
and sale deed. It is obvious, therefore, that the express trust,
resting in parol, is unenforceable as an express trust, and that the
oral evidence of such trust does tend to vary the terms of the
deed. But this is not an action to enforce the oral express trust. It
is an action to enforce a constructive trust which it is claimed
arose by operation of law upon the repudiation of the promise to
reconvey.

658
 The law generally is unsettled on the question as to whether or
not equity will enforce a constructive trust in real property upon
breach of an oral contract to reconvey. The English cases hold
that the transferee may set up the statute of frauds against
enforcement of the oral express trust, and that no penalty will
attach to him for so doing, but, if he sets up the statute, he is duty
bound to restore the property received on the faith of his oral
promise. If the transferee will not voluntarily make restitution,
equity will compel such restitution through the medium of a
constructive trust. The theory is that the constructive trust will be
imposed to prevent the unjust enrichment of the transferee. Some
few American cases have reached the same result by holding that
the transferee's repudiation of his oral promise to reconvey is a
fraud upon the transferor, which gives rise to the constructive
trust.
The so-called majority American rule is that the repudiation of
an oral promise to reconvey does not give rise to a constructive
trust. The theory is that equity must respect and enforce the
statute of frauds, and that to enforce a constructive trust is a
violation of the spirit, if not the letter, of the statute. For discussion
of the two rules, with many cases cited, see 3 Bogert, Trusts and
Trustees, p. 1585, §495 et seq.; 1 Scott on Trusts, p. 246, §44 et
seq.; 1 Perry on Trusts and Trustees, 7th Ed., p. 295, §181a et
seq.
California has apparently aligned itself with the English and the
so-called minority American view. In Taylor v. Morris, 163 Cal.
717, 127 P. 66, there was involved a similar problem to the one
here presented. Without reference to the confidential relationship
there existing, the court stated (page 722 of 163 Cal., page 68 of
127 P.): “The statute of frauds is never permitted to become a
shield for fraud, and fraud at once arises upon the repudiation by
the trustee of any trust, even if that trust rests in parol. When it
rests in parol, either parol evidence must be received to establish
the trust, or the faithless trustee will always prevail. Certainly no
elaboration of so plain a proposition is necessary....
...
Although the so-called majority American view is that no trust
will arise upon a repudiation of the oral promise to reconvey,

659
several important exceptions to that rule have been recognized.
These exceptions are perhaps best stated in §182 of the
Restatement of the Law of Restitution and §44 of the
Restatement of the Law of Trusts, the two sections being
substantially identical. Section 182 provides:
“Where the owner of an interest in lands transfers it inter
vivos to another upon an oral trust in favor of the transferor
or upon an oral agreement to reconvey the land to the
transferor, and the trust or agreement is unenforceable
because of the Statute of Frauds, and the transferee
refuses to perform the trust or agreement, he holds the
interest upon a constructive trust for the transferor, if
“(a) the transfer was procured by fraud,
misrepresentation, duress, undue influence or mistake of
such a character that the transferor is entitled to
restitution, or
“(b) the transferee at the time of the transfer was in a
confidential relation to the transferor, or
“(c) the transfer was made as security for an
indebtedness of the transferor.”
These exceptions, and particularly the one relating to
confidential relations, are recognized in nearly every American
state (see cases collected 3 Bogert on Trusts and Trustees, p.
1594, §496; 1 Scott on Trusts, p. 253, §44.2), and have clearly
been adopted in California. (See California Annotations to the
Restatement of the Law of Trusts (§44) and to the Restatement of
the Law of Restitution (§182.) It is well settled in this state that
breach of the oral promise to reconvey by the transferee or his
administrator when the transferee was in a confidential
relationship with the transferor at the time of the transfer
constitutes sufficient “fraud” to create the constructive trust....
In the instant case the trial court found that Earle and his uncle
William stood in a confidential relationship to each other. This
finding is amply supported. There is not only the evidence of the
status of uncle and nephew, and of cotenants, but there is ample
evidence to show that a confidential relationship in fact existed.
The respondent testified that he had trust and confidence in his
uncle. The evidence shows that Earle and William lived in the

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house on the property here involved from the time of Earle's birth;
that the uncle gave Earle money when he needed it, and that
Earle reciprocated; that the uncle frequently expressed solicitude
for his nephew Earle; that the uncle frequently stated he was
keeping and holding the home for the boys. The evidence shows
a friendly intimate relationship existed between Earle and his
uncle. From this evidence it is apparent that the finding of
confidential relationship is amply supported. It follows that
whether California follows the English rule or the limited American
rule, in the instant case a constructive trust arose upon the death
of William and upon the repudiation of the trust by his
administrator.
...
—————

Notes
1. Common law versus modern trend: As the court in
Steinberger acknowledges, American courts have struggled with
the issue of what to do with an oral inter vivos trust for real
property that fails for lack of a writing, but where the real property
in question has been transferred to the “trustee.” Older opinions
believed that upholding the Statute of Frauds as it applied to the
transfer deed was more important than the equitable principles
underlying the constructive trust and/or resulting trust doctrines,
hence what the court calls the majority American rule, which
permits the “trustee” to keep the real property as a grantee.
Many commentators have argued that the modern trend
American approach shows a greater willingness to impose either
a constructive trust or a resulting trust and to order the property
distributed back to the “settlor”/grantor. The court's opinion in
Scott v. Nelson, 179 P.2d 116, 118 (Okla. 1947), evidnces this
approach where, under similar facts, and with minimal discussion,
the Oklahoma Supreme Court adopted the resulting trust
approach:
[T]he trust, if any, as shown by the evidence was an
express trust and, since it rested in parol, it was invalid
under the statute of frauds. The authorities cited sustain the
contention that an express trust in relation to real property

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 is invalid unless in writing. A resulting trust arises as an
equitable doctrine where the legal estate is transferred and
no trust or use is expressly declared, nor any circumstance,
or evidence of intent, appears to direct the trust or use,
which then results or comes back to the original grantor.
From the terms of the disposition and the
accompanying facts and circumstances, it appears here
that the beneficial interest of the land was not intended to
be enjoyed with the legal title. This trust is one implied.
The trust results in favor of the grantor, deemed in equity
to be the real owner. Bobier v. Horn, 95 Okl. 8, 222 P.
238.
In a recent unpublished California opinion, the court, quoting
heavily from Steinberger, re-emphasized the constructive trust
approach but de-emphasized the need for a confidential
relationship. See Armelin v. Armelin, B161395, 2003 WL
22146528 (Cal. Ct. App. Sept. 18, 2003). See also Martin v. Kehl,
145 Cal. App. 3d 228, 237 (1983) (“‘The essence of the
constructive trust theory is to prevent unjust enrichment and to
prevent a person from taking advantage of his own wrongdoing.’
... In such a trust based upon wrongdoing, an oral promise is
sufficient and the existence or absence of a confidential
relationship between the parties, in the strict sense, is not
controlling.”).
De-emphasizing the need to prove a confidential relationship is
consistent with the overall modern trend preference for equitable
relief rather than letting the “trustee” keep the property. Because
the opinion is an unpublished opinion, however, it is unclear how
much weight can be placed on the court's statement (though it is
consistent with other opinions in other states).
2. Unclean hands: Both the constructive trust remedy and the
resulting trust remedy are equitable remedies to the situation
where an inter vivos trust fails for want of a proper writing. As
such, both potential remedies are subject to equitable defenses.
In fact, a number of courts have declined to impose either form of
equitable relief where the grantor/settlor has been found to have
“unclean hands” in the transfer process (i.e., if the settlor's initial
motivation in conveying the property with no written record of the

662
understanding between the settlor and the trustee was to put the
property beyond the claims of possible creditors).
3. Purchase money resulting trust: Where one party puts forth
all the purchase money but takes title in another person's name,
an issue arises as to whether the second party is an intended
donee or whether the second party was intended to hold it for the
benefit of the purchaser. While that issue is a question of the
purchaser's intent, the law has a set of rebuttable presumptions
that may apply to the situation. Under the purchase money
resulting trust doctrine, a rebuttable presumption arises that the
purchaser did not intend a gift and is entitled to recover the
property unless (a) the party in whose name title is taken is a
natural object of the purchaser's bounty (in which case a
rebuttable presumption of a gift arises), or (2) the property was
put in the second party's name to accomplish an unlawful
purpose. RESTATEMENT (THIRD) OF TRUSTS §9 (2003).

2. Failed Testamentary Trust

Pickelner v. Adler
229 S.W.3d 516 (Tex. App. 2007)
TIM TAFT, Justice.
...
Background
Shirley Alpha (“Shirley”) executed a will in May 1997. Her long-
time friend and attorney, Pickelner, drafted the will. The will made
Pickelner the sole devisee:
I give, devise and bequeath all the rest and remainder of
my property of which I may die seized or possessed, or to
which I may be in anywise entitled, whether real, personal
or mixed, wherever situated and however acquired, to my
long-time friend ROBERT S. PICKELNER, to be distributed
in accordance with the specific instructions I have provided
him.
The instructions to which the above-quoted provision refers
were verbal, and Shirley did not reduce them to writing. The trial

663
court received testimony of what Shirley's verbal instructions to
Pickelner were. From that testimony, it is evident that Shirley's
instructions to Pickelner did not cover all of the property that she
bequeathed to him. Among her verbal instructions, Shirley
required that Pickelner receive one of her homes and that
Hurwitz, Shirley's close friend and portfolio manager, receive the
other. Neither Pickelner nor Hurwitz was related to Shirley, and
neither is her heir at law.
...
In April 2003, after a bench trial, the trial court rendered
declaratory judgment that, for reasons that we set out further
below, the bequest to Pickelner was void and that Shirley's heirs
at law were to receive her property. Although the trial court
indicated that it had considered the parol evidence concerning
Shirley's distribution instructions to Pickelner, the court concluded
that it could not give effect to those instructions....
...
Hurwitz's Appeal: Implicit Rejection of Request to
Recognize a Constructive Trust
In his first issue, Hurwitz argues that the trial court “erred in
failing to recognize a constructive trust over the property [Shirley]
intended Hurwitz to receive.” Specifically, Hurwitz contends that
the will's distribution to Pickelner, with direction to distribute
Shirley's property pursuant to verbal instructions that she had left
him, required imposition of a constructive trust for Hurwitz's
benefit.
...
B. Additional Facts
Pickelner, a long-time friend of Shirley's, drafted her will. The
pertinent portion of the will, as quoted above, provided that all of
Shirley's property was “devise[d] and bequeath[ed]” to Pickelner
“to be distributed in accordance with the specific instructions
which I have provided him.” The undisputed testimony was that
Shirley had given Pickelner verbal instructions that one of her
homes was to be distributed to him, that another of her homes
was to be distributed to Hurwitz, and that certain other property

664
would be distributed to others; however, it was also undisputed
that the verbal instructions that she gave Pickelner did not
concern all of her property that passed to him under the will. It
was further undisputed that Shirley did not give Pickelner the
distribution instructions in writing.
...
C. Types of Trusts Generally
Generally speaking, Texas law recognizes three types of
trusts:
“From the viewpoint of the creative force bringing them into
existence, trusts may be classed as ‘express trusts’ and
‘trusts by operation of law,’ the latter being either resulting
or constructive trusts. An express trust can come into
existence only by the execution of an intention to create it
by the one having legal and equitable dominion over the
property made subject to it. A trust by operation of law,
frequently called an ‘implied trust,’ comes into existence
either through an implication of intention to create a trust as
a matter of law or through the imposition of the trust
irrespective of, and even contrary to any, such intention. In
other words, a trust intentional in fact is an express trust;
one intentional in law is a resulting trust; and one imposed
irrespective of intention is a constructive trust.”
Mills v. Gray, 147 Tex. 33, 37, 210 S.W.2d 985, 987 (1948)
(quoting 54 Am. Jur. 22, §5) (emphasis added).
1. Express Trusts Generally
... “To create a trust by a written instrument, the beneficiary, the
res, and the trust purpose must be identified.” Perfect Union
Lodge No. 10, A.F. & A.M., of San Antonio, 748 S.W.2d at 220.
This Court has referred to these requirements as “essential
elements” of an express trust....
“The missing terms of an express trust may not be established
by parol evidence.” Brelsford, 564 S.W.2d at 406. That is, when
an essential term is altogether missing from an attempted express
trust, or is not at least reasonably certain, that term cannot be
supplied by parol evidence, and the trust will fail.... (“[T]he

665
language must be reasonably certain as to the material terms of
the trust.... If the language is so vague, general, or equivocal that
any of these necessary elements of the trust is left in real
uncertainty, the trust will fail.”) ...
2. Resulting Trusts Generally
A resulting trust is an equitable remedy that is implied by
operation of law and that a trial court may impose to prevent
unjust enrichment. See, e.g., Hubbard v. Shankle, 138 S.W.3d
474, 486 (Tex.App.-Fort Worth 2004, pet. denied). “When an
express trust fails, the law implies a resulting trust with the
beneficial title vested in the trustor or, in the case of the trustor's
death, in her estate and devisees.” Brelsford, 564 S.W.2d at 406;
see Nolana Dev. Ass'n v. Corsi, 682 S.W.2d 246, 250 (Tex.1984)
(“A resulting trust is implied in law ... when an express trust
fails.”). “The doctrine of resulting trust is invoked to prevent unjust
enrichment, and equitable title will rest with the party furnishing
the ... trust property when an express trust fails.” Corsi, 682
S.W.2d at 250.
3. Constructive Trusts Generally
Like a resulting trust, a constructive trust is also an equitable
remedy that is implied by operation of law and that a trial court
may impose to prevent unjust enrichment. See, e.g., Hubbard,
138 S.W.3d at 485. “‘[A] constructive trust generally involves
primarily a presence of fraud, in view of which equitable title or
interest should be recognized in some person other than the taker
or holder of the legal title.’” Mills, 147 Tex. at 38, 210 S.W.2d at
988 (quoting 54 Am. Jur. 147, §188); see Pope v. Garrett, 147
Tex. 18, 21, 211 S.W.2d 559, 560 (1948) (“The case is a typical
one for the intervention of equity to prevent a wrongdoer, who by
his fraudulent or otherwise wrongful act has acquired title to
property, from retaining and enjoying the beneficial interest
therein, by impressing a constructive trust on the property in favor
of the one who is truly and equitably entitled to the same.”)
(emphasis added). Because “[a] constructive trust escapes the
unquestioned general rule that land titles must not rest in parol, ...
there must be strict proof of a prior confidential relationship and
unfair conduct or unjust enrichment on the part of the wrongdoer.”
Rankin v. Naftalis, 557 S.W.2d 940, 944 (Tex.1977). Additionally,

666
the remedy of imposing a constructive trust “must be used with
caution, especially where ... proof of the wrongful act rests in
parol, in order that it may not defeat the purposes of the statute of
wills, the statute of descent and distribution, or the statute of
frauds.” Pope, 147 Tex. at 25, 211 S.W.2d at 562.

D. Certain Trusts in the Context of Testamentary

Conveyances
1. Secret Trusts and Constructive Trusts
In the context of a testamentary conveyance, a constructive
trust can be imposed as a remedy when a testator conveys her
property to another with the understanding that the devisee will
deliver the property to a third person, but the will conveys the
property outright to the devisee, without evidencing any intent to
create a trust. See generally Gerry Breyer, 10 Texas Practice
Series §45.1 (3rd ed. 2002). The agreement between the testator
and devisee in this scenario is sometimes referred to as a “secret
trust” because it does not appear in the will. See Temple v. City of
Coleman, 245 S.W. 264, 267–68 (Tex.Civ.App.-Austin 1922, writ
dism'd) (“[I]f the testator is induced either to make a will or not to
change one after it is made, by a promise, express or implied, on
the part of a legatee that he will devote his legacy to a certain
lawful purpose, a secret trust is created, and equity will compel
him to apply property thus obtained in accordance with his
promise.”) (emphasis added) (quoting Trustees of Amherst
College v. Ritch, 151 N.Y. 282, 45 N.E. 876, 37 L.R.A. 305
(1897)). In this situation, the remedy of a constructive trust may
be imposed in favor of the intended third person if the devisee
wrongfully refuses to convey the property to him or her; that is, a
constructive trust may be employed to enforce the secret trust.
See Pope, 147 Tex. at 21–22, 211 S.W.2d at 560. The
constructive trust is imposed as a remedy not because the devise
fails (the devise, in fact, succeeds), but because equity will not
allow the wrongdoing devisee to enjoy the beneficial interest of
the devise, i.e., it will not allow him to be unjustly enriched in
contravention of the secret trust. See Pope, 147 Tex. at 21, 211
S.W.2d at 560.

667
 Concerning secret trusts, the Texas Supreme Court has
explained:
... “Where a trust not declared in the will is established by a
court of chancery against the devisee, it is by reason of the
obligation resting upon the conscience of the devisee, and
not as a valid testamentary disposition by the deceased....
Where the bequest is outright upon its face, the setting up
of a trust, while it diminishes the right of the devisee, does
not impair any right of the heirs or next of kin, in any aspect
of the case; for, if the trust were not set up, the whole
property would go to the devisee by force of the devise. If
the trust set up is a lawful one, it inures to the benefit of the
cestui que trust.... Olliffe v. Welis.
Heidenheimer v. Bauman, 84 Tex. 174, 183, 19 S.W. 382, 385
(1892) (emphasis added).
2. Semi-Secret Trusts and Resulting Trusts
The remedy of a resulting trust can be employed if the will on
its face shows that the testator intended to give her property to
the devisee to hold in trust, but the intended testamentary trust
fails for lack of specificity. See Ray, 144 S.W.2d at 668–69. The
devise attempting (but failing) to leave property in trust is
sometimes referred to as a “semi-secret trust” because the intent
to make a trust appears in the will, but the trust's essential terms
do not. See Restatement (Third) of Trusts §18 (2003), cmt. a. A
semi-secret trust is, in essence, a failed express testamentary
trust. As when any express testamentary trust fails, the remedy of
a resulting trust arises by operation of law in favor of the testator's
heirs, even if parol evidence would have shown that the heirs
were not the intended beneficiaries of the failed trust. See
Heidenheimer, 84 Tex. at 182–83, 19 S.W. at 384 (“The will upon
its face showing that the devisee takes the legal title only, and not
the beneficial interest, and the trust not being sufficiently defined
by the will to take effect, the equitable intent goes, by way of
resulting trust, to the heirs or next of kin as property of the
deceased, not disposed of by his will.”) (quoting Olliffe v. Wells,
130 Mass. 221, 225–26 (1881)); Ray, 144 S.W.2d at 669 (“We
hold that, under the will in question, the defendant [devisee] did
not take the legal and beneficial title to the property. The legal title

668
only was vested in him. The trust attempted to be created is void
for uncertainty. This being true, the beneficial title to the estate
vested in the heirs. If this holding be correct as to the beneficial
title to the property, the testatrix died intestate. In legal effect it is
tantamount to a provision by the testatrix that after the debts are
paid her estate should go to her legal heirs.”); see also Lowry v.
Gallagher, 190 S.W.2d 165, 168 (Tex.Civ.App.1945, writ ref'd
w.o.m.); Kramer v. Sommers, 93 S.W.2d 460, 466 (Tex.Civ.App.-
Fort Worth 1936, writ dism'd). The remedy of the resulting trust
arises not because of any wrongdoing on the part of the devisee,
but because the intended express trust (i.e., the semi-secret trust)
fails, and the will evidenced an intent that the devisee was to
receive legal title only, not beneficial title. See, generally,
Heidenheimer, 84 Tex. at 181–85, 19 S.W. at 384–85.
Concerning semi-secret trusts, the Texas Supreme Court has
explained:
“[I]f ... trusts of a testamentary character might be declared
by the testator by mere oral declarations, or by writing not
executed with the same formalities required in the
execution of wills, men's final dispositions would, in many
cases, be made up largely of such acts and declarations as
the cupidity of claimants and the recklessness or
indifference of witnesses might dictate.” 3 Redf. Wills,
579....”If a testator should devise real or personal property
to A. in trust, and state no trust on which A. is to hold, no
paper not referred to in the will, and not duly executed,
could be received in evidence to prove the trusts, nor could
A. hold the beneficial interest because he is stamped with
the character of a trustee, but he would hold only the legal
title, while the beneficial interest would descend or result to
the testator's heirs at law.” 1 Perry, Trusts, 93.
[The court affirmed the trial court's order imposing a resulting
trust and granting the property to the decedent's heirs.]
—————

Note
Secret versus semi-secret trust—latent versus patent
ambiguity: Another way to think about the difference between a

669
secret trust and a semi-secret trust is that the distinction relates to
the traditional common law rules concerning the admissibility of
extrinsic evidence. Under the traditional common law approach,
extrinsic evidence was admissible only if there was a latent
ambiguity in the will, not if there was a patent ambiguity. A secret
trust is a latent ambiguity; a semi-secret trust is a patent
ambiguity. In the case of a semi-secret trust, without the benefit of
extrinsic evidence to determine the intended beneficiaries, the
court has no option but to order a resulting trust and give the
property back to the settlor. In the case of a secret trust, extrinsic
evidence is necessary to prove that the named beneficiary was
intended to take only legal title and that equitable title was
intended to vest in a third party. Knowing the identity of the
intended trust beneficiaries permits the court to order a
constructive trust and go forward with the testator's intent.
The modern trend is to admit extrinsic evidence any time there
is an ambiguity in a will, whether it is latent or patent. Is it merely
a coincidence that the modern trend is for courts to apply a
constructive trust to both secret and semi-secret trusts? (Though
obviously not all jurisdictions follow the modern trend, as the
court's holding in Adler evidences.)

Problems
1. Fred and Mary have both experienced a prior marriage and
divorce. Fred has two sons from his first marriage. Mary has a
daughter from her first marriage. When the two finally found
each other, they had almost given up on love, but they were
convinced that their love was truly, “true love.” After a few years
of blissful marriage, Fred is diagnosed with cancer. While
thinking about his final wishes, Mary promises that if Fred
leaves his property to her, she will, when the time comes,
devise whatever property she gets from him to his two boys.
Fred executes a will leaving all of his property to his wife, Mary.
After his death, Mary executes a will leaving all of her property
to her daughter. Fred had told his sons about his understanding
with Mary. They sue, seeking to enforce the understanding.
How would you rule, and why?
2. Decedent, who dies intestate, owns Greenacres. Decedent has
two children, a son and a daughter, and a granddaughter by the

670
daughter. The son disclaims his interest, vesting it in his sister.
The granddaughter needs a place to live. She approaches her
mother and suggests that the mother disclaim her interest in
the decedent's estate. She promises her mother that if she (the
mother) ever needs the property, she'll transfer it back to her.
She also promises that she won't sell it while her mother is
alive. Mother assigns her interest in Greenacres to her
daughter. The probate court approves it, ordering the property
to be distributed to the granddaughter.
Ten years later, the granddaughter puts Greenacres up for
sale. Mother sues, claiming breach of trust. How would you
analyze the situation? See Armelin v. Armelin, No. B161395,
2003 WL 22146528 (Cal. Ct. App. Sept. 18, 2003).

671
 III. Trust Creation and
Pour-Over Clauses
A. Introduction: Inter Vivos versus
Testamentary Trusts
The two most important and most dominant estate planning
instruments over the years have been the will and the trust. The
will is an instrument that directs who will receive the testator's
probate property when he or she dies. Bequests and/or devises in
a will are nothing more than an outright gift made by the testator
at the time of death. The classic trust is an inter vivos trust that
avoids probate. Property transferred to the trustee during the
settlor's lifetime is owned by the trust, not the settlor. Even where
the settlor retains a life estate interest in the trust, legally the trust
holds legal title to the trust property. The settlor's death
terminates the settlor's life estate, but the property in the trust is
not subject to probate. The trust holds legal title to the trust
property, and while the settlor's equitable interest may have
expired, there is no need to probate the property. The trust is still
“alive,” and it holds the trust property. The equitable interest may
shift from one beneficiary to another, but the legal title remains
the same: it is held by the trust/trustee.
While at first blush the will and the trust may appear to be
mutually exclusive options, nothing could be further from the truth.
While the classic trust is an inter vivos trust, that is not the only
type of trust. In fact, the significance of the terms “inter vivos trust”
is that the trust is created while the settlor is alive. Inasmuch as a
trust is not created until it is funded, that means that the trust was
funded inter vivos—while the settlor is alive. But one can create a
testamentary trust. Juxtaposed with the term “inter vivos trust,” it
is easy to ascertain the significance of the term “testamentary
trust.” A testamentary trust is one that is not funded until the
settlor's death. A clause in the will (typically the residuary clause,
but not necessarily) gives the property in question to the trustee
of the testator's trust, to hold and distribute pursuant to the terms

672
of the trust. The terms of the trust then are set forth in the
testator's will.
Note that a testamentary trust does not include one of the
traditional benefits of an inter vivos trust. With respect to the
settlor's death, not only does the property to be held by the
testamentary trust not avoid probate, the starting assumption is
that the property must go through probate to be subject to the
terms of the testator's will giving the property in question to the
testator's testamentary trust. But while a testamentary trust does
not avoid probate (at least upon the settlor's death), it still offers
many of the other benefits of a trust: professional management of
the property in question; a degree of dead-hand control over the
trust beneficiaries (if the beneficiary's interest in the trust is in the
form of a conditional ongoing gift); to facilitate tax avoidance upon
the death of the trust beneficiaries; to avoid probate upon the
death of the trust beneficiaries; or to make choice of law
decisions.
The biggest difference between an inter vivos trust and a
testamentary trust is that the former avoid probate while the latter
does not. Historically, an ancillary difference that flowed from that
difference was that an inter vivos trust was not subject to probate
court supervision as a general rule, while a testamentary trust
was subject to probate court supervision for the life of the trust.
Most estate planners agreed that for most clients, subjecting the
trust to probate court supervision was a bad idea because it
increased the costs of administration associated with the trust.
The trustee had to account to the probate court on a regular basis
(usually annually), and the trustee typically had a duty to get the
court's approval before engaging in any non-routine transactions.
A trustee of an inter vivos trust has no such administrative
responsibilities as a general rule (absent a beneficiary making it a
judicial matter). But some settlors may prefer judicial supervision
of their trustee, in which case the settlor could opt for a
testamentary trust. In addition, testamentary trusts were often
contingent beneficiaries in a will where the hassles associated
with a testamentary trust were still better than the other options
(i.e., most well-drafted wills for a couple with young children will
include a testamentary trust for the benefit of the children in the
event there is not a surviving spouse; holding the property in trust

673
for the minor children is arguably a better legal arrangement than
having the property held by a guardian who would be subject to
probate court supervision to an even greater extent than a trustee
under a well-drafted testamentary trust).3
Even where the benefits of an inter vivos trust exceed the
benefits of a testamentary trust, which is the case for most people
considering a trust, it is difficult to transfer all of one's assets to
the trust while one is alive. Some settlors are just psychologically
opposed to it; some oppose the added paperwork associated with
it (if you put your checking account in the trust, you no longer can
sign your name to each check you write, you have to sign your
name in your legal capacity as trustee: “Carolyn Wendel
O'Connell, Trustee of the Carolyn Wendel O'Connell Trust.” And
finally, only property transferred to an inter vivos trust while the
settlor is alive is part of the inter vivos trust. Inasmuch as most
people are constantly acquiring and disposing of property, it
becomes a hassle to constantly execute new documents
transferring newly acquired property to one's inter vivos trust. For
all these reasons, and others, it is not uncommon for a settlor to
transfer some of his or her property to his or her trust during his or
her lifetime (typically one's larger assets that one typically does
not deal with too often: title to one's house; title to one's pension
plan, one's life insurance policies), but not to transfer those
assets that one deals with on a regular basis and that often
changes rapidly (one's checking account; maybe one's stock
investments, etc.). But to the extent one has an inter vivos trust,
and it contains the dispositive provisions of one's estate plan, it
typically does not make sense to create a second, parallel estate
plan in one's will. Enter the pour-over provision.

B. A Testamentary Pour-Over Provision

A pour-over provision typically is a clause in a will, but it not
need be. It can be a provision in a life insurance policy
designating the trust as the beneficiary, or a provision in a
payment-on-death pension plan designating the trust as the
beneficiary, or a similar provision in any valid testamentary
instrument. The most common pour-over provision, however, is
the provision in a will, where it typically is the residuary clause
(again, though it need not be). Assume T's will provides in

674
pertinent part as follows: “I give the rest, residue, and remainder
to the trustee of inter vivos trust, to hold and distribute pursuant to
the terms of the trust.” First, why would a testator use such a
clause? A California Court of Appeal had this to say about that
question:
The term “pour-over” is commonly used to describe a
testamentary transfer to the trustee of a living trust. The
assets transferred are added to and administered as part of
the trust along with its existing assets. In this way, the will
“pours over” into the trust. “Pour-over” also describes the
incorporation by reference of the terms of an existing trust
instrument into a will, resulting in the creation of a separate
testamentary trust with the same terms as the existing
trust. Pour-over wills are most commonly used for two
purposes. First, when a revocable trust is “funded” during
lifetime by a transfer of assets to a trustee, the pour-over
will protects against a possible failure to transfer later-
acquired assets to the trust. Second, pour-over wills are
used when a revocable trust has only nominal assets
during lifetime, permitting probate of property on death but
avoiding public disclosure of the final disposition of such
property.
Kalloger v. Normart, No. F040048, 2002 WL 31402079, at *10
(Cal. Ct. App. Oct. 25, 2002).
Note the property passing pursuant to a pour-over provision in
the testator's will does not avoid probate upon the settlor's death.
The pour-over provision applies to the property the settlor did not
transfer to the inter vivos trust while the settlor was alive. Thus,
upon the settlor's death, that property falls into the settlor's
probate estate. Rather than creating a parallel or separate estate
plan for that property, however, the settlor/testator has decided
that the best course of action is simply to add that probate
property to his or her inter vivos trust, to be held and distributed
pursuant to the terms of the inter vivos trust. As the court noted,
the pour-over provision has the advantage over creating a
testamentary trust for the property that the terms of the trust
remain confidential. If the testator created a testamentary trust for
the property, the terms of the trust typically are in the will and
hence are subject to public scrutiny following the testator's death

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because the will is a public document. In contrast, a pour-over
provision simply directs the executor/personal representative to
give the property in question (the property subject to the pour-
over clause) to the trustee of the inter vivos trust, to hold and
distribute pursuant to the terms of that trust. The terms of the trust
are not in the will and need not be disclosed. Confidentiality is
retained.
The problem with a pour-over provision, however, is it means
that ultimately the terms of the trust control who gets the probate
property, not the terms of the will. Typically a trust is not executed
with Wills Act formalities. How can a document other than a will
dispose of the decedent's probate property? As the California
Court of Appeal's comments above indicate, historically, analysis
of that question took the courts back to the “will expanding”
doctrines—the doctrines that permit a testator to express intent
outside of the will that can be given effect as part of the probate
process: incorporation by reference and acts of independent
significance. But the different possible justifications for permitting
the terms of the trust to control the property in question have
different legal consequences.
Incorporation by reference permits the will to incorporate the
terms of the trust instrument into the will, but most courts held that
if that was the doctrine used to validate the pour-over clause, it
resulted in a testamentary trust that was subject to probate court
supervision for the life of the trust. In essence, the decedent
ended up with two trusts: (1) the inter vivos trust that held the
property that was transferred to the trust inter vivos and that was
not subject to probate court supervision, and (2) a testamentary
trust that held the property that was transferred to the trust under
the terms of the will and that was subject to probate court
supervision for the life of the trust. Moreover, under incorporation
by reference, amendments to the inter vivos trust that were
executed after the will was executed could not be given effect.
Incorporation by reference incorporates the trust instrument and
the terms of the trust as they existed on the date the will was
executed. So while incorporation by reference permits the court to
give effect to testator's intent as expressed in a document outside
the will (i.e., in the trust instrument), it does so at rather significant
cost and with rather significant limitations.

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 Acts of independent significance, on the other hand, can be
used to validate a pour-over clause as long as the referenced act
—the inter vivos trust—has its own legal significance independent
of its effect on the will. So long as the trust is funded inter vivos
and has property in it at the time of the decedent's death, it has its
own independent significance—it holds and manages the
property transferred to the trust inter vivos. But the issue was not
quite that simple, at least for some courts. First, how much
property must be transferred to the trust inter vivos to give the
trust its own “independent significance”? What if only a token
amount was transferred to the trust inter vivos? In In reWill of
Sackler, 548 N.Y.S.2d 866 (1989), the settlor transferred only
$1.00 to the trust inter vivos, and then poured more than $100
million into the trust per his will. Does the inter vivos trust really
have independent significance or is such nominal funding a sham
that should require the trust to be executed with Wills Act
formalities if it is to dispose of the probate property? And even
assuming, arguendo, that the inter vivos funding is sufficient to
give the trust its own independent significance, should the court
nevertheless maintain jurisdiction over the property being poured
over into the trust pursuant to the pour-over clause?

Notes and Problem

1. Incorporation by reference: With respect to validating a pour-
over clause under the traditional common law doctrines, under
incorporation by reference, what is being incorporated into what?
What type of trust does one end up with, and why?
2. Acts of independent significance: With respect to validating a
pour-over clause under acts of independent significance, what is
the referenced act in the will? What is necessary for that “act” to
have its own independent significance? How does that provide
the referenced act independent significance?
3. Assume T validly executes a will. The residuary clause
provides as follows: “I hereby give all my property to the trustee of
my inter vivos trust, to hold and distribute pursuant to the terms of
the trust.” Thereafter the testator revokes the trust and creates a
new trust instrument, but dies before funding it. What controls

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who gets the testator's probate property: T's will, T's trust, or the
intestate scheme? Why?

C. Uniform Testamentary Additions to Trusts

Act
These types of questions, and others, created risks and
uncertainty with respect to the validity of testamentary pour-over
clauses. To resolve the uncertainty and to facilitate the use of
pour-over clauses, the Uniform Law Commission adopted the
Uniform Testamentary Addition to Trusts Act (“UTATA”) to create
a safe harbor for pour-over clauses. Unfortunately, the “Uniform”
Law is not as uniform as one might like. The Commission has
disagreed over time with respect to what exactly is necessary for
a pour-over clause to be valid under the Act, and a handful of
states have statutorily adopted their own variation of the Act.
California's version of UTATA provides as follows:
CPC §6300. Testamentary additions to trusts
A devise, the validity of which is determinable by the law of
this state, may be made by a will to the trustee of a trust
established or to be established by the testator or by the
testator and some other person or by some other person
(including a funded or unfunded life insurance trust, although
the settlor has reserved any or all rights of ownership of the
insurance contracts) if the trust is identified in the testator's
will and its terms are set forth in a written instrument (other
than a will) executed before or concurrently with the
execution of the testator's will or in the valid last will of a
person who has predeceased the testator (regardless of the
existence, size, or character of the trust property). The
devise is not invalid because the trust is amendable or
revocable, or both, or because the trust was amended after
the execution of the will or after the death of the testator.
Unless the testator's will provides otherwise, the property so
devised (1) is not deemed to be held under a testamentary
trust of the testator but becomes a part of the trust to which it
is given and (2) shall be administered and disposed of in
accordance with the provisions of the instrument or will
setting forth the terms of the trust, including any

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 amendments thereto made before or after the death of the
testator (regardless of whether made before or after the
execution of the testator's will). Unless otherwise provided in
the will, a revocation or termination of the trust before the
death of the testator causes the devise to lapse.
Adopting a new law, however, often has a ripple effect, creating
new issues when it overlaps with existing doctrines in unexpected
ways.

Clymer v. Mayo
473 N.E.2d 1084 (Mass. 1985)
HENNESSEY, Chief Justice.
This consolidated appeal arises out of the administration of the
estate of Clara A. Mayo (decedent). We summarize the findings
of the judge of the Probate and Family Court incorporating the
parties' agreed statement of uncontested facts.
At the time of her death in November, 1981, the decedent, then
fifty years of age, was employed by Boston University as a
professor of psychology. She was married to James P. Mayo, Jr.
(Mayo), from 1953 to 1978. The couple had no children. The
decedent was an only child and her sole heirs at law are her
parents, Joseph A. and Maria Weiss.
In 1963, the decedent executed a will designating Mayo as
principal beneficiary. In 1964, she named Mayo as the beneficiary
of her group annuity contract with John Hancock Mutual Life
Insurance Company; and in 1965, made him the beneficiary of
her Boston University retirement annuity contracts with Teachers
Insurance and Annuity Association (TIAA) and College
Retirement Equities Fund (CREF). As a consequence of a
$300,000 gift to the couple from the Weisses in 1971, the
decedent and Mayo executed new wills and indentures of trust on
February 2, 1973, wherein each spouse was made the other's
principal beneficiary. Under the terms of the decedent's will, Mayo
was to receive her personal property. The residue of her estate
was to “pour over” into the inter vivos trust she created that same
day.

679
 The decedent's trust instrument named herself and John P. Hill
as trustees. As the donor, the decedent retained the right to
amend or revoke the trust at any time by written instrument
delivered to the trustees. In the event that Mayo survived the
decedent, the trust estate was to be divided into two parts. Trust
A, the marital deduction trust, was to be funded with an amount
“equal to fifty (50%) per cent of the value of the Donor's ‘adjusted
gross estate,’... for the purpose of the United States Tax Law, less
an amount equal to the value of all interest in property, if any,
allowable as ‘marital deductions’ for the purposes of such law....”
Mayo was the income beneficiary of Trust A and was entitled to
reach the principal at his request or in the trustee's discretion.
The trust instrument also gave Mayo a general power of
appointment over the assets in Trust A.
The balance of the decedent's estate, excluding personal
property passing to Mayo by will, or the entire estate if Mayo did
not survive her, composed Trust B. Trust B provided for the
payment of five initial specific bequests totalling $45,000. After
those gifts were satisfied, the remaining trust assets were to be
held for the benefit of Mayo for life. Upon Mayo's death, the
assets in Trust B were to be held for “the benefit of the nephews
and nieces of the Donor” living at the time of her death. The
trustee was given discretion to spend so much of the income and
principal as necessary for their comfort, support, and education.
When all of these nephews and nieces reached the age of thirty,
the trust was to terminate and its remaining assets were to be
divided equally between Clark University and Boston University to
assist in graduate education of women.
On the same day she established her trust, the decedent
changed the beneficiary of her Boston University group life
insurance policy from Mayo to the trustees. One month later, in
March, 1973, she also executed a change in her retirement
annuity contracts to designate the trustees as beneficiaries. At the
time of its creation in 1973, the trust was not funded. Its future
assets were to consist solely of the proceeds of these policies
and the property which would pour over under the will's residuary
clause. The judge found that the remaining trustee has never
received any property or held any funds subsequent to the

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execution of the trust nor has he paid any trust taxes or filed any
trust tax returns.
Mayo moved out of the marital home in 1975. In June, 1977,
the decedent changed the designation of beneficiary on her
Boston University life insurance policy for a second time,
substituting Marianne LaFrance for the trustees. LaFrance had
lived with the Mayos since 1972, and shared a close friendship
with the decedent up until her death. Mayo filed for divorce on
September 9, 1977, in New Hampshire. The divorce was decreed
on January 3, 1978, and the court incorporated into the decree a
permanent stipulation of the parties' property settlement. Under
the terms of that settlement, Mayo waived any “right, title or
interest” in the decedent's “securities, savings accounts, savings
certificates, and retirement fund,” as well as her “furniture,
furnishings and art.” Mayo remarried on August 28, 1978, and
later executed a new will in favor of his new wife. The decedent
died on November 21, 1981. Her will was allowed on November
18, 1982, and the court appointed John H. Clymer as
administrator with the will annexed.
What is primarily at issue in these actions is the effect of the
Mayos' divorce upon dispositions provided in the decedent's will
and indenture of trust. In the first action, the court-appointed
administrator of the decedent's estate petitioned for instructions
with respect to the impact of the divorce on the estate's
administration. Named as defendants were Mayo, the decedent's
parents (the Weisses), and the trustee under the indenture of
trust (John P. Hill).
...
1. The Judge's Conclusions.
...
On November 1, 1983, the judge issued his rulings of law....
The rulings that have been challenged by one or more parties on
appeal are as follows: (1) the decedent's inter vivos trust,
executed contemporaneously with her will, is valid under G.L. c.
203, §3B, despite the fact that the trust did not receive funding
until the decedent's death; (2) Mayo does not take under Trust A
because that transfer was intended to qualify for a marital

681
deduction for Federal estate tax purposes and this objective
became impossible after the Mayos' divorce; (3) Mayo is entitled
to take under Trust B because the purpose of that trust was to
create a life interest in him, the decedent failed to revoke the trust
provisions benefiting Mayo, and G.L. c. 191, §9, operates to
revoke only testamentary dispositions in favor of a former spouse;
(4) J. Chamberlain, A. Chamberlain, and Hinman, the decedent's
nephews and niece by marriage at the time of the trust's creation,
are entitled to take under Trust B as the decedent's intended
beneficiaries....
...
2. Validity of “Pour-over” Trust.
The Weisses claim that the judge erred in ruling that the
decedent's trust was validly created despite the fact that it was
not funded until her death. They rely on the common law rule that
a trust can be created only when a trust res exists. New England
Trust Co. v. Sanger, 337 Mass. 342, 348, 140 N.E.2d 598 (1958).
Arguing that the trust never came into existence, the Weisses
claim they are entitled to the decedent's entire estate as her sole
heirs at law.
In upholding the validity of the decedent's pour-over trust, the
judge cited the relevant provisions of G.L. c. 203, §3B, inserted by
St.1963, c. 418, §1, the Commonwealth's version of the Uniform
Testamentary Additions to Trusts Act. “A devise or bequest, the
validity of which is determinable by the laws of the
commonwealth, may be made to the trustee or trustees of a trust
established or to be established by the testator ... including a
funded or unfunded life insurance trust, although the trustor has
reserved any or all rights of ownership of the insurance contracts,
if the trust is identified in the will and the terms of the trust are set
forth in a written instrument executed before or concurrently with
the execution of the testator's will ... regardless of the existence,
size or character of the corpus of the trust” (emphasis added).
The decedent's trust instrument, which was executed in
Massachusetts and states that it is to be governed by the laws of
the Commonwealth, satisfies these statutory conditions. The trust
is identified in the residuary clause of her will and the terms of the
trust are set out in a written instrument executed

682
contemporaneously with the will. However, the Weisses claim that
G.L. c. 203, §3B, was not intended to change the common law
with respect to the necessity for a trust corpus despite the clear
language validating pour-over trusts, “regardless of the existence,
size or character of the corpus.” The Weisses make no showing
of legislative intent that would contradict the plain meaning of
these words. It is well established that “the statutory language is
the principal source of insight into legislative purpose.” Bronstein
v. Prudential Ins. Co. of America, 390 Mass. 701, 704, 459 N.E.2d
772 (1984). Moreover, the development of the common law of this
Commonwealth with regard to pour-over trusts demonstrates that
G.L. c. 203, §3B, takes on practical meaning only if the
Legislature meant exactly what the statute says concerning the
need for a trust corpus.
This court was one of the first courts to validate pour-over
devises to a living trust. In Second Bank-State St. Trust Co. v.
Pinion, 341 Mass. 366, 371, 170 N.E.2d 350 (1960), decided prior
to the adoption of G.L. c. 203, §3B, we upheld a testamentary gift
to a revocable and amendable inter vivos trust established by the
testator before the execution of his will and which he amended
after the will's execution. Recognizing the importance of the pour-
over devise in modern estate planning, we explained that such
transfers do not violate the statute of wills despite the testator's
ability to amend the trust and thereby change the disposition of
property at his death without complying with the statute's
formalities. “We agree with modern legal thought that a
subsequent amendment is effective because of the applicability of
the established equitable doctrine that subsequent acts of
independent significance do not require attestation under the
statute of wills.” Id. at 369, 170 N.E.2d 350.
At that time we noted that “[t]he long established recognition in
Massachusetts of the doctrine of independent significance makes
unnecessary statutory affirmance of its application to pour-over
trusts.” Id. at 371, 170 N.E.2d 350. It is evident from Pinion that
there was no need for the Legislature to enact G.L. c. 203, §3B,
simply to validate pour-over devises from wills to funded
revocable trusts.
However, in Pinion, we were not presented with an unfunded
pour-over trust. Nor, prior to G.L. c. 203, §3B, did other authority

683
exist in this Commonwealth for recognizing testamentary
transfers to unfunded trusts. The doctrine of independent
significance, upon which we relied in Pinion, assumes that
“property was included in the purported inter vivos trust, prior to
the testator's death.” Restatement (Second) of Trusts §54,
comment f (1959). That is why commentators have recognized
that G.L. c. 203, §3B, “[m]akes some ... modification of the Pinion
doctrine. The act does not require that the trust res be more than
nominal or even existent.” E. Slizewski, Legislation: Uniform
Testamentary Additions to Trusts Act, 10 Ann.Surv. of Mass.Law
§2.7, 39 (1963). See Osgood, Pour Over Will: Appraisal of
Uniform Testamentary Additions to Trusts Act, 104 Trusts 768,
769 (1965) (“The Act ... eliminates the necessity that there be a
trust corpus”).
...
For the foregoing reasons we conclude, in accordance with
G.L. c. 203, §3B that the decedent established a valid inter vivos
trust in 1973 and that its trustee may properly receive the residue
of her estate. We affirm the judge's ruling on this issue.
...
4. Termination of Trust A.
The judge terminated Trust A upon finding that its purpose—to
qualify the trust for an estate tax marital deduction—became
impossible to achieve after the Mayos' divorce. Mayo appeals this
ruling. It is well established that the Probate Courts are
empowered to terminate or reform a trust in whole or in part
where its purposes have become impossible to achieve and the
settlor did not contemplate continuation of the trust under the new
circumstances. Gordon v. Gordon, 332 Mass. 193, 197, 124
N.E.2d 226 (1955). Ames v. Hall, 313 Mass. 33, 37, 46 N.E.2d
403 (1943).
The language the decedent employed in her indenture of trust
makes it clear that by setting off Trusts A and B she intended to
reduce estate tax liability in compliance with then existing
provisions of the Internal Revenue Code. Therefore we have no
disagreement with the judge's reasoning. See Putnam v. Putnam,
366 Mass. 261, 267, 316 N.E.2d 729 (1974). However, we add

684
that our reasoning below—that by operation of G.L. c. 191, §9,
Mayo has no beneficial interest in the trust—clearly disposes of
Mayo's claim to Trust A.
5. Mayo's Interest in Trust B.
The judge's decision to uphold Mayo's beneficial interest in
Trust B was appealed by the Weisses, as well as by Boston
University and Clark University. The judge reasoned that the
decedent intended to create a life interest in Mayo when she
established Trust B and failed either to revoke or to amend the
trust after the couple's divorce. The appellants argue that we
should extend the reach of G.L. c. 191, §9, to revoke all Mayo's
interests under the trust. General Laws c. 191, §9, as amended
through St.1977, c. 76, §2, provides in relevant part: “If, after
executing a will, the testator shall be divorced or his marriage
shall be annulled, the divorce or annulment shall revoke any
disposition or appointment of property made by the will to the
former spouse, any provision conferring a general or special
power of appointment on the former spouse, and any nomination
of the former spouse, as executor, trustee, conservator or
guardian, unless the will shall expressly provide otherwise.
Property prevented from passing to a former spouse because of
revocation by divorce shall pass as if a former spouse had failed
to survive the decedent, and other provisions conferring a power
of office on the former spouse shall be interpreted as if the
spouse had failed to survive the decedent.” The judge ruled that
Mayo's interest in Trust B is unaffected by G.L. c. 191, §9,
because his interest in that trust is not derived from a “disposition
... made by the will” but rather from the execution of an inter vivos
trust with independent legal significance. We disagree, but in
fairness we add that the judge here confronted a question of first
impression in this Commonwealth.
General Laws c. 191, §9, was amended by the Legislature in
1976 to provide in the event of divorce for the revocation of
testamentary dispositions which benefit the testator's former
spouse. St.1976, c. 515, §6. The statute automatically causes
such revocations unless the testator expresses a contrary intent.
In this case we must determine what effect, if any, G.L. c. 191, §9,
has on the former spouse's interest in the testator's pour-over
trust.

685
 While, by virtue of G.L. c. 203, §3B, the decedent's trust bore
independent significance at the time of its creation in 1973, the
trust had no practical significance until her death in 1981. The
decedent executed both her will and indenture of trust on
February 2, 1973. She transferred no property or funds to the
trust at that time. The trust was to receive its funding at the
decedent's death, in part through her life insurance policy and
retirement benefits, and in part through a pour-over from the will's
residuary clause. Mayo, the proposed executor and sole legatee
under the will, was also made the primary beneficiary of the trust
with power, as to Trust A only, to reach both income and principal.
During her lifetime, the decedent retained power to amend or
revoke the trust. Since the trust was unfunded, her co-trustee was
subject to no duties or obligations until her death. Similarly, it was
only as a result of the decedent's death that Mayo could claim
any right to the trust assets. It is evident from the time and
manner in which the trust was created and funded, that the
decedent's will and trust were integrally related components of a
single testamentary scheme. For all practical purposes the trust,
like the will, “spoke” only at the decedent's death. For this reason
Mayo's interest in the trust was revoked by operation of G.L. c.
191, §9, at the same time his interest under the decedent's will
was revoked.
It has reasonably been contended that in enacting G.L. c. 191,
§9, the Legislature “intended to bring the law into line with the
expectations of most people.... Divorce usually represents a
stormy parting, where the last thing one of the parties wishes is to
have an earlier will carried out giving everything to the former
spouse.” Young, Probate Reform, 18 Boston B.J. 7, 11 (1974). To
carry out the testator's implied intent, the law revokes “any
disposition or appointment of property made by the will to the
former spouse.” It is indisputable that if the decedent's trust was
either testamentary or incorporated by reference into her will,
Mayo's beneficial interest in the trust would be revoked by
operation of the statute. However, the judge stopped short of
mandating the same result in this case because here the trust
had “independent significance” by virtue of c. 203, §3B. While
correct, this characterization of the trust does not end our
analysis. For example, in Sullivan v. Burkin, 390 Mass. 864, 867,

686
460 N.E.2d 572 (1984), we ruled prospectively that the assets of
a revocable trust will be considered part of the “estate of the
decedent” in determining the surviving spouse's statutory share.
Treating the components of the decedent's estate plan
separately, and not as parts of an interrelated whole, brings about
inconsistent results. Applying c. 191, §9, the judge correctly
revoked the will provisions benefiting Mayo. As a result, the
decedent's personal property—originally left to Mayo—fell into the
will's residuary clause and passed to the trust. The judge then
appropriately terminated Trust A for impossibility of purpose
thereby denying Mayo his beneficial interest under Trust A. Yet,
by upholding Mayo's interest under Trust B, the judge returned to
Mayo a life interest in the same assets that composed the corpus
of Trust A—both property passing by way of the decedent's will
and the proceeds of her TIAA/CREF annuity contracts.
We are aware of only one case concerning the impact of a
statute similar to G.L. c. 191, §9, on trust provisions benefiting a
former spouse. In Miller v. First Nat'l Bank & Trust Co., 637 P.2d
75 (Okla. 1981), the testator also simultaneously executed an
indenture of trust and will naming his spouse as primary
beneficiary. As in this case, the trust was to be funded at the
testator's death by insurance proceeds and a will pour-over.
Subsequently, the testator divorced his wife but failed to change
the terms of his will and trust. The District court revoked the will
provisions favoring the testator's former wife by applying a statute
similar to G.L. c. 191, §9. Recognizing that “[t]he will without the
trust has no meaning or value to the decedent's estate plan,” the
Oklahoma Supreme Court revoked the trust benefits as well. Id.
at 77. However, we do not agree with the court's reasoning.
Because the Oklahoma statute, like G.L. c. 191, §9, revokes
dispositions of property made by will, the court stretched the
doctrine of incorporation by reference to render the decedent's
trust testamentary. We do not agree that reference to an existing
trust in a will's pour-over clause is sufficient to incorporate that
trust by reference without evidence that the testator intended
such a result. See Second Bank-State St. Trust Co. v. Pinion, 341
Mass. 366, 367, 170 N.E.2d 350 (1960). However, it is not
necessary for us to indulge in such reasoning, because we have
concluded that the legislative intent under G.L. c. 191, §9, is that

687
a divorced spouse should not take under a trust executed in these
circumstances. In the absence of an expressed contrary intent,
that statute implies an intent on the part of a testator to revoke will
provisions favoring a former spouse. It is incongruous then to
ignore that same intent with regard to a trust funded in part
through her will's pour-over at the decedent's death. See State St.
Bank & Trust v. United States, 634 F.2d 5, 10 (1st Cir. 1980) (trust
should be interpreted in light of the settlor's contemporaneous
execution of interrelated will). As one law review commentator
has noted, “[t]ransferors use will substitutes to avoid probate, not
to avoid the subsidiary law of wills. The subsidiary rules are the
product of centuries of legal experience in attempting to discern
transferors' wishes and suppress litigation. These rules should be
treated as presumptively correct for will substitutes as well as for
wills.” Langbein, The Nonprobate Revolution and the Future of
the Law of Succession, 97 Harv.L.Rev. 1108, 1136–1137 (1984).
Restricting our holding to the particular facts of this case—
specifically the existence of a revocable pour-over trust funded
entirely at the time of the decedent's death—we conclude that
G.L. c. 191, §9, revokes Mayo's interest under Trust B.
6. Nephews and Nieces of Donor.
According to the terms of G.L. c. 191, §9, “[p]roperty prevented
from passing to a former spouse because of revocation by
divorce shall pass as if a former spouse had failed to survive the
decedent....” In this case, the decedent's indenture of trust
provides that if Mayo failed to survive her, “the balance of ‘Trust
B’ shall be held ... for the benefit of the nephews and nieces of
the Donor living at the time of the death of the Donor.” The trustee
is directed to expend as much of the net income and principal as
he deems “advisable for [their] reasonable comfort, support and
education” until all living nephews and nieces have attained the
age of thirty. At that time, the trust is to terminate and Boston
University and Clark University are each to receive fifty per cent
of the trust property to assist women students in their graduate
programs.
The decedent had no siblings and therefore no nephews and
nieces who were blood relations. However, when she executed
her trust in 1973, her husband, James P. Mayo, Jr., had two

688
nephews and one niece—John and Allan Chamberlain and Mira
Hinman. Before her divorce, the decedent maintained friendly
relations with these young people and, along with her former
husband, contributed toward their educational expenses. The
three have survived the decedent.
The Weisses, Boston University, and Clark University appeal
the decision of the judge upholding the decedent's gift to these
three individuals. They argue that at the time the decedent
created her trust she had no “nephews and nieces” by blood and
that, at her death, her marital ties to Mayo's nephews and niece
had been severed by divorce. Therefore, they contend that the
class gift to the donor's “nephews and nieces” lapses for lack of
identifiable beneficiaries.
The judge concluded that the trust language created an
ambiguity, and thus he considered extrinsic evidence of the
decedent's meaning and intent. Based upon that evidence, he
decided that the decedent intended to provide for her nieces and
nephews by marriage when she created the trust. Because the
decedent never revoked this gift, he found that the Chamberlains
and Hinman are entitled to their beneficial interests under the
trust. We agree.
...
In sum, we conclude that the decedent established a valid trust
under G.L. c. 203, §3B; Mayo's beneficial interest in Trust A and
Trust B is revoked by operation of G.L. c. 191, §9; the
Chamberlains and Hinman are entitled to take the interest given
to the decedent's “nephews and nieces” under Trust B, leaving
the remainder to Clark University and Boston University; the
Weisses lack standing to remove the estate administrator; and
the judge's award of attorneys' fees is vacated and remanded for
reconsideration.
So ordered.
—————

Notes and Problems

1. Question of first impression: Although the Massachusetts
Supreme Court reversed the trial court's rulings, the Court

689
acknowledged that the trial court was dealing with a question of
first impression. What exactly was that question of first
impression? How would you phrase it? Assuming the same fact
pattern came up in California, would the issue be the same or
different? Why?
2. Inter vivos funding—amount? What difference, if any, would
it make if Clara Mayo (the decedent) had put $100 into the trust
while she was alive? Should that make a difference? Why?
3. California's approach: As noted and discussed above,
California has adopted a version of UTATA. In addition, California
has abolished the rule that testamentary trusts are subject to
probate court supervision for the life of the trust. Once a
testamentary trust is funded, the trust is treated the same as an
inter vivos trust in that there is no court supervision as a general
rule. As envisioned and originally adopted, UTATA had two
principal benefits: (1) it facilitated validating a pour-over clause,
and (2) it ensured that the resulting trust was not subject to
probate court supervision. Under current California law, as a
general rule, no trusts, inter vivos or testamentary, are
automatically and inherently subject to court supervision. Thus,
UTATA currently only offers one benefit in California—it facilitates
the creation of the trust by offering an alternative method to
validate a pour-over clause. In many states, however,
testamentary trusts are still subject to probate court supervision
for the life of the trust, and UTATA still offers that additional
benefit in those states.
Does California's UTATA moot the old common law approaches
to validating a pour-over clause? Now that you know UTATA, can
you forget about the old common law approaches? The following
problems may help you with your analysis of that question:

a. Assume T searches the Internet and finds a trust form she

likes. She prints it out but does not sign it. Thereafter T validly
executes her will. The residuary clause provides as follows: “I
hereby give all my property to the trustee of my inter vivos
trust, to hold and distribute pursuant to the terms of the trust.”
Thereafter T dies without doing anything else to the trust or
trust instrument. What controls who gets T's property? Is the

690
 pour-over clause valid? What type of trust, if any, does T
have?
b. Assume T searches the Internet and finds a trust form she
likes. She prints it out but does not sign it. Thereafter T validly
executes her will. The residuary clause provides as follows: “I
hereby give all my property to the trustee of my inter vivos
trust, to hold and distribute pursuant to the terms of the trust.”
Thereafter T signs the trust instrument but does not fund it.
What controls who gets T's property? Is the pour-over clause
valid? What type of trust, if any, does T have?
c. Assume T searches the Internet and finds a trust form she
likes. She prints it out but does not sign it. Thereafter T validly
executes her will. The residuary clause provides as follows: “I
hereby give all my property to the trustee of my inter vivos
trust, to hold and distribute pursuant to the terms of the trust.”
Thereafter T signs and funds the trust with $10,000. What
controls who gets T's property? Is the pour-over clause valid?
What type of trust, if any, does T have?
d. Assume T searches the Internet and finds a trust form she
likes. She prints it out and signs it. Thereafter T validly
executes her will. The residuary clause provides as follows: “I
hereby give all my property to the trustee of my inter vivos
trust, to hold and distribute pursuant to the terms of the trust.”
Thereafter, T amends the trust instrument but does not sign
or fund it. What controls who gets T's property? Is the pour-
over clause valid? What type of trust, if any, does T have? Is
the amendment to the trust valid?
e. Assume T searches the Internet and finds a trust form she
likes. She prints it out but does not sign it. Thereafter, T
validly executes her will. The residuary clause provides as
follows: “I hereby give all my property to the trustee of my
inter vivos trust, to hold and distribute pursuant to the terms
of the trust.” Thereafter, T amends the trust instrument, signs
it, but does not fund it. What controls who gets T's property?
Is the pour-over clause valid? What type of trust, if any, does
T have?
f. Assume T goes to an attorney and tells her attorney that she
wants a trust and pour-over will to dispose of her estate. The
attorney drafts a trust instrument and will that express T's
wishes. When T returns to the attorney's office to execute the

691
instruments, the printer prints out the will but jams just as it
starts to print the trust. Inasmuch as T is there, T validly
executes the will, but has to come back the following month
to execute the trust. T does not fund the trust while she is
alive. The residuary clause of T's will provides as follows: “I
hereby give all my property to the trustee of my inter vivos
trust, to hold and distribute pursuant to the terms of the trust.”
Thereafter, T dies without doing anything else to the trust or
trust instrument. What controls who gets T's property? Is the
pour-over clause valid? What type of trust, if any, does T
have?

692
 IV. Trust Revocability
A. Default Rule
An issue that goes hand in hand with creation of an inter vivos
trust is whether it is revocable. If the settlor changes his or her
mind, can he or she take it all back without the consent or
permission of the beneficiaries or a court? Are inter vivos trusts
revocable?
A trust may be revocable or irrevocable. Inasmuch as the
settlor's intent dominates the law of trusts, it should come as no
surprise that the same applies and controls the issue of whether a
trust is revocable. If the settlor expressly provides that a trust is
revocable, the trust is revocable. The only real issue is what
should be the default approach where the trust is silent.
Because so much of the traditional law of trusts, particularly
with respect to the creation of a trust, evolved out of the law of
gifts, the traditional default rule with respect to the revocability of
a trust should come as no surprise. As a general rule, are inter
vivos gifts revocable? No. Accordingly, as a general rule, should
inter vivos trusts be revocable? No. Consistent with that line of
reasoning, the traditional common law approach is that a trust is
presumed irrevocable unless the settlor provides otherwise.
Having said that, Louisiana and California have always presumed
the opposite—that the default rule should be that the trust is
revocable unless the settlor provides otherwise.
The modern trend of trust law focuses more on the presumed
intent of the average testator for its default rules. Consistent with
that approach, both the Uniform Trust Code and the RESTATEMENT
THIRD OF TRUSTS endorse the traditional California approach—that
a trust should be presumed revocable unless the settlor provides
otherwise. While not yet the majority rule, the modern trend
approach to revocability is quickly being adopted in an increasing
number of states.

B. Mechanics of Revoking a Trust

693
 Assuming a trust is revocable, what should a settlor have to do
to validly revoke the trust? If an inter vivos trust is revocable, for
all practical purposes is it basically a will? If it is basically a will,
should the will revocation doctrines apply and control the law of
trust revocation?
Historically, inasmuch as a trust was presumed irrevocable
unless the settlor provided otherwise, the general rule was that a
trust was only revocable to the extent and as provided by the
settlor. The settlor's intent controlled the question of how
mechanically a trust could be revoked. Moreover, where the trust
set forth only one method of revocation, the courts typically
construed that to be the only method by which the trust could be
revoked. Historically it was very common for an inter vivos
revocable trust to include the following provision (or one to the
same effect): “The settlor may amend, alter, or revoke the trust by
an instrument in writing signed by the settlor and delivered to
trustee while the settlor is still alive.” Consistent with the
traditional common law approach, where a trust included such an
express provision, it typically was construed as the exclusive
method of revoking or amending the trust. In the absence of a
trust provision addressing how the trust could be revoked, any
reasonable method that adequately expresses the intent to
revoke should be a valid revocation. See BOGERT'S TRUSTS &
TRUSTEES §1001 (2014).
As noted above, the modern trend approach to trust revocability
takes more of an intent-based approach. In addition, the modern
trend adopts the view that the contemporary settlor of an inter
vivos revocable trust thinks of it as indistinguishable from a will.
Under this conceptual model, the settlor typically is the initial
trustee and lifetime beneficiary. The settlor still thinks of the
property transferred to the trust as his or her property, technically
not the trust property. The underlying assumption is that the
contemporary settlor has created the inter vivos revocable trust
as a cheaper, faster, and more confidential way of transferring
one's property at death, but basically still thinks of the inter vivos
revocable trust as functionally indistinguishable from a traditional
will and therefore would prefer to be able to treat it as functionally
indistinguishable from a will.

694
 Accordingly, the Uniform Trust Code takes a wills-based
approach to the revocability of an inter vivos trust. First, as noted
above, the default presumption is that an inter vivos revocable
trust is presumed revocable (just like a will). Second, if the trust
expressly sets forth a method or methods of revocation,
that/those method(s) should not be deemed the exclusive
method(s) unless the trust expressly so provides. Third, whether
the trust sets forth a method of revocation or not, as long as the
method is not expressly made the exclusive method(s) of
revoking the trust, the trust can be revoked by any method that
manifests “clear and convincing evidence of the settlor's intent.”
UTC §602 (c)(2)(B). Assuming the trust does not set forth an
exclusive method of revocation, a subsequently executed will or
codicil can revoke the trust if it expressly refers to the trust, and
the will or codicil can implicitly revoke the trust by specifically
devising trust property contrary to the terms of the trust. UTC
§602 (c)(2)(A). Finally, consistent with the modern trend approach
to wills, if the trust sets forth an express method of revocation, the
settlor need only substantially comply with the method of
revocation; strict compliance is not applicable. UTC §602(c)(1).
While a good number of states have adopted the modern trend
default rule with respect to whether a trust is revocable where the
trust is silent, not as many states have adopted the modern trend
view as to the mechanics of revoking the inter vivos revocable
trust. Most states have tried to loosen up the common law
approach without going as far as the UTC. If the common law
approach is one end of the spectrum, and the UTC is the other
end, most states are somewhere in between. Where does
California fall on this spectrum?

Masry v. Masry
166 Cal. App. 4th 738 (2008)
GILBERT, P.J.
How may a settlor revoke a revocable trust? Probate Code
section 15401, subdivision (a)(2) provides the answer: (1) by
compliance with the method stated in the trust, (2) by a writing
(other than a will) signed by the settlor and delivered to the
trustee during the lifetime of the settlor. Subdivision (a)(2) also

695
tells us that its provisions do not apply if the trust instrument
explicitly makes its language the exclusive method of revocation.
A husband and wife are trustors and trustees of a family trust.
The trust provides that each of the trustors has the power to
revoke the trust during their joint lifetimes by written direction
delivered to the other trustor and to the trustee.
Here, husband executed a revocation of the trust but did not
deliver the notice of revocation to his wife. Wife received notice of
the revocation after his death.
We conclude, among other things, the revocation provision in
the trust was not explicitly exclusive, and husband's method of
revocation complied with Probate Code section 15401,
subdivision (a)(2). We affirm.
FACTS
In 2004, Edward Masry and appellant Joette Masry, husband
and wife, created the Edward and Joette Masry Family Trust
(Family Trust), which consisted of the property acquired during
their marriage. Each was a trustor and trustee. Section 2.1 of the
Family Trust provides for revocation. It states in pertinent part:
“Each of the Trustors hereby reserves the right and power to
revoke this Trust, in whole or in part, from time to time during their
joint lifetimes, by written direction delivered to the other Trustor
and to the Trustee.”
A little over a year after the Family Trust was created, and
shortly before his death, Edward executed a “Notice of
Revocation of Interest in Trust and Resignation as Trustee.” His
purpose was to transfer his assets from the Family Trust to a new
trust, the Edward L. Masry Trust (Edward Trust). He designated
two of his children from a previous marriage, respondents Louis
Masry and Louanne Masry Weeks, as successor cotrustees.
Joette was not given notice of the revocation until two weeks after
Edward's death.
Joette filed a revocation petition and a petition to ascertain
beneficiaries. She argued, among other things, that Edward's
revocation was invalid because she was not given notice during
his lifetime. The trial court found that the Family Trust did not
explicitly make delivery of the revocation to Joette, the other

696
Trustor, during Edward's lifetime the exclusive method of
revocation. The court ruled that Edward's delivery of the
revocation to himself as trustee satisfied Probate Code section
15401, subdivision (b), and Family Code section 761. The trial
court also ruled that respondents' civil action did not violate the no
contest provision of the Edward Trust.
DISCUSSION
Revocation
How do we determine whether the trust document explicitly
provides that its stated method of revocation is exclusive? We
look to dictum in Huscher v. Wells Fargo Bank (2004) 121
Cal.App.4th 956, 18 Cal.Rptr.3d 27. Dicta may not decide a case
but can be persuasive and influence later cases. Huscher's
dictum, however, is so persuasive that it becomes the law here.
The issue in Huscher involved amendments to a trust under
former Civil Code section 2280, the predecessor to Probate Code
section 15401 enacted in 1986, but its reasoning applies to
revocation. The right to revoke includes the right to modify.
(Huscher v. Wells Fargo Bank, supra, 121 Cal.App.4th 956, 962,
fn. 5, 18 Cal.Rptr.3d 27, citing Estate of Lindstrom (1987) 191
Cal.App.3d 375, 385, fn. 11, 236 Cal.Rptr. 376.)
Huscher chronicled and analyzed the history of Civil Code
section 2280. Just before it was replaced by Probate Code
section 15401, Civil Code section 2280 provided that every
voluntary trust is revocable “[u]nless expressly made irrevocable
by the instrument creating the trust....” (Huscher v. Wells Fargo
Bank, supra, 121 Cal.App.4th 956, 963, 18 Cal.Rptr.3d 27.) The
Huscher court concluded that language in trust documents that
purports to revoke under Civil Code section 2280 is reasonably
subject to an analysis of whether the language explicitly or
implicitly makes the method of revocation exclusive. Under this
analysis, one could argue that the language here, providing that
notice of revocation be given by the trustor to the other trustor
and the trustee, is implicitly exclusive.
But this argument is less persuasive under current Probate
Code section 15401, subdivision (a)(2). Huscher points out that “a
modification method is explicitly exclusive when the trust

697
instrument directly and unambiguously states that the procedure
is the exclusive one.” (Huscher v. Wells Fargo Bank, supra, 121
Cal.App.4th 956, 968, 18 Cal.Rptr.3d 27.) We agree with
respondents that section 2.1 of the Family Trust does not state
that the method of revocation it provides is explicitly exclusive. It
is simply one method of revocation in addition to that provided in
Probate Code section 15401, subdivision (a)(2). Edward complied
with section 15401, subdivision (a)(2), by giving notice to himself
as trustee. If the language in the trust were sufficient to qualify as
the explicitly exclusive method, then the language in section
15401, subdivision (a)(2) would be unnecessary.
Joette relies on Conservatorship of Irvine (1995) 40
Cal.App.4th 1334, 47 Cal.Rptr.2d 587. For the reasons stated in
Huscher, the Irvine case is not persuasive because it relies on
cases interpreting former Civil Code section 2280, which are
inapposite.
The parties rely on Gardenhire v. Superior Court (2005) 127
Cal.App.4th 882, 26 Cal.Rptr.3d 143, but cite different parts of the
opinion to support their view of the meaning of Probate Code
section 15401, subdivision (a)(2).
In Gardenhire, the trustor was also the trustee. After the trust
was created, the trustor revoked the trust by executing a will in
which she disposed of all her property. The appellate court held
that the trustor revoked according to the method described in the
trust, “written notice signed by the Trustor and delivered to the
Trustee.” (Gardenhire v. Superior Court, supra, 127 Cal.App.4th
882, 886, 26 Cal.Rptr.3d 143.) This qualified as a writing in which
the trustor gave notice to herself as trustee. Respondents point
out that in this respect the notice was the same as the notice
here. Like the trustor in Gardenhire, Edward revoked by giving
notice to himself as trustee. Here the difference is that the trustor
used a method provided in Probate Code section 15401,
subdivision(a)(1), instead of the method provided in the trust.
Joette reads Gardenhire to hold that if the language of
revocation in the trust is clear and express, then that is the
exclusive method to revoke. Gardenhire states in dictum, “If the
trust is not silent and instead provides a method of revocation,
then Probate Code section 15401, subdivision (a)(2) is

698
inapplicable.” (Gardenhire v. Superior Court, supra, 127
Cal.App.4th 882, 894, 26 Cal.Rptr.3d 143.) But were we to adopt
the Gardenhire view, Probate Code section 15401, subdivision (a)
(2) would be, at best, a clarification of former Civil Code section
2280, and not a change. Huscher's reasoning, albeit expressed in
its dictum, compels us to conclude that, absent language in the
trust that its method of revocation is exclusive, the trustor has the
option of revoking according to the method provided in Probate
Code section 15401, subdivision (a)(2), delivering notice to
himself as trustee. That there are two trustees here does not
change our view. Under subdivision (a)(2), Edward's notice to
himself is sufficient as notice to “the trustee.”
Nor does the method of revocation here violate section Probate
Code section 15401, subdivision (b). That section provides,
“Unless otherwise provided in the instrument, if a trust is created
by more than one settlor, each settlor may revoke the trust as to
the portion of the trust contributed by that settlor, except as
provided by Section 761 of the Family Code.” Family Code
section 761 provides, “Unless the trust instrument expressly
provides otherwise, a power to revoke as to community property
may be exercised by either spouse acting alone.”
Joette argues that such an interpretation of Probate Code
section 15401 and its subdivisions is not good public policy,
because it allows a “secret” revocation and represents one
spouse taking advantage of the other. It is true that had Joette
been given notice of the revocation as provided in the Family
Trust, she could have tried to persuade Edward to change his
mind or could have made changes in the disposition of her
community share of the trust property.
But married parties are permitted to dispose of their share of
the community without the consent of the other spouse. And if the
Legislature sees an overriding public policy argument that the
method of revocation used here violates public policy, it can
certainly once again amend the statute.
...
The judgment is affirmed....
—————

699
 Notes
1. California approach: If the common law approach to trust
revocability is one end of the spectrum, and the Uniform Trust
Code is the other end, where would you put California on that
spectrum?
2. Power to revoke versus power to amend: As the court notes,
the general rule under both the common law approach and the
modern trend approach is that the power to revoke implicitly
includes the power to amend, even if the power to revoke does
not expressly include a statement of the power to amend.
3. Marital trust: It is not uncommon for a married couple or
registered domestic partners to create a joint trust. Assuming it is
a revocable trust (either expressly or based on California's default
rule), what happens upon the death of the first spouse/registered
domestic partner? To the extent both parties put property into the
trust (community property and/or separate property), should one
spouse's death affect the surviving party's right to revoke?
In Miller v. Miller, No. H026719, 2004 WL 2601792 (Cal. Ct.
App. Nov. 16, 2004), the court was faced with this issue. Damon
and Hazel Miller, husband and wife, deed their home (which they
had purchased with earnings acquired during the marriage) to a
trust they created for their benefit during their lifetime, and upon
the death of the survivor, to their two sons. The trust expressly
provided that it was revocable:
We reserve unto ourselves the power and right at any time
during our lifetime to amend or revoke in whole or in part
the trust hereby created without the necessity of obtaining
the consent of any beneficiary and without giving notice to
any beneficiary. The sale or other disposition by us of the
whole or any part of the property held hereunder shall
constitute as to such whole or part a revocation of this trust.
Id. at *2. Thereafter Hazel died, and Damon moved into an
assisted living facility. Damon sought to revoke the trust by selling
the house. The trial court ruled that Damon could neither revoke
nor sell the house.
The court of appeal began its analysis by noting the default rule
that unless a trust provides otherwise, community property that is

700
transferred into a trust inter vivos ordinarily retains its community
property characterization. In addition, the default rule is that
unless a trust provides otherwise, inter vivos each spouse has the
power to revoke over all of the community property. While the
trust's express power to revoke did not address what should
happen upon the death of the first spouse, the failure to address
the issue meant the California default rule controlled—the
surviving spouse retains the power to revoke. The only remaining
issue is the scope of the power to revoke: should it be the same
as it was when both spouses were alive, or does the death of the
first spouse change the scope of the power to revoke?
The appellate court in Powell reviewed the applicable law:
“[R]evocation of a joint trust by one spouse is effective as to
all community property in the trust. (Fam.Code, §761, subd.
(b).) However, as to other property in the trust, revocation is
effective only as to the revoking party's share of other
property. (Prob.Code, §15401, subd. (b).)” (Id. at p. 1441.)
The Powell court proceeded to conclude: “[T]he fact the
trust assets were community property prior to Myrtle's
death does not mean they retained that status at the time
of revocation. At the time of Myrtle's death, Probate Code
section 100 provided: ‘Upon the death of a married person,
one-half of the community property belongs to the surviving
spouse and the other half belongs to the decedent.’
(Stats.1990, ch. 79, §14, p. 470.) Thus, to the extent
William and Myrtle retained reversionary property interests
in the trust assets during Myrtle's lifetime by virtue of the
right of revocation provided in the trust, those property
interests were transmuted from community to separate
property upon Myrtle's death. Under Probate Code section
15401, subdivision (b), William's revocation was therefore
effective only as to his half of the trust corpus, as the trial
court ruled. Myrtle's half was subject to disposition as
provided in her will, i.e., in accordance with the provisions
of the 1991 trust.” (Estate of Powell, supra, 83 Cal.App.4th
at p. 1441, italics added.)
Id. at *5. The court ruled that (1) Damon's attempted revocation of
the trust was inconsistent with Damon's limited power to revoke
following Hazel's death and (2) the attempted sale of the entire

701
house was inconsistent with the sons' interest in Hazel's share,
which was no longer revocable. Id. at *9.
4. Marital trust—drafting for revocability and ability to amend: A
professionally drafted joint marital revocable living trust typically
will include a clear, express statement of revocability and powers
to amend. For a joint California revocable living trust, the trust
document typically provides a pattern of revocability as follows:

a. During the joint lifetimes of the settlors (the married couple or

domestic partners): Either settlor (either spouse/domestic
partner) may revoke the entire trust with respect to all of the
couple's community property. With respect to either settlor's
separate property, revocation is permitted only by that settlor.
b. At the death of the first settlor (spouse/domestic partner): At
the death of the first spouse/domestic partner, the joint trust
splits into at least two parts. The surviving settlor's (surviving
spouse/domestic partner) share of community property and
his or her separate property is usually retained, in trust, as a
new split-off revocable living trust for such survivor. Often
referred to as “the survivor's trust,” it remains completely
revocable by such surviving spouse/domestic partner during
his or her lifetime. The deceased settlor's (first to die
spouse/domestic partner) share of community property and
his or her separate property are either distributed outright
pursuant to the dispositive provisions of the trust, or retained
in a trust (or multiple trusts for more complex estates) for
distribution according to its terms. In the common situation
where this deceased settlor's portion of the property remains
in trust (usually a new trust established by the underlying joint
trust document), the terms usually provide that this trust is
irrevocable.
c. At the death of the surviving settlor (spouse/domestic
partner): Similar to what occurs at the first settlor's death, the
surviving settlor's estate may continue to be held in trust (or
multiple trusts). Any such trust typically becomes, pursuant to
the trust terms, irrevocable.

The ability to amend a joint marital trust is also carefully

addressed in a professionally drafted document. A typical
California joint revocable living trust will contain provisions for the

702
settlors' power to amend that are, with usually one exception,
consistent with those for revocation. While during the joint
lifetimes of the settlors, either settlor can revoke the entire trust
with respect to all of the couple's community property, the trust
will usually require both for amending such portion of the trust.
Recall the will versus revocable living trust discussion at the
end of Chapter 11. This is a good example of why it is usually
necessary to secure the help of an estate planning attorney to
assist in the “administration” of a revocable living trust at the
death of the settlor or, in the case of a joint marital trust, for
assistance at the death of each settlor.
5. Marital trust—ethical issues in client representation: As
indicated, in California it is common for spouses (and domestic
partners) who wish to have a revocable living trust be the vehicle
for their respective dispositive wishes to utilize a joint revocable
living trust. While beyond the scope of this book, the estate
planning professional faces ethical issues in drafting such a
document. An example of a “worst case” scenario could play out
as follows: clients husband and wife discuss, together, their
mutual estate plan goals and objectives in your initial meeting
with them in your office. All sounds fine as they both express
mutual desires to leave all of their property to the other spouse, if
living, and, if not, to their children in equal shares (by consistent
means). This is a fairly typical “we are in agreement” estate
planning situation.
Within hours one spouse, for example, the husband, calls you
and says: “I didn't want to say anything in front of my wife, but I
want to change an integral part of my estate plan. I want to leave
something (maybe a substantial amount of property) to someone
other than my wife (in the worst case, someone in his life about
which the wife knows nothing).” As the drafting attorney, you are,
potentially, stuck. You have the ethical obligation of confidentiality
to your client, the husband, but you also have the ethical
obligation to disclose information to your client, the wife, that may
be pertinent with respect to her estate planning goals and
objectives. If you do not have a sufficient engagement letter
signed by both spouses at the inception of your representation,
there will be ethical problems—you are stuck with no actual,
practical solution. A proper dual-representation engagement

703
letter, agreed to by the clients, will require that the clients
effectively agree to waive their right of confidentiality thus, each
spouse knows in advance that any subsequent relevant
information obtained from either spouse will be disclosed to the
other. This will effectively obviate the inherent potential dilemma
of representing both spouses whose wishes may deviate from
those expressed in the initial meeting where their respective goals
and objectives are expressed (and, in accordance with, drafted).

Problems
1. Settlor executed a revocable inter vivos trust for the benefit of
her son. The trust instrument: (1) appointed Liberty National
Bank & Trust as trustee; and (2) provided that following her
death, all the trust property should be distributed outright to her
son. Thereafter, Settlor began to have second thoughts about
leaving all of the trust property to her son and none to her
daughter.
Settlor has a weak heart, and one evening she begins to have
chest pains. She fears the end may be soon. She takes out a
piece of paper and validly executes a holographic will that
provides in part as follows: “I dissolve the living trust; I want all
my property to go to my two children equally.” The
settlor/testatrix wrote the holographic will approximately one
hour before she died, during nonbanking hours.

a. Has Settlor validly revoked the trust under California law?

See Gamage v. Liberty Nat. Bank & Trust Co., 598 S.W.2d
463 (Ky. Ct. App. 1980) (applying Kentucky law).
b. Assume the same fact pattern as above, only this time the
revocable trust is silent with respect to how it can be revoked.
Has Settlor validly revoked the trust under California law?
c. Assume the same fact pattern as above, only this time the
revocable trust is silent with respect to how it can be revoked
and Settlor called the trustee and informed them that she had
executed the holographic will revoking the trust. Has Settlor
validly revoked the trust under California law?

2. Assume the same fact pattern as Problem 1, above, only this

time the trust expressly provides that the trust may be revoked

704
 “by any writing signed by the settlor and delivered to the
trustee.” Following Settlor's death, her executor presents the
holographic will to the trustee. Has Settlor validly revoked the
trust under California law? See Rosenauer v. Title Ins. & Trust
Co., 30 Cal. App. 3d 300 (Ct. App. 1973).

1. In some of the older opinions this was the Latin term used for the trust
beneficiary.
2. For an excellent discussion of the history behind and the issues inherent in
the “purpose” trust evolution, see Adam J. Hirsch, Trusts for Purposes: Policy,
Ambiguity, and Anomaly in the Uniform Laws, 26 FLA. ST. U. L. REV. 913
(1999).
3. But see note 3, after the Clymer case below, for an important California
qualifier to this paragraph.

705
Chapter 13

706
Trust Life: Beneficiary's
Perspective

707
 I. Scope of Beneficiary's
Interest
A trust is a bifurcated gift. The trustee holds and manages the
trust property for the benefit of the beneficiaries. What exactly
does that mean, particularly when viewed from the beneficiary's
perspective?

A. Beneficiary's Interest: Mandatory versus

Discretionary
A trust beneficiary's interest in the assets held by the trust is,
generally, governed by the settlor's intent (i.e., the terms of the
trust document itself for most trusts). More specifically, the trust
document conveys to the trustee certain powers. The extent to
which the trustee can exercise the powers, and the instructions
for when and how they are to be exercised, are contained in
various clauses in the trust. Arguably, the most critical variable in
determining a beneficiary's ability to “benefit” from the trust turns
on whether the interest (or the trustee's power to control such
interest) is mandatory or discretionary.

Marsman v. Nasca
573 N.E.2d 1025 (Mass. App. Ct. 1991)
DREBEN, Justice.
This appeal raises the following: Does a trustee, holding a
discretionary power to pay principal for the “comfortable support
and maintenance” of a beneficiary, have a duty to inquire into the
financial resources of that beneficiary so as to recognize his
needs? If so, what is the remedy for such failure? A Probate
Court judge held that the will involved in this case imposed a duty
of inquiry upon the trustee....
1. Facts....
Sara Wirt Marsman died in September, 1971, survived by her
second husband, T. Frederik Marsman (Cappy), and her daughter

708
by her first marriage, Sally Marsman Marlette. Mr. James F. Farr,
her lawyer for many years, drew her will and was the trustee
thereunder.
Article IIA of Sara's will provided in relevant part:
“It is my desire that my husband, T. Fred Marsman, be
provided with reasonable maintenance, comfort and
support after my death. Accordingly, if my said husband is
living at the time of my death, I give to my trustees, who
shall set the same aside as a separate trust fund, one-third
(1/3) of the rest, residue and remainder of my estate ... ;
they shall pay the net income therefrom to my said
husband at least quarterly during his life; and after having
considered the various available sources of support for
him, my trustees shall, if they deem it necessary or
desirable from time to time, in their sole and uncontrolled
discretion, pay over to him, or use, apply and/or expend for
his direct or indirect benefit such amount or amounts of the
principal thereof as they shall deem advisable for his
comfortable support and maintenance.” (Emphasis
supplied).
Article IIB provided:
“Whatever remains of said separate trust fund, including
any accumulated income thereon on the death of my
husband, shall be added to the trust fund established under
Article IIC....”
Article IIC established a trust for the benefit of Sally and her
family. Sally was given the right to withdraw principal and, on her
death, the trust was to continue for the benefit of her issue and
surviving husband.
The will also contained the following exculpatory clause:
“No trustee hereunder shall ever be liable except for his
own willful neglect or default.”
During their marriage, Sara and Cappy lived well and
entertained frequently. Cappy's main interest in life centered
around horses. An expert horseman, he was riding director and
instructor at the Dana Hall School in Wellesley until he was retired

709
due to age in 1972. Sally, who was also a skilled rider, viewed
Cappy as her mentor, and each had great affection for the other.
Sara, wealthy from her prior marriage, managed the couple's
financial affairs. She treated Cappy as “Lord of the Manor” and
gave him money for his personal expenses, including an
extensive wardrobe from one of the finest men's stores in
Wellesley.
...
After Sara's death in 1971, Farr met with Cappy and Sally and
held what he termed his “usual family conference” going over the
provisions of the will. At the time of Sara's death, the Wellesley
property was appraised at $29,000, and the principal of Cappy's
trust was about $65,600.
Cappy continued to live in the Wellesley house but was forced
by Sara's death and his loss of employment in 1972 to reduce his
standard of living substantially.... In 1972, Cappy took out a
mortgage for $4,000, the proceeds of which were used to pay
bills. Farr was aware of the transaction, as he replied to an inquiry
of the mortgagee bank concerning the appraised value of the
Wellesley property and the income Cappy expected to receive
from Sara's trust.
...
In February, 1974, Cappy informed the trustee that business
was at a standstill and that he really needed some funds, if
possible. Farr replied in a letter in which he set forth the relevant
portion of the will and wrote that he thought the language was
“broad enough to permit a distribution of principal.” Farr enclosed
a check of $300. He asked Cappy to explain in writing the need
for some support and why the need had arisen. The judge found
that Farr, by his actions, discouraged Cappy from making any
requests for principal.
Indeed, Cappy did not reduce his request to writing and never
again requested principal. Farr made no investigation whatsoever
of Cappy's needs or his “available sources of support” from the
date of Sara's death until Cappy's admission to a nursing home in
1983 and, other than the $300 payment, made no additional
distributions of principal until Cappy entered the nursing home.

710
 By the fall of 1974, Cappy's difficulty in meeting expenses
intensified. Several of his checks were returned for insufficient
funds, and in October, 1974, in order that he might remain in the
house, Sally and he agreed that she would take over the
mortgage payments, the real estate taxes, insurance, and major
repairs. In return, she would get the house upon Cappy's death.
Cappy and Sally went to Farr to draw up a deed. Farr was the
only lawyer involved, and he billed Sally for the work. He wrote to
Sally, stating his understanding of the proposed transaction, and
asking, among other things, whether Margaret would have a right
to live in the house if Cappy should predecease her. The answer
was no. No copy of the letter to Sally was sent to Cappy. A deed
was executed by Cappy on November 7, 1974, transferring the
property to Sally and her husband Richard T. Marlette (Marlette)
as tenants by the entirety, reserving a life estate to Cappy. No
writing set forth Sally's obligations to Cappy.
The judge found that there was no indication that Cappy did not
understand the transaction, although, in response to a request for
certain papers by Farr, Cappy sent a collection of irrelevant
documents. The judge also found that Cappy clearly understood
that he was preserving no rights for Margaret, and that neither
Sally nor Richard nor Farr ever made any representation to
Margaret that she would be able to stay in the house after
Cappy's death.
Although Farr had read Sara's will to Cappy and had written to
him that the will was “broad enough to permit a distribution of
principal,” the judge found that Farr failed to advise Cappy that
the principal of his trust could be used for the expenses of the
Wellesley home. The parsimonious distribution of $300 and Farr's
knowledge that the purpose of the conveyance to Sally was to
enable Cappy to remain in the house, provide support for this
finding. After executing the deed, Cappy expressed to Farr that
he was pleased and most appreciative. Margaret testified that
Cappy thought Farr was “great” and that he considered him his
lawyer.
Sally and Marlette complied with their obligations under the
agreement. Sally died in 1983, and Marlette became the sole
owner of the property subject to Cappy's life estate. Although

711
Margaret knew before Cappy's death that she did not have any
interest in the Wellesley property, she believed that Sally would
have allowed her to live in the house because of their friendship.
After Cappy's death in 1987, Marlette inquired as to Margaret's
plans, and, subsequently, through Farr, sent Margaret a notice to
vacate the premises. Margaret brought this action in the Probate
Court.
After a two-day trial, the judge held that the trustee was in
breach of his duty to Cappy when he neglected to inquire as to
the latter's finances. She concluded that, had Farr fulfilled his
fiduciary duties, Cappy would not have conveyed the residence
owned by him to Sally and Marlette. The judge ordered Marlette
to convey the house to Margaret and also ordered Farr to
reimburse Marlette from the remaining portion of Cappy's trust for
the expenses paid by him and Sally for the upkeep of the
property. If Cappy's trust proved insufficient to make such
payments, Farr was to be personally liable for such expenses.
Both Farr and Marlette appealed from the judgment, from the
denial of their motions to amend the findings, and from their
motions for a new trial. Margaret appealed from the denial of her
motion for attorney's fees. As indicated earlier, we agree with the
judge that Sara's will imposed a duty of inquiry on the trustee, but
we disagree with the remedy and, therefore, remand for further
proceedings.
2. Breach of trust by the trustee. Contrary to Farr's contention
that it was not incumbent upon him to become familiar with
Cappy's finances, Article IIA of Sara's will clearly placed such a
duty upon him. In his brief, Farr claims that the will gave Cappy
the right to request principal “in extraordinary circumstances” and
that the trustee, “was charged by Sara to be wary should Cappy
request money beyond that which he quarterly received.” Nothing
in the will or the record supports this narrow construction. To the
contrary, the direction to the trustees was to pay Cappy such
amounts “as they shall deem advisable for his comfortable
support and maintenance.” This language has been interpreted to
set an ascertainable standard, namely to maintain the life
beneficiary “in accordance with the standard of living which was
normal for him before he became a beneficiary of the trust.”
Woodberry v. Bunker, 359 Mass 239, 243, 268 N.E.2d 841

712
(1971). Dana v. Gring, 374 Mass. 109, 117, 371 N.E.2d 755
(1977). See Blodget v. Delaney, 201 F.2d 589, 593 (1st Cir.1953).
Even where the only direction to the trustee is that he shall “in
his discretion” pay such portion of the principal as he shall “deem
advisable,” the discretion is not absolute. “Prudence and
reasonableness, not caprice or careless good nature, much less a
desire on the part of the trustee to be relieved from trouble ...
furnish the standard of conduct.” Boyden v. Stevens, 285 Mass.
176, 179, 188 N.E. 741 (1934), quoting from Corkery v. Dorsey,
223 Mass. 97, 101, 111 N.E. 795 (1916). Holyoke Natl. Bank v.
Wilson, 350 Mass. 223, 227, 214 N.E.2d 42 (1966).
That there is a duty of inquiry into the needs of the beneficiary
follows from the requirement that the trustee's power “must be
exercised with that soundness of judgment which follows from a
due appreciation of trust responsibility.” Boyden v. Stevens, 285
Mass. at 179, 188 N.E. 741. Woodberry v. Bunker, 359 Mass. at
241, 268 N.E.2d 841. In Old Colony Trust Co. v. Rodd, 356 Mass.
584, 586, 254 N.E.2d 886 (1970), the trustee sent a questionnaire
to each potential beneficiary to determine which of them required
assistance but failed to make further inquiry in cases where the
answers were incomplete. The court agreed with the trial judge
that the method employed by the trustee in determining the
amount of assistance required in each case to attain “comfortable
support and maintenance” was inadequate. There, as here, the
trustee attempted to argue that it was appropriate to save for the
beneficiaries' future medical needs. The court held that the
“prospect of illness in old age does not warrant a persistent policy
of niggardliness toward individuals for whose comfortable support
in life the trust has been established. The payments made to the
respondent and several other beneficiaries, viewed in light of their
assets and needs, when measured against the assets of the trust
show that little consideration has been given to the ‘comfortable
support’ of the beneficiaries.” Id. at 589–590, 254 N.E.2d 886.
See 3 Scott, Trusts §187.3 (Fratcher 4th ed. 1988) (action of
trustee is “arbitrary” where he “is authorized to make payments to
a beneficiary if in his judgment he deems it wise and he refuses to
inquire into the circumstances of the beneficiary”). See also
Kolodney v. Kolodney, 6 Conn.App. 118, 123, 503 A.2d 625
(1986).

713
 Farr, in our view, did not meet his responsibilities either of
inquiry or of distribution under the trust. The conclusion of the trial
judge that, had he exercised “sound judgment,” he would have
made such payments to Cappy “as to allow him to continue to live
in the home he had occupied for many years with the settlor” was
warranted.
...
4. Remainder of Cappy's trust. The amounts that should have
been expended for Cappy's benefit are, however, in a different
category. More than $80,000 remained in the trust for Cappy at
the time of his death. As we have indicated, the trial judge
properly concluded that payments of principal should have been
made to Cappy from that fund in sufficient amount to enable him
to keep the Wellesley property. There is no reason for the
beneficiaries of the trust under Article IIC to obtain funds which
they would not have received had Farr followed the testatrix's
direction. The remedy in such circumstances is to impress a
constructive trust on the amounts which should have been
distributed to Cappy but were not because of the error of the
trustee. Even in cases where beneficiaries have already been
paid funds by mistake, the amounts may be collected from them
unless the recipients were bona fide purchasers or unless they,
without notice of the improper payments, had so changed their
position that it would be inequitable to make them repay. 5 Scott,
Trusts §465, at 341 (Fratcher 4th ed.1989). Allen v. Stewart, 214
Mass. 109, 113, 100 N.E. 1092 (1913). Welch v. Flory, 294 Mass.
138, 144, 200 N.E. 900 (1936). See National Academy of
Sciences v. Cambridge Trust Co., 370 Mass. 303, 307, 346
N.E.2d 879 (1976). Here, the remainder of Cappy's trust has not
yet been distributed, and there is no reason to depart from the
usual rule of impressing a constructive trust in favor of Cappy's
estate on the amounts wrongfully withheld....
...
5. Personal liability of the trustee. Farr raises a number of
defenses against the imposition of personal liability, including the
statute of limitations, the exculpatory clause in the will, and the
fact that Cappy assented to the accounts of the trustee....

714
 The more difficult question is the effect of the exculpatory
clause. As indicated in part 3 of this opinion, we consider the
order to Marlette to reconvey the property an inappropriate
remedy. In view of the judge's finding that, but for the trustee's
breach, Cappy would have retained ownership of the house, the
liability of the trustee could be considerable.
Although exculpatory clauses are not looked upon with favor
and are strictly construed, such “provisions inserted in the trust
instrument without any overreaching or abuse by the trustee of
any fiduciary or confidential relationship to the settlor are
generally held effective except as to breaches of trust ‘committed
in bad faith or intentionally or with reckless indifference to the
interest of the beneficiary.’” New England Trust Co. v. Paine, 317
Mass. 542, 550, 59 N.E.2d 263 (1945), S.C., 320 Mass. 482, 485,
70 N.E.2d 6 (1946). See Dill v. Boston Safe Deposit & Trust Co.,
343 Mass. 97, 100–102, 175 N.E.2d 911 (1961); Boston Safe
Deposit & Trust Co. v. Boone, 21 Mass.App.Ct. 637, 644, 489
N.E.2d 209 (1986). The actions of Farr were not of this ilk and
also do not fall within the meaning of the term used in the will,
“willful neglect or default.”
Farr testified that he discussed the exculpatory clause with
Sara and that she wanted it included. Nevertheless, the judge,
without finding that there was an overreaching or abuse of Farr's
fiduciary relation with Sara, held the clause ineffective. Relying on
the fact that Farr was Sara's attorney, she stated: “One cannot
know at this point in time whether or not Farr specifically called
this provision to Sara's attention. Given the total failure of Farr to
use his judgment as to [C]appy's needs, it would be unjust and
unreasonable to hold him harmless by reason of the exculpatory
provisions he himself drafted and inserted in this instrument.”
Assuming that the judge disbelieved Farr's testimony that he
and Sara discussed the clause, although such disbelief on her
part is by no means clear, the conclusion that it “would be unjust
and unreasonable to hold [Farr] harmless” is not sufficient to find
the overreaching or abuse of a fiduciary relation which is required
to hold the provision ineffective. See Restatement (Second) of
Trusts §222, comment d (1959).10 We note that the judge found
that Sara managed all the finances of the couple, and from all that
appears, was competent in financial matters.

715
 There was no evidence about the preparation and execution of
Sara's will except for the questions concerning the exculpatory
clause addressed to Farr by his own counsel. No claim was made
that the clause was the result of an abuse of confidence. See
Boston Safe Deposit & Trust Co. v. Boone, 21 Mass.App.Ct. at
644, 489 N.E.2d 209.
The fact that the trustee drew the instrument and suggested the
insertion of the exculpatory clause does not necessarily make the
provision ineffective. Restatement (Second) of Trusts §222,
comment d. No rule of law requires that an exculpatory clause
drawn by a prospective trustee be held ineffective unless the
client is advised independently. Cf. Barnum v. Fay, 320 Mass.
177, 181, 69 N.E.2d 470 (1946).
The judge used an incorrect legal standard in invalidating the
clause. While recognizing the sensitivity of such clauses, we hold
that, since there was no evidence that the insertion of the clause
was an abuse of Farr's fiduciary relationship with Sara at the time
of the drawing of her will, the clause is effective.
Except as provided herein, the motions of the defendants for a
new trial and amended findings are denied. The plaintiff's claim of
error as to legal fees fails to recognize that fees under G.L. c.
215, §45, are a matter within the discretion of the trial judge. We
find no abuse of discretion in the denial of fees.
The judgment is vacated, and the matter is remanded to the
Probate Court for further proceedings to determine the amounts
which, if paid, would have enabled Cappy to retain ownership of
the residence. Such amounts shall be paid to Cappy's estate from
the trust for his benefit prior to distributing the balance thereof to
the trust under Article IIC of Sara's will.
So ordered.
—————

Notes
1. Trust as bifurcated gift: One way to think about a trust is that
it is a “bifurcated” gift. As opposed to the typical inter vivos
outright gift, a trust is bifurcated in the following ways: (1) the
“donee” is bifurcated into the trustee and the beneficiary; (2)

716
because the gift is an ongoing gift, the property typically is split
into the res/corpus (or principal) and the income it generates; and
(3) at the beneficiary level the equitable interests in the trust are
typically split into some combination of possessory estate and
future interests.
In the Marsman case, Sara decided that instead of devising the
property outright to her husband, Cappy, she would gift it to him
through a testamentary trust. As discussed in Chapter 12, a
testamentary trust is a trust created in and through a will.
Typically the terms of the trust are in the will, and the trust is
funded by property passing through probate. Instead of devising
the property outright to Cappy, she gave legal title to Farr, to hold
and manage the property for the benefit of Cappy for life, then to
her daughter, Sally for life, and then to Sally's children and
husband.
Each beneficiary can be given an interest in the income and/or
the principal of a trust, and that interest does not have to be the
same. A beneficiary's interest in a trust can be either mandatory
or discretionary. Technically, whether the beneficiary's interest is
mandatory or discretionary depends on whether the trustee's
power with respect to the interest is mandatory or discretionary.
The nature of such power is, typically, determined from the
language, and instructions, of the trust document. Where the
trustee's power is mandatory, the trustee must exercise the power
for the beneficiary's benefit. Where the trustee's power is
discretionary, the trustee need not exercise the power for the
beneficiary's benefit; it is up to the trustee (but that discretion is
far from absolute). Often the extent of discretion, like the
character of the trustee's power itself, is described in the trust
document by the terms and conditions, and instructions, attached
to the power (i.e., trust provisions governing how, when, and in
whose favor a power may be exercised).
2. Mandatory interest: A mandatory interest means the trustee
must exercise a power to distribute or disburse property to the
beneficiary in accordance with the terms of the trust. Whether a
power is mandatory or discretionary depends upon the settlor's
instructions to the trustee (i.e., the settlor's intent as expressed in
the terms of the trust). If the terms of the trust are mandatory, no
questions need to be asked and no facts need to be taken into

717
consideration. There is no discretion. If the trustee fails to comply
with the mandatory terms, the trustee will be liable for breach of
trust. A court will always order a trustee to follow a mandatory
instruction, which makes the beneficiary's interest in the property
subject to such an instruction a mandatory interest.
One has to read the terms of each trust very carefully to
ascertain the scope of a beneficiary's interest in the principal
and/or income (i.e., to ascertain the nature of the settlor's
instructions to the trustee). Note in Marsman v. Nasca that the
court's opinion starts with the pertinent paragraphs from Sara's
trust. With respect to Cappy's interest in the income, the trust
provided as follows:
I give to my trustees, who shall set the same aside as a
separate trust fund, one-third (1/3) of the rest, residue and
remainder of my estate ... ; they shall pay the net income
therefrom to my said husband at least quarterly during his
life....
(Emphasis added.) Is Cappy's interest in the income mandatory
or discretionary (i.e., is this a mandatory instruction or a
discretionary instruction to the trustee)?
3. Discretionary interest: If the settlor's instruction to a trustee is
not mandatory, it is, by default, discretionary. The primary reason
settlors grant the trustee some discretion is that it is impossible to
see the future. Granting the trustee discretion provides flexibility.
It permits—and requires—the trustee to take into consideration
changes that may occur after the trust is created. A discretionary
instruction requires a trustee to think about the situation: to take
into consideration circumstances surrounding the trust and/or the
beneficiary before deciding whether (and/or to what extent) to
exercise a power to give the beneficiary some trust property. A
mandatory instruction/power is just the opposite: no facts are to
be taken into consideration in making “judgment calls,” and the
required action must occur regardless of the surrounding and
changing circumstances.1
4. Discretionary interest, but a fiduciary duty: While at first blush
a discretionary interest may appear to grant a beneficiary little, if
any, interest in the property in question, this is not the case. The
trustee's discretion is far from absolute. A discretionary interest is

718
an interesting interaction of complex considerations. While the
discretionary nature of the interest appears to favor the trustee,
keep in mind that a trustee owes each beneficiary a fiduciary duty.
This fiduciary duty means the trustee must act in the best
interests of the beneficiaries. The trustee may not act in his or her
own interests or in the interests of any other party. What does it
mean to say that a trustee has discretion over whether or not to
exercise a power, but at the same time the trustee has a duty to
act in the best interest of the beneficiary? A discretionary interest
inherently includes an interesting set of contrasting considerations
that make it difficult to ascertain exactly how much discretion a
trustee has in a given situation.
5. Duty to inquire: Where a settlor grants a trustee the
discretion to act, implicit in that discretion is the settlor's wish that
the trustee take into consideration the circumstances surrounding
the beneficiary before deciding. Not surprisingly, the courts have
construed the fiduciary duty owed by the trustee to each
beneficiary to mean that the trustee should have all relevant
information with respect to the circumstances surrounding the
beneficiary, including the most up-to-date information. Hence, the
trustee's duty to inquire: the trustee must inquire into the
beneficiary's situation before making his or her decision.
In addition, the fiduciary duty owed to the beneficiary means
the trustee must diligently inquire into the beneficiary's situation.
As the court noted, even where the beneficiary fails to respond to
a trustee's inquiry, it is trustee's duty to follow up. A beneficiary
may not understand the process; a beneficiary may be
embarrassed to disclose his or her situation. Finding that a
trustee has the duty to diligently inquire into the beneficiary's
situation, even where the beneficiary is nonresponsive, follows
logically from the trustee's duty to do everything in the best
interest of the beneficiary. While courts are reluctant to substitute
their judgment for a trustee's judgment where the beneficiary's
interest is discretionary, courts arguably are the opposite when it
comes to the trustee's duty to inquire: the courts tend to hold
trustees to a rather high standard of inquiry.
6. Default duty when interest is discretionary: As the court in
Marsman v. Nasca stated, even where a beneficiary's interest in
trust property is discretionary, that does not mean the trustee's

719
discretion is absolute. After taking into consideration the
circumstances surrounding the beneficiary, the trustee has a duty
to act reasonably and in good faith in deciding whether to
exercise a power in favor of a beneficiary. See RESTATEMENT
(THIRD) OF TRUSTS §87 cmt. c (2007). Admittedly a rather soft,
fact-sensitive standard, the courts and authorities have articulated
a number of sub-tests to help guide the lower courts. It is an
abuse of discretion if a trustee acts (or fails to act) in bad faith or
because of an improper motive. In addition, a trustee is liable for
abuse of discretion if he or she acts “beyond the bounds of
reasonable judgment ... the trustee's decision is one that would
not be accepted as reasonable by persons of prudence.” Id. Just
because a court would have decided differently does not mean
that the trustee has abused his or her discretion. The settlor
vested his or her trust in the trustee, not the court. Now you can
appreciate better why courts prefer to hold trustees accountable
for procedural duties (like the duty to inquire) rather than for more
substantive duties (like those inherent in the decision-making
process in a discretionary interest)—the former is more of a
bright-line approach.
7. Enhanced discretion: It is not uncommon for a settlor to grant
his or her trustee “enhanced” discretion. Common expressions of
the settlor's intent to grant enhanced discretion to a trustee
include phrases such as “my trustee, in her sole and absolute
discretion,” “uncontrolled discretion” or “unlimited discretion.”
Despite the settlor's intent, such phrases cannot be construed
literally or there would be no trust: the property would be the
“trustee's” property and the trust beneficiary would have no
interest or right, and any such language purporting to give the
beneficiary an interest would be merely precatory. Such phrasing
is also inconsistent with the fiduciary duty the trustee owes the
beneficiaries. Accordingly, the courts usually construe such
language as enhancing, but not eliminating, the trustee's
discretion with respect to the duty to decide. The courts tend to
relieve the trustee of the duty to act reasonably, but the trustee
still must act in good faith. See In re Canfield's Estate, 80 Cal.
App. 2d 443 (Ct. App. 1947).
Look back at the key provisions of Sara's trust in Marsman v.
Nasca. Did she grant Farr enhanced discretion? By finding that

720
Farr abused his discretion, did the court fail to give effect to that
enhanced discretion?
8. Discretion limited by trust purpose and/or power's purpose:
Contributing to the complexity of discretionary trusts is the wide
spectrum of discretion a settlor can grant a trustee. At one end, it
may appear that the trustee has “sole and absolute” discretion
(though, as discussed above, this cannot truly be the case or
there would be no trust). At the other end of the spectrum, some
trusts contain a discretionary power that is greatly limited in light
of the express purpose of the power. Such express purposes de
facto constitute instructions to the trustee with respect to what he
or she must take into consideration before deciding whether to act
or not. Some purposes have become so common that they have
been construed to state an ascertainable standard. The more
ascertainable the standard, the more limited the trustee's
discretion. The more ascertainable the purpose, the stronger the
grounds for a court to second-guess a trustee's decision.
Accordingly, the more ascertainable the purpose of the trust
interest, the more leeway a court has to substitute its judgment for
the trustee's judgment so as to prevent an abuse of discretion.
This was the situation in Marsman with respect to Cappy's
interest in the principal. Sara's trust provided in pertinent part as
follows:
... my trustees shall, if they deem it necessary or desirable
from time to time, in their sole and uncontrolled discretion,
pay over to him, or use, apply and/or expend for his direct
or indirect benefit such amount or amounts of the principal
thereof as they shall deem advisable for his comfortable
support and maintenance.”
(Emphasis added).
Cappy's interest in the principal is discretionary, and Sara gave
the trustee enhanced discretion, but Sara also specifically
indicated that in deciding whether to disburse some of the
principal to Cappy the trustee should take into his consideration
Cappy's comfortable support and maintenance. Courts have
construed comfortable support and maintenance to mean that the
beneficiary is entitled to distributions if necessary to maintain the

721
standard of living the beneficiary had at the time he or she
became eligible for distributions from the trust:
This language has been interpreted to set an ascertainable
standard, namely to maintain the life beneficiary “in
accordance with the standard of living which was normal
for him before he became a beneficiary of the trust.”
Woodberry v. Bunker, 359 Mass 239, 243, 268 N.E.2d 841
(1971). Dana v. Gring, 374 Mass. 109, 117, 371 N.E.2d 755
(1977). See Blodget v. Delaney, 201 F.2d 589, 593 (1st
Cir.1953).
Marsman, 573 N.E.2d at 1030. That the trustee is to maintain the
beneficiary in the standard of living to which he or she had
become accustomed before becoming a beneficiary limits the
trustee's discretion. As the court held, to the extent Cappy's
standard of living declined below that standard, the trustee's
failure to disburse more principal to Cappy was an abuse of
discretion. Id.
Even where the trustee is granted discretion, including
enhanced discretion, the trustee must keep in mind the fiduciary
duty the trustee owes to the beneficiary and the settlor's intent:
[A] trustee is “unquestionably under an obligation to give
serious and responsible consideration both as to the
propriety of the amounts and as to their consistency with
the terms and purposes of the trust.” Holyoke Natl. Bank v.
Wilson, 350 Mass. 223, 227, 214 N.E.2d 42, 45. A court of
equity may control a trustee in the exercise of a fiduciary
discretion if it fails to observe standards of judgment
apparent from the applicable instrument.
Old Colony Trust Co. v. Rodd, 254 N.E.2d 886 (Mass. 1970).
9. Whether trustee should consider beneficiary's other
resources: Where the trustee has discretion to distribute trust
income or principal to the trust beneficiary, a latent issue that can
arise is whether the trustee should take into consideration the
beneficiary's other resources before making the distribution. Is the
trust intended to provide a floor to ensure that the beneficiary has
a certain amount of support, or is the trust intended to supplement
the beneficiary's resources only in the event they are insufficient?
Ideally the settlor should express his or her intent with respect to

722
this question in the trust instrument. Where the trust is silent on
the issue, jurisdictions are split on the answer. The California
Supreme Court has spoken on the issue: “By the weight of
authority, unless the language of the trust instrument affirmatively
reveals an intention to make a gift of the stated benefaction
regardless of the beneficiary's other means, the trustee should
consider such other means in exercising his discretion to disburse
the principal.” In re Ferrall's Estate, 258 P.2d 1009 (Cal. 1953).
It is common to see trust language limiting a trustee's
discretionary powers, making them effective only after certain
other financial resources have been exhausted. Such limiting
conditions can also be imposed on a trustee's mandatory powers,
but such conditions are less common.
10. The role of taxes in trustee powers: Tax considerations are
a dominant, if not controlling, factor that a well-advised settlor
must take into consideration in deciding whether to make a power
mandatory or discretionary, whether to include limitations on the
trustee's dispositive powers, and/or whether to tie those
limitations to an ascertainable standard. Whether federal estate
and gift taxes,2 as well as income taxes, will be imposed as a
result of the testamentary transfer hinge on issues related to the
trustee's powers. Often it is a matter of drafting minutia: a
seemingly insignificant word or clause in a trust or other
testamentary instrument may be the difference between (1) a
happy client, where planning and drafting has significantly
reduced tax exposure, and (2) a disgruntled client, who will be
initiating a malpractice claim against the attorney because a small
drafting error sent the client over the tax cliffs of despair. There
can also be significant tax issues surrounding matters of who is
the trustee, who may become the trustee, and what powers the
settlor has in making such decisions. While these tax issues are
beyond the scope of this course (they are the focus of the estate
and gift tax course), we would be remiss not to at least point out
the overlap with estate and gift tax.
Taxes, and a client's wish to avoid paying them, typically is an
integral aspect of estate planning, whether the instrument being
used is a will, a trust, or another nonprobate instrument. An
attorney specializing in estate planning must have a
comprehensive knowledge of the intricacies of tax law (estate and

723
gift as well as income taxes). It is not an area in which an attorney
“dabbles” without running serious risks of causing harm to the
client and exposure to malpractice. Put in the context of
mandatory versus discretionary, such knowledge, in real world
practice, is mandatory.

Problems
1. Lotti Silliman created a trust in 1950, funding it with a farm that
generated significant annual income. Her six children were
named life beneficiaries and as successor trustees following
her death. Article II of the trust granted the trustees power to
“sell, assign, convey, exchange, and otherwise dispose of” trust
assets. Article V of the trust dealt with the trust's income and
principal. It provided as follows:
The net income from the trust remaining after the payment
of expenses of managing the trust and the taxes due from
said trust, shall be paid annually in equal shares to the
following during their lifetime.
....
In the making of the distribution of the annual income of
this trust, the trustees shall have the right to determine
what constitutes income and what constitutes corpus.
They shall have the further privilege of reinvesting any
proceeds from the sale of trust assets or making a
distribution of such proceeds to the then beneficiaries of
the trust.
From 1950 to 1997, all of the income was distributed annually
from the trust. Following the death of the last of the settlor's
children, the next group of successor trustees cut distribution
of the trust's income to 50 percent, reinvesting the other 50
percent as corpus. One of the beneficiaries sued. With respect
to the trust income, is the trust mandatory or discretionary?
See In re Trust Created by Lottie P. Silliman, dated December
29, 1950, No. A10-590, 2010 WL 5071339 (Minn. Ct. App.
Dec. 14, 2010).
2. David Geitner is a 49-year-old incompetent. John and Christine
Geitner adopted him when he was young. When John died, a
portion of his estate was set aside, and a guardian of the

724
property was appointed to manage the fund. Thereafter, when
Christine passed away, her will created a testamentary trust.
Provision 10 of the trust governed the distribution of the trust
income. Sub-paragraphs A and B of Provision 10 provided as
follows:
(A) To use any part of the income from and/or corpus of
said Trust which, in the sole discretion of said Trustees,
may be necessary or proper for the support, maintenance,
and comfort of my son DAVID R. GEITNER, so long as he
lives. In making such determinations from time to time, I
direct my said Trustees to take into consideration my said
son's needs and the amount of income from his share in
the estate of his father, the late John G. H. Geitner. I
believe the income from his share in the John G. H.
Geitner estate will be more than adequate for his every
need and comfort, but if it is not then I decree that my said
trustees shall have the power and authority, in their sole
discretion, to use any part or all of the income from the
trust and/or any part or all of the corpus of the trust for
such purposes.
(B) During December of every calendar year following the
establishment of the trust and continuing until said trust is
closed as hereinafter directed, I direct my said Trustees to
distribute any part or all of the income from said trust, or
from the remainder thereof if any part of the corpus or
income is used for the purposes set forth in sub-
paragraph (A) above, which they do not use for the
purposes authorized in sub-paragraph (A) above, as
follows: [Section 10 then went on to list 7 alternative
takers of the income.]
From 1961–1975, the income generated from David's share of
his father's estate was enough to cover his expenses, and the
trustee under Christine's trust distributed all of the income to
the alternative beneficiaries under sub-paragraph 10. Starting
in 1975, however, David's expenses increased significantly
and the income from his share of his father's estate was not
sufficient to cover his expenses. The guardian had to use
increasing amounts of the principal of the fund he received
from his father's estate. In 1980, the guardian brought suit

725
 seeking a court order requiring the trustee to distribute some of
the income to David's guardianship account for David's benefit.
Has the trustee breached the terms of Christine's trust? Is
David entitled to some of the income from the trust? See First
Nat. Bank of Catawba Cty. v. Edens, 286 S.E.2d 818 (N.C. Ct.
App. 1982).

B. Scope of Discretion—Modern Trend

As noted above, where a settlor's intent is to grant the trustee
discretion with respect to whether trust property should be
distributed to a beneficiary, this discretion can run the spectrum
from near absolute discretion to very little. The more
ascertainable the standard of discretion, the easier it is for a
beneficiary (or a creditor of a beneficiary) to force the trustee to
exercise this discretion in his or her favor.

Strojek ex rel. Mills v. Hardin Cty. Bd. of

Supervisors
602 N.W.2d 566 (Iowa Ct. App. 1999)
STREIT, P.J.
...
I. Background Facts & Procedure.
Marie Strojek, a mentally handicapped sixty-three-year old, has
been a resident of Opportunity Village in Clear Lake, Iowa, since
February 1981. Hardin County pays approximately $21,900 per
year for Strojek's care at the Village. A portion of this money is
used to pay for Strojek's participation at a work-activity center.
Strojek is the beneficiary of a testamentary trust established by
her late father. After Strojek's mother died, her estate was divided
equally between Strojek and her sister, Caroline Mills. Mills was
appointed Strojek's trustee. The applicable trust provision
provided:
My trustee shall, from time to time, pay to or apply for the
benefit of my daughter, Marie Helen Strojek, such sums
from the income and principal as my trustee in the exercise

726
 of her sole discretion deems necessary or advisable, to
provide for her proper care, support, maintenance and
education. (Emphasis added.)
The trust assets included approximately $70,000 in C.D.s and
bank accounts and an undivided one-half interest in a 200-acre
farm. In an effort to assist the County with the costs of Strojek's
care, Mills each year donated $10,000 from the trust to the
County.
On July 1, 1996, the County enacted the Hardin County Mental
Health Services Plan. The plan contained income and resource
eligibility criteria that had to be satisfied before residents were
eligible for county-sponsored benefits. In April 1997, the County
informed Mills, the trustee, that Strojek no longer qualified for
county assistance because her trust assets were in excess of the
eligibility minimums.
Strojek filed an appeal to the Hardin County Board of
Supervisors. The Board affirmed the decision, prompting Strojek
to seek judicial review in district court. Without objection from
either party, the district court reclassified the petition as one for
writ of certiorari. The district court ruled the assets of Strojek's
trust could be used to determine her eligibility for county funding,
because the trust was not truly discretionary, but rather a trust for
Strojek's support with a spendthrift provision. Strojek has
appealed, and the County has cross-appealed.
...
III. The Language of the Trust Is Equivocal.
When the terms of a trust attempt to provide for the care or
education of a beneficiary, courts traditionally attempted to qualify
the instrument either as a support trust or a discretionary trust.
The terms of a support trust require the trustee to pay or apply so
much of the trust's income or principal as necessary for the
beneficiary's care or education. See Austin Wakeman Scott,
Abridgment of the Law of Trusts §154 (1960) [hereinafter Scott's
Abridgment]. Language such as “the trustee shall pay for the
beneficiary's care, education, or support” is normally indicative of
a support trust in that the trustee's power to apply the trust assets
is limited. Smith v. Smith, 246 Neb. 193, 517 N.W.2d 394, 398
(1994); see Bureau of Support v. Kreitzer, 16 Ohio St.2d 147, 243

727
N.E.2d 83, 85 (1968). If considered a support trust, “the interest of
the beneficiary can be reached in satisfaction of an enforceable
claim ... for necessary services rendered to the beneficiary.” In re
Dodge, 281 N.W.2d 447, 450 (Iowa 1979) (quoting Restatement
(Second) of Trusts §157(b) (1959).
The terms of a discretionary trust grant the trustee complete
and unfettered discretion in determining if any of the trust's
income or principal should be distributed to the beneficiary. See
Scott's Abridgment §155. If considered a true discretionary trust,
a “creditor of the beneficiary cannot compel the trustee to pay any
part of the income or principal.” Restatement (Second) of Trusts
§155(1) (1959).
The definitional distinctions between support and discretionary
trusts are limpid. Provisions of particular trusts muddy these clear
demarcations. When the provision is equivocal or adheres to
principles common to both types of trusts, interpretative
inconsistencies abound....
The parties in the present case ask this court to wade into
these murky waters without even a life jacket. Each side throws
out, as an aid for interpretation, only the specific language of the
trust provision that supports their particular contention despite the
remaining language to the contrary. Marie Strojek argues that the
language of her trust grants the trustee, Mills, “sole discretion” in
making distributions from the trust's assets, while ignoring the
limitations placed on that discretion. The County, in turn, argues
that the word “shall” in the trust language is mandatory, while
ignoring the discretionary language. The equivocal nature of the
provision is obvious. It blends a desire to ensure the basic
support needs of a handicapped daughter with the control
mechanism of trustee discretion designed to prevent wasteful
depletion of the trust's assets. Any attempt by this court to
hammer the language of this particular trust provision into one of
these rigid categories would only breed further inconsistencies in
the law.
IV. The Discretionary Support Trust: A Viable Alternative.
The state of Nebraska remedied the inherent inconsistencies of
forcing equivocal trust provisions into traditional categories by
creating a third category, a discretionary support trust, which

728
addresses the equivocal provision in its entirety and best
contemplates the intent of the settlor. See In re Sullivan's Will,
144 Neb. 36, 12 N.W.2d 148 (1943); Smith, 517 N.W.2d at 394.
A discretionary support trust is created when the settlor
combines explicit discretionary language “with language that, in
itself, would be deemed to create a pure support trust.” Evelyn
Ginsberg Abravanel, Discretionary Support Trusts, 68 Iowa L.Rev.
273, 279 n. 26 (1983) [hereinafter Abravanel]. The effect of a
discretionary support trust is to establish the minimal distributions
a trustee must make in order to comport with the settlor's intent of
providing basic support, while retaining broad discretionary
powers in the trustee. Id. at 290; see Sullivan, 12 N.W.2d at 150;
3 Austin Wakeman Scott & William Franklin Fratcher, The Law of
Trusts §187, at 15 (4th ed.1988) [hereinafter Scott & Fratcher]
(“[I]f [a trustee] is directed to pay as much of the income and
principal as is necessary for the support of a beneficiary, he can
be compelled to pay at least the minimum amount which in the
opinion of a reasonable man would be necessary.”); see also
Kreitzer, 16 Ohio St.2d at 150–52, 243 N.E.2d at 85–87 (reaching
the same conclusion but forcing a third party creditor to seek
subrogation from the trust). The rationale behind minimal support
lies in the trustee's fiduciary duties to the beneficiary.
Restatement (Third) of Trusts: Prudent Investor Rule §187 cmt. d
–f (1992). If a trustee abuses her discretion and violates her
fiduciary duties, the beneficiary, through judicial action, may
compel disbursements from the trust for minimal support. Scott &
Fratcher, §187, at 14–15. “Accordingly, the beneficiary's interest
in the trust should be reachable by an attaching creditor to the
same extent.” Abravanel, 68 Iowa L.Rev. at 290; see Lawrence A.
Frolik, Discretionary Trusts for a Disabled Beneficiary: A Solution
or a Trap for the Unwary?, 46 U. Pitt.L.Rev. 335, 342 (1985)
(“[T]he trustee can be required to distribute sufficient income to
the beneficiary to provide at least a minimum level of support ...
even if it would displace government benefits.”). But see Lang v.
Commonwealth, 515 Pa. 428, 528 A.2d 1335, 1345 (1987)
(supporting the theory of discretionary support trusts, but ruling a
trustee may seek public funding before the trustee must
intercede). Thus, only the portion of the trust's assets necessary
for the core needs of the beneficiary may be attached by third
party creditors.

729
 V. A Discretionary Support Trust Remedies the Equivocal
Nature of the Trust Provision and Comports with the Intent of
the Settlor.
The characterization of the Strojek trust as a discretionary
support trust best remedies the paradoxical nature of the
language. A discretionary support trust harmonizes the seemingly
inconsistent terms of the trust. The discretionary language grants
Mills wide latitude in determining Strojek's core needs, thus
protecting the trust from wasteful depletion; while ensuring, by
way of mandatory language coupled with support standards, that
Strojek will never be left destitute. More importantly, however, the
identification of this trust as a discretionary support trust best
contemplates the intent of the settlor.
In interpreting wills and testamentary trusts, we are guided by
well-settled principles. First, the intent of the testator is the
polestar and must prevail. In re Estate of Rogers, 473 N.W.2d 36,
39 (Iowa 1991). Second, the testator's intent must be derived
from (1) the four corners of the will, (2) the scheme for
distribution, and (3) “the surrounding circumstances at the time of
the will's execution.” Id.
First, as discussed above, the four corners of the will indicate a
discretionary support trust, because it resolves textual ambiguities
and gives effect to each provision in its entirety. Second, the
scheme of distribution suggests the creation of a hybrid trust.
Under Article IV(b)(2) of the Strojek Will, Mills, the trustee, will
receive the remaining assets of the trust upon her sister's death.
If the trust was considered a pure discretionary trust, the trustee
could completely withhold any disbursements from the trust in
order to maximize the money received by her upon the
beneficiary's death. We do not hint that Mills is acting upon such
motivations, but it explains the settlor's use of mandatory
language in crafting the provision. Mandatory language as well as
defining the intended use of the trust's assets would eliminate
potential abuse on the part of the trustee. Third, Strojek was born
mentally handicapped and lived with her parents until she was
forty-one. At the time Mr. Strojek drafted the will, Strojek's long-
term needs were readily apparent. The settlor knew his daughter
could not support herself or provide for her basic necessities. The
settlor established the trust to prevent his impaired daughter from

730
becoming destitute. Thus, the intent of the settlor, as gleaned
from the enumerated factors, was to create a discretionary
support trust.
VI. Conclusion.
The recognition of discretionary support trusts in Iowa is the
next logical step in the maturation of this state's trust law. It
resolves ambiguity and provides settlors a hybrid tool to
effectuate their intent. Furthermore, the trust in the present case
falls squarely within the definition of a discretionary support trust.
It combines discretionary language with language indicative of a
support trust. Assets necessary for Strojek's basic needs could be
reached by Strojek or the County. Therefore, trust assets could be
considered when determining eligibility for Strojek's living
expenses.
The district court reached the appropriate conclusions of law,
but achieved them by massaging the definition of a support trust.
The finding of a discretionary support trust better supports the
district court's conclusions. The evidence on record does not
provide sufficient evidence for this court to determine the precise
amount necessary for Strojek's care. The case is remanded for
further evidentiary hearings as to these costs.
The district court's conclusions are affirmed, its rationale
modified, and the case remanded for further proceedings.
—————

Notes
1. Traditional support trust: Traditionally, a support trust was a
trust that required the trustee to disburse as much trust property
—income, and if necessary, principal—as was necessary for the
beneficiary's support or education. It was a mandatory trust to the
level of the beneficiary's support and/or education. But while it
was mandatory to the level of the beneficiary's support and/or
education, historically the beneficiary's interest was deemed
nontransferable (both voluntarily and involuntarily), even in the
absence of a spendthrift clause.
Historically there was only one type of support trust, and it was
a type of mandatory trust. As the court noted in Strojek, however,

731
settlors (either intentionally or accidentally) often included both
support and discretionary language in a trust instrument, thereby
muddying the waters and making it difficult for the trustee, the
beneficiary, and the court to determine whether the settlor
intended the beneficiary's interest to be discretionary or
mandatory. A representative example of the blended and
confusing phrasing led to the litigation in Myers v. Kansas Dep't of
Soc. & Rehab. Servs., 866 P.2d 1052 (Kan. 1994). The relevant
trust provisions stated “[M]y trustee shall hold, manage, invest
and reinvest, collect the income there from [and] pay over so
much [of] the net income and principal ... as my trustee deems
advisable for his care, support, maintenance, emergencies and
welfare ....” Is that a mandatory support trust (shall hold ... and
pay over ... ) or a discretionary trust (as my trustee deems
advisable ... )?3
2. Modern trend—discretionary support trust: The modern trend
adopts a different approach to the issue—it recognizes two types
of support trusts: the traditional mandatory support trust, and the
modern trend discretionary support trust. As the court in Strojek
noted, this new hybrid type of trust is mandatory to the level of
support and discretionary beyond that level: “The effect of a
discretionary support trust is to establish the minimal distributions
a trustee must make in order to comport with the settlor's intent of
providing basic support, while retaining broad discretionary
powers in the trustee.”
3. California approach: California still recognizes, statutorily, the
traditional type of support trust:
CPC §15302. Support trust
Except as provided in Sections 15304 to 15307, inclusive, if
the trust instrument provides that the trustee shall pay
income or principal or both for the education or support of a
beneficiary, the beneficiary's interest in income or principal or
both under the trust, to the extent the income or principal or
both is necessary for the education or support of the
beneficiary, may not be transferred and is not subject to the
enforcement of a money judgment until paid to the
beneficiary.

732
The exceptions noted at the start of the statutory provision are for
certain classes of creditors who can reach the beneficiary's
interest in the trust even though it is a support trust. They are the
same categories of creditors who can reach a beneficiary's
interest in a trust even if the trust has a spendthrift clause. To that
extent, the discussion below about spendthrift clauses and
creditors applies equally to a support trust in California unless
otherwise noted.
4. Transferability: One of the issues that follows from the
recognition of this “new” discretionary support trust is to what
extent, if any, a beneficiary can transfer his or her interest in the
trust, and to what extent, if any, a creditor of the beneficiary can
reach the beneficiary's interest in the trust.
We take for granted the default property principle that a party
should have the right to transfer any and all property he or she
owns. Where the same person holds the legal and equitable
interests in a piece of property, that principle is fairly easy to
apply. If you own something, included in the bundle of rights that
goes along with ownership of that property is the right to transfer
it. But where the legal and equitable property interests are
bifurcated, who really “owns” the property in the trust? Who really
owns the property held by a trust—the trustee or the beneficiary?
Should a beneficiary be permitted to transfer a merely equitable
interest?
The default rule is that the default property principle of free
alienability applies to a beneficiary's interest in a trust: a
beneficiary can freely transfer his or her interest. That makes
sense and is relatively easy to understand with respect to a
mandatory interest in a trust. If the beneficiary is entitled to
receive the net income quarterly, the beneficiary can transfer that
interest to another party (either as a gift or by selling the right to
receive the stream of income). The third party steps into the
shoes of the beneficiary and receives the same rights that the
beneficiary held. But what does it mean to say that a beneficiary
can transfer a discretionary interest?
To the extent the beneficiary does not have the right to force
the trustee to make a disbursement, does it make any sense to
say that the beneficiary can transfer the interest? Courts and

733
commentators have struggled with the issue. Is it better to say
that the interest is transferable, but the third party acquires no
“real” right because the beneficiary had no right to any property,
or is it better just to say that a discretionary interest is
nontransferable? The Uniform Trust Code and the RESTATEMENT
OF TRUSTS take the former approach, (see RESTATEMENT (FIRST) OF
TRUSTS §155 (1935); RESTATEMENT (THIRD) OF TRUSTS §60 TD No 2
(1999), updated (2014); UTC §501 (amended 2010)), while one of
the leading treatises on trust law, BOGERT'S TRUSTS AND TRUSTEES,
takes the latter view (“If the trustee has the discretion whether to
pay income or principal to the beneficiary, the beneficiary has no
assignable right.” BOGERT'S TRUSTS AND TRUSTEES, §188 (2014)).
California has adopted the view that a beneficiary's interest in a
discretionary trust is not a property interest, but rather is a mere
expectancy. The general rule is that an expectancy is
nontransferable. Thus, under California law, where a beneficiary's
interest is discretionary, a beneficiary has a nontransferable
property interest. The beneficiary has no rights until after the
trustee has made the decision to exercise his or her discretion in
favor of the beneficiary. Then and only then does the beneficiary
acquire an equitable interest in the property that he or she can
assert against the trustee (or that a transferee can assert if the
interest is transferred). See In re Johnson's Estate, 198 Cal. App.
2d 503 (Ct. App. 1961); CPC §15303(b).
Remember that a support trust is unique in that historically, as a
general rule, it is treated as mandatory for certain purposes
(beneficiary's interest to the level of education and/or support) but
discretionary for purposes of creditors' rights (as a general rule,
creditors with a money judgment cannot reach the interest in the
trust). A support trust is more like a discretionary trust for
purposes of whether a beneficiary can transfer his or her interest.
In light of the creditors' inability to reach the beneficiary's interest
in a support trust, it should come as no surprise that the
beneficiary's interest in a support trust is nontransferable.
Assuming that a beneficiary can freely transfer his or her
interest in a trust, to what extent (if any) can a creditor of the
beneficiary reach the beneficiary's interest in the trust? Can a
settlor override the default rule of transferability by expressly
providing that the beneficiary's interest is nontransferable?

734
 5. The recurring role of taxes: As with all areas of trusts, the
issue of support trusts is heavily steeped in tax law. Well beyond
the scope of this course, entire portions of a typical estate and gift
tax course are dedicated to the issue of support trusts, and
navigating the accompanying law is akin to walking through a
minefield.

Problems
1. Ralph Nicholson's testamentary trust was for the benefit of his
wife, Marguerite. She was also appointed trustee. Section II of
the trust expressly provides that the trustee shall pay to
Marguerite, “from time to time, and at least semi-annually, such
sums of money as said executrix shall consider reasonably
necessary for her support and maintenance.” There was no
evidence that any income was distributed to Marguerite. Upon
Marguerite's death, there was $55,000 of earned but
undistributed income in the trust. Marguerite's executor claimed
that Marguerite's estate was entitled to the funds as the income
beneficiary of the trust. The successor trustee claimed the trust
was entitled to the undistributed income. Is Marguerite's
interest mandatory or discretionary? Did she violate the terms
of the trust? See First Nat. Bank of Birmingham v. Currie, 380
So. 2d 283 (Ala. 1980).
2. Settlor created an inter vivos trust. Paragraph (b) provides as
follows:
The Trustees shall hold said trust estate in trust for the use
and benefit of Elesabeth Ridgely Ingalls and Barbara
Gregg Ingalls, both children of the Grantor's son, Robert I.
Ingalls, Jr., and of such of any other descendants of said
Robert I. Ingalls, Jr., as may from time to time during the
continuance of the trust be living. So long as any such
descendant shall be under the age of twenty-one years, the
Trustees shall use and apply for his or her support, comfort
and education his or her pro rata share of the net income
from said estate.
Is the beneficiary's interest mandatory or discretionary? See
Ingalls v. Ingalls, 54 So. 2d 296 (Ala. 1951).

735
 II. Creditor's Rights and
Spendthrift Trusts
The default creditor's rights rule is that if a party can voluntarily
transfer his or her property interest, a creditor can force the party
to involuntarily transfer the property interest to the creditor.
Should the default creditor's rights rule apply to a beneficiary's
interest in a trust? If so, to what extent (if any) can a settlor opt
out of the default rule by making the beneficiary's interest
nontransferable?

A. Third Party as Beneficiary

In examining a creditor's right to reach a beneficiary's interest in
a trust, it is important to identify whom the beneficiary is. If the
beneficiary is the settlor, common law created one set of rules,
and if the beneficiary is someone other than the settlor, common
law created another set of rules. Inasmuch as the norm is the
beneficiary is someone other than the settlor, the material will
start with the more common scenario.

Duvall v. McGee
826 A.2d 416 (Md. 2003)
BELL, Chief Judge.
...
I.
James Calvert McGee (“McGee”), ... was convicted of felony-
murder for his participation in a robbery that resulted in the killing
of Katherine Ryon. Robert Ryon Duvall, the appellant, is the
Personal Representative of the Estate of Katherine Ryon. He
brought suit, in that capacity, ... against McGee, seeking both
compensatory and punitive damages, ... The parties settled this
action, negotiating and executing ... [a “Settlement Agreement”]
pursuant to which, ... the parties agreed to the entry of judgment
against McGee, and in favor of the appellant, for $100,000.00 in

736
compensatory damages and $500,000.00 in punitive damages.
The Settlement Agreement acknowledged that McGee is the
beneficiary of a trust established by his deceased mother, which,
at the time of the settlement, was valued at approximately
$877,000.00.... Under the terms of the trust, periodic monetary
payments are to be made to McGee, and to others on his behalf,
by Frank B. Walsh, Jr., the Trustee of the trust (“the Trustee),” ...
Another provision of the trust established what is commonly
referred to as a “Spendthrift” Trust.4 That provision prohibited
McGee from alienating the trust principal (“corpus”) or any portion
of the income from the trust while in the hands of the Trustee, and
specifically shielded both the corpus and the income from claims
of McGee's creditors. The trust instrument also gives broad
discretion to the Trustee to terminate the Trust at any time and
pay the trust assets and any undistributed income to McGee or to
any of the remaindermen to which the trust referred. The
Settlement Agreement also provided that:
“The [appellant] hereby forever releases, waives,
relinquishes and abandons any rights he may have to
satisfy or have paid any portion of the above-mentioned
judgment by way of attachment, garnishment or any other
post-judgment collection efforts directed against any
periodic payments made by the Trustee of the Trust to
[McGee] as the beneficiary of the Trust, or directed against
any periodic payment made to any other person or entities
for the benefit of [McGee]....”
Thus, it prohibited the appellant from attaching or garnishing any
of the periodic payments the Trustee made to McGee from the
Trust.
Having surrendered all rights to attach McGee's periodic
payment from the Trust, but armed with the judgment entered
pursuant to the Settlement Agreement, the appellant sought to
satisfy the judgment by invading the corpus of the trust. Thus, the
appellant served a Writ of Garnishment on the Trustee.
Answering the Writ, the Trustee defended on the grounds that the
trust was a spendthrift trust; the Trustee was not indebted to
McGee; and the Trustee was not in possession of any property
belonging to McGee.

737
 Both parties moved for summary judgment. Although
acknowledging that this Court, in Smith v. Towers, 69 Md. 77, 14
A. 497 (1888), upheld the validity of spendthrift trusts in Maryland
and, thus, prohibited their invasion for the payment of debt, the
appellant maintained that, over time, this Court has carved out, on
public policy grounds, exceptions to the spendthrift doctrine,
pursuant to which some classes of persons are permitted to
invade spendthrift trusts. Noting one of the rationales of the Smith
decision—that because “[a]ll deeds and wills and other
instruments by which [spendthrift] trusts are created are required
by law to be recorded in the public offices ... creditors have notice
of the terms and conditions on which the beneficiary is entitled to
the income of the property,” 69 Md. at 89, 14 A. at 499—the
appellant argued that tort-judgment creditors should be included
among those excepted, since such creditors had no opportunity to
investigate the credit-worthiness of the tortfeasor prior to suffering
from the tortious conduct giving rise to the claim. Furthermore, the
appellant continued, the public policy of this State dictates that
tort-judgment creditors be deemed a special class of creditors
entitled to invade a spendthrift trust.
The trial court held:
“Maryland law is what governs this case, however, and
Maryland law is clear. A spendthrift trust may not be
reached in order to satisfy the judgment in the case sub
judice. Although the facts involving the murder of the late
Ms. Ryon, and the further facts relating to the beneficiary
status of the Defendant McGee, a felony murderer, are very
tempting, this Court may not rewrite the law; the Maryland
Legislature has the responsibility of that task, or the
Appellate Courts of this State must further interpret the
law.... This Court has a responsibility to apply and uphold
the laws of the state as its interprets they now exist, not
create new law.”
Thus, the appellant's motion for summary judgment was denied
and the appellees' cross-motion, granted. The appellant noted a
timely appeal to the Court of Special Appeals. This Court, on its
own initiative, issued the writ of certiorari to address this novel
issue of Maryland law, prior to any proceedings in the
intermediate court....

738
 ...
II.
In Maryland, it is well settled that “spend-thrift trusts” may be
created....
...
... Acknowledging the rule favoring the free and ready
alienation of property and that “the right to sell and dispose of
property ... is a necessary incident of course to the absolute
ownership of ... property,” [Smith v. Towers, 69 Md. 77, 14 A. 497
(1888)] at 87, 14 A. at 498, we pointed out that “the reasons on
which the rule is founded do not apply to the transfer of property
in trust,” id. at 87, 14 A. at 499, and that “[t]he law does not ...
forbid all and any restraints on the right to dispose of [trust
property], but only such restraints as may be deemed against the
best interests of the community.” Id. at 88, 14 A. at 499. With
regard to the policy issue, we said:
“Now common honesty requires, of course, that every one
should pay his debts, and the policy of the law for centuries
has been to subject the property of a debtor of every kind
which he holds in his own right, to the payment of his
debts. He has as owner of such property the right to
dispose of it as he pleases, and his interest is, therefore,
liable for the payment of his debts. But a cestui que trust
does not hold the estate or interest in his own right; he has
but an equitable and qualified right to the property or to its
income, to be held and enjoyed by the beneficiary on
certain terms and conditions prescribed by the founder of
the trust. The legal title is in the trustee, and the cestui que
trust derives his title to the income through the instrument
by which the trust is created. The donor or devisor, as the
absolute owner of the property, has the right to prescribe
the terms on which his bounty shall be enjoyed, unless
such terms be repugnant to the law. And it is no answer to
say that the gift of an equitable right to income to the
exclusion of creditors is against the policy of the law. This is
begging the question. Why is it against the policy of the
law? What sound principle does it violate? The creditors of
the beneficiary have no right to complain, because the

739
 founder of the trust did not give his bounty to them. And if
so, what grounds have they to complain because he has
seen proper to give it in trust to be received by the trustee
and to be paid to another, and not to be liable while in the
hands of the trustee to the creditors of the cestui que trust.
All deeds and wills and other instruments by which such
trusts are created, are required by law to be recorded in the
public offices, and creditors have notice of the terms and
conditions on which the beneficiary is entitled to the income
of the property. They know that the founder of the trust has
declared that this income shall be paid to the object of his
bounty to the exclusion of creditors, and if under such
circumstances they see proper to give credit to one who
has but an equitable and qualified right to the enjoyment of
property, they do so with their eyes open. It cannot be said
that credit was given upon such a qualified right to the
enjoyment of the income of property, or that creditors have
been deceived or mislead; and if the beneficiary is
dishonest enough not to apply the income when received
by him to the payment of his debts, creditors have no right
to complain because they cannot subject it in the hands of
the trustee to the payment of their claims, against the
express terms of the trust.”
Id. at 88–89, 14 A. at 499–500.
The appellant relies on that portion of the Court's reasoning
that indicates that the contract creditors are on notice, at least
constructively, of the terms of the spendthrift trust prior to
extending credit, along with the fact that this Court, on public
policy grounds, has exempted certain obligations of the
beneficiary of a spendthrift trust from the rule against attachment
or garnishment of the corpus or of the income in the hands of the
trustee. He also takes comfort from the position that treatise
writers take with respect to the right of tort judgment creditors to
satisfy their judgments from a spendthrift trust; they agree with
him that it should be permitted.
In Scott on Trusts, Fourth Edition, §157.5, while acknowledging
the paucity of authority on the subject, it is stated:

740
“In many of the cases in which it has been held that by the
terms of the trust the interest of a beneficiary may be put
beyond the reach of his creditors, the courts have laid
some stress on the fact that the creditors had only
themselves to blame for extending credit to a person
whose interest under the trust had been put beyond their
reach. The courts have said that before extending credit
they could have ascertained the extent and character of the
debtor's resources. Certainly, the situation of a tort creditor
is quite different from that of a contract creditor. A man who
is about to be knocked down by an automobile has no
opportunity to investigate the credit of the driver of the
automobile and has no opportunity to avoid being injured
no matter what the resources of the driver may be. It may
be argued that the settlor can properly impose such
restrictions as he chooses on the property that he gives.
But surely he cannot impose restrictions that are against
public policy. It is true that the tortfeasor may have no other
property than that which is given him under the trust, and
that the victim of the tort is no worse off where the
tortfeasor has property that cannot be reached than he
would be if the tortfeasor had no property at all.
Nevertheless, there seems to be something rather
shocking in the notion that a man should be allowed to
continue in the enjoyment of property without satisfying the
claims of persons whom he has injured. It may well be held
that it is against public policy to permit the beneficiary of a
spendthrift trust to enjoy an income under the trust without
discharging his tort liabilities to others.
“There is little authority on the question whether the interest
of the beneficiary of a spendthrift trust can be reached by
persons against whom he has committed a tort. In the
absence of authority it was felt by those who were
responsible for the preparation of the Restatement of
Trusts that no categorical statement could be made on the
question. It is believed, however, that there is a tendency to
recognize that the language of the earlier cases to the
effect that no creditor can reach the interest of a beneficiary
of a spendthrift trust is too broad, and that in view of the
cases that have been cited in the previous sections

741
 allowing various classes of claimants to reach the interest
of the beneficiary, the courts may well come to hold that the
settlor cannot put the interest of the beneficiary beyond the
reach of those to whom he has incurred liabilities in tort.”
Bogert on Trusts and Trustees, Second Edition, Rev'd, §224, p.
478, is to like effect....
A similar sentiment is expressed in Comment a to §157 of the
Restatement Second of Trusts, wherein it is said:
“The interest of the beneficiary of a spendthrift trust ... may
be reached in cases other than those herein enumerated
[alimony, child support, taxes], if considerations of public
policy so require. Thus, it is possible that a person who has
a claim in tort against the beneficiary of a spendthrift trust
may be able to reach his interest under the trust.”
Neither the argument advanced by the appellant, nor the support
offered for it is persuasive.
To be sure, this Court has refused to hold, and on public policy
grounds, spendthrift trusts inviolate against indebtedness for
alimony arrearages, Safe Deposit & Trust Co. v. Robertson,
supra, 192 Md. at 662–63, 65 A.2d at 296, and for child support.
Zouck v. Zouck, supra, 204 Md. at 299, 104 A.2d at 579. Earlier,
the United States District Court for the District of Maryland had
reached the same result, permitting a spendthrift trust to be
attached for the payment of United States income taxes.
Mercantile Trust Co. v. Hofferbert, 58 F.Supp. 701, 705
(D.Md.1944)....
In Robertson, we, like 1 Scott, Trusts, §157.1, recognized, and
clearly stated, that the dependents of a spendthrift trust
beneficiary “‘are not “creditors” of the beneficiary, and the liability
of the beneficiary to support them is not a debt.’” 192 Md. at 660,
65 A.2d at 295, quoting Scott. Scott explained that these
dependents, the beneficiary's wife and children, could enforce
their claim for support against the trust estate, because “it is
against public policy to permit the beneficiary to have the
enjoyment of the income from the trust while he refuses to
support his dependents whom it is his duty to support, id. at 661,
65 A.2d at 295, their claim being “in quite a different position from
the ordinary creditors who have voluntarily extended credit.” Id.

742
Focusing specifically on alimony, at issue in that case, the Court
opined:
“We think the view expressed in the Restatement10 is
sound. The reason for the rejection of the common law
rule, that a condition restraining alienation by the
beneficiary is repugnant to the nature of the estate granted,
was simply that persons extending credit to the beneficiary
on a voluntary basis are chargeable with notice of the
conditions set forth in the instrument.... This reasoning is
inapplicable to a claim for alimony which in Maryland at
least, is ‘an award made by the court for food, clothing,
habitation and other necessaries for the maintenance of the
wife....’ The obligation continues during the joint lives of the
parties, and is a duty, not a debt.”
Id. at 662, 65 A.2d at 296 (citations omitted). See, also McCabe v.
McCabe, 210 Md. 308, 314, 123 A.2d 447, 450 (1956) (“This
Court has held that alimony represents a duty and not a debt.”)....
Similarly, in Zouck, the Court drew a distinction between the
considerations underlying the balance when the monetary
obligation sought to be satisfied is a contract or ordinary debt and
when it is child support. It noted that the monetary claim in that
case was “based, in essence, upon the statutory obligation of the
father, declaratory of the common law, to support his child.” 204
Md. at 298, 104 A.2d at 579. See Walter v. Gunter, 367 Md. 386,
398, 788 A.2d 609, 616 (2002) (“This Court historically has
recognized a distinction between a standard debt and a legal duty
in domestic circumstances, specifically with respect to child
support, and subscribes to the theory that child support is a duty
not a debt.”); Middleton v. Middleton, 329 Md. 627, 629–33, 620
A.2d 1363, 1364–66 (1993) (analyzing the debt/duty distinction
with respect to parental child support obligation)....
Similarly, the obligation to pay taxes and, thus, tax arrearages,
is not to be considered debt, nor is the government to be viewed
as a mere creditor. Addressing and resolving this very point, the
Hofferbert court distinguished the public policy underlying the tax
obligation and that underlying ordinary or contract debts:
“The reasons which have actuated some courts, as in
Maryland, to uphold spendthrift trust against the claims of a

743
 creditors do not necessarily apply to tax claims of the
government either federal or State. The public policy
involved is quite different. In the one case the donor of the
property has the right to protect the beneficiary against his
own voluntary improvident or financial misfortune; but in the
other the public interest is directly affected with respect to
collection of taxes for the support of the government. The
imposition of the tax burden is not voluntary by the
beneficiary.”
Hofferbert, supra, 58 F.Supp. at 706 (emphasis added).
Ms. Ryon's estate is a mere judgment creditor of McGee, the
beneficiary. The Trust simply has no legal duty to Ms. Ryon's
estate and certainly no obligation to provide support. Thus the
rationale underlying the decisions permitting the invasion of a
spendthrift trust for the payment of alimony, child support or taxes
have absolutely no applicability to the obligation in this case.
Indeed, to permit the invasion of the Trust to pay the tort
judgments of the beneficiary, in addition to thwarting the trust
donor's intent by, in effect, imposing liability on the Trust for the
wrongful acts of the trust beneficiary, is, as the appellees argue,
to create an exception for “tort victims” or “victims of crime.”
...
To be sure, the Supreme Court of Mississippi quite recently
held that, “as a matter of public policy ... a beneficiary's interest in
spendthrift trust assets is not immune from attachment to satisfy
the claims of the beneficiary's intentional or gross negligence tort
creditors.” Sligh v. First National Bank of Holmes County, 704
So.2d 1020, 1029 (Miss.1997). There, the plaintiff and his wife
brought suit against an uninsured and intoxicated
motorist/defendant for injuries arising from a traffic accident which
resulted in the plaintiff's paralysis. The defendant was the
beneficiary under two spendthrift trust established by his late
mother. Having obtained a default judgment for $5,000,000 in
compensatory and punitive damages in their action alleging gross
negligence, the plaintiffs sought to attach the defendant's interest
under the spendthrift trusts.
In arriving at its holding, the court acknowledged the four
exceptions to the rule prohibiting the invasion of a spendthrift trust

744
enumerated in the Restatement, i.e., claims: for support of child
or wife; for necessaries; for “services rendered and materials
furnished which preserve or benefit the interest of the beneficiary;
for State or federal taxes, id. at 1026, quoting Restatement
(Second) of Torts, §157, and a fifth, when the trust is ‘a self-
settled trust, i.e., where the trust is for the benefit of the donor,’ it
had itself recognized Id., citing Deposit Guaranty Nat'l Bank v.
Walter E. Heller & Co., 204 So.2d 856, 859 (Miss.1967).
Conceding that §157 of the Restatement does not list an
exception for involuntary tort creditors, the court found support for
its position in Comment a to that section, which, as we have seen,
admits of the possibility of a tort claimant with a claim against the
beneficiary of a spendthrift trust being able to reach that
beneficiary's interest. Sligh, supra, 704 So.2d at 1026. It also was
persuaded by those portions of Scott, The Law of Trusts and
Bogert, Trusts and Trustees, quoted herein and to which the
appellant referred us. Id. at 1027. Finally, the court rejected the
three public policy considerations it identified from its own
precedents upholding the validity of spendthrift trust provisions:
“(1) the right of donors to dispose of their property as they wish;
(2) the public interest in protecting spendthrift individuals from
personal pauperism, so that they do not become public burdens;
and (3) the responsibility of creditors to make themselves aware
of their debtors' spendthrift trust protections.” Id. at 1027.
This is the minority position, which the Sligh court admitted.
[Citations omitted.] ...
... Sligh is the only case we have found, and the only case that
the appellant has cited, which holds expressly that a spendthrift
trust may be invaded to pay the judgment of an intentional or
gross negligence tort-judgment creditor.
Sligh is no longer the law of Mississippi.14 A mere five months
after the decision in Sligh, by ch. 460, §2, Laws, 1998, effective
March 23, 1998, the Mississippi Legislature passed the Family
Trust Preservation Act of 1998. Miss.Code Ann. §91-9-503
(2003), relevant to this case, provides:
“Beneficiary's Interest not subject to transfer; restrictions on
transfers and enforcement of money judgments

745
 “Except as provided in Section 91-9-509, if the trust
instrument provides that a beneficiary's interest in income
or principal or both of a trust is not subject to voluntary or
involuntary transfer, the beneficiary's interest in income or
principal or both under the trust may not be transferred and
is not subject to the enforcement of a money judgment until
paid to the beneficiary.”
...
We are not persuaded, in any event, by the reasoning of the
Sligh court. It is true that the court acknowledged the exceptions
for alimony and for child support. Missing from the court's opinion,
however, is any analysis of the basis for those exceptions. The
Mississippi Supreme Court, although noting the donor's intention
as, perhaps, the most important public policy consideration it
addressed, concluded that, because the law has generally
recognized exceptions, i.e., for support, alimony, taxes, to the
spendthrift doctrine, the rights of trust donors to dispose of
property as they wish are not absolute. 704 So.2d at 1028. This
statement, although accurate, does not analyze why the law
carved out these particular exceptions, which, as the court
recognized, effectively takes precedence over the trust donor's
intent.
To be sure, a contract creditor is on notice as to the terms of a
spendthrift trust and, on that account, is able to regulate his or her
conduct in light of that information. That is not the critical basis for
the exception of alimony and support from the rule, however.
Robertson and Zouck, as our opinions make clear, relied heavily
on the fact that the obligation was a duty and not a debt.
Robertson, supra, 192 Md. at 660, 65 A.2d at 295; Zouck, supra,
204 Md. at 298–99, 104 A.2d at 579. That is also the theme that
runs through Hofferbert. 58 F.Supp. at 705. In none of these
cases was notice mentioned as a basis for the decision. That a
tort-judgment creditor is not on notice that he or she will be
injured and thereby will incur a loss goes without saying, but, with
due respect to the near unanimous commentators,15 that fact
alone does not make the claim he or she makes in respect of the
loss anything other than a debt or make its exemption from the
bar of a spendthrift trust, a matter of public policy.

746
 JUDGMENT AFFIRMED, WITH COSTS.
BATTAGLIA, J., Dissenting.
I respectfully dissent.
Katherine Ryon was beaten to death during the course of a
robbery that occurred in her home. After James Calvert McGee
was convicted of felony-murder for his participation in the robbery
and murder of Ms. Ryon, a money judgment was entered against
him pursuant to a settlement agreement, in which McGee
compromised civil claims brought against him by Robert Duvall,
the Personal Representative of the Estate of Ms. Ryon. The
majority today concludes that Ms. Ryon's estate cannot enforce
its judgment against McGee's interest in an $877,000.00
spendthrift trust established for him by his deceased mother. The
majority acknowledges that claimants seeking alimony, child
support, and unpaid taxes may attach a beneficiary's interest in a
spendthrift trust, but concludes that the victim of a violent tort may
not, reasoning that such a victim is only “a mere judgment
creditor.” For the reasons expressed herein, I respectfully
disagree.
...
The majority concedes that tort creditors do not have the
benefit of notice, which, as was discussed in Smith, supra, is a
primary purpose for not allowing the invasion of spendthrift trusts.
Despite this, the majority concludes that Ms. Ryon's estate cannot
reach the corpus of the spendthrift trust because its claim is
nothing other “than a debt” and that “its exemption from the bar of
a spendthrift trust” is not “a matter of public policy.” The majority,
in my opinion, is wrong.
...
Just as it is sound public policy to permit the attachment of a
spendthrift trust for alimony, child support, and taxes, it is also as
sound to permit invasion to make victims of tortious conduct
whole. Indeed, a tortfeasor may be liable not only for
compensatory damages, but also punitive damages, which we
allow in order to “punish the wrongdoer and to deter such conduct
by the wrongdoer and others in the future.” Caldor, Inc. v.
Bowden, 330 Md. 632, 661, 625 A.2d 959, 972 (1993).

747
Consequently, to equate victims of tortious conduct with contract
creditors and distinguish them from recipients of alimony, child
support, and tax claims, is without merit.
As the majority concedes, spendthrift trusts are considered
valid in Maryland in large part because, by virtue of filing
requirements, creditors are put on at least constructive notice of
the limited interest of the beneficiary of such a trust. Such notice
allows creditors to protect themselves, something that Ms. Ryon
could not have done. Moreover, the “duty-debt” distinction set
forth by the majority as the basis for its holding is unavailing. The
obligation to restitute a wrong is commensurate with the
obligations to pay alimony, child support, and taxes. I agree with
the commentators that “it is against public policy to permit the
beneficiary of a spendthrift trust to enjoy an income under the
trust without discharging his tort liabilities to others.” See Scott on
Trusts, supra. Consequently, I respectfully dissent.
—————

Notes
1. Spendthrift clauses: While the default rule is that a
beneficiary's interest in a trust is freely transferable—and thus a
creditor of a beneficiary can reach the beneficiary's interest in the
trust—the general rule is that the settlor's intent can trump the
default rule. Where a settlor expressly provides that a
beneficiary's interest in the trust is nontransferable, such a clause
is commonly referred to as a “spendthrift clause.” While
spendthrift clauses are controversial (England, the country that
invented trusts, does not recognize spendthrift clauses), in
America the general rule is that a spendthrift clause is valid and
enforceable. Inasmuch as a spendthrift clause is an exception to
the general rule of transferability and creditors' rights, however,
courts have insisted that a spendthrift clause is valid only where it
prohibits both voluntary and involuntary transfers. The Uniform
Trust Code requires the same. See UTC §502(a) (amended
2010). Accordingly, a valid spendthrift clause means that a
beneficiary cannot voluntarily transfer his or her interest to a third
party and, as a general rule, a creditor of the beneficiary cannot

748
reach the property interest before it is distributed to the
beneficiary. UTC §501(c).
2. Exceptions to a spendthrift clause: While almost all
jurisdictions uphold the validity of spendthrift clauses, almost all
jurisdictions also recognize (either judicially or statutorily) a
number of exceptions to spendthrift clauses (i.e., circumstances
under which a creditor can nevertheless reach the beneficiary's
interest in the trust). Different states have adopted different
approaches as to when a creditor should not be subject to a
spendthrift clause. The most common approach is to identify
certain categories of creditors who are not subject to a spendthrift
clause. A less common approach is to limit the type (and/or
amount) of property that a settlor is attempting to protect with the
spendthrift clause.
3. Specific categories of creditors exempt from spendthrift
clause: For a variety of public policy reasons, most jurisdictions
recognize that certain categories of creditors should not be
subject to spendthrift clauses. Historically, the most common
categories of creditors who are able to reach a beneficiary's
interest in a trust, even if the trust has a spendthrift clause, are:

a. minor children entitled to child support—where a court order

has been entered requiring the beneficiary to pay child
support, if the beneficiary falls behind in his or her child
support payments, the beneficiary's interest in the trust can
be reached to satisfy any child support arrearages;
b. spouses/ex-spouses entitled to support/maintenance—most
jurisdictions permit spouses/ex-spouses of a beneficiary who
are entitled to receive support/maintenance payments to
reach a beneficiary's interest in a spendthrift trust to satisfy
any arrearages;
c. governmental entities asserting tax liens—virtually all
jurisdictions recognize that a beneficiary's interest in a trust is
subject to seizure to satisfy federal or state tax liens for
unpaid taxes owed by the beneficiary, even if the trust has a
spendthrift clause; and
d. creditors who have provided basic necessities—many
jurisdictions permit creditors who have provided basic
necessities to a trust beneficiary to reach the beneficiary's

749
 interest in a spendthrift trust in the event the beneficiary fails
to pay.

These special categories of creditors cannot only reach a

beneficiary's interest in a trust despite a spendthrift clause, but as
a general rule they can also reach a beneficiary's interest in a
support trust.
The RESTATEMENT (SECOND) OF TRUSTS recognizes the four
traditional categories of “special creditors” and more. It broadens
the governmental claims exception to include any claim by the
government against the beneficiary. It also adds a fifth: creditors
who have an enforceable claims against the beneficiary “for
services rendered and materials furnished which preserve or
benefit the interest of the beneficiary.” See RESTATEMENT (SECOND)
OF TRUSTS §157 (1959). While this last exemption is not as well
recognized as the other four, a number of states have adopted it.
Despite academic criticism of: (a) spendthrift clauses generally,
and (b) the limited exceptions to them (particularly the failure to
exempt tort creditors), the modern trend has been generally to
reaffirm the validity of spendthrift clauses and the exceptions to
them, with some nuanced differences. The RESTATEMENT (THIRD)
OF TRUSTS expressly recognizes the four non-governmental
categories of “special creditors” recognized by the RESTATEMENT
(SECOND) and “implicitly” recognizes claims by governmental
claimants and other claimants “to the extent provided by federal
law or an applicable state statute.” See RESTATEMENT (THIRD) OF
TRUSTS §§59, 59 cmt. a(1) (2003).
The Uniform Trust Code recognizes only four of the “special
creditors” who are generally exempt from the effects of a
spendthrift clause: (1) children with a judgment or court order
entitling them to support; (2) spouses/former spouses with a
judgment or court order entitling them to support/maintenance; (3)
judgment creditors who have provided services that have
protected the beneficiary's interest in the trust; and (4)
governmental claims (state or federal)—but only to the extent
authorized by statute. See UTC §503. The UTC does not
expressly recognize creditors who provided basic necessities as
exempt from a spendthrift clause. To the extent creditors who
provide basic necessities are often public entities, however, there

750
may not be as much difference between the RESTATEMENT
approaches and the UTC as one might think at first blush—but
only to the extent the public entity is statutorily authorized to
reach the beneficiary's interest in the trust.
Finally, both RESTATEMENTS provide that their categories of
excluded creditors should not be presumed as exclusive, while
the UTC presumes that its list of excluded creditors is exclusive.
4. Creditor's ability to reach trust property: The fact that certain
categories of special creditors are not subject to a spendthrift
clause and can reach a beneficiary's interest in a trust does not
mean, however, that these creditors are automatically entitled to
reach the trust property in question. Historically, and as a general
rule still, a creditor's ability to reach a beneficiary's interest in a
trust simply means that the creditor steps into the shoes of the
beneficiary and receives whatever interest the beneficiary had in
the trust, but no more. If the beneficiary's interest is mandatory,
the transferee/creditor can force the trustee to disburse the
property to the transferee/creditor, just as the beneficiary could. If,
however, the beneficiary's interest in the trust is discretionary, just
as the beneficiary could not force the trustee to exercise his or
her discretion in the beneficiary's favor, the general rule was that
a transferee/creditor could not force the trustee to exercise his or
her discretion in the transferee/creditor's favor. This is true
whether or not the trust contains a spendthrift clause.
5. Creditors' rights—discretionary interest: A spendthrift clause
and a discretionary interest are similar drafting options in that they
make it more difficult for a creditor to reach the beneficiary's
interest in a trust, but for different reasons. Spendthrift clauses
constitute a complete bar to a beneficiary's ability to transfer his
or her interest—a bar that de facto prevents creditors from
involuntarily compelling a beneficiary to transfer his or her interest
(absent special creditor status). In contrast, where the
beneficiary's interest in question is discretionary, it is the nature of
the beneficiary's interest that makes it more difficult for the
creditor to reach the trust property. Inasmuch as the beneficiary
could not compel the trustee to disburse the trust property to the
beneficiary, it would seem obvious that a creditor of the
beneficiary should not be able to compel the trustee to disburse
the trust property to the creditor.

751
 But what if the beneficiary could have sued the trustee for
abuse of discretion and prevailed (and thereby been entitled to
receive some of the trust property)? Should a transferee and/or
creditor of the beneficiary be able to sue the trustee for abuse of
discretion and reach the trust property? To the extent the
transferee/creditor steps into the shoes of the beneficiary and
receives the beneficiary's interest, while the transferee/creditor
could not force the trustee to exercise his or her discretion, should
not the transferee/creditor have the same rights as the beneficiary
to sue for abuse of discretion as it relates to the beneficiary (not
the transferee/creditor)?
Jurisdictions were split on the answer to this question. While
the RESTATEMENT (SECOND) OF TRUSTS is not much help, as it does
not address the issue, the RESTATEMENT (THIRD) OF TRUSTS
expressly addresses the issue in the comments to a section. It
provides that a trustee, in deciding whether to exercise his or her
discretion in favor of making a disbursement, can take into
consideration that any exercise of the discretion would result in
the property going to a creditor or transferee instead of the
beneficiary. One can only assume that most trustees would prefer
to disburse property only to a trust beneficiary, not a
creditor/transferee. The RESTATEMENT (THIRD) implicitly authorizes
—if not encourages—a trustee to withhold discretionary
disbursements if the result would be that a creditor/transferee,
and not the beneficiary, would receive the property. See
RESTATEMENT (THIRD) OF TRUSTS §60 cmt. e.
The Uniform Trust Code contains a section that expressly
addresses the protective features of a discretionary interest in a
trust. On the one hand, the UTC is more aggressive in protecting
the discretionary interest from creditors' claims. The UTC
expressly provides that even in the absence of an express
spendthrift clause, if a beneficiary's interest is discretionary, a
creditor of the beneficiary may not compel a distribution even if
“(1) the discretion is expressed in the form of a standard of
distribution; or (2) the trustee has abused the discretion.” See
UTC §504(b). But the UTC goes on to create an exception for
select special creditors. If: (1) the creditor is a child or
spouse/former spouse entitled to support, and (2) the trustee has
abused his or her discretion, then the court can order the trustee

752
to disburse property to the creditor (in an amount that is equitable
under the circumstances), whether or not the trust has a
spendthrift clause. See UTC §504(c).
6. Miscellaneous additional exceptions to spendthrift clauses: In
addition to the above “special categories of creditors” exception to
the enforcement of a spendthrift clause, different states have
created a variety of additional—but less common—exceptions to
enforcement of a spendthrift clause. Some states permit
enforcement of a spendthrift clause only against creditors' claims
that seek to reach a beneficiary's interest in the trust income, but
not the trust principal. In such states, creditors with enforceable
claims against a trust beneficiary are free to reach the
beneficiary's interest in the principal. Some states permit creditors
to reach up to a certain percentage of the money due and
payable to a beneficiary (principal or income), notwithstanding a
spendthrift clause. Careful attention needs to be paid to each
state's approach to spendthrift clauses.
7. Court order regarding future disbursements: Assume,
arguendo, that neither a transferee nor a creditor has any right to
reach a beneficiary's discretionary interest in a trust (i.e., because
neither can force the trustee to exercise his or her discretion in
favor of the transferee or creditor). Can a transferee or creditor
get a court order requiring the trustee, if in the future he or she
decides to exercise his or her discretion in favor of the
beneficiary, to distribute the property being disbursed directly to
the transferee/creditor? Or can the transferee/creditor reach the
property only after it is in the beneficiary's hands? Again, the
jurisdictions split over this issue.
The modern trend is decidedly in favor of permitting creditors
and transferees to secure a discretionary disbursement directly
from the trustee once the trustee decides to exercise his or her
discretion in favor of making a disbursement. The Uniform Trust
Code permits any creditors who are exempt from the spendthrift
clause to obtain a court order attaching any present or future
disbursements for the benefit of the beneficiary. See UTC
§503(c). The RESTATEMENT (THIRD) OF TRUSTS goes even further,
imposing personal liability on any trustee who does not make
disbursements in the exercise of that discretion to a creditor or

753
transferee once the trustee knows of the party's right to receive it.
See RESTATEMENT (THIRD) OF TRUSTS §60.
8. The California approach: California recognizes the validity of
properly drafted spendthrift clauses (CPC §15300-01).
California's categories of “special creditors” are more limited
than most jurisdictions. Statutorily, a spendthrift clause does not
apply to a private creditor with judgment claims and/or public
entities or officials with claims for reimbursement, for:

1. Child and/or spousal support (CPC §15305),

2. Restitution for commission of a felony (CPC §15305.5),
and/or
3. Public support (CPC §15306).

Judicially, California courts have also recognized that the right of

the United States to collect on a federal tax lien prevails over a
spendthrift provision. See Pack v. United States, No. CV-F-92-
5327, 1996 WL 149345 (E.D. Cal. Feb. 1, 1996) (citing Leuschner
v. First Western Bank & Trust Co., 261 F.2d 705 (9th Cir. 1958)).
Unlike many jurisdictions, California does not grant “special
creditor” status to creditors who provide basic necessities to a
trust beneficiary or to creditors who protected a beneficiary's
interest in the trust. Having said that, however, California
recognizes the right of any judgment creditor to obtain a court
order “directing the trustee to satisfy all or part of the judgment
out of the payments to which the beneficiary is entitled under the
trust instrument or that the trustee, in the exercise of the trustee's
discretion, has determined or determines in the future to pay to
the beneficiary.” See CPC §15306.5(a). The statute, however,
limits the maximum amount that can be subject to such a court
order to 25 percent of the amount the trustee would otherwise be
disbursing. See CPC §15306.5(b), (f). The statute also exempts
any and all amounts the court deems necessary for the
beneficiary's support or anyone the beneficiary is required to
support (spouse, former spouse, or minor children).
Like most states, in California “a transferee or creditor of the
beneficiary may not compel the trustee to pay any amount that
may be paid only in the exercise of the trustee's discretion.” CPC

754
§15303(a). Even if a beneficiary could have forced a
disbursement based on a standard included in the discretionary
power, the transferee/creditor cannot. Having said that, the
California statutory scheme provides the transferee/creditor some
hope and rights. First, as to all transferees/creditors, if there is no
spendthrift clause, and if the trustee has knowledge of the
transfer or has been served by a judgment creditor, if thereafter
the trustee disburses trust property to the beneficiary, the trustee
may be liable to the transferee/creditor if the disbursement
impairs the transferee/creditor's rights. CPC §15303(b). Where,
however, the trust contains a spendthrift provision, the spendthrift
clause prevails and the trustee owes the transferee/creditor no
duty.
Moreover, while the general California rule is that a transferee
or creditor cannot compel a trustee to exercise a discretionary
interest in the transferee/creditor's favor (even where failure to do
so amounts to an abuse of discretion relative to the beneficiary),
California recognizes a number of exceptions to that general rule.
Basically the same categories of “special creditors” who are not
subject to a spendthrift clause (one holding a claim for (i) child
and spousal support, (ii) public support, or (iii) restitution for
commission of a felony) may be able to reach the beneficiary's
discretionary interest if: (1) the beneficiary could have compelled
the trustee to disburse the trust property in question to him or her
(i.e., the trustee's failure to disburse property to the beneficiary is
an abuse of trust), and (2) “the court determines it is equitable
and reasonable.” Under such circumstances, the transferee or
creditor can force the trustee to disburse the trust property to the
party (and/or have the court enter an order ordering the trustee to
make any future disbursements to the party). See CPC §§15305,
§15305.5, §15306.
California has a somewhat unique and interesting component
to its approach to spendthrift clauses. California is more
protective of spendthrift clauses that protect income rather than
principal. Notwithstanding a spendthrift clause, if principal
becomes due and payable to a beneficiary, following a petition by
a judgment creditor, the court has the discretion to issue an order
directing the trustee to use the principal due and payable to
satisfy the judgment. See CPC §15301(b).

755
 Problems
1. How would the Duval case come out in California? How would
the Sligh case come out in California? What if, in Sligh, the
defendant had only been found liable of operating his motor
vehicle negligently? Would that make any difference? Should
it?
2. Settlor's trust has a standard spendthrift clause in it. It also has
a provision giving the beneficiary, after reaching the age of 40,
the right to demand distribution of as much of the principal of
the trust as the beneficiary may desire. A creditor of the
beneficiary seeks to reach the beneficiary's interest in the
principal. The trustee and the beneficiary invoke the trust's
spendthrift clause. The creditor invokes the beneficiary's right
to demand distribution of trust property. Which clause should
control, and why? See State Central Collection Unit v. Brent,
525 A.2d 241 (Md. 1987).
3. Settlor's trust has a standard spendthrift clause in it.
Beneficiary's creditors obtain a judgment against him. The court
enters an order instructing the trustee to pay beneficiary's
interest in the trust income directly to beneficiary's creditors.
The beneficiary consents to the income being paid directly to
the creditors. The trustee invokes the spendthrift clause. Does
the beneficiary's consent override the spendthrift clause? See
Lundgren v. Hoglund, 711 P.2d 809 (Mont. 1985).
4. Settlor's trust has a standard spendthrift clause in it. The trust
is for the benefit of Settlor's son. The trust provisions regarding
distributions to the son are mandatory with respect to trust
income, but discretionary as to the principal. Settlor's son and
his wife recently divorced. Son was ordered to pay alimony to
his ex-wife and child support to his children. Son has fallen
behind in his payments. Can son's creditors reach his interest
in the trust to satisfy his alimony and child support payments?
5. The future: Considering that one way to think about a
discretionary interest is that even in the absence of an express
spendthrift clause it de facto contains a spendthrift clause,
should creditors who are not subject to an express spendthrift
clause be able to reach a beneficiary's interest in a trust that is
discretionary? Do the public policy considerations that support

756
 their exception from the spendthrift clause support permitting
such creditors being able to force a trustee to exercise his or
her discretion in their favor to satisfy a judgment they hold
against the trust beneficiary?

B. Self-Settled Trusts
A self-settled trust is when a settlor creates—or causes to be
created—an inter vivos irrevocable trust where the settlor retains
an interest in the trust, typically a discretionary interest in the
trust.4 The trust also typically is an irrevocable trust, and it usually
contains a spendthrift clause as well. By granting oneself a
discretionary interest in the trust, the fear/concern is that the
settlor is trying to put the trust assets beyond the reach of his or
her creditors, but still within one's own reach if one has a
cooperating trustee.
Should one be permitted to create a trust to shield one's assets
from one's creditors? Should it matter whether the creditors are
current creditors or future creditors? If one creates an irrevocable
trust, appoints an independent trustee, and retains only a
discretionary right to receive any property from the trust, has the
settlor retained any interest in the trust that a future creditor of the
settlor should be able to reach to satisfy a judgment against the
settlor?

Rush Univ. Med. Ctr. v. Sessions

980 N.E.2d 45 (Ill. 2012)
Justice THOMAS delivered the judgment of the court, with
opinion.
...
¶2 BACKGROUND
¶3 The undisputed facts in the pleadings, exhibits and affidavits
on file establish the following. On February 1, 1994, Robert W.
Sessions established the “Sessions Family Trust” and provided
that it was to be governed by the law of the Cook Islands. When
Sessions created this trust, he placed into it his 99% limited
partnership interest in Sessions Family Partners, Ltd, a Colorado

757
limited partnership, as well as property in Hinsdale, Illinois. At the
time of his death, these assets were valued at more than $16.2
million and $2.7 million, respectively. Sessions was both the
settlor and a lifetime beneficiary of the trust. It was furthermore
irrevocable, and it authorized the trustees to make distributions to
Sessions of both income and principal for his “maintenance,
support, education, comfort and well-being, pleasure, desire and
happiness.” The trust also named Sessions as the “Trust
Protector,” giving him the absolute power to appoint or remove
trustees and to veto any of their discretionary actions. Sessions
also had the power to appoint or change beneficiaries, by will or
codicil, who would continue under the trust after his death. Finally,
the trust contained a spendthrift provision that prohibited any trust
assets from being used to pay creditors of Sessions or his estate.
¶4 Plaintiff is a charitable institution that operates a major
teaching and research hospital in Chicago. In the fall of 1995,
Sessions made an irrevocable pledge to plaintiff of $1.5 million for
the construction of a new president's house on the plaintiff's
university campus in Chicago. Sessions then executed
successive codicils to his will, providing that any amount
remaining unpaid on his $1.5 million pledge as of his death would
be given to plaintiff on his death. On September 30, 1996,
Sessions sent plaintiff another letter stating that his pledge was
“made in order to induce [plaintiff] to construct a Rush University
Presidential Residence.” This second letter confirmed his earlier
pledge as follows:
“I agree to provide in my will, living trust and other estate
planning document * * * that (1) this pledge, if unfulfilled at
the time of my death, shall be paid in cash upon my death
as a debt and (2) that if this pledge is unenforceable for any
reason, a cash distribution shall be made under such will,
living trust or other document to [plaintiff] in an amount
equal to the unpaid portion of such pledge at the time of my
death.”
Sessions also stated in this second letter that his pledge was
binding upon his “estate, heirs, successors and assigns,” except
to the extent that he had paid the pledge before his death.

758
 ¶5 In reliance on Sessions' pledge, plaintiff constructed the
president's house on its university campus in Chicago at a cost in
excess of $1.5 million. The house has since been used as a
residence for the president of the university and as a center for
conferences and other university events. The plaintiff named the
house the “Robert W. Sessions House” and held a public
dedication honoring Sessions for his generosity. Sessions was
present at the dedication and cut the ceremonial ribbon, and a
plaque adorning the front of the house still bears his name.
Sessions did not make any payments to plaintiff during his lifetime
toward the $1.5 million pledge.
¶6 In February 2005, Sessions was diagnosed with late-stage
lung cancer. He blamed plaintiff for not diagnosing the cancer
sooner so that it could be treated. On March 10, 2005, about six
weeks before he died, Sessions executed a new will revoking all
previous wills and codicils. This new will made no provision for
any payment to plaintiff toward his pledge. On April 19, 2005, six
days before he died, Sessions created a second trust, the Robert
W. Sessions Revocable Living Trust, and transferred to it his 1%
general partnership interest in Sessions Family Partners, Ltd.
This 1% interest was valued at $164,205. Shortly before his
death, Sessions also made various gifts of about $200,000, which
ostensibly reduced the eventual assets of his estate. Sessions
died on April 25, 2005.
¶7 On December 15, 2005, plaintiff filed an amended claim, in
the probate division of the circuit court of Cook County, against
Sessions' estate to enforce the $1.5 million pledge. The estate
contested plaintiff's claim, and litigation ensued. The Sessions
estate was found to contain less than $100,000. Thus, on April 4,
2006, in a supplemental proceeding, plaintiff filed a three-count
verified complaint against the trustees of the Sessions Family
Trust that was created in 1994, seeking to reach the trust assets
to satisfy the debt owed to plaintiff by Sessions. Thereafter,
plaintiff moved for summary judgment against the estate on its
claim in the original proceeding, and on August 31, 2006, the
circuit court granted summary judgment in favor of plaintiff. The
estate appealed, and the supplemental proceeding was stayed
pending the outcome of the appeal. On December 3, 2007, the
appellate court, in a summary order, affirmed the summary

759
judgment in favor of plaintiff in the estate's appeal (In re Estate of
Sessions, No. 1-07-0202, 377 Ill.App.3d 1146, 352 Ill.Dec. 148,
953 N.E.2d 84 (2007) (unpublished order under Supreme Court
Rule 23)).
...
¶9 Count III of plaintiff's complaint against the trustees is the
only count at issue in this appeal. That count relied upon the
principle that if a settlor creates a spendthrift trust for his own
benefit, it is void as to existing or future creditors and such
creditors can reach the settlor's interest under the trust. Plaintiff
alleged that as a creditor, it should be able to reach the assets of
the trusts created by Sessions to satisfy its $1.5 million claim.
¶10 The circuit court entered summary judgment in plaintiff's
favor on count III, finding that the Sessions Family Trust dated
February 1, 1994, was void as to plaintiff's $1.5 million judgment
against Sessions' estate and that the trust is liable for payment to
plaintiff on the pledge....
¶11 The trustees appealed, ....
¶13 ANALYSIS
¶14 Before this court, both plaintiff and the Attorney General
rely upon the common law rule that a person cannot settle his
estate in trust for his own benefit so as to be free from liability for
his debts....
...
¶20 The common law rule ... has a general purpose of
protecting creditors, but it addresses the specific situation where
an interest is retained in a self-settled trust with a spendthrift
provision. “Traditional law is that if a settlor creates a trust for the
settlor's own benefit and inserts a spendthrift clause, the clause is
void as to the then-existing and future creditors, and creditors can
reach the settlor's interest under the trust.” Helene S. Shapo et
al., Bogert's Trusts and Trustees §223, at 424–67 (3d ed. 2007).
And the rule is “applicable although the transfer is not a fraudulent
conveyance * * * and it is immaterial that the settlor-beneficiary
had no intention to defraud his creditors.” Restatement (Second)
of Trusts §156 cmt. a (1959).

760
 ...
¶24 Second, it could be said that the policy behind the common
law rule is not limited solely to deterring fraud, as it prevents the
distinct injustice of allowing a person to use a trust as a vehicle to
park his assets in a way that preserves his own ability to benefit
from those assets, while keeping them outside the reach of his
present and future creditors. If the law were otherwise, “it would
make it possible for a person free from debt to place his property
beyond the reach of creditors, and secure to himself a
comfortable support during life, without regard to his subsequent
business ventures, contracts, or losses.” Schenck v. Barnes, 156
N.Y. 316, 50 N.E. 967, 968 (1898)....
...
¶27 In an alternative argument of sorts, defendants argue that
the common law rule does not come into play because plaintiff did
not become a judgment creditor in relation to Sessions before he
died. Defendants claim that the common law rule regarding self-
settled trusts applies only to the settlor's “lifetime interest” so that
once the settlor dies, the rule does not permit a creditor to reach
any trust assets that could have been, but were not, distributed to
the settlor during his life. Citing section 156 of the Restatement
(Second) of Trusts, defendants further contend that the common
law rule operates only to negate the effect of the spendthrift
clause and not the entire trust.
¶28 Defendants' argument misapplies the legal principles it
cites to the facts of the present case. We note that cases
addressing similar arguments have held that the settlor's
“interest” in a self-settled trust that his creditors may reach
includes all income and principal that could have been distributed
to the settlor, even when the trustee exercises complete
discretion over such distributions. See Restatement (Second) of
Trusts §156(2) (1959); Restatement (Third) of Trusts §60 cmt. f
(2003). This must be distinguished from an interest that creditors
may not reach: where assets contributed by the settlor are
irrevocably deeded to the trust for the benefit of other
beneficiaries, such as where income from the trust is payable to
the settlor but principal may be distributed only to designated
remaindermen after the settlor's death, in which case the settlor's

761
“interest” includes only the trust income, and the trust principal is
not subject to claims by the settlor's creditors. See In re Brown,
303 F.3d 1261, 1268–69 (11th Cir.2002); Restatement (Third) of
Trusts §58 cmt. e (2003). The latter situation is clearly not present
here, as the trust provisions gave the trustees (who could be
replaced at will by the settlor and whose every material action
was subject to the veto power of the settlor as “protector” of the
trust) the power to distribute both principal and income to the
settlor, in unlimited amounts, for his “maintenance, support,
education, comfort, well-being, pleasure, desire or happiness.”
...
¶30 We also find unpersuasive defendants' position that
creditor's rights under the common law do not extend to the
assets that the trustees could have distributed to the settlor but
did not distribute to him before he died. There is no conceptual
difference—with respect to trust assets distributable to the settlor
—between allowing the settlor to favor himself over his creditors
and allowing him to favor his relatives and other heirs over his
creditors. Just as the common law keeps the settlor from retaining
the benefit of his assets while keeping them beyond his creditors'
reach, it also requires the settlor to be “‘just before he is
generous.’” In re Estate of Kovalyshyn, 136 N.J.Super. 40, 343
A.2d 852, 859 (N.J., Hudson County Ct.1975) (quoting
Merchants' & Miners' Transp. Co. v. Borland, 53 N.J. Eq. 282, 31
A. 272, 274 (N.J.Ch.1895)); see also 2 William Blackstone,
Commentaries. Thus, we believe that if the settlor's interest in a
self-settled trust is “void” as to the settlor's creditors, there is no
sound reason to treat the creditors' rights as suddenly defeated
the moment the settlor dies, thereby giving the commensurate
economic benefit to the settlor's heirs....
...
¶36 Turning to the case before us, we find that Sessions was
clearly a “debtor” of plaintiff during his lifetime and plaintiff in turn
was clearly a “creditor” of plaintiff as those terms are commonly
understood. A “debtor” is simply defined as “[o]ne who owes an
obligation to another, esp. an obligation to pay money.” Black's
Law Dictionary 433 (8th ed. 2004). A “creditor” is “[o]ne to whom
a debt is owed.” Black's Law Dictionary 396 (8th ed. 2004). There

762
is no question that Sessions incurred an obligation to pay plaintiff
money, even if it was to be paid at the latest upon his death as a
debt. Moreover, we note that, at the very least, the facts
precipitating plaintiff's claim occurred during the lifetime of
Sessions, and plaintiff could therefore recover against the trust
assets. See Nagel, 580 N.W.2d at 812. Sessions clearly incurred
the obligation to plaintiff during his lifetime and we have no
trouble concluding that plaintiff was a creditor for purposes of the
common law trust rule invoked in this case.
¶37 CONCLUSION
¶38 ... We ... conclude that under the undisputed facts of this
case, plaintiff was a “creditor” of Sessions for purposes of the
common law rule. Accordingly, we reverse the judgment of the
appellate court, affirm the judgment of the circuit court, and
remand the cause to the circuit court of Cook County for further
proceedings consistent with this opinion.
—————

Notes
1. Revocable trusts: Where a settlor retains a power to revoke
a trust, the property in the trust is subject to the claims of a
creditor to the settlor to the extent the settlor could have revoked
the trust. Even though the power to revoke is limited to the
settlor's lifetime, the modern trend is to provide that if the settlor's
probate assets are not sufficient to cover the claims of his or her
creditors, the creditors may reach the property in the trust subject
to the power to revoke even after the settlor's death and even if
the power to revoke was not exercised inter vivos by the settlor.
California has adopted the modern trend.
2. Self-settled trusts: To clarify, there is nothing illegal about a
settlor creating an inter vivos trust and retaining an interest in that
trust. The term “self-settled trust” is not really about the settlor's
retained interest in the trust per se—it really pertains to the issue
of the rights of settlor's creditors with respect to the settlor's
retained interest. To the extent the settlor has retained an interest
but has structured the trust in a way that attempts to make it
difficult for his or her creditors to reach his or her interest in the
trust, as a general rule, at least historically, such attempts were

763
invalid as applied to the creditors (but the trust is otherwise still
valid).
The Sessions Family Trust is a classic example of a self-settled
trust. The settlor created an irrevocable inter vivos trust and he
retained a lifetime interest in both the income and the principal for
his “maintenance, support, education, comfort and well-being,
pleasure, desire and happiness.” No problem. But Sessions
structured the trust to try to make it difficult for his creditors to
reach his interest in the trust: he appointed an independent third
party as a trustee, he included a spendthrift clause, and his
retained interest was discretionary. Has Sessions really divested
himself of all interest in the trust property, or is the trust merely a
sham transaction intended and designed to put his assets beyond
the reach of his creditors against public policy?
3. Self-settled trust and spendthrift clause: The court invoked
and applied the well-recognized and general rule that with respect
to a settlor's retained interest in a self-settled trust, a spendthrift
clause is null and void. The spendthrift clause is still valid as to
the interest of other beneficiaries, but not with respect to the
settlor's interest in the trust.
4. Self-settled trust and mandatory interest: Inasmuch as a
spendthrift clause is null and void in a self-settled trust with
respect to any interest retained by the settlor, if a settlor retains a
mandatory interest, under general creditor's rights principles any
creditor of the settlor would be able to reach the settlor's
mandatory interest in the trust. There is no need for special
treatment of a settlor's interest in a self-settled trust if the settlor's
interest is mandatory (in which case it might not technically qualify
as a self-settled trust, because that term typically applies only to
the extent the settlor's interest is discretionary).
5. Self-settled trust and discretionary interest: As the court in
Nelson v. California Trust Co., 202 P.2d 1021 (Cal. 1949) stated:
It is against public policy to permit a man to tie up his
property in such a way that he can enjoy it but prevent his
creditors from reaching it, and where the settlor makes
himself a beneficiary of a trust any restraints in the
instrument on the involuntary alienation of his interest are
invalid and ineffective.

764
Any restraint in trust that directly or indirectly attempts to restrict
or limit the involuntary alienation of the settlor's interest is null and
void, and any and all property that the trustee could have used for
the settlor's benefit is subject to the claims of the settlor's
creditors. It is as if a creditor of the settlor can force the trustee to
exercise his or her discretion in favor of the creditor to the full
extent the trustee could have exercised it in favor of the settlor.
6. Modern trend?: Historically the common law approach to
self-settled trusts—that they were against public policy and not
permitted to shield one's assets from one's creditors—was for all
practical purposes universally recognized by all states.5 While the
United States has a long history against permitting any type of
self-settled asset-protecting trusts, not all common law
jurisdictions share that philosophy. England, the Cook Islands,
and the Bahamas have long recognized a variety of asset-
protecting trusts. While a detailed examination of the approach of
those countries is beyond the scope of this material, suffice it to
say that asset-protecting trusts are valid in those jurisdictions so
long as the creation of the trust was not in fraud of a creditor's
rights at the time the property was transferred to the trust. The
property can be reached only to the extent it was fraudulently
transferred to the trust.
Fast forward to today, when an increasing number of American
states are beginning to permit some form of asset-protecting trust
(Alaska, Delaware, and a few other states were the frontrunners
of this movement in an attempt to attract more trust business to
their states). Like the traditional off-shore trust accounts, so long
as the creation of the trusts was not in fraud of a creditor's rights
at the time the property was transferred to the trust, the asset-
protecting features of the self-settled trust are valid. Currently, the
number of states allowing such self-settled trusts is in the
minority.6 Such states are, in the profession, commonly referred
to as “pro debtor” states (at least when it comes to the viability of
such trusts). The majority of states remain consistent with the
common law approach and, in this respect, are often known as
“pro creditor” states. Needless to say, such trusts are
controversial and it is not clear whether an actual trend has
emerged (creditor law is deeply rooted in many states and
changes thereto can be slow in coming). The accompanying

765
aspect of “forum shopping” with choice of law and trust situs in
attempts to create effective self-settled trusts is also a matter of
some controversy.
7. California approach: California currently stands with the
majority of states, and the law remains consistent with that of the
traditional common law approach. While it is not illegal for a
settlor to utilize an irrevocable trust in which he or she is a
permissible discretionary beneficiary, creditors of the settlor can
reach trust assets to the extent that the trustee may make
distributions to the settlor. For example, if the trust language
permits the trustee to make distributions “to the settlor, in the
trustee's discretion, of any part or all of the trust assets,” then the
settlor's creditors can reach all trust assets to satisfy debts of the
settlor. It is important to note that “settlor's debts” generally
means all debts incurred by the settlor, irrespective of when they
were incurred; debts incurred both prior to and after establishing
such a trust are subject to being satisfied by assets held in trust.7
8. Trust protector: The trust protector is another modern trend
development, the details of which are beyond the scope of this
introductory coverage. Trust protectors arose in offshore trusts.
Offshore trusts require independent third-party trustees to qualify
for asset protection status, but inasmuch as settlors retain a
discretionary interest in the trust, settlors would like to insure that
the trustee is a cooperating trustee. The trust protector can be
viewed as an attempt to give the settlor that assurance. The
Sessions Family Trust gave Sessions, the settlor, “the absolute
power to appoint or remove trustees and to veto any of their
discretionary actions.” Inasmuch as one can make a lucrative
living being a cooperative trustee, a trust protector's power to
remove a trustee can have some influence over a trustee, thereby
making him or her more cooperative to the discretionary interests
of the settlor.
The trust protector is a relatively new development and its
scope is still being defined. Moreover, the trust protector has
moved onshore and is increasingly being used in domestic trusts
for a variety of purposes, even in jurisdictions that still follow the
traditional common law approach to self-settled trusts. Trusts and
estates law is trying to catch up, trying to determine who can
serve as a trust protector, what powers can validly be granted to a

766
trust protector, and whether a trust protector owes a fiduciary duty
to those affected by the exercise of those powers.

Problems
1. Settlor created a trust for her own benefit during her lifetime.
Her interest in the income is mandatory; her interest in the
principal is discretionary. The trust also has a standard
spendthrift clause. Settlor and her husband recently divorced.
Settlor was ordered to pay alimony to her ex-husband and child
support to her children. Settlor has fallen behind in her
payments. Can Settlor's ex-husband and children reach her
interest in the trust to satisfy the alimony and child support
payments?
2. Consider the following facts:
On June 24, 1966, while a patient at a private mental
institution, Jane M. Conant created an inter vivos trust. She
retained the right to revoke the instrument at any time. The
trust's dispositive provisions provided, in relevant part, that
the trustees were to pay to or apply to the use of Conant
“so much of the net income thereof, in quarterly or more
frequent installments, and so much of the principal thereof,
as they may deem necessary or advisable for the support
and maintenance of [Conant], and accumulate and reinvest
any income not so paid or applied....” On January 20, 1967,
Conant was admitted to Kings Park Psychiatric Center, a
part of the State Office of Mental Health, where she has
resided continuously through and including the date of
submission of the controversy.
Conant is liable under the authority of Mental Hygiene Law
§43.03(a) for services furnished to her. For the period of
January 1, 1985 through September 29, 1988 there is an
outstanding full cost balance of $150,566.45 owed which
plaintiff is now seeking to recover. Mental Hygiene Law
§43.03(a) provides that a patient and any fiduciary holding
assets for that patient are jointly and severally liable for the
fees owed by the patient. Here, for 20 years, only the trust
income was paid to the State Office of Mental Health in
partial satisfaction of the cost of care.

767
During the 20-year period, plaintiff never filed any claim
against defendants as the co-trustees or against the assets
of the trust for payment of the unreimbursed cost of
Conant's care and never sought to have the trust declared
null and void under EPTL 7-3.1 until November 25, 1988,
when plaintiff submitted an amended verified claim to
defendants for balances due from January 1, 1985 through
September 29, 1988. Defendants rejected the claim and
refused to invade the principal of the trust.
How would you characterize Conant's interest in the trust? Can
the State Office of Mental Health reach Conant's interest in the
trust? See State v. Hawes, 564 N.Y.S.2d 637 (1991).

768
 III. Beneficiary-Compelled
Termination of an
Irrevocable Trust
It is easy to understand how a trust beneficiary might become
frustrated with the restrictions put on his or her interest in a trust
(with respect to both when he or she might be entitled to receive
property and/or under what conditions he or she might be entitled
to receive property). One way a trust beneficiary can try to get out
from under the restrictions of the trust is to sell his or her interest.
While most laypeople are not familiar with it, a market exists for
people who hold a right to receive a stream of property over a
period of time.8 If a settlor creates a trust that grants a life
beneficiary a mandatory interest in the income, the beneficiary
would have little trouble finding a market where he or she could
sell the interest in exchange for a lump sum payout (based on the
life expectancy of the beneficiary, discounted to present value and
then discounted again for the risk of premature death). A settlor
can prevent such a transfer, however, by including a spendthrift
clause. But even when there is not a spendthrift clause, the sale
of one's interest in a trust is not ideal as the beneficiary typically
gets only a fraction of the value of his or her interest in the trust.
All things being equal, most trust beneficiaries would have
preferred an outright gift to a gift in trust. If the property had been
given to the trust beneficiaries outright, both the legal and the
equitable interests would be theirs. They could do whatever they
wanted with the property, and they would have access and control
over all of the property immediately. A gift in trust, on the other
hand, gives the trust beneficiaries only a limited interest in the
trust property.
If one or more of the beneficiaries are frustrated with the fact
that their interests are in trust and were not distributed outright to
them, should the beneficiaries be permitted to terminate the trust
and have the trust property distributed outright to them? Who
owns the property in a trust: the trust (per the settlor's intent), the
trustee (as the agent of the settlor and as the party who holds

769
legal title), or the trust beneficiaries (as the holders of the
equitable interest)? No doubt many trust beneficiaries think they
own the property in the trust, but it was the settlor's property, and
the settlor expressed his or her intent by creating the trust. Would
not such termination be inconsistent with the settlor's intent in
creating the trust? But once a trust is created, who really owns
the property in the trust? If all the trust beneficiaries agree, are
they not the owners of the trust property for all practical
purposes?

In re Estate of Bonardi
871 A.2d 103 (N.J. Super. Ct. 2005)
PARRILLO, J.A.D.
...
William Bonardi died testate on March 9, 2002, survived by his
wife, Donna, and his two daughters, Danielle and Jessica. At the
time of his death, Danielle was eighteen-years old and Jessica
was sixteen-years old. Although decedent's Will included some
specific bequests to other individuals, his wife and two daughters
were the primary beneficiaries under separate testamentary
trusts, each made up of one-half of the residuary estate. Stephen
F. Pellino, decedent's friend, was named Executor of decedent's
estate and Trustee of the two testamentary trusts.
The first trust named plaintiff, Donna Bonardi, as the income
beneficiary and devised the remainder to Danielle and Jessica.
The second trust named the daughters as the only beneficiaries.
In both instances, the daughters were not entitled to outright
distribution of their interest before they reached the age of twenty-
five.
Under the first trust, plaintiff's interest was subject to several
terms and conditions. Paragraph TENTH of decedent's Will
reads, in pertinent part:
For the duration of the life of my wife, DONNA, the Trustee
shall pay her or apply towards her benefit, all of the net
income of this trust. In addition, the Trustee may pay to her
or apply to her benefit such amounts of the principal of the
Trust as the Trustee, in the exercise of the Trustee's

770
 absolute discretion, deems advisable for her welfare. In
deciding to make such distributions of principal to or for
DONNA'S benefit, the Trustee shall be guided by the
following statement of my purposes and intentions: It is my
expectation that the trust income and principal will not be
made available to provide primary support for the
beneficiary, as I expect that DONNA in complete or large
measure will support herself. I further direct that my Trustee
shall, to the extent possible, not make payments to DONNA
out of principal unless necessary, and that he rather seek to
preserve the corpus, to the extent possible, for ultimate
distribution to my children or survivor of them. My Trustee
shall have complete authority to make these determinations
which I direct shall not be subject to legal challenge. In
making determinations as to distributions of principal for
DONNA'S benefit, I ask that my Trustee be mindful of the
standard of living that we maintained during my lifetime.
[emphasis supplied.].
Explaining the limitations imposed pursuant to this paragraph,
Pellino certified that decedent had expected his wife, who had
gone to school and obtained a nursing degree during the
marriage, to work in the nursing field on a full-time basis after his
death. According to Pellino, decedent was also concerned about
“his wife's inappropriate use of alcohol” and feared “that if the
estate's assets were left to Donna outright, she would continue to
lead this lifestyle which he felt was inappropriate, unhealthy and
against his wishes.” Further, decedent “did not want the proceeds
of his hard work to be used for the benefit of any future boyfriend
or husband that Donna might choose.” None of these concerns,
however, was expressly addressed by a spendthrift provision in
the trust or anywhere else in the Will.
Even so, decedent evidenced his intent elsewhere in the Will.
Notably, paragraph ELEVENTH, which concerned the daughters'
trust, provided that “the trust income and principal will not be
made available for primary support for the beneficiary as I expect
that my wife will contribute to their support....” Further, paragraph
TWELFTH granted the Trustee the exclusive right to “deal with
[the] corpus and the income of such trusts.” Only if the

771
accumulated income from the trust was insufficient could the
Trustee invade the principal.
A dispute eventually arose between plaintiff and the
Executor/Trustee over the amount necessary for plaintiff's
support. Plaintiff claimed that because she was only able to work
part-time due to chronic medical problems, her living expenses
exceeded her income, including the amounts made available to
her by the Trustee under the first testamentary trust. Essentially,
she complained that Pellino was improperly withholding principal
necessary for her support and requested immediate distribution of
all principal in the trust.
...
On May 12, 2004, Danielle and Jessica Bonardi executed a
waiver of their remainder interest in the trust established on
behalf of their mother so that the corpus could be immediately
distributed to her. Pellino, however, refused to accept the waiver.
As a result, the daughters filed a motion to terminate the
testamentary trust, supported by certifications stating they
understood they would inherit one-half of the trust principal upon
their mother's death, but believed it was in their best interest if the
trust were terminated and the corpus made immediately available
to their mother. At the time, both daughters were living with their
mother and under the age of twenty-five: Danielle, being only
twenty years old, and Jessica, eighteen.
Following oral argument, the judge granted the motion and
terminated the testamentary trust, directing distribution of the
daughters' remainder interest in trust principal to plaintiff, Donna
Bonardi....
On appeal, the Executor/Trustee maintains, among other
things, that termination of the testamentary trust frustrates and
defeats the express intent of the testator and is, therefore,
impermissible. He further argues that the judge's finding that the
testator's probable intent was to the contrary was unsupported by
the evidence and constituted error....
...
To be sure, all the beneficiaries of a testamentary trust can
consent to the trust's termination if none of them is under an

772
incapacity and continuance of the trust is no longer necessary to
carry out a material purpose of the trust. Fidelity Union, supra, 7
N.J. at 566, 82 A.2d 191; In re Ransom Testamentary Trust,
supra, 180 N.J.Super. at 120, 433 A.2d 834; Restatement
(Second) of Trusts §337 (1959). Thus, if all of the purposes of the
trust have been carried out, or if the only purpose remaining
unfulfilled is to confer upon certain beneficiaries interests
successively in possession and in remainder, then all persons in
interest, if they are sui juris, may jointly compel termination of the
trust. Bd. of Dir. of Ajax Electrothermic Corp. v. First Nat'l. Bank of
Princeton, 33 N.J. 456, 465, 165 A.2d 513 (1960) (Ajax II); 6
Alfred C. Clapp et al., New Jersey Practice Series §543 (3d
Ed.1982).
On the other hand:
If a trust is created for successive beneficiaries and it is not
the only purpose of the trust to give the beneficial interest
in the trust property to one beneficiary for a designated
period and to preserve the principal for the other
beneficiary, but there are other purposes of the trust which
have not been fully accomplished, the trust will not be
terminated merely because both of the beneficiaries desire
to terminate it, or one of them acquires the interest of the
other. [Restatement (Second) of Trusts, supra, §337
comment g.].
...
Further, spendthrift trusts, trusts for support of a beneficiary,
and discretionary trusts cannot be terminated by consent of the
beneficiaries. Restatement (Second) of Trusts, supra, §337 at
comments l, m, and n. This is because the material purpose of a
spendthrift trust is to prevent anticipation or control of future
income or corpus by the protected income beneficiary and,
therefore, acceleration of the trust would directly contravene the
testator's intent. Heritage Bank-North, N.A. v. Hunterdon Medical
Center, 164 N.J.Super. 33, 36, 395 A.2d 552 (App.Div.1978).
Moreover, “even if not of an express spendthrift nature, a trust
nevertheless created for the primary purpose of ensuring the
beneficiary's support and maintenance is not terminable by
consent since such termination would obviously also contravene

773
testamentary intent.” Ibid. And, the fact that a trustee has the
power to invade the corpus for the beneficiary's benefit does not
negate a testator's intent to establish such a trust. Id. at 37, 395
A.2d 552. In short, “[t]he question for determination is whether the
settlor had any other purpose in mind than to enable the
beneficiaries to successively enjoy the trust property.” Baer v.
Fidelity Union Trust Co., 133 N.J. Eq. 264, 266, 31 A.2d 823 (E &
A 1943).
Here, a material purpose of the trust not only still remains, but
would be soundly defeated by the daughters' renunciation of trust
corpus in favor of their mother, the income beneficiary whose right
to principal was expressly limited under the terms of the trust.
First and foremost, the request is not simply to terminate the trust
and accelerate distribution to the intended successive
beneficiaries, but quite the opposite, to divest the remaindermen
of their interest and divert the trust corpus instead to the income
beneficiary. This, however, is directly contrary to the express
testamentary plan, evident from the face of the language of the
Will itself. As stated in paragraph EIGHTH and provided for in
paragraph TENTH, the clear purpose of the trust is to preserve
the corpus for the ultimate benefit of decedent's daughters “per
stirpes and not per capita.” Thus, if one or both of the daughters
were to predecease plaintiff, their children—decedent's
grandchildren—would acquire their mother's interest in the trust.
However, if the relief requested were to be granted, not only
would Danielle and Jessica be divested of their remainder
interest, but the rights of the putative grandchildren would be
defeated as well, cf. In re Estate of Branigan, 129 N.J. 324, 609
A.2d 431 (1992), thereby frustrating the testator's clear intent.
Plainly, in this instance, acceleration and termination of the trust
would have resulted in a distribution to a person other than those
intended by the testator. Cf. Ajax Electrothermic Corp. v. First Nat.
Bank of Princeton, 7 N.J. 82, 87–88, 80 A.2d 559 (1951) (Ajax I).
Another purpose of the trust, evidenced in paragraph TENTH,
was to provide supplemental support and maintenance for plaintiff
without making trust income and principal “available to provide
primary support.” Rather, the announced expectation was that
plaintiff would “in complete and large measure” support herself
and “contribute to [the daughters'] support as may be appropriate

774
to their age and circumstance from time to time.” In fact,
payments out of principal were not to be made to plaintiff unless
absolutely necessary for her welfare. And, in making this
determination, the trustee was vested with “absolute discretion.”
Indeed, the express terms of the Will divested plaintiff of actual
control over the estate's assets. Thus, the creation of a trust with
“complete authority” in a trustee evidences testator's plain intent
to deny plaintiff immediate distribution of, or control over,
distribution of trust corpus. See Heritage Bank, supra, 164
N.J.Super. at 37, 395 A.2d 552.
It also demonstrates the testator's intent to insulate trust
principal from any control exerted by the daughters during their
mother's lifetime. The language of paragraph EIGHTH, which
states that neither Danielle nor Jessica is entitled to her
respective remainder share before she reaches the age of twenty-
five, supports this construction. By selecting a specific age as the
earliest time at which his daughters may receive outright
distribution of principal, the testator implicitly negated their ability
to affect the trust before then. Yet, when Danielle and Jessica
made the mutual decision to renounce their respective remainder
interests, they were only twenty and eighteen years of age
respectively, living with their mother, and presumably still under
her influence.... Clearly, such decision-making by those otherwise
ineligible under the explicit terms of the Will contravenes the
testator's plain intent. And, the expressed wishes of the testator to
preserve trust corpus for the benefit of his children or their
survivors simply cannot be reconciled with the family settlement
struck in this case that achieves diametrically opposite results.
The named remaindermen not having yet attained the age to
exert control over the trust corpus, a material purpose of the trust
still exists and would be completely frustrated by its premature
termination and distribution of principal to plaintiff, an unintended
beneficiary.
...
... The relief requested here defeats the testamentary plan,
evidenced from the face of the instrument itself, and contravenes
the expressed wishes of the testator.
Reversed.

775
 —————

Notes
1. Trust termination: A trust terminates naturally pursuant to the
settlor's intent when all of the trust property has been disbursed
pursuant to the terms of the trust. Sometimes, however, due to
either changed circumstances or simple impatience, the trust
beneficiaries may attempt to compel a premature termination of
the trust by forcing disbursement of the trust property. That
obviously gives rise to the question of when, if ever, should the
beneficiaries have the power to terminate a trust.
2. Consent of all beneficiaries: Under the traditional common
law approach, and as required by the RESTATEMENT (SECOND) OF
TRUSTS, before a court will even consider premature termination
of a trust, all trust beneficiaries must consent. See RESTATEMENT
(SECOND) OF TRUSTS §337(a) (1959).
Historically, obtaining the consent of all the beneficiaries proved
more challenging than one might first assume. Often trusts are for
multiple generations of beneficiaries. A trust might even include
beneficiaries holding contingent interests and unborn
beneficiaries. How does one get the consent of a minor or unborn
beneficiary? The traditional approach has been to appoint a
guardian ad litem to represent the interests of the beneficiary who
lacked legal capacity, but guardians ad litem tended to analyze
the proposed modification from a purely financial perspective. If
the modification would adversely affect the beneficiary financially,
the guardian ad litem typically would oppose the modification.
Without the consent of all beneficiaries, the modification would
not be approved.
The modern trend has been to facilitate obtaining the consent
of the necessary beneficiaries. Guardians ad litem have been
encouraged to give family harmony and family benefit as much
weight, if not more weight, than purely financial considerations. In
addition, the RESTATEMENT (THIRD) OF TRUSTS and the Uniform
Trust Code recognize the doctrine of “virtual representation,”
where current beneficiaries who have substantially similar
interests as other beneficiaries can represent the other
beneficiaries for purposes of securing the consent of all

776
beneficiaries. See RESTATEMENT (THIRD) OF TRUSTS §65 cmt. b;
UTC §§303–304.
California still favors the use of a guardian ad litem to represent
the interests of a beneficiary who lacks capacity, or is
unascertainable or unborn, but the statute expressly authorizes
the guardian ad litem, in deciding whether to consent to the
proposed termination or modification, to “rely on general family
benefit accruing to living members of the beneficiary's family as a
basis for approving a modification or termination of the trust.”
CPC §15405.
3. Unfulfilled material purpose: The court in Bonardi articulates
and applies what is commonly known as the Claflin doctrine: even
where all the beneficiaries consent, they cannot force the
premature termination of an irrevocable trust as long as the trust
has an unfulfilled material purpose.9 The settlor's intent trumps
the wishes of the beneficiaries, as long as the settlor's intent
includes a material purpose that has not been fulfilled yet. If,
however, the trust has no unfulfilled material purpose, and all it
contains is the successive enjoyment of the equitable interests
spread over time, then the beneficiaries can force the premature
termination of the trust if all the beneficiaries consent—the
beneficiaries' intent will trump the settlor's intent.
Under the Claflin doctrine, the issue then becomes: what
constitutes an unfulfilled material purpose? That question is fact
sensitive and turns on the wording of the trust and settlor's intent.
As the court in Bonardi acknowledged, there are a handful of trust
purposes that are generally recognized as per se constituting an
unfulfilled material purpose. The court mentioned three widely
recognized purposes that per se constitute an unfulfilled material
purpose: (1) trusts that contain a spendthrift clause, (2) support
trusts, and (3) discretionary trusts. In addition, most courts
recognized a fourth category of trusts with a per se unfulfilled
material purpose: (4) trusts where the property is not to be
distributed until a beneficiary reaches a certain age. And there is
a fifth category of trust purpose that can constitute an unfulfilled
material purpose: (5) any trust purpose in which the court finds
the purpose constitutes an unfulfilled material purpose. Obviously
this last category is a very soft, fact-sensitive standard, but it
provides the discretion the courts want under the Claflin doctrine.

777
 In which category of “unfulfilled material purpose” would you
put the court's finding in Bonardi?
4. Settlor consents: In Bonardi, the trust was a testamentary
trust. What if the trust in question was an inter vivos trust? What
difference, if any, should it make if the settlor consents?
If the trust is an inter vivos trust, and the settlor is still alive, an
important variable is whether the trust is revocable or irrevocable.
If it is revocable, so long as the settlor is competent, the settlor
alone can revoke/terminate the trust. The discussion of whether
the beneficiaries can compel a premature termination of the trust
presumes an irrevocable trust.
If the trust is irrevocable, should it matter that the settlor
consents? If it is irrevocable, does the settlor retain any interest in
the trust? Once the settlor transfers the property to the trust, the
trustee holds legal title, and the beneficiaries hold equitable title.
What interest, if any, does the settlor retain? Technically, while for
most purposes the settlor retains no interest in an irrevocable
trust once he or she has created it, for purposes of premature
termination, the courts have decided that the settlor's consent is
an important variable.
Consistent with the Claflin doctrine, if a trust is solely a string of
equitable interests spread out over time (i.e., a series of
possessory estates and future interests), if all the beneficiaries
consent, they should be permitted to terminate the trust
prematurely. If all the beneficiaries consent, the only possible
hurdle that can block the premature termination is an unfulfilled
material purpose—i.e., the settlor's intent. But if the settlor is
alive, and consents with the beneficiaries that the trust should be
terminated, the courts have held that the settlor's consent will
override any unfulfilled material purpose. In essence, the settlor
has “waived” the unfulfilled material purpose. The trust can be
terminated prematurely. See RESTATEMENT (SECOND) OF TRUSTS
§338 (1957).
5. Settlor unable to consent: If the settlor is dead, obviously he
or she cannot consent. One way to think about the issue is the
trustee becomes the representative for the settlor. If all the
beneficiaries consent, and the trustee consents, the trust can be
terminated. Later, if any of the parties were to change his or her

778
mind and sue, the party would be estopped based on his or her
initial consent.
Being a trustee typically is a relatively lucrative position. Most
trustees have a financial incentive not to consent. One could
argue that this is the logic underlying the Claflin doctrine. If the
trustee is blocking the premature termination for legitimate
reasons, i.e., if the trust has an unfulfilled material purpose, the
trustee should be permitted to block the beneficiaries even if all
the beneficiaries consent. But if the trust has no unfulfilled
material purpose and yet the trustee is blocking the beneficiaries'
attempt at terminating prematurely, might the trustee be trying to
block it just to protect his or her compensation? One could argue
that the Claflin doctrine is nothing more than judicial regulation of
a trustee's actions when faced with an attempt by the
beneficiaries to terminate the trust prematurely.
6. Modern trend: From a theoretical perspective, the issue of
premature termination of a trust is a fascinating issue because it
forces one to wrestle with the question of who really owns the
property in the trust. As noted above, assuming an irrevocable
trust, technically the settlor no longer owns the property. For
purposes of terminating a trust, who really owns the property in
the trust: the trustee or the beneficiaries? One could argue that
even the traditional common law approach recognizes that the
beneficiaries have the stronger claim of ownership. If the trust has
no unfulfilled material purpose, the beneficiaries can terminate the
trust so long as all the beneficiaries consent.
The modern trend takes this basic principle, that the
beneficiaries are the true owners of the trust property, and
extends it a bit further than the common law did. The
RESTATEMENT (THIRD) OF TRUSTS continues the general rule that if
all the beneficiaries consent, they can terminate an irrevocable
trust unless “termination or modification would be inconsistent
with a material purpose of the trust,” in which case the
beneficiaries can compel termination only if: (1) the settlor
consents, or (2) if the settlor is dead, “with authorization of the
court if it determines that the reason(s) for termination or
modification outweigh the material purpose.” See RESTATEMENT
(THIRD) OF TRUSTS §65 (2003). Moreover, the comments to the
RESTATEMENT (THIRD) provides that the traditional types of trusts

779
that per se constituted a material purpose (a spendthrift trust, a
support trust, or a discretionary trust) do not per se bar
termination: “[S]pendthrift restrictions are not sufficient in and of
themselves to establish, or to create a presumption of, a material
purpose that would prevent termination by consent of all of the
beneficiaries. This is also true, in many contexts, of discretionary
provisions.” See RESTATEMENT (THIRD) OF TRUSTS §65 cmt. e
(2003).
The Uniform Trust Code likewise provides that a spendthrift
provision in a trust “is not presumed to constitute a material
purpose” for purposes of premature termination. UTC §411(c).
Moreover, the Uniform Trust Code permits partial termination
where not all the beneficiaries consent, so long as: (a) the trust
could have been terminated if all the beneficiaries had consented,
and (b) the interests of the beneficiaries who did not consent are
adequately protected. UTC §411(e).
7. Uneconomically small trusts: Both the RESTATEMENT (THIRD)
and the Uniform Trust Code permit trust termination if the size of
the trust corpus has become so small that it is economically
inefficient to continue the trust. See UTC §414; RESTATEMENT
(THIRD) OF TRUSTS §66 cmt. d (2003). This has commonly been
adopted by the states, including California. Generally, this occurs
where the viability of the trust, due to the diminution in value of
the trust assets, is at a point where it is just “not worth the effort”
(time, expense, taxes, etc.) to keep it alive. It is common for the
trust document to contain language permitting such termination.
The following is an example of a portion of such a clause:
Power to Terminate Trust: If the value of the trust has
declined to such an amount that the Trustee deems it
uneconomical, imprudent or unwise to continue to retain
the principal in trust, the Trustee shall have the power to
terminate the trust and to deliver the then remaining
principal to, or for the benefit of, the beneficiary, or
beneficiaries, then entitled to receive the income of the
trust [or some other specific method of determining who
should be entitled to such distribution].

Problem

780
 Maybelle Kent established a testamentary trust for the benefit
of her only child, Peggy, with Peggy's father Sidney and Title
Insurance and Trust Co. appointed as co-trustees. Peggy was a
15-year-old schoolgirl at the time. The terms of the trust direct the
trustees as follows:
[T]he entire net income of said trust estate shall be held
and accumulated by said trustees and reinvested by them
for the beneficiaries thereof hereinafter named; provided,
that any part of said net income may be paid, applied and
expended by said trustees in their absolute discretion for
support, care and education of plaintiff. It was also provided
that when plaintiff should reach the age of 35 years, the
trust estate and all accumulations thereof should be
transferred and delivered to her, ....
Mabelle died in 1932. Sidney died in 1942. The year after
Sidney's death, Peggy petitioned to terminate the trust. Peggy's
arguments were as follows:
[N]otwithstanding the provisions of the trust that the plaintiff
should receive the entire trust estate, together with the
accumulations thereof, upon reaching the age of 35, it was
contemplated by plaintiff's mother at the time of the
creation of said trust that should the occasion arise or
circumstances exist warranting the earlier termination of
said trust for the purpose of relieving plaintiff from any
undue hardship or unexpected contingency, the trust could
be earlier terminated'; that such ‘circumstances exist’ in
that when the will creating the trust was executed, plaintiff
was a schoolgirl 15 years of age, living with her mother,
and not capable of looking after her financial affairs; that it
was contemplated by the trustor, plaintiff's mother, that if
she should die before plaintiff should attain the age of 35
years, plaintiff would live with her father, Sidney R. Kent,
who would provide for her independently of the trust, and
therefore it would be unnecessary for plaintiff to receive the
corpus of the trust prior to her attainment of the designated
age; that the trustor believed that plaintiff's father, then
living, would participate in the management of the trust, but
by reason of his death, this is no longer possible; that the
income from the trust is negligible and wholly inadequate to

781
 support plaintiff in a manner consistent with her station in
life; that plaintiff's income apart from the trust is similarly
insufficient; that by reason of her father's death, plaintiff is
unable to have comforts and necessities and to buy a
home as she could if her father were alive; that plaintiff is
now 26 years of age, happily married and living with her
husband, capable of managing the estate left in trust by her
mother, and is desirous of purchasing a home; that ‘the
conditions aforesaid have arisen since the creation of the
trust * * * and said situation was not contemplated by
plaintiff's mother and therefore no provision was made for
the same.’
Should the trust be terminated? How would you rule on Peggy's
petition? See Moxley v. Title Ins. & Trust Co., 165 P.2d 15 (Cal.
1946); Larson v. Cty. of Monterey, No. H039029, 2015 WL
7185021 (Cal. Ct. App. Nov. 16, 2015).

782
 IV. Modification of
Irrevocable Trust
A. Modifying a Trust's Dispositive or
Administrative Terms
Assuming a validly created irrevocable trust, when, if ever,
should it be modified? We saw above that if the trust is revocable,
the power to revoke includes the power to amend or modify, so
the settlor can still modify the trust. But what if the trust is
irrevocable? Does the termination material that we just finished
apply equally to proposed trust modifications?
As a general rule, the answer is “yes.” If the beneficiaries have
the power to terminate, the beneficiaries also have the power to
amend. There is, however, one additional doctrine that the courts
have historically recognized that applied only to trust modification,
not trust termination.

In re Riddell
157 P.3d 888 (Wash. Ct. App. 2007)
PENOYAR, J.
¶1 The Trustee of a consolidated trust, Ralph A. Riddell,
appeals the trial court's denial of his motion to modify the trust
and create a special needs trust on behalf of a trust beneficiary,
his daughter, Nancy I. Dexter, who suffers from schizophrenia
affective disorder and bipolar disorder. Ralph's deceased father
and mother each established a trust. The trusts were
consolidated by the court. Upon Ralph's death, the trust will
terminate and Nancy will receive payment of her portion of the
trust proceeds. Ralph argues that the trial court has the power to
modify the trust; that his daughter's disabilities are a changed and
unanticipated condition; and that the purpose of the settlor will be
preserved through the modification. We agree and remand to the
trial court to reconsider an equitable deviation in light of changed
circumstances and the settlors' intent that the beneficiaries

783
receive both medical care and general support from the trust's
funds.
FACTS
¶2 George X. Riddell and Irene A. Riddell were husband and
wife with one child, Ralph. George's Last Will and Testament left
the residue of his estate in trust for the benefit of his wife, his son,
his daughter-in-law, and his grandchildren. George also created
an additional trust (the Life Insurance Trust) for their benefit.
Irene's Last Will and Testament left the residue of her estate in
trust for the benefit of her son; her son's wife, Beverly Riddell; and
her grandchildren.
¶3 The trusts contained a provision in which, upon the death of
Ralph and Beverly, George and Irene's grandchildren would
receive the trust's benefits until the age of thirty-five when the
trusts would terminate and the trustee would distribute the
principal to the grandchildren. Ralph is currently the Trustee.
George and Irene are both deceased.
¶4 Ralph and Beverly have two children, Donald H. Riddell and
Nancy. Both Donald and Nancy are more than thirty-five years
old. Donald is a practicing attorney and able to handle his own
financial affairs. Nancy suffers from schizophrenia affective
disorder and bipolar disorder; by 1991 she received extensive
outpatient care; and by 1997 she moved to Western State
Hospital. She is not expected to live independently for the
remainder of her life.
¶5 Both Ralph and Beverly are still living. Upon their death, the
trusts will terminate because Nancy and Donald are both over the
age of thirty-five; Nancy will receive her portion of her
grandparents' trust principal, which is approximately one half of
$1,335,000.
¶6 The Trustee, Ralph, filed a petition in superior court, asking
the trial court to consolidate the trusts and to modify the trust to
create a “special needs” trust on Nancy's behalf, instead of
distributing the trust principal to her. Clerk's Papers (CP) at 4. He
explained that, under the current trust, when her parents die,
Nancy's portion of the principal will be distributed to her and the
trust will terminate. He argued that a special needs trust is

784
necessary because, upon distribution, Nancy's trust funds would
either be seized by the State of Washington to pay her
extraordinary medical bills or Nancy would manage the funds
poorly due to her mental illness and lack of judgment. He argued
that the modification would preserve and properly manage
Nancy's funds for her benefit.
¶7 The trial court granted the motion to consolidate the trusts
but denied the motion to modify. It stated that it did not have the
power to modify the trust unless unanticipated events existed that
were unknown to the trust creator that would result in defeating
the trust's purpose. The trial court found that the trust's purpose
was “to provide for the education, support, maintenance, and
medical care of the beneficiaries” and that a modification would
only “permit[ ] the family to immunize itself financially from
reimbursing the State for costs of [Nancy's medical] care.” CP at
54, Report of Proceedings (RP) at 4. Relying on the Restatement
(Second) of Trusts, it stated that it would not allow a modification
“merely because a change would be more advantageous to the
beneficiaries.” CP at 53; Restatement (Second) of Trusts §66(1)
cmt. b (2001). It did not issue factual findings or legal conclusions
with its order but incorporated its reasoning from its oral ruling
into the order.
¶8 Ralph moved for reconsideration, arguing that the Trust and
Dispute Resolution Act, Chapter 11.96A RCW (TEDRA) and the
Restatement (Third) gave the trial court plenary power to handle
all trusts and trust matters and the authority to modify the
consolidated trust into a special needs trust. Ralph argued that,
because the grandparents directed the trust proceeds to be
distributed to their grandchildren when they reach the age of
thirty-five, the settlors intended that their grandchildren attain a
level of responsibility, stability, and maturity to handle the funds
before receiving the distribution. He also argued that due to
Nancy's mental illness, allowing a distribution to her would defeat
the settlors' intent and the trust's purpose.
¶9 The trial court denied the motion for reconsideration. It again
issued no factual findings or legal conclusions, but it stated that
its decision was based on the findings and conclusions articulated
in its oral ruling on the motion for reconsideration. On
reconsideration, the trial court agreed that the Restatement

785
(Third) of Trusts allowed the court to modify an administrative or
distributive protection of a trust if, because of circumstances the
settlor did not anticipate, the modification or deviation would
further the trust's purpose. It then stated:
I believe that there is a showing here that there is a
circumstance that was, perhaps, not anticipated by the
original settler [sic]; however, the purpose of the trust is to
provide for the general support and medical needs of the
beneficiaries. I think that modifying the trust in a fashion
that makes some of those assets less available for that
purpose than they would be under the express language of
the trust presently is not consistent with the purpose of the
trust.
CP at 107. The trial court reasoned that because the trust was
written to provide for “medical care” and because creating a
special needs trust would make some money unavailable for
medical care expenses, the modification was inconsistent with the
trust's purpose. CP at 101. Ralph now appeals.
ANALYSIS
...
II. TRUST MODIFICATION
¶12 Ralph asserts that the trial court had the authority to modify
the trust under both the equitable deviation doctrine and under
the plenary power granted by TEDRA. TEDRA states that it is the
Legislature's intent to give courts full and ample power to
administer and settle all trust matters. RCW 11.96A.020. On
reconsideration, the trial court agreed that it possessed the power
to modify a trust. It stated that it could modify an administrative or
distributive protection of a trust if, because of circumstances the
settlor had not anticipated if the modification would further the
trust's purpose. The trial court understood that it possessed the
ability to modify the trust.
¶13 Next, Ralph contends that the trial court erred in declining
to modify the trust. He explains that a modification would further
the trust's purpose because, if George and Irene had anticipated
that Nancy would suffer debilitating mental illness requiring
extraordinary levels of medical costs and make her incapable of

786
managing her money independently, they would not have
structured the trust to leave a substantial outright distribution of
the trust principal to her. He contends that the settlors instead
would have established a special needs trust to protect the funds
because Nancy's medical bills would be extraordinary and
covered by state funding.
¶14 Ralph explains that the settlors conditioned the distribution
of trust assets on her being at least thirty-five years old, indicating
that they intended that their grandchildren have a level of maturity
and stability before receiving the trust distribution. Ralph asserts
that given Nancy's medical conditions and inability to handle her
finances independently, she will never attain a level of maturity to
handle the distribution of funds; therefore a special needs trust is
appropriate.
¶15 Niemann [Niemann v. Vaughn Cmty. Church, 154 Wash.2d
365 (2005)] is very instructive in this case. In Niemann, our
Supreme Court held that trial courts may use “equitable deviation”
to make changes in the manner in which a trust is carried out.
Niemann, 154 Wash.2d at 378, 113 P.3d 463. The court outlined
the two prong approach of “equitable deviation” used to determine
if modification is appropriate. Niemann, 154 Wash.2d at 378, 113
P.3d 463. The court “may modify an administrative or distributive
provision of a trust, or direct or permit the trustee to deviate from
an administrative or distributive provision, if [ (1) ] because of
circumstances not anticipated by the settlor [ (2) ] the modification
or deviation will further the purposes of the trust.” (Niemann, 154
Wash.2d at 381, 113 P.3d 463; Restatement (Third) of Trusts
§66(1) (2001)). In Niemann, the court adopted the Restatement
(Third) of Trusts and noted that the Restatement (Third) requires
a lower threshold finding than the older Restatement and gives
courts broader discretion in permitting deviation of a trust.
Niemann, 154 Wash.2d at 381, 113 P.3d 463.
¶16 The first prong of the equitable deviation test is satisfied if
circumstances have changed since the trust's creation or if the
settlor was unaware of circumstances when the trust was
established. Restatement (Third) of Trusts §66 cmt. a (2001).
Upon a finding of unanticipated circumstances, the trial court
must determine if a modification would tend to advance the trust
purposes; this inquiry is likely to involve a subjective process of

787
attempting to infer the relevant purpose of a trust from the general
tenor of its provisions. Restatement (Third) of Trusts §66 cmt. b
(2001).
¶17 The reason to modify is to give effect to the settlor's intent
had the circumstances in question been anticipated. Restatement
(Third) of Trusts §66 cmt. a (2001). Courts will not ordinarily
deviate from the provisions outlined by the trust creator but they
undoubtedly have the power to do so, if it is reasonably
necessary to effectuate the trust's primary purpose. Niemann,
154 Wash.2d at 382, 113 P.3d 463. A trust settlor may possess a
myriad of intentions in settling a trust, but the trial court must
concern itself with their primary objective. Niemann, 154 Wash.2d
at 382, 113 P.3d 463.
¶18 As stated above, we defer to the trial court's factual
findings. Niemann, 154 Wash.2d at 375, 113 P.3d 463. In this
case, the trial court did not issue formal factual findings, but it
stated in the oral ruling that there was a showing of a changed
circumstance in this case. This meets the first prong. The settlor's
intent is also a factual question. Niemann, 154 Wash.2d at 374–
75, 113 P.3d 463. The trial court found in its oral ruling that the
“stated” purpose of the trust is to provide for the beneficiaries'
education, support, maintenance, and medical care. CP at 54.
Thus, it found that this trust's primary purpose was to provide for
Nancy during her lifetime. Because the trust was to terminate at
age thirty-five, it was also the settlors' intent that Nancy have the
money to dispose of as she saw fit, which would include any
estate planning that she might choose to do.
¶19 There is no question that changed circumstances have
intervened to frustrate the settlors' intent. Nancy's grandparents
intended that she have the funds to use as she saw fit. Not only is
Nancy unable to manage the funds or to pass them to her son,
but there is a great likelihood that the funds will be lost to the
State for her medical care. It is clear that the settlors would have
wanted a different result.
¶20 In 1993, as part of the Omnibus Budget Reconciliation Act,
Congress set forth a requirement for creating special needs trusts
(or supplemental trusts), intended to care for the needs of
persons with disabilities and preserve government benefits

788
eligibility while allowing families to provide for the supplemental
needs of a disabled person that government assistance does not
provide. Marla B. Karus, Special Issue: Special Needs Children in
the Family Court, 43 Fam. Ct. Rev. 607, 610 (Oct.2005)
(emphasis removed). The Act exempted certain assets from
those assets and resources counted for the purposes of
determining an individual's eligibility for government assistance.
Pub.L. 103-66, §13611(b), codified at 42 U.S.C. §1396p(d)(4)(A).
A supplemental needs trust is a trust that is established for the
disabled person's benefit and that is intended to supplement
public benefits without increasing countable assets and resources
so as to disqualify the individual from public benefits. See Jill S.
Gilbert, Using Trusts in Planning for Disabled Beneficiaries,
Wisconsin Lawyer (Feb.1997); Sullivan v. County of Suffolk, 174
F.3d 282, 284 (2nd Cir.1999).
¶21 In this case, the trial court was concerned with fashioning a
trust for Nancy that would allow the family to shield itself for
“reimbursing the State” for the costs of her medical care due to
her disability. RP at 4. But in 1993, Congress permitted the
creation of special needs trusts in order to allow disabled persons
to continue to receive governmental assistance for their medical
care. Marla B. Karus, Special Issue: Special Needs Children in
The Family Court, 43 Fam. Ct. Rev. 607, 610 (Oct.2005); Pub.L.
103-66, §13611(b), codified at 42 U.S.C. §1396p(d)(4)(A). Special
needs trusts were created in order to allow disabled persons to
continue receiving governmental assistance for their medical
care, while allowing extra funds for assistance the government did
not provide. Given this legal backdrop, the trial court should not
have considered any loss to the State in determining whether an
equitable deviation is allowed. The law invites, rather than
discourages, the creation of special needs trusts in just this sort of
situation. The proper focus is on the settlors' intent, the changed
circumstances, and what is equitable for these beneficiaries.
¶22 George and Irene both died without creating a special
needs trust but did not know of Nancy's mental health issues or
how they might best be addressed. They clearly intended to
establish a trust to provide for their grandchildren's general
support, not solely for extraordinary and unanticipated medical
bills.

789
 ¶23 A special needs trust may be established by a third party or
by the disabled person that would be benefited by the trust. See
Barbara A. Isenhour, Medicaid Eligibility for Long-Term Care
Coverage and Special Needs Trusts, Isenhour Bleck, P.L.L.C.
(Feb. 2006). Trusts established or funded by the disabled person
are subject to 42 U.S.C. §1396p(d)(4)(A), which entitles the State
to receive all remaining trust amounts upon trust termination for
medical assistance paid on behalf of the disabled beneficiary. See
Clifton B. Kruse, Jr., Third Party and Self-Created Trusts Planning
for the Elderly and Disabled Client, ABA Publishing (3rd Ed.).
However, the State is not entitled to receive payback upon
termination of a third party special needs trust for medical
assistance provided for the disabled beneficiary. See Barbara D.
Jackins, Special Needs Trusts A Guide for Trustees
Administration Manual (2005 Ed.). Here, the trust was established
and funded by George and Irene Riddell for the beneficiary Nancy
Dexter. It is a third party special needs trust. The trust is not
subject to State assistance payback and is not required to have a
payback provision.
¶24 We remand to the trial court to reconsider this matter and
to order such equitable deviation as is consistent with the settlors'
intent in light of changed circumstances.
—————

Notes
1. Equitable deviation: Trust modification due to an unexpected
change in circumstances is also commonly known as “equitable
deviation.” Most courts, the RESTATEMENT (THIRD) OF TRUSTS, and
the Uniform Trust Code apply equitable deviation not only to the
dispositive provisions of a trust, but also to the administrative
provisions of a trust. See RESTATEMENT (THIRD) OF TRUSTS §66
(2003); UTC §412. The Uniform Trust Code grants even greater
discretion to a court to order administrative deviation, permitting it
“if continuation of the trust on its existing terms would be
impracticable or wasteful or impair the trust's administration.”
UTC §412(b). That standard is borrowed from the UTC's
approach to cy pres, a doctrine that historically was limited to the

790
dispositive provisions of a charitable trust. The doctrine of cy pres
is covered in greater detail in Chapter 15.
2. The traditional approach: Under the traditional approach,
before a court could modify a trust, it had to be shown that: (1)
due to a change in circumstances not known to a settlor and not
anticipated by him or her, (2) continuance of the trust pursuant to
its original terms would defeat or substantially impair the trust
purposes.
3. The modern trend approach: The modern trend approach
lowers the bar for trust modification. The modern trend modifies
the first requirement from there being an unexpected change in
circumstances to simply that there be “circumstances not
anticipated by the settlor”—which the notes clarify can be
circumstances present at the time the trust was created but of
which the settlor was not aware. As for the second requirement,
instead of showing that failure to modify would frustrate the
settlor's intent, all the moving party has to show is that modifying
the trust would promote the settlor's intent. See RESTATEMENT
(THIRD) OF TRUSTS §66 (2003); UTC §412.
4. Unlawful, illegal, or against public policy: The traditional view
was that if the purpose of a trust became unlawful, illegal or
against public policy, that was grounds for trust termination. See
RESTATEMENT (SECOND) OF TRUSTS §335 (1959). The modern trend
changes those into circumstances not anticipated by the settlor
that justify trust modification. See RESTATEMENT (THIRD) OF TRUSTS
§66 cmt. c (2003). The Uniform Trust Code still lists those as
grounds for trust termination, UTC §410(a), but it would seem one
could argue in good faith under the Uniform Trust Code that such
could also constitute circumstances not anticipated by the settlor
that justify trust modification, not termination.
5. Special needs trusts: This is the name most commonly given
to trusts (generally inter vivos irrevocable trusts or, with less
frequency, testamentary trusts resulting from an inter vivos
revocable living trust or a testamentary trust established by a will)
for a loved one who is suffering from some form of physical or
mental illness. At the core of planning involving special needs
trusts is that the beneficiary is someone who is hoping to qualify,
or maintain eligibility, for certain government benefits. In

791
particular, two primary government programs are at issue:
Supplemental Social Security Income (often referred to as “SSI”)
and Medicaid/Medical health benefits (“Medical” is California's
Medicaid program—federal benefits administrated by
10
California). While an oversimplification, these two programs
provide certain Social Security benefits and free or low-cost
health coverage to millions of Americans who qualify by reason of
limited sources of income and assets.
A simple inter vivos gift or testamentary devise (via will,
revocable living trust, or otherwise) to an individual receiving SSI
or Medicaid/Medical benefits (and other government benefits) will,
most likely, cause such a “special needs” individual to become
ineligible for continuation of these benefits. This is due to the fact
that ownership (or effective ownership) of more than a minimal
value of assets will disqualify an individual from such programs.
So the most common iteration of the dilemma arises in estate
planning: a parent may wish to provide benefits (inter vivos or
testamentary) to a special needs child who is currently receiving
or will be eligible for SSI and Medicaid/Medical, but by doing so,
the child will no longer be eligible for the wide range of important
life and medical benefits accorded to him or her. The typical
solution is a “special needs trust.” In a nutshell, an irrevocable
trust is established where the special needs individual is a
permissible and discretionary beneficiary. Pursuant to the trust
provisions, such individual may receive distributions for a variety
of purposes (ranging from living costs to recreational activities
such as vacations) but the assets in the trust will not be attributed
to such individual for purposes of qualifying for SSI or
Medicaid/Medical.
Prior to special needs trusts coming of age in latter half of the
twentieth century (California was considered on the leading edge
of creating such devices in the mid-1970s), the choices for
providing for someone in need were rather limited: transferring
assets to such individuals (outright or in regular trust form either
inter vivos or at one's death via a will, living trust, or in some other
testamentary form) which would terminate eligibility for such
government benefits or, in the harsh alternative, leave nothing to
such individual (thus not affecting benefits eligibility).

792
 A detailed explanation of what is required for a special needs
trust is beyond the scope of this book. Suffice it to say that the
creation of such trusts is not for the “do it yourself” market. Trust
wording, in how and when trust assets may be used for the
special needs beneficiary, is extremely important and missteps
can cause a beneficiary to become ineligible for the
aforementioned government benefits, hence defeating the
purpose of such a trust.
Most special needs trusts are established by a third party, such
as a parent, for a special needs individual. These are, quite
logically, referred to as “third-party SNTs.”11 Can an individual
concerned about his or her own future qualification for such
government programs establish a personal special needs trust?
Can one transfer substantially all of one's assets to an irrevocable
trust with trustee discretionary powers to make distributions to the
settlor, all of this in an attempt to make the settlor a “low
income/net worth” individual who will qualify for such benefits?
We have seen this type of trust before, the self-settled trust, when
discussing creditor issues. The answer is a qualified yes, and
such a self-settled special needs trust is commonly referred to as
a “first-party SNT.”
It is rather rare for an individual with substantial wealth to set up
a first-party SNT just to qualify for government SSI and
Medicaid/Medical benefits—an extreme case of the “benefits tail
wagging the dog.” More likely, a first-party SNT may be set up by
an individual with special needs (who may already qualify or is
soon to qualify for government benefits) and this individual is the
recipient of assets by way of gift, devise/bequest/testamentary gift
or inheritance, a personal injury award, etc. Faced with newly
acquired assets that may preclude eligibility for SSI and
Medicaid/Medical, such individual may be the settlor of a first-
party SNT.
It is well beyond the scope of this book, but a first-party SNT
can present some challenges. These range from delays in
qualifying for such benefits for a period of time after transferring
the assets in trust, to what are known as “payback” requirements.
The latter is exclusive to first-party SNTs (third-party SNTs are
generally not subject to this) and, put quite simply, requires that at
the special needs beneficiary's death, any remaining assets in the

793
trust be used to reimburse the state for Medicaid/Medical benefits
received (or medical expenses paid on behalf of such individual)
during his or her lifetime.
There are many forms of special needs trusts and
accompanying complex rules relating to eligibility for government
benefits. In addition, for first-party SNTs, there is some overlap
with previously discussed creditor issues for self-settled trusts.
Even with the many complex issues associated with special
needs trusts, they can allow a special needs beneficiary to enjoy
an improved lifestyle by reason of availability, as a discretionary
beneficiary, of additional resources in the form of assets held in
such trusts.
6. Modification for tax reasons: Again, while well beyond the
scope of this book, modification of a trust may be precipitated for
tax reasons. This is often the case when the trust is revocable or
when a trust is irrevocable but when the settlor retains certain
powers, directly or indirectly, to alter and amend the trust.
Revocability or the settlor's retention of certain powers may
prevent tax planning goals of minimizing or avoiding exposure to
federal (or state) gift or estate taxes. These also might negatively
affect the settlor's income tax situation. Tax-motivated
modifications may include making a revocable trust irrevocable,
the settlor relinquishing retained powers affecting the ongoing
operation of the trust, removing the settlor as the trustee or,
where applicable, preventing the settlor from becoming the
trustee, or certain aspects of the settlor's ability to appoint
trustees, etc.
This emphasizes the need for any attorney involved in estate
planning to be well-versed in tax law. The typical estate and gift
tax course is replete with horror stories of simple mistakes
causing catastrophic results for tax purposes. One does not have
to look too hard to find a classic blunder: your new client provides
you with a trust that was drafted many years earlier by a different
attorney. The goal, at the time, was to minimize estate tax
exposure with respect to an asset (for example, a parcel of
beachfront land in Malibu, California) that was, when the trust was
drafted, worth $100,000. This was valuable at the time, but with
exponential growth over the years, it is currently worth more than
$25 million. Your new client comes to your office happy that they

794
went to the trouble of setting up the trust with this parcel of land
years ago so that this will no longer be included in his or her
taxable estate, for estate tax purposes, at his or her death. You
read the trust document and, unfortunately, have to be the bearer
of bad news that the trust has a minor flaw (silent as to
revocability, it gives the settlor a tax-prohibited direct or indirect
power to do something, a subtle issue such as those discussed in
the self-settled trust material, or some other seemingly innocuous
issue), and this minor flaw means that the trust set up years ago
to accomplish the client's goal of estate tax minimization does not
work. Unfortunately, the trust document was ineffective for tax
purposes, and this parcel of Malibu land will still be included in the
client's estate for estate tax purposes, at a value of more than
$25 million. Your client is no longer happy and trust modification,
while possible, will still potentially expose the client to millions of
dollars of unnecessary tax liability. Your client then asks for your
recommendation for a malpractice attorney—a very small mistake
years ago has potentially exposed the original drafting attorney to
a huge malpractice lawsuit.
The RESTATEMENT (THIRD) PROPERTY: DONATIVE TRANSFERS, and
the Uniform Trust Code expressly authorize trust modification to
achieve tax objectives. RESTATEMENT (THIRD) PROP.: DONATIVE
WILLS AND DONATIVE TRANSFERS §12; UTC §416. Federal tax
courts, however, are not required to accept a state court-ordered
trust modification.

10. The Restatement lists six factors that may be considered in determining
whether a provision relieving the trustee from liability is ineffective on the
ground that it was inserted in the trust instrument as a result of an abuse of a
fiduciary relationship at the time of the trust's creation. The six factors are: “(1)
whether the trustee prior to the creation of the trust had been in a fiduciary
relationship to the settlor, as where the trustee had been guardian of the settlor;
(2) whether the trust instrument was drawn by the trustee or by a person acting
wholly or partially on his behalf; (3) whether the settlor has taken independent
advice as to the provisions of the trust instrument; (4) whether the settlor is a
person of experience and judgment or is a person who is unfamiliar with
business affairs or is not a person of much judgment or understanding; (5)
whether the insertion of the provision was due to undue influence or other
improper conduct on the part of the trustee; (6) the extent and reasonableness
of the provision.”

795
 1. This is not to say, however, that “mandatory” powers always remain static.
Trusts, especially when they are more complex or sophisticated, often contain
provisions requiring mandatory trustee action based on contingencies: if a
situation is “this,” then the trustee must do “that,” but if a particular something
occurs (a contingency), the trustee must then follow a different set of
instructions. Such complex or sophisticated trusts, however, are beyond the
scope of this introductory class.
2. There may also be state estate tax issues, but those are less common.
3. The Kansas Supreme Court ruled the language created a discretionary
trust rather than a support trust.
4. Restatement (Second) of Trusts §152(2) (1959) defines a “spendthrift
trust” as “[a] trust in which by the terms of the trust or by statute a valid restraint
on the voluntary and involuntary transfer of the interest of the beneficiary is
imposed....” The validity of the provision creating the spendthrift trust is not in
dispute. We have stated, with regard to the prerequisites of such trusts that the
creator of the trust need only manifest the intention either expressly or impliedly
in the instrument creating the trust, that the beneficiaries thereunder shall be
entitled to their equitable interests in the trust property, free from the claims of
their creditors. Cherbonnier v. Bussey, 92 Md. 413, 421, 48 A. 923, 924 (1901).
Both parties have argued that Sally McGee established a valid Spendthrift
Trust....
10. Restatement of Trusts, §157 provided:
“Although a trust is a spendthrift trust or a trust for support, the
interest of the beneficiary can be reached in satisfaction of an
enforceable claim against the beneficiary,
“(a) by the wife or child of the beneficiary for support, or by the wife
for alimony;
“(b) for necessary services rendered to the beneficiary or necessary
supplies furnished to him;
“(c) for services rendered and materials furnished which preserve or
benefit the interest of the beneficiary.”
14. See, 88 Calif. L. Rev. 1877, Symposium on Law in the Twentieth Century:
Uniform Acts, Restatements, and Trends in American Trust Law at the
Century's End. (“An almost amusing reversal of direction was the prompt 1998
legislation in Mississippi to overturn the widely acclaimed Sligh v. First National
Bank. Sligh had introduced a policy-based spendthrift exception for the benefit
of victims of a beneficiary's gross negligence or recklessness. Furthermore,
lengthy and vigorous debates in the last few years have eventually led to no
significant changes or trends in rules identifying privileged claimants who can
penetrate the spendthrift shield. This is particularly so with reference to
privileged status that applies to certain governmental claimants, and often
applies to alimony and the support claims of children and spouses and to
certain claims for necessities and for protection of a beneficiary's trust
interest.”) (citations omitted).

796
 15. The Uniform Trust Act, drafted by the National Conference of
Commissioners of Uniform State Laws, does not advocate including tort
judgment creditors among the creditors able to invade spendthrift trusts.
Section 503, “Exceptions to Spendthrift Provision,” provides:
“(a) In this section, “child” includes any person for whom an order or
judgment for child support has been entered in this or another State.
“(b) Even if a trust contains a spendthrift provision, a beneficiary's
child, spouse, or former spouse who has a judgment or court order
against the beneficiary for support or maintenance, or a judgment
creditor who has provided services for the protection of a
beneficiary's interest in the trust, may obtain from a court an order
attaching present or future distributions to or for the benefit of the
beneficiary.
“(c) A spendthrift provision is unenforceable against a claim of this
State or the United States to the extent a statute of this State or
federal law so provides.”
The commentary to that section indicates that “[t]he drafters ... declined to
create an exception for tort claimants.” See, Comment, Uniform Trust Act
§503, 7C U.L.A 76 (Supp.2002).
4. The trust may also include a spendthrift clause. Would that make any
difference with respect to the settlor's interest if it is discretionary?
5. There were always a handful of exceptions to the common law approach;
for example, trusts involving retirement plans funded under the Employee
Retirement Income Security Act of 1974 (ERISA) and Individual Retirement
Accounts (IRAs), but such exceptions are beyond the scope of this introductory
coverage.
6. Approximately 14 states allow asset protection self-settled trusts to varying
degrees.
7. Of course, transfers of assets while there are existing debts may also be
subject to general “fraudulent conveyance” provisions of state law.
8. A beneficiary in a trust is not the only party who might hold a right to
receive a stream of money over time. Sometimes settlement agreements in tort
cases will be structured in such a way that a party might be entitled to receive a
stream of payments over time.
9. The name of the doctrine comes from the Massachusetts Supreme Court
opinion that first articulated it. See Claflin v. Claflin, 20 N.E. 454 (Mass. 1889).
10. Medicaid/Medical is a joint state and federal-based health insurance
program in addition to federal-based “Medicare.” The latter is a form of federal
health insurance that is available to most Americans at a certain age. However,
Medicaid/Medical, is available only to certain individuals; generally, those with
limited income, assets, or other financial resources. Health-related benefits
provided by Medicaid/Medical are in addition to those available under Medicare
and, in many instances, are more extensive—often covering health-related
items that are covered to a lesser degree or unavailable under Medicare (in-

797
home health care is a common example of an additional benefit of
Medicaid/Medical).
11. In practice, SNT is the commonly used abbreviation for special needs
trusts.

798
Chapter 14

799
Trust Life: Trustee's
Perspective

800
 I. Overview—A Historical
Perspective
While one can argue that from the beneficiary's perspective the
trust has remained surprisingly unchanged over the centuries, the
same cannot be said about the trust from the trustee's
perspective. The typical English common law trust was funded
with real property. The trustee's job was to hold the real property
in trust for future beneficiaries. The purpose of the early common
law trust, accordingly, was to preserve the trust property.
Transfers of trust property to third parties were discouraged, not
encouraged. Minimizing the trustee's powers and maximizing the
liability of a third party who dealt with a trustee furthered the
purpose of the early common law trust: to hold and preserve the
trust property—the real property—for future beneficiaries.
Over time, though, the world changed from a land-based
economy to a mercantile economy. The principal form of wealth
changed from real property to personal property, such as stocks,
bonds, certificates of deposits, annuities, savings accounts, and
the like. The primary method of funding trusts likewise changed.
The purpose of the modern trust changed from preserving the
trust property (real property) to managing the trust property (a
fund of intangible wealth). Proper management of the modern
trust implicitly necessitated broad powers over the trust property,
liberal authorization to invest the trust fund, and the ability to shift
investments quickly as market conditions change. The trustee of
a modern trust needs, and wants, to be a player in the
marketplace. The nature and purpose of the modern trust were at
odds with the common law trust rules with respect to: (1) a
trustee's powers, (2) a third party's ability to deal with a trustee,
and (3) some of the trustee's duties.
The last 50 years of the law of trusts has been marked by an
ongoing attempt to bring the trust—and the law of trusts—into the
twenty-first century. Traditional trust law was judicial in nature.
The last several decades have seen a proliferation of statutory
efforts to revise the law of trusts so as to facilitate and even
promote the purpose of the modern trust: the active management

801
of a fund of intangible wealth. If the traditional common law
approach to the law of trusts represents one end of the spectrum,
and the most recent statutory enactment, the Uniform Trust Code,
the other end of the spectrum, where does California fall on that
spectrum?

802
 II. Trustee's Powers and
Third-Party Liability for
Transacting with a Trustee
A. Common Law Approach
Under the common law approach, a trustee had no inherent
powers over the trust property. A trustee had only those powers
expressly granted by the settlor in the trust instrument (or those
powers necessarily implied in light of the trust's purpose).
Moreover, once a third party knew or should have known that he
or she was dealing with a trustee, the third party was charged
with knowledge of the default rule: the trustee had no inherent
powers and was not authorized to transfer the trust property
absent express or implied authorization. For all practical
purposes, the third party was charged with notice that the
proposed transaction constituted a breach of trust, absent
express authorization. Accordingly, a third party interested in
dealing with a trustee assumed a duty to inquire into the express
terms of the trust to confirm that the trustee was, in fact,
authorized to engage in the proposed transaction. If the third
party failed to inquire, it was charged with knowledge of the true
scope of the trustee's powers. If the third party actually inquired
into the express terms of the trust, it was charged with proper
construction of the trust's terms. The good faith purchaser
doctrine had no meaningful application to a third party who knew
or should have known that it was dealing with a trustee.
Accordingly, if a third party participated in a transaction with a
trustee and the transaction constituted a breach of trust, for all
practical purposes, the third party was strictly liable.
The traditional common law approach discouraged third parties
from dealing with a trustee, and conversely, it made it difficult for
a trustee to deal with third parties. This approach, however, made
sense in light of the purpose of the common law trust: to preserve
the trust property for future beneficiaries.

803
B. Modern Trend Approach
To the extent the purpose of the modern trust is to actively
manage a fund of intangible wealth, (a) the trustee needs
increased powers and more investment authority so as to be able
to actively manage the trust property, and (b) third parties
interested in dealing with a trustee need more protection.

1. The Trustee's Powers

As the trust evolved from its traditional purpose to its modern
purpose, settlors, on an individual basis, could deal with the
change in purpose by expressly granting their trustees more
powers. This approach, however, was inherently limited. It is
difficult, if not impossible, to anticipate all the powers a trustee
might need, particularly when the nature of the trust property is
likely to change over time (the longer the duration of the trust, the
more difficult it is to anticipate all possible powers a trustee may
need). Moreover, even if a settlor were able to predict all the
necessary powers and included them in the trust instrument, third
parties would still be reluctant to deal with a trustee. Under the
traditional approach, dealing with a trustee involved increased
transaction costs because the third party would have to inquire
and ascertain the trustee's power to engage in the proposed
transaction. Because the third party was charged with proper
construction of the trust terms, if there was any ambiguity and the
court disagreed with the third party's construction, the third party
would be liable for participating in the breach of trust. If the trust
were to make the transition from the common law trust to the
modern trust, it would require systemic statutory changes to the
law of trusts.
The modern trend has seen a number of different statutory
attempts to address this transition. The early attempts were state
statutes that set forth a long list of express powers a settlor could
incorporate by reference. These statutes essentially maintained
the common law approach but facilitated the drafting process to
make it easier for a settlor to grant a trustee all necessary
express powers. In 1964, the Uniform Law Commission adopted
the Uniform Trustees' Powers Act (UTPA). The UTPA took more

804
of a formula-based approach, shifting the default presumption
from “a trustee has no powers” to “a trustee has all powers”:
From time of creation of the trust until final distribution of
the assets of the trust, a trustee has the power to perform,
without court authorization, every act which a prudent man
would perform for the purposes of the trust including but
not limited to the powers specified in subsection (c).
UTPA §3 (emphasis added).
The most recent uniform law, the Uniform Trust Code (UTC),
goes even further. The UTC grants the trustee “all powers over
the trust property which an unmarried competent owner has over
individually owned property.” UTC §815. Both the UTPA and the
UTC permit a settlor to opt out of the modern trend approach by
expressly limiting a trustee's powers in the trust instrument, but
the burden is on the settlor.
Like other states, California initially adopted an exhaustive list
of statutory powers that a settlor could incorporate by reference.
The default, however, was still the common law approach, and
the burden was on the settlor to opt out of the traditional
approach by expressly incorporating the statutory powers.
Ultimately, like the UTPA and the UTC, California reversed the
default rule. California has a formula-based approach that
automatically grants the trustee all statutory powers and all
powers a trustee would need in light of the trust's purposes:
CPC §16200. Trustee—General Powers
A trustee has the following powers without the need to obtain
court authorization:
(a) The powers conferred by the trust instrument.
(b) Except as limited in the trust instrument, the powers
conferred by statute.
(c) Except as limited in the trust instrument, the power to
perform any act that a trustee would perform for the
purposes of the trust....
Consistent with the modern trend, California places the burden on
the settlor to opt out of the modern trend approach.

805
2. Protection for Third Parties Who Deal with a
Trustee
A trustee's enhanced power would be ineffective, however, if a
third party who was interested in dealing with a trustee was not
granted greater protection than he or she received at early
common law. The traditional common law approach: (1) required
the third party to inquire into the scope of a trustee's power any
time the third party knew or should have known he or she was
dealing with a trustee (which increased transaction costs for third
parties), and (2) held the third party to proper construction of the
terms of the trust. De facto, if the transaction constituted a breach
of trust, the third party was liable for participating in that breach.
The modern trend realized that the enhanced trustee's powers
would be ineffective without enhanced protection for third parties.
Accordingly, the Uniform Trustees' Power Act granted third parties
unprecedented protection. It provides that a third party:
is not bound to inquire whether the trustee has power to act
or is properly exercising the power; and a third person,
without actual knowledge that the trustee is exceeding his
powers or improperly exercising them, is fully protected in
dealing with the trustee as if the trustee possessed and
properly exercised the powers he purports to exercise.
See UTPA §7. Proving actual knowledge is very difficult, if not
impossible. Thus, the UTPA de facto grants third parties nearly
complete immunity when dealing with a trustee.
The more recently adopted Uniform Trust Code pulls back on
the protection accorded to third parties interested in dealing with a
trustee. The UTC essentially grants the same protection a third
party would have if he or she were dealing with any other type of
agent. A third party who deals with a trustee in good faith and for
value is not required to inquire into the scope of a trustee's
powers. Even if the transaction constitutes a breach of trust, so
long as the third party acted in good faith and gave valuable
consideration, the third party is not liable. UTC §1012.
California grants third parties dealing with a trustee essentially
the same degree of protection as the UTC. See CPC §18100.

806
 The goal of the modern trend statutory trust law movement has
been to permit and promote the purpose of the modern trust: the
active management of a fund of intangible wealth. At first blush,
the unprecedented expansion of a trustee's powers, and
enhanced protection to third parties interested in dealing with a
trustee, would appear to achieve that goal. But one more
important variable needed to be addressed before the modern
trust purpose could be achieved: a trustee's powers are limited by
the fiduciary duties the trustee owes to the trust beneficiaries.
These fiduciary duties are intended to serve and protect the
interests of the beneficiaries. Some of the traditional common law
duties are no real obstacle to the modern trust purpose and
accordingly have transitioned to contemporary trust law intact.
Some traditional common law duties, however, would have been
impediments to the modern approach to trusts and accordingly
have been revised.

Problem
Ruth and George Dunmore created the Dunmore Family Trust.
Following George's death, Ruth served as sole trustee. Pursuant
to the terms of the trust, she broke the Family Trust into separate
trusts (50 percent to a Survivor's Trust for her benefit that is
revocable; 50 percent into three Decedent's Trusts for the benefit
of her children and grandchild, and those trusts are irrevocable).
Ruth continued as sole Trustee of each trust. While George was
still alive, Ruth and George, acting as co-trustees, pledged the
assets in the Family Trust as collateral for $12,000,000 in loans to
two grandsons and their company. The borrowers have defaulted
on the loans, and the banks are seeking to reach all the assets
that were in the Family Trust.
Ruth claims that the she and the trusts have various claims
against the grandsons and their company. She asserts that the
grandsons exercised undue influence in getting them to pledge
the assets for the loans and that some of the signatures on the
paperwork are forged. Ruth, however, is 86 years old and is not in
a position to pursue the claims. She lacks the energy and the
financial resources to pursue the claims, and she was unable to
find an attorney to take the claims on a contingent fee basis.
Accordingly, Ruth assigned the claims to one of her sons, Steven,

807
in exchange for valuable consideration ($1.00 plus 55% of any
recovery). Another son, Sidney Jr., who is also father of the
grandsons in question, objects to the proposed assignment.
Included among Sidney Jr.'s claims is that Ruth lacks the power
to assign the claims. “The trust instrument gives Ruth authority to
purchase, exchange, or sell any kind of property. It also gives her
the authority to release any claim belonging to the trust to the
extent the claim in her opinion is uncollectible.” In addition, the
California Probate Code grants her the power “to sell a chose of
action in the same manner as personal property,” and “the power
to release, in whole or in part, any claim belonging to the trust.”
Does Ruth have the power to assign the trusts' claims against
the grandsons and their company to her son Steven? See
Dunmore v. Dunmore, No. C063910, 2012 WL 267725 (Cal. Ct.
App. Jan. 30, 2012).

808
 III. The Office of
Trusteeship
While the classic gratuitous trust is a bifurcated gift, particularly
when viewed from the beneficiary's perspective, it is not a gift
from the trustee's perspective. The trustee is taking on a job—an
onerous job at that. The trustee is entering into a fiduciary
relationship with the trust beneficiaries, a relationship where the
trustee has an overriding duty to do everything in the best
interests of the trust beneficiaries. Included within the overarching
fiduciary relationship are a plethora of sub-duties, many of which
require a certain level of skill and care, and many of which, if not
performed properly, will expose the trustee to liability.
Because a trust is not a gift from the trustee's perspective, the
law does not presume that an individual nominated to be a trustee
will accept that nomination. A designated trustee must first accept
the position—and one would be well-advised to think it over
carefully before accepting. The moment an individual accepts the
offer to become a trustee, he or she assumes a number of
fiduciary duties that must be undertaken almost immediately.
Whether a designated trustee has accepted the position is a
question of the nominated party's intent, and while that intent
arguably should be express, it may be implied one way or the
other by the party's actions (or inactions). See RESTATEMENT
(THIRD) OF TRUSTS §35 (2003) (updated 2014).
While a designated trustee must accept the position before he
or she is held to the fiduciary duties that accompany the position,
at one level a trust does not need a trustee to be valid trust. That
is because the general rule is that a trust will not fail for want of a
trustee.1 If a person nominated to be a trustee declines, or if a
trustee dies or is incapable of continuing, the trust is not affected.
The court will appoint a successor trustee who will then assume
the position and must abide by the terms of the trust.
While early English law assumed that a trustee would serve
without compensation, that view did not transfer to the American
system. While there is some very old authority supporting that

809
view, the general default rule in America is that a trustee deserves
compensation for such an onerous job. The question of a
trustee's compensation is, however, first and foremost a question
of the settlor's intent. The settlor can expressly provide whether
the trustee will be compensated, and if so, at what rate. A
professionally drafted trust almost always expressly provides for
trustee compensation (and the method for doing so). Where the
trust does not address the issue, most states have a statutory
scheme that governs compensation based on the size of the trust
corpus. The Uniform Trust Code provides that a trustee is entitled
to “reasonable compensation,” a provision that authorizes a court
to override the terms of a trust to increase or decrease
compensation as appropriate under the circumstances. UTC
§708.
California has adopted essentially the same approach as the
UTC. See CPC §15680.
Thinking back to the pros and cons of a will versus a revocable
living trust at the end of Chapter 11, the disposition of the
decedent's estate with a will via probate has a built-in
administrative advantage of a disinterested party (the court) to
supervise and ensure that the dispositive wishes and instructions
of a testator's will are properly followed—that the proper assets
go to the proper persons. A revocable living trust where the settlor
was the initial trustee typically has a built-in administrative
disadvantage in that the successor trustee who takes over the
trust following the settlor's death usually functions without direct
supervision—the “testamentary” dispositions of the decedent's
estate are made by the new trustee. A successor trustee who
lacks knowledge and has a reluctance to seek outside help
(because he or she doesn't want to pay an attorney or, worse,
lacks integrity) can spell disaster, the ramifications of which may
be improper disposition, nonpayment of creditors, or dispositions
not in conformity with trust instructions. There are remedies, but
more often than not they cannot fully rectify the situation, often
leaving a permanent divide among family members.

A. General Duty to Administer the Trust

810
 The RESTATEMENT (THIRD) OF TRUSTS provides that the trustee's
first, and most overarching, duty is to properly administer the
trust:
(1) The trustee has a duty to administer the trust,
diligently and in good faith, in accordance with the terms
of the trust and applicable law.
(2) In administering the trust, the trustee's
responsibilities include performance of the following
functions:
(a) ascertaining the duties and powers of the
trusteeship, and the beneficiaries and purposes of the
trust;
(b) collecting and protecting trust property;
(c) managing the trust estate to provide returns or
other benefits from trust property; and
(d) applying or distributing trust income and
principal during the administration of the trust and
upon its termination.
RESTATEMENT (THIRD) OF TRUSTS §76.
Note that the RESTATEMENT (THIRD) OF TRUSTS provision reflects
the trustee's need to be sensitive to both the terms of the trust
and the applicable law. That is because some of the law of trusts
is default law that the terms of the trust can opt out of, and some
of the law of trusts is binding and will prevail over conflicting trust
terms. You should keep this in mind as the material moves
through the various fiduciary duties. Which duties should/can a
settlor opt out of, and which duties are binding on the trustee
regardless of the terms of the trust?2

811
 IV. The Core Duties
The RESTATEMENT (THIRD) OF TRUSTS takes the position that in
administering the trust there are three core duties a trustee owes
the beneficiaries—all the other duties are ancillary. The three core
duties are:
[1] prudence (so fundamental to the investment function
...),
[2] loyalty (often called the “cardinal” principle of fiduciary
relationships, but particularly strict in the law of trusts), and
[3] impartiality (balancing the diverse interests and
competing claims—concurrently and over time—of the
various beneficiaries or objectives of typical modern trusts).
RESTATEMENT (THIRD) OF TRUSTS ch. 15, intro. note. It should be
noted that while these duties are articulated as separate and
distinct duties, they often overlap in application.

A. Duty of Loyalty
Wilkins v. Lasater
733 P.2d 221 (Wash. Ct. App. 1987)
MUNSON, Judge.
...
Nell and Fred Lasater died, testate, on June 13, 1946 and April
27, 1952 respectively. By separate wills, each created a
testamentary trust funded from their half of the community
property. These trusts, the provisions of which are virtually
identical, provide for management by majority rule of three
trustees.
The original trustees of these trusts were Lowden Jones, Elfred
Lasater Nunn, and Redman Lasater. Mrs. Wilkins succeeded Mr.
Jones as trustee in approximately 1955; Gary Lasater succeeded
his father Redman Lasater, as trustee, after his death in 1968.
Throughout the course of this action, the three trustees have

812
included the plaintiff, Mrs. Wilkins; Mrs. Nunn, her sister; and
Gary Lasater, their nephew. The three trustees are also
beneficiaries of the trusts. The trusts' assets include stocks,
bonds, and land which were originally part of Fred and Nell's
family farm. As of 1983, the combined value of the trusts
exceeded $2.6 million.
The Fred Lasater will provides in pertinent part:
[T]he said Trustees ... shall farm and operate the lands of
the estate, sell the crops, collect the income from all
sources, pay taxes, insurance, interest on indebtedness
and contract installments, and pay all necessary and
proper expenses for labor, for the upkeep and protection of
the property and for operating the same. The Trustees shall
adopt rules and regulations for the efficient management of
the trust property; they shall have power to sell and convey
and transfer property of the trust estate ... and shall not
incumber the same unless it be for the purpose of
refunding existing indebtedness against the same or any
portion thereof, or for the purpose of paying state
inheritance taxes and federal estate taxes should there not
be sufficient funds from other sources available for such
payment, in which event and for which purpose, authority to
mortgage is granted the Trustees. They shall not incumber
the income or crops except it be for the necessary working
capital in operating.
The will continues:
The said Trustees shall have authority in their
discretion ... to grant unto any beneficiary or beneficiaries
an advancement from the income in order to provide
such beneficiary proper care and maintenance ... The
amounts so paid to any beneficiary shall be treated as an
advancement to such one and shall be accounted for by
him or her on the final distribution of the trust estate. The
fact that such beneficiary at the time of being granted an
advancement is also a Trustee of the estate and would
otherwise pass on any advancement shall not prevent
the allowance of such advancement if the other Trustees
deem it proper to be made.

813
For purposes of this opinion, the provisions of Nell Lasater's will
are identical.
For several years, the land was farmed by the individual
trustees. A portion of the land was farmed from 1953 until 1969
by Mrs. Wilkins. Mrs. Nunn, likewise, farmed a portion of the land
until 1972.
Gary Lasater began farming the trust land along with adjacent
land which he owned independently, after the death of his father,
Redman Lasater, in 1968. In 1972, Mr. Lasater entered into a 10-
year lease with the trustees to farm the trust land as tenant. That
lease was unanimously approved by all the trustees, including
Mrs. Wilkins. Although that lease is not part of the evidence on
appeal, the record indicates the lease terms provided for payment
to the trusts of 33.3 percent of the grain crops on the trust land,
with the tenant therefore retaining 66.6 percent of the crops. In
1982, after the lease expiration, Mrs. Wilkins, as trustee, objected
to its extension. Mr. Lasater and Mrs. Nunn voted to extend the
lease for 1 year over Mrs. Wilkins' objections. Consequently, Mr.
Lasater continued to farm the trust land throughout the remainder
of 1982.
In June 1983, Mrs. Wilkins commenced the present action,
seeking an accounting of the trusts' assets, damages, and
dissolution. Her complaint alleged: ... (3) Mr. Lasater had
breached his duty of loyalty as trustee by voting himself as tenant
of trust land and by using the property for his own benefit;....
Mrs. Wilkins sought a preliminary injunction to enjoin Mr.
Lasater from continuing to lease the trust land while also
participating as trustee. Following a hearing on June 20, 1983,
the court orally granted the injunction, stating: “The Court
prohibits the trustees from entering into any additional leases or
extending ... the present lease or any type of renewal transaction
with Mr. [Gary] Lasater ... unless it is approved by the Court.” ...
In early 1984, the trusts and Mr. Lasater, individually, petitioned
the court for approval of a lease extension for Mr. Lasater.
Following a hearing, the court orally denied the extension, stating
the trusts intended that the trustees operate the farm as
princip[als], not as lessees....

814
 ...
... There is absolutely no exclusionary exemption in
this trust permitting self-dealing between the trustees and
the trust.
...
Meanwhile, Mrs. Wilkins, whose sole income was derived from
the trusts, was in dire financial need; she asked the other trustees
to grant her an advance from the trusts; they refused....
...
With this motion pending, the trustees met again on March 7 to
consider the issue. Mrs. Wilkins was accompanied by her
attorney. Following a lengthy discussion on the lease and
advance and, upon the advice of her attorney, Mrs. Wilkins
agreed to extend Mr. Lasater's lease through the 1987 crop year.
In return, Mr. Lasater and Mrs. Nunn agreed not only to advance
Mrs. Wilkins the requested funds, but also pay her other debts, as
well as her attorney fees. These terms were set out in a written
“stipulation” signed by the three trustees. Thereafter, Mrs. Wilkins'
then attorney withdrew.
Prior to trial, Mrs. Wilkins requested court approval of her
husband's attendance at trustee meetings as the other trustees
had voted to exclude him. The court ordered Mr. Wilkins
excluded. At trial, the issues were limited to whether: (1) the
March 7 stipulation extending Mr. Lasater's lease was valid; (2)
Mr. Lasater had breached various fiduciary duties while acting as
both tenant and trustee; (3) the attorneys for the trusts should
have declined to represent the trusts when the litigation
commenced; and (4) the court properly excluded Mr. Wilkins from
attending trustee meetings. Mrs. Wilkins was represented by yet
another attorney at trial.
The foremost contested issues arose with respect to whether
Mr. Lasater had breached various fiduciary duties while acting as
lessee as well as trustee. Both sides acknowledged he technically
breached a trustee's duty of loyalty by voting to extend his own
lease....
...

815
 The court concluded: (1) the March 7, 1984 stipulation was
binding and the lease valid; (2) Mr. Lasater had acted properly
and had breached no fiduciary duties with respect to his dealings
with the trusts despite his failure to present any records.... This
appeal followed with Mrs. Wilkins being represented by new
counsel.
Breach of Fiduciary Duties
Initially, Mrs. Wilkins asserts Mr. Lasater breached several
fiduciary duties while acting simultaneously as trustee and lessee.
Under this assignment of error, she first contends the law forbids
a trustee from dealing in his individual capacity with the trust
property; thus, lease of trust land by a trustee is a per se breach
of the duty of loyalty.
A trustee has such powers as are conferred by the terms of the
trust and such “powers as are necessary or appropriate to carry
out the purpose of the trust and are not forbidden”. Monroe v.
Winn, 16 Wash.2d 497, 508, 133 P.2d 952 (1943). The powers
which the settlor intended to convey are gathered from the trust's
language and from the nature and purpose of the trust. Monroe,
at 508, 133 P.2d 952. Mr. Lasater and the trusts contend the
provisions of the wills implicitly demonstrate the settlors
contemplated the trustees leasing the land to themselves. We
disagree. The wills indicate a preference, if possible, for the
trustees to manage the land collectively and to farm it as trustees.
The wills do not indicate the trustees are to lease the land to
themselves in their individual capacities while also acting as
trustees. Without an explicit grant of such authority, we decline to
impute an intent on the part of Nell and Fred Lasater to allow
conduct that ordinarily would be construed as a breach of the
fiduciary duty of loyalty.
A trustee owes to the beneficiaries of the trust the highest
degree of good faith, diligence, fidelity, loyalty, and integrity; a
trustee must act solely in the beneficiaries' interest. Esmieu v.
Schrag, 88 Wash.2d 490, 498, 563 P.2d 203 (1977); In re Estate
of Drinkwater, 22 Wash.App. 26, 30–31, 587 P.2d 606 (1978). A
trustee cannot deal with the trust property for his own profit or
claim any advantage by reason of his relation to it, either directly
or indirectly. Tucker v. Brown, 20 Wash.2d 740, 768, 150 P.2d 604

816
(1944); In re Estate of Eustace, 198 Wash. 142, 147, 87 P.2d 305
(1939).
This court has neither been cited to, nor found, a Washington
decision involving a lessee of trust land, who also acted as
trustee and additionally was a beneficiary of the trust. However,
the weight of authority from other jurisdictions supports the
proposition that a trustee of land is deemed to have committed a
breach of loyalty by leasing trust land to himself....
...
Adherence to this strict construction of the duty of loyalty rests
on three rationales:
First, ... it is difficult, if not impossible for a person to act
impartially in a matter in which he has an interest....
... [A] trustee can not be expected to utilize his best,
most objective and disinterested judgment in situations
where that judgment may run counter to his own
interest....
... [T]he beneficiary is deprived of that disinterested
and impartial judgment to which he is entitled....
Secondly, the courts have realized that fiduciary
relationships lend themselves to exploitation.... [T]he
success of the trust relationship will depend on the ability
of the beneficiary to trust the trustee.... The only way to
insure that the beneficiary can sleep at night in free and
easy reliance on the loyalty of the trustee is to remove all
serious temptations to disloyalty.
Finally, ... disloyal conduct is hard to detect....
... [A] court, inquiring into his administration at a later
date, cannot expect to match the trustee's knowledge....
A wide variety of determinations can generally be
supported by plausible argument, and rationalizations
made after the fact will generally be unassailable.
(Footnotes omitted.) Hallgring, The Uniform Trustees' Powers Act
and the Basic Principles of Fiduciary Responsibility, 41
Wash.L.Rev. 801, at 808–11 (1966).

817
 We likewise prefer the rule that lease of trust land by a trustee
ordinarily constitutes, per se, a breach of loyalty; such a rule has
the prophylactic effect of preventing the trustee from ever putting
himself in a position where his interest could possibly conflict with
that of a beneficiary. Meinhard v. Salmon, 249 N.Y. 458, 164 N.E.
545, 546, 62 A.L.R. 1 (1928). See Magruder v. Drury, 235 U.S.
106, 119–20, 35 S.Ct. 77, 81–82, 59 L.Ed. 151 (1914). However,
this strict rule is qualified by at least three possible exceptions: (1)
an express provision by the settlor allowing the trustee to lease
trust property; (2) court approval of such a relationship; and (3)
the beneficiaries' confirmation, ratification, or acquiescence to the
trustee's dealings with the trust, with full knowledge of the
relationship. See G. Bogert, at 241–42; Whiteley v. Babcock,
supra; Whitelock v. Dorsey, supra; Waterbury v. Nicol, supra. See
also Ryan v. Plath, 20 Wash.2d 663, 667–70, 148 P.2d 946
(1944) (rule that trustee cannot sell land to himself in his
individual capacity is not absolute and may be confirmed or
ratified by the beneficiaries).
Here, as noted above, the provisions of the wills do not
explicitly allow the lease of the trusts' lands by a trustee and we
decline to interpret them as so permitting. However, Mr. Lasater's
rental of the land from 1972 to 1982 was approved by all the
trustees and was apparently uncontested by the remaining
beneficiaries; therefore, we decline to hold his lease during that
period was a breach of the duty of loyalty. Likewise, with respect
to the current lease, we conclude there is no per se breach of the
duty of loyalty. Not only did Mrs. Wilkins stipulate to the lease in
1983, but the court approved it; there is no indication from the
record that any other beneficiary contests the lease. Although
Mrs. Wilkins assigns error to the trial court's conclusion on this
issue, after careful review, we conclude her arguments are not
well taken; we need not discuss that assignment further.
Nonetheless, Mrs. Wilkins also assigns error to the court's
conclusion Mr. Lasater did not self-deal or otherwise breach his
duty of loyalty by his actual conduct as tenant. She alleges he
breached this duty as he profited from the lease of the farm land.
Although Mr. Lasater testified he had not profited from the lease,
he never adequately explained how he arrived at that conclusion.
He admitted he had no set formula for paying a custom harvester

818
that harvested the crops. He, likewise, admitted that although he
charged the trusts hauling fees commensurate with commercial
haulers, those haulers added a built-in profit to their fees.
Moreover, at trial he presented no documents whatsoever
demonstrating he had not, in fact, profited from the lease
arrangement. In actuality, by not producing records of lease
transactions, Mr. Lasater failed to render a true accounting, as
required by trust law.
The burden of proof is on the fiduciary to demonstrate no
breach of loyalty has been committed. Hetrick v. Smith, 67 Wash.
664, 667–68, 122 P. 363 (1912). In an accounting, the burden of
proving the propriety of challenged transactions rests with the
trustee. G. Bogert, Trusts & Trustees §970, at 401 (2d rev. ed.
1983). Obscurities and doubts in the accounting will be resolved
against the trustee. A. Scott, at 1399. Here, Mr. Lasater claims he
was never requested to bring the records relating to his lease
transaction; however, one count of this action relates to Mrs.
Wilkins' request for an accounting. We further note that it is
virtually impossible to disprove the fiduciary breaches alleged
here without such records. The trial court apparently believed his
testimony that he had not profited from the lease; this court may
not substitute its judgment for that determination. Peoples Nat'l
Bank v. Taylor, 42 Wash.App. 518, 525, 711 P.2d 1021 (1985).
Nonetheless, as noted above, one claim here is for an
accounting, and Mr. Lasater's self-serving testimony is insufficient
to meet what we view is the increased burden of proof he bears
as a fiduciary. Without documentary evidence, in the form of the
underlying bills and other records, he has not met his burden of
disproving that he profited from the lease.... We also note Mr.
Lasater, as an interested trustee, at least technically breached the
duty of loyalty by voting himself as lessee.
...
Reversed in part, affirmed in part, and remanded.
—————

Fulton Nat'l Bank v. Tate

363 F.2d 562 (5th Cir. 1966)

819
JOHN R. BROWN, Circuit Judge:
...
[Steve Tate (“Steve”) was serving as executor of the S.C. Tate
Estate (“the Estate”). An executor owes the beneficiaries of the
estate the same duty of loyalty that a trustee owes the trust
beneficiaries. Steve was negotiating with the Georgia Marble
Company (“Marble”) to exchange some of Steve's personally
owned real property for 6,100 acres of real property owned by
Marble. In addition, Marble was interested in leasing some of the
Estate's real property. The beneficiaries of the Estate,
represented by Fulton National Bank [“the Bank”], alleged that
Marble told Steve that it would agree to his property exchange
(for Steve's real property) only if he also agreed to lease the
Estate's real property to Marble. Steve agreed and received,
personally, 6,100 acres of real estate from Marble. Both deals
were closed the same day. The Bank, on behalf of the Estate
beneficiaries, sued, claiming, among other things, a breach of the
duty of loyalty.
The District Court appointed a Special Master to resolve the
claim. The Special Master ruled that there was no breach—that
there was no proof that Steve received anything in his individual
capacity from the lease of the estate property to Marble. The
Bank appealed, arguing that it had proved enough to at least shift
the burden to Steve to prove that he did not benefit. The Fifth
Circuit Court of Appeals weighed in.]
Prior to his becoming executor of the Estate, Steve proposed to
Marble that Steve and Marble personally exchange certain
properties and rights. Marble, however, did not accept his
proposal. On April 4, 1950, Steve became the executor of the
Estate which for many years had leased extensive lands to
Marble under a long-term mineral lease expiring in 1959. After
becoming executor, Steve persisted in his proposal for a personal
exchange. At the same time, in his capacity as executor, he was
negotiating with Marble over the extension of the Estate lease.
Though the lease was not to expire until 1959, Marble had
extensive capital tied up in mining operations on the leasehold
property and had set 1956 as the deadline for securing renewal of
the lease. While Steve was negotiating with Marble in the dual

820
capacity of individual and executor, he fastidiously endeavored to
keep estate business and his own personal business separate,
conscious that he had to change coats rather than wear Jacob's
many-colored coat. Nevertheless, during this period there was
considerable friction and animosity between Steve and Marble
manifested in litigation, harsh words, and even shootings. Finally,
in October 1954, Steve, acting in his individual capacity, reached
substantial verbal agreement with Marble on terms calling for the
outright exchange of Steve's own marble lands for 6,100 acres of
Marble's mountainous timber lands. However, Marble was
unwilling to sign this agreement with Steve individually until a deal
could be worked out on the renewal of the estate lease. Such an
agreement for renewal of the estate lease was reached in
February 1955, and on February 9, 1955, both the agreement
between Steve individually and Marble on the exchange and the
agreement between Steve as executor and Marble on the lease
renewal were signed. However, showing himself to be far from
oblivious to the delicate and conflicting position he was in, Steve
insisted that the agreement with him individually be back-dated to
October 26, 1954, the time when he felt he and Marble had
reached substantial verbal agreement over the terms of his
individual deal. All the beneficiaries of the Estate signed the lease
renewal negotiated by Steve and subsequently received
substantial benefits therefrom, but the Master found that at least
one of the beneficiaries was unaware of the existence of Steve's
personal agreement.
This brings us to the following pivotal fact findings by the
Master:
‘4. Would Georgia Marble Company have executed the
personal agreement with Steve Tate without securing Steve
Tate's agreement to a lease renewal satisfactory to Georgia
Marble Company?
‘Answer: Georgia Marble Company did not want to sign an
agreement with Steve, individually, if he was going to keep
on fighting them as Executor.
‘5. Was Steve Tate aware of the answer to question 4?
‘Answer: Yes
‘* * *

821
 ‘8. Had no lease renewal been before the parties, would
Georgia Marble Company have executed the personal
agreement in 1955?
‘Answer: Apparently not.’
In other words, Steve and Marble reached agreement on the
personal exchange first, but Marble refused to sign unless Steve
would renew the estate lease.
The question here is whether once the Bank has shown this
circumstance, the burden shifts to the fiduciary to prove that
Steve made no personal profit by use of the Estate's property.
This question is not simple for a number of reasons. First, general
rules on the fiduciary's duty of undivided loyalty are necessarily
general and offer limited help in resolving a concrete problem in
this area.... Second, and perhaps manifested in the generality of
the general rules, is the fact that there are two opposing policy
considerations in this area which must be weighed in the
individualistic scales of each concrete situation. On the one hand,
there is the first commandment of fiduciary relations: thou shalt
exalt thy beneficiary above all others. As expounded in the oft-
quoted words of Judge Cardozo:
“Many forms of conduct permissible in a workaday world for
those acting at arm's length, are forbidden to those bound
by fiduciary ties. A trustee is held to something stricter than
the morals of the market place. Not honesty alone, but the
punctilio of an honor the most sensitive, is then the
standard of behavior. As to this there has developed a
tradition that is unbending and inveterate. Uncompromising
rigidity has been the attitude of courts of equity when
petitioned to undermine the rule of undivided loyalty by the
‘disintegrating erosion’ of particular exceptions. * * * Only
thus has the level of conduct for fiduciaries been kept at a
level higher than that trodden by the crowd.”
Meinhard v. Salmon, 1928, 249 N.Y. 458, 164 N.E. 545, 546, 62
A.L.R. 1. On the other hand, and from Judge Hand, there is the
caveat that ‘the law ought not make trusteeship so hazardous that
responsible individuals * * * will shy away from it. * * * ‘the courts
should not impose impractical obligations on a trustee. Merely
vague or remote possible selfish advantages to a trustee are not

822
sufficient to prove such an adverse interest as to bring his
conduct into question.” Dabney v. Chase Nat. Bank, 2 Cir., 1952,
196 F.2d 668, 675.
With these problems in mind, we deem it appropriate to discuss
the general principles governing the fiduciary's duty of loyalty.
The general rule is that ‘the trustee is under a duty to the
beneficiary to administer the trust solely in the interest of the
beneficiary.’ Restatement (Second), Trusts §170 (1959). He
violates his duty “not only where he purchases trust property for
himself individually, but also where he has a personal interest in
the purchase of such a substantial nature that it might affect his
judgment in making the sale,” id. comment c (emphasis added),
and “also where he uses the trust property for his own purposes,”
id. comment l. Furthermore, “the trustee violates his duty * * * if he
accepts for himself from a third person any bonus or commission
for any act done by him in connection with the administration of
the trust.” Id. comment o. (Emphasis added.) If the trustee
violates his duty of undivided loyalty, he is liable to the beneficiary
for any profit thereby made. Thus, “if the trustee * * * uses trust
property for his own purposes and makes a profit thereby, he is
accountable for the profit so made,” id. §206 comment j, and if he
“receives for himself from a third person any bonus or
commission or other compensation for acts done by him in
connection with the administration of the trust, he is accountable
for the amount so received,” id. comment k. And even though he
does not breach his trust, “the trustee is accountable for any profit
made by him through or arising out of the administration of the
trust.” Id. §203 (emphasis added). However, “if the trustee enters
into a transaction not connected with the administration of the
trust, he is not accountable for a profit which may result merely
because the trust property is indirectly affected thereby.” Id.
comment e. (Emphasis added.)
Although “the duties of a trustee are more intensive than the
duties of some other fiduciaries,” id. §2, comment b,15 the same
general rules are applicable to other fiduciaries.
This is where the law draws on behavioral psychology, where
the rules of fair dealing required by equity coincide with human
experience. The rules of undivided loyalty have developed as

823
defensive responses of the common-law nervous system to
impulses of self-interest. The rationale of these well-settled
principles of undivided loyalty is clear:
“It is generally, if not always, humanly impossible for the
same person to act fairly in two capacities and on behalf of
two interests in the same transaction. Consciously or
unconsciously he will favor one side as against the other,
where there is or may be a conflict of interest. If one of the
interests involved is that of the trustee personally,
selfishness is apt to lead him to give himself an advantage.
If permitted to represent antagonistic interests the trustee is
placed under temptation and is apt in many cases to yield
to the natural prompting to give himself the benefit of all
doubts, or to make decisions which favor the third person
who is competing with the beneficiary.”
Bogert, Trusts and Trustees §543, at 475–76 (2d ed. 1960)
(Emphasis added). See also 2 Scott, Trusts §170 (2d ed. 1956); 4
id. §502, at 3235–36; 54 Am. Jur. Trusts §311-315 (1945). And in
accord with this rationale, the beneficiary need only show that the
fiduciary allowed himself to be placed in a position where his
personal interest might conflict with the interest of the beneficiary.
It is unnecessary to show that the fiduciary succumbed to this
temptation, that he acted in bad faith, that he gained an
advantage, fair or unfair, that the beneficiary was harmed. Indeed,
the law presumes that the fiduciary acted disloyally, and inquiry
into such matters is foreclosed. The rule is not intended to
compensate the beneficiary for any loss he may have sustained
or to deprive the fiduciary of any unjust enrichment. Its sole
purpose and effect is prophylactic: the fiduciary is punished for
allowing himself to be placed in a position of conflicting interests
in order to discourage such conduct in the future. Though equity
protects the beneficiary with a gentle wand, it polices the fiduciary
with a big stick. The trustee must avoid being placed in such a
position, and if he cannot avoid it, he may resign, or fully inform
the beneficiaries of the conflict, or, upon so informing the court,
request approval of his actions. Otherwise, he proceeds at his
peril.
...

824
 Superimposing ... [the language from the Georgia court
opinions the court had reviewed] on the facts of this case, the
inquiry here is ‘whether or not Steve received anything from
Marble which could be taken as a consideration for any act on his
part connected with his administration of the Estate?’ First, it
cannot be said that Steve's personal transaction with Marble was
wholly unconnected with his administration of the Estate. As
individual and executor, Steve fought with Marble; Steve, as
individual and executor, negotiated with the same officials of
Marble at the same time over the same kind of property; as
individual and executor, Steve closed both deals at the same
time. And Marble wanted Steve's marble rights only if it could
retain its mining facilities on the Estate lease. It was tit for tat
down to the wire. Second, it cannot be said that Steve received
nothing from Marble for his renewal of the Estate lease. He
received Marble's acquiescence to the personal exchange, for it
is clear that at least one of the reasons Marble agreed to convey
6,100 acres to Steve was Steve's agreeing as executor to renew
the lease.
...
As a last resort, the Appellees argue that from a standpoint of
policy our conclusion has a “hazardous implication.” According to
Appellees, “the inexorable consequence would be that in any
instance in which the bank (as trustee) purchased or sold any
security through the same broker for the account of any trust and
contemporaneously therewith negotiated the purchase or sale of
any security through the same broker for its personal portfolio, the
bank would thereby open itself to surcharge in the amount of such
profit as it realized on its personal transaction.” This fear is simply
unfounded—unfounded unless there is a connection between the
fiduciary transaction and the personal one, and if there is a
connection, there is and should be the fear of being brought to
book.
It should now be clear that on remand of this case the burden
of proceeding is on the Appellees. Furthermore, they have the
burden of proving that Steve made no profit on his personal
exchange, or failing in this effort, they must account for whatever
profit he made.... The principal things to be determined on
remand in light of the principles we have announced are: (1)

825
whether Steve realized any profit on his personal exchange, (2) if
so, how much profit did he realize, and (3) in that case, what relief
is to be granted the Bank.... The trial Court will have considerable
discretion in the method it chooses to handle and resolve these
questions....
Reversed and remanded.
—————

Notes
1. Uncompromised judgment: In theory, anytime a trustee's
judgment is compromised, the duty of loyalty has been breached.
The trustee's judgment may be compromised either because the
trustee may personally benefit from the transaction or because
the trustee has a connection to the third party “of such a
substantial nature that it might affect his judgment....”
RESTATEMENT (SECOND) OF TRUSTS §170 cmt. c (1959). The sole
variable affecting a trustee's decision-making process should be
the best interests of the trust beneficiaries—not the interests of
the trustee, and not the interests of a third party. The trust
beneficiaries are entitled to the trustee's independent and
objective best judgment. Anything that would compromise that
judgment may constitute a breach of trust.
In the abstract, the logic behind the duty of loyalty is easy to
understand. In the real world, however, the duty of loyalty is not
so easy to apply. Many trustees are compensated based on the
size of the trust corpus.3 Where a trustee's power to distribute
trust property is discretionary, technically, one could argue that
the trustee has an interest that might affect his or her decision. Is
every decision against distribution accordingly a breach of the
duty of loyalty? Assessing the scope of the duty of loyalty is also
difficult because trustees have personal lives to contend with. He
or she must continue to interact with third parties for their own
personal interests. Is a trustee absolutely forbidden from dealing
with a third party who is also dealing with the trust? While that
may not sound too unreasonable if the trustee is a family member
for a small family trust, such a standard arguably is unworkable
for a person serving as a professional trustee for hundreds of
trusts and who interacts with thousands of institutions on behalf of

826
the trusts. If a trustee is not absolutely forbidden from dealing a
third party who is also dealing with the trustee in his or her
personal capacity, what must be demonstrated to prove a breach
of the duty of loyalty? It should not surprise you to learn that there
is something of a common law versus modern trend split
emerging with respect to some of these issues.
2. Self-dealing and the common law “no further inquiry” rule:
Self-dealing occurs when the trustee personally transacts with the
trust (for example, where the trustee, acting in his or her personal
capacity, purchases property from the trust, or the trust purchases
property from the trustee, acting in his or her personal capacity).
The conflict of interest is self-evident. When the trustee
purchases property from the trust, acting in his or her fiduciary
capacity he or she should strive to obtain the highest possible
price (for the benefit of the trust), but acting in his or her personal
capacity, the trustee will strive to obtain the lowest possible price
(for his or her personal benefit). It is impossible for the trustee to
exercise his or her independent and objective best judgment.
Because of the obvious conflict of interest, the common law
courts developed the “no further inquiry” rule. Once it is
established that the trustee has engaged in self-dealing, the
trustee is strictly liable. The fairness of the price and the trustee's
good faith in entering into the transaction are irrelevant. The court
need not inquire into such matters (hence the name of the
doctrine—the “no further inquiry” rule). All that matters is that the
trustee has engaged in self-dealing. Unauthorized self-dealing
constitutes a per se breach of trust (breach of the duty of loyalty).
The trust beneficiaries need not even prove causation. Nothing
else needs to be proved.
3. Transactions with third parties with whom the trustee is
closely related or associated: While technically not self-dealing,
transactions between the trustee and third parties with whom the
trustee has a personal relationship (or is closely related to) are
prohibited because of the high risk that the relationship could
compromise the trustee's independent and objective judgment.
Accordingly, transactions with such parties are prohibited under
the duty of loyalty. While such presumptions and prohibitions do
not arise with respect to more independent third parties, if the
trust beneficiaries can show the trustee was nevertheless

827
“improperly influenced” in the trust's transaction with a third party,
the trustee has breached the duty of loyalty. The trust
beneficiaries, however, will bear the burden of proving the
improper influence in such cases.
The modern trend is not to always hold the trustee strictly liable
in the event of a breach of the duty of loyalty, particularly in cases
involving a conflict of interest (as opposed to blatant self-dealing),
but to require the complaining beneficiaries to show not only a
breach of the duty, but also damages and causation. See UTC
§§802(c)(4), 802(f). One scholar characterized the UTC approach
as follows: “[T]he UTC largely exempts institutional trustees from
the no further inquiry rule.” See Melanie B. Leslie, In Defense of
the No Further Inquiry Rule: A Response to Professor John
Langbein, 47 WM. & MARY L. REV. 541, 543 n. 5 (and
accompanying text) (2005) (see below for more discussion of this
approach).
4. Remedy: Where there is a breach of the duty of loyalty, the
trust beneficiaries can invoke the court's equitable powers to
fashion an appropriate remedy. Whether a particular remedy is
appropriate will depend on the facts and nature of the breach. At
a minimum, the trust should be restored to where it would have
been had there been no breach (this may include an award of any
profits that the trust would have made but for the breach—i.e.,
appreciation damages). The goal is not only to make the trust
beneficiaries whole, but also to deter other trustees from being
tempted to breach the duty of loyalty. Traditionally, the general
rule is to “disgorge” the trustee of any profit he or she has made
on the deal (again, regardless of his or her good faith, the fairness
of the price, causation, and/or the innocence or ignorance of the
trustee). Moreover, if the trustee has purchased trust property in
breach of the duty and he or she still has the property, the court
may order the trustee to reconvey the property to the trust (i.e., to
set aside the transaction). If the trustee has sold the property, the
trust beneficiaries can seek to have a constructive trust imposed
on the proceeds from the sale.
5. Exceptions to the duty of loyalty: As the court in Lasater
noted, the duty of loyalty is the starting point for an analysis of the
trustee's actions, but not the end point. The duty of loyalty is a
default rule. A trustee may transact with the trust if: (1) the terms

828
of the trust authorize it, (2) a court approves the transaction,
and/or (3) the beneficiaries approve, ratify, or acquiesce in the
transaction following full disclosure of all relevant information.
a. Trust authorization: A settlor can expressly
authorize a trustee to transact with the trust property.
Most courts, however, require the trust language to
explicitly grant the trustee the authorization to engage in
the self-dealing transaction. A trust instrument that
merely grants the trustee broad powers and broad
discretion with respect to the management of the trust
property will generally not meet the necessary standard
to authorize self-dealing. Moreover, even where a trust
instrument expressly authorizes the self-dealing, that
authorization does not completely absolve the trustee of
his or her fiduciary duty (nor does it remove the
transaction from scrutiny). The trustee must still act in
good faith and must still deal with the trust fairly. The
transaction remains subject to judicial scrutiny to ensure
that the trustee does not abuse the authorization and loot
the trust corpus: “The trustee violates his duty to the
beneficiary, however, if he acts in bad faith, no matter
how broad may be the provisions of the terms of the trust
in conferring power upon him to deal with the trust
property on his own account.” RESTATEMENT (SECOND) OF
TRUSTS §170(1) cmt. t.
Even assuming, arguendo, that the trust contains very
specific language authorizing self-dealing, it is easy to
see potential problems. A less than competent trustee
may not fully read or understand the trust provisions (or,
worse, a trustee who understands the provisions but
chooses to ignore them). If the trustee goes forward and
engages in self-dealing transactions that do not comply
with the trust's limited authorization, while remedies are
available, practical and logistical difficulties may not fully
resolve the problem. A settlor should think long and hard
before authorizing self-dealing.
b. Judicial authorization: Self-dealing is permitted
where “the court, after conducting a full adversary
hearing at which all interested parties are represented,

829
 approves and authorizes the sale.” In re Scarborough
Properties Corp., 25 N.Y.2d 553 (1969). Court approval
may be appropriate where there is no real market for the
trust property (a minority interest in a closely held
corporation) and/or where the trust beneficiaries are split
over whether the proposed self-dealing should be
permitted. The court's role is to ensure that the proposed
transaction is fair and just under the circumstances, that
there has been full disclosure, and that the proposed
transaction is in the best interests of the trust.
c. Beneficiaries authorize: The general rule is that the
beneficiaries may authorize a trustee's proposed self-
dealing if there is full disclosure to all the beneficiaries, if
the beneficiaries are free from the trustee's influence,
and if all the beneficiaries consent. The beneficiaries
may ratify such a transaction after the fact under the
same conditions.
6. Modern trend: Some states have modified the duty of loyalty
and the duty against self-dealing to the extent that they are
inconsistent with the prudent investor rule. This overlap will be
examined in greater detail in the material that covers the trustee's
duty to act prudently and the trustee's accompanying investment
powers.
7. Modern trend—UTC: Professor Langbein, a leader in the
trusts and estates field, has called for abolition of the “no further
inquiry” rule. He argues that it is inconsistent with the purposes of
the modern investment-oriented trust and that it “overdeters” and
impedes a trustee's ability to aggressively and quickly respond to
investment opportunities. To the extent the modern trustee is
increasingly a corporate trustee, Professor Langbein has argued
that the duty of loyalty that applies to corporate fiduciaries should
also apply to trustees. He sees no problem with trustees profiting
from transactions with the trust as long as the trustee can prove, if
subsequently sued, that the transaction was nonetheless in the
trust's best interests.
Professor Langbein helped draft the Uniform Trust Code, and
he had some success in getting his views adopted by the UTC.
The UTC distinguishes between traditional self-dealing

830
transactions (in which the “no further inquiry” rule still applies),
and conflicted transactions involving third parties. The latter
transactions are only presumptively voidable, not void, and the
presumption can be rebutted if:
the trustee establishes that the transaction was not affected
by a conflict between personal and fiduciary interests.
Among the factors tending to rebut the presumption are
whether the consideration was fair and whether the other
terms of the transaction are similar to those that would be
transacted with an independent party.
See UTC §802 cmt. (2000).

Problems
1. Joel and June Eisenberg owned and operated several travel-
related businesses (Air Club International, International Travel,
Inc., and Aeroamerica, Inc.). They also had two minor children,
Yvette and Ian. Joel was appointed guardian of the estates of
the children (a guardian owes the same duty of loyalty to the
minor as a trustee does to a beneficiary). Thereafter, Joel
purchased a few Boeing aircraft and sold one to each of the
guardianships.
Joel then sought and received court approval to lease the
planes for five years to Air Club. Joel did not disclose his
interest in Air Club to the court. The following year, without
court approval, Joel switched the leases from Air Club to
Aeroamerica. Thereafter, Aeroamerica began to have financial
problems. Aeroamerica's creditors demanded that Joel
subordinate the company's obligations to the guardianships to
the claims of the other creditors. Joel agreed. Three years
later, Aeroamerica declared bankruptcy.
After the Aeroamerica lease expired, Joel leased the planes to
a movie company as a prop for $10,000. Joel deposited the
money into Aeroamerica's account. None of the money went to
the guardianship accounts. Joel then ordered that the planes
be dismantled and sold for scrap parts. None of the resulting
$50,000 was deposited in the guardianship accounts.
When the children reached the age of majority they sued for
breach of the duty of loyalty. Did Joel breach the duty of loyalty

831
 when: (1) he leased the planes to Air Club; (2) he switched the
leases to Aeroamerica; (3) he agreed to subordinate
Aeroamerica's obligations to the guardianships; (4) he leased
the planes to the movie company; and/or (5) he dismantled
and sold the planes? See In re Guardianship of Eisenberg,
719 P.2d 187 (Wash. Ct. App. 1986). What should be the
measure of damages?
2. A father created two inter vivos trusts during his lifetime: one
for the benefit of his son, and the other for the benefit of his
daughter. The father was sole trustee of each trust, and each
child was entitled to all income from the trusts during their
lifetime. Each child also held the power to withdraw as much
property from the trust as he or she deemed appropriate.
Thereafter the father approached each child and explained to
them that he wanted them to “sign off” on the termination of
each child's trust and the creation of a new trust. The son and
daughter signed off on the withdrawal of the funds from their
respective trusts without reading any of the paperwork, and the
father created the new trust. Under the new trust, the father had
the right to the income during his lifetime and the power to
withdraw as much property from the trust as he deemed
appropriate. Thereafter, the father withdrew all of the funds
from the new trust. When the son realized what had happened,
he sued.
Does the son have a valid claim of breach of the duty of
loyalty? If so, did the son “waive” the claim by failing to read
the paperwork that he signed? See Prueter v. Bork, 435
N.E.2d 109 (Ill. Ct. App. 1981).
3. Douglas Sachse, an attorney, was appointed trustee of the
Stemler Trust. At the time, he had both a personal and a
professional relationship with the primary beneficiary, Shirley
Stemler. The Stemler Trust was a testamentary trust created by
Dorothy Thompson's will when she died in 1978. The terms of
the trust provided that Dorothy's only daughter, Shirley Stemler,
was to receive the net income from the trust during her lifetime.
Upon Stemler's death the trust assets were to be distributed to
her then-living descendants.
The original trust corpus was approximately $50,000. By 1990,
the trust corpus has grown to approximately $90,000. In late

832
 1990, Shirley informed Sachse that she needed the funds in
the trust to start a business—Autel Corporation. Stemler had
always believed that the money was her money to use as she
deemed appropriate. Stemler allegedly harassed Sachse for
access to the funds. Over the next few months, Sachse
disbursed funds to Shirley to help start the company until there
was only eight cents left in the trust account. At about this time
Sachse began experiencing problems that resulted in his being
admitted to a substance abuse program. Following his release,
he attempted to secure a note from Shirley and Autel
Corporation obligating them to repay the trust funds. Sachse
admits he would not have invested any of his own funds in
Autel Corporation.
Has Sachse breached his duty of loyalty? See Attorney
Grievance Comm'n of Maryland v. Sachse, 693 A.2d 806 (Md.
Ct. App. 1997).
4. Decedent died in Los Angeles, owning several parcels of real
estate. Decedent's executor also resided in Los Angeles. The
devisees of some of the parcels resided in Texas. Executors
essentially owe the devisees of an estate the same duty of
loyalty as a trustee owes the trust beneficiaries.
The executors wrote the devisees and advised them that there
were “certain odds and ends of land” that could either be sold
separately or bundled and sold together to the executors at a
reasonable price; but first, the executors recommended the
devisees investigate the properties. The executors requested
that the devisees send an agent with the power to act to Los
Angeles to investigate the situation. The devisees sent an
agent with power to act, but the agent could neither read nor
write. The agent brought a friend with him, who may have
been a relative of the decedent. While the friend had extensive
business experience, it was unclear in what capacity the friend
came to Los Angeles.
After spending a week in Los Angeles, the agent agreed to
authorize the sale of the real estate for $10,000 to Susan
Dunlap—the wife of one of the executors. The executors sold
the property to Susan, who a month later sold the land to the
executors. The devisees later sued for breach of the duty of

833
 loyalty. In their complaint, they alleged that the true value of
the land in question was approximately $40,000.
Did the executors breach their duty of loyalty? Did they engage
in self-dealing? Does the fact that they advised the devisees in
Texas to come out and inspect the properties mean they
satisfied their duty? See Golson v. Dunlap, 14 P. 576 (Cal.
1887).

B. Duty to Be Impartial
The duty of loyalty naturally leads to the trustee's duty to be
impartial. If a trust has two or more beneficiaries, the trustee has
a duty to deal impartially with them, acting impartially in investing
and managing the trust property and taking into account any
differing interests among the beneficiaries. CPC §16003. The
trustee cannot favor one individual or class of beneficiaries over
another and must still satisfy the duty of loyalty to each; hence the
duty to be impartial.
Recall that the typical trust, a gratuitous trust, is a bifurcated
gift. It is bifurcated three ways: (1) the trustee holds legal title, and
the beneficiaries hold the equitable interest; (2) the trust property
is bifurcated between the principal and the income; and (3) at the
equitable level, the trust is bifurcated between the beneficiaries
who hold the present interest and the beneficiaries who hold the
future interest. In the typical trust, the beneficiaries who hold the
present interest have a greater right to receive the income, and
the beneficiaries who hold the future interest have the right to
receive the principal. Because of their different interests,
something of a conflict of interest arises between the interests of
the present beneficiaries and the future beneficiaries. The present
beneficiaries would prefer to see the trust property invested in
high-risk investments that might generate greater income (but
which would also put the principal at greater risk of loss), while
the future beneficiaries would prefer to see the trust property
invested in safer investments that would put the principal at a
lower risk of loss (but which would also generate less income).
Such differing interests among the beneficiaries therefore directly
implicate the trustee's duty to be impartial.

834
 Moreover, just as the duty of loyalty logically leads to the duty
to act impartially, so too does the duty to act impartially logically
lead to and overlap with the duty to act prudently. Where a trust
has beneficiaries who are entitled to its income, the trustee needs
to invest prudently so as to produce a reasonable income for the
income beneficiaries while at the same time protecting and
growing the principal for the future beneficiaries (i.e., the
remaindermen). The RESTATEMENT (THIRD) OF TRUSTS implicitly
acknowledges overlap between the duty to be impartial and the
duty to act prudently when it addresses the issue as part of the
Prudent Investor Rule:
§240. Unproductive or underproductive property
If a trustee of a trust to pay the income to a beneficiary and
thereafter to distribute the principal to others holds property
that produces no income or an income substantially less
than an appropriate yield on the trust's investments, the
trustee is under a duty to the income beneficiary either
(a) to adopt accounting, investment, and other administrative
practices reasonably designed to satisfy the distribution
entitlements of the income beneficiary, or
(b) to sell some or all of that property within a reasonable
time.
See RESTATEMENT (THIRD) OF TRUSTS, P.I.R. Other §240 (1992).
The RESTATEMENT (THIRD) OF TRUSTS approach parallels various
tax-related concerns and doctrines. These concerns are front and
center during the drafting phase of most trusts, and professionally
drafted trusts often contain clauses relating to “unproductive
assets” and various parties (usually income beneficiaries) having
the power to demand that the trustee convert such assets to
those that are “income producing.” Well-drafted estate planning
documents should address expressly the potential issues inherent
in unproductive and/or underproductive assets.

Delaware Trust Co. v. Bradford

59 A.2d 212 (Del. Ch. 1948)
SEITZ, Vice-Chancellor.

835
 The court is required to instruct the trustee as to the method of
treatment and disposition of the net proceeds from the sale of an
unproductive trust asset.
Edward G. Bradford, Jr. died December 3, 1927. Under the
third item of his will he left certain property to the plaintiff,
Delaware Trust Company, in trust ‘to keep the same invested in
good securities, and * * * to pay over the net income’ to his wife
for life. Under the same item, his wife was given a power of
appointment either by deed or will over the trust property and in
the event of her failure to exercise the power, or at the expiration
of the term of appointment, the trust corpus was to be given to
Yale College, a Connecticut corporation, upon certain trusts. By
his will, the testator authorized the trustee to sell any of his real
estate at either public or private sale.
On June 10, 1927, the testator purchased a piece of vacant
land for the sum of $5,000. Upon his death, this property—then
valued at $9,800.—became a part of the quoted testamentary
trust, and was held as a trust asset from the testator's death on
December 3, 1927 to the date of sale on September 24, 1947.
During this period of 19 years, 9 months and 21 days the land
was completely unproductive. In fact, it was an expense to the
estate in that during this period charges amounting to $403.98
were paid thereon from the trust income.
When plaintiff as trustee sold the land on September 24, 1947,
he realized, after deducting real estate commissions, the sum of
$18,997.63....
Since December 3, 1927, the defendant Helen S. Bradford, as
the income beneficiary for life, has acquiesced in the retention of
the unproductive land by the plaintiff as trustee. In fact, she
requested plaintiff not to sell the land, it being her belief that its
value would in time be greatly enhanced. Plaintiff as trustee
reached the same conclusion in the exercise of its independent
judgment.
From 1939 to 1947, the average net annual income of the trust
created by the testator and paid to the life income beneficiary
amounted to $1,708.96. Plaintiff has determined from a study of
its various trust accounts that a reasonable current rate of return
on trust investments with diversified holdings is 3.7%.

836
 Plaintiff has asked for the [instructions].... Thereafter, the court
heard testimony on behalf of the plaintiff with respect to the facts
of the case.
Where a trust is created for successive beneficiaries, and
where the trust estate includes unproductive property, the trustee
is ordinarily under a duty to sell the property within a reasonable
time and to invest the proceeds in productive property. See 2
Scott on Trusts, §240. The trustee here held the unproductive
property for a great many years, and it is apparent from the
substantial price at which it was ultimately sold that the decision
of the trustee to hold the unproductive property and the request of
the income beneficiary that it hold such property were fully
vindicated.
Whether or not the net proceeds from the sale of unproductive
trust property will be apportioned between the income beneficiary
and the remainderman is one of intent. See 2 Scott on Trusts,
§241.2. If it is manifest that the testator intended the entire
principal of the trust to constitute a fund, the income of which is to
be for the benefit of the life beneficiary, then a duty is imposed
upon the trustee to sell the unproductive property at a convenient
time and to apportion the net proceeds between principal and
income. However, if the trust instrument makes clear that the
testator intended to deprive the life beneficiary of income from
that portion of the trust represented by unproductive property,
there can be no question of apportionment—it is all principal.
Generally the courts will infer that the testator intended the life
beneficiary to have the benefit of income from all property in the
trust unless the terms of the trust indicate otherwise. See 1
Restatement of Trusts, §241. Consequently, where the terms of
the trust are silent, the courts will direct the trustee to apportion
the net proceeds from the sale of an unproductive asset between
capital and income. The creator of the trust here involved showed
no intent to preclude the life income beneficiary from having the
benefit of income from all the trust assets. Indeed, we may infer to
the contrary since the life income beneficiary was the testator's
wife. Moreover, the will directed the trustee to keep the trust
property invested in good securities.

837
 I conclude that the testator intended the income beneficiary to
have the benefit of the income from all the trust assets with the
consequence that the net proceeds of sale should be
apportioned. The fact that the income beneficiary requested the
trustee to hold the unproductive asset is not important here since
the trustee reached the same conclusion in the exercise of its
independent judgment.
It next becomes pertinent to determine what rule of
apportionment should apply here. In 1 Restatement of Trusts,
§241, the rule is set forth as follows:
“(1) Unless it is otherwise provided by the terms of the
trust, if property held in trust to pay the income to a
beneficiary for a designated period and thereafter to pay
the principal to another beneficiary is property which the
trustee is under a duty to sell, and which produces no
income or an income substantially less than the current
rate of return on trust investments, or which is wasting
property or produces an income substantially more than the
current rate of return on trust investments, and the trustee
does not immediately sell the property, the trustee should
make an apportionment of the proceeds of the sale when
made, as stated in Subsection (2).
“(2) The net proceeds received from the sale of the
property are apportioned by ascertaining the sum which
with interest thereon at the current rate of return on trust
investments from the day when the duty to sell arose to the
day of the sale would equal the net proceeds; and the sum
so ascertained is to be treated as principal, and the residue
of the net proceeds as income.
“(3) The net proceeds are determined by adding to the net
sale price the net income received or deducting therefrom
the net loss incurred in carrying the property prior to the
sale.”
The rule quoted from the Restatement of Trusts has been
generally followed elsewhere and will be applied here since it
results in a realistic and satisfactory adjustment of adverse
interests.

838
 Where, as here, the particular trust asset has been
unproductive from the very beginning of the trust, the question
arises—for purposes of applying the apportionment formula—
whether the ‘duty to sell’ commences at the inception of the trust,
or at some reasonable time thereafter. While a difference of
opinion apparently exists, the view that the “duty to sell” arises at
the inception of the trust is supported by substantial authority. See
Edwards v. Edwards, 183 Mass. 581, 67 N.E. 658; 2 Scott on
Trusts, §241.1. See 1 Restatement of Trusts, §241, Comments a
and b.
...
The current rate of return on diversified trust investments is
shown by this trustee to be 3.7%. This rate of return will be
accepted and applied in this case.
The trustee desires to be instructed as to whether in
determining the net proceeds available for apportionment, the
carrying charges paid out of income, as well as the capital gains
tax resulting from the sale of the unproductive property, should
first be deducted from the proceeds of sale.
The cost of carrying unproductive property is payable out of
principal rather than income in the absence of any indication that
the testator demonstrated a different intention. See 2 Scott on
Trusts, §233.4. The payment of real estate taxes and insurance
are such costs, and in this case should have been paid out of
principal rather than income. The trustee will, therefore, pay the
income beneficiary from principal the amount of income which it
used to pay the taxes and insurance on the unproductive trust
asset....
...
I conclude that the trustee should apportion the net proceeds of
the sale of the unproductive real estate by ascertaining the sum
which with interest thereon at the current rate of return on trust
investments (3.7%) from the day when the trust was created, i.e.,
the date of the testator's death (December 3, 1927), to the day of
the sale (September 24, 1947) would equal the net proceeds
($18,438.37). When this is done, we find that the trustee should

839
treat the sum of $10,644.30 as trust principal and the balance,
being $7,794.07, as income.
An order accordingly will be advised.
—————

Notes
1. Authorization to retain underperforming assets: The income
beneficiary is entitled to apportionment of the proceeds generated
by the sale of the underperforming asset only if the trustee had a
duty to sell the asset. Where the terms of the trust grant the
income beneficiary the rents from the asset and give the trustee
the power to improve the property, such clauses generally are
construed as an implied authorization for the trustee to retain the
asset. What if the trust terms expressly or implicitly authorize the
trustee to retain the underperforming asset? If the trustee
nevertheless sells the underperforming asset is the income
beneficiary entitled to a share of the proceeds or should it all be
allocated to principal?
2. Duty to act impartially—default rule or binding law? Is the
duty to act impartially a default rule that the settlor can opt out of
in the trust instrument, or is it a rule of law that applies regardless
of the settlor's intent?

Hearst v. Ganzi
145 Cal. App. 4th 1195 (2006)
KLEIN, P.J.
...
This appeal involves the latest challenge by certain
beneficiaries of the Hearst Family Trust (the Trust) to the actions
of the Trustees thereof. The plaintiffs, who are income
beneficiaries of the Trust, contend the Trustees have breached
their fiduciary duty of impartiality by favoring the remainder
beneficiaries over the income beneficiaries. Plaintiffs propose to
bring a petition against the Trustees for breach of fiduciary duty in
order to compel the Trustees to increase the income distribution
to them.

840
 ...
The “[Proposed] Petition By Beneficiaries for Relief From
Breach of Fiduciary Duty by the Trustees of the Hearst Family
Trust” (hereafter, the Proposed Petition) ... which spanned six
pages, alleged in relevant part:
“A fiduciary relationship exists between the Trustees and
Petitioners. The Trustees must manage the Hearst Family Trust
solely in the interests of the beneficiaries. [Citations.] Pursuant to
... section 16003, the Trustees owe Petitioners a fiduciary duty of
impartiality to make trust property productive for current income
beneficiaries.”
The Proposed Petition further alleged:
The Trust holds legal title to all the issued and outstanding
common stock of the Corporation for the sole benefit of the Trust
beneficiaries. In a July 18, 2003 letter, the Trustees estimated the
value of the Corporation as of December 31, 2002 to be between
$10.53 billion and $10.64 billion. Press accounts have estimated
the value of the Corporation to be in excess of $30 billion. Based
on the value range assigned by the Trustees to the common
stock of the Corporation, the Trust yielded income to the income
beneficiaries of 1.19 percent to 1.29 percent for the year ending
December 31, 2001, and 1.24 percent to 1.25 percent for the year
ending December 31, 2002.
Citing the above figures, the Proposed Petition alleged the
Trustees “have breached their fiduciary duties owed to current
income beneficiaries.... In at least the years 2000, 2001, and
2002, the property held by the [Trust] generated income to current
income beneficiaries ... which was substantially lower than the
income normally earned by trust investments, thereby favoring
the remainder beneficiaries over the current income beneficiaries
of the [Trust ].... [¶] ... The Trustees' breaches of fiduciary duties
have proximately caused the current income beneficiaries,
including Petitioners, to suffer damages because current income
beneficiaries would have received higher income in at least the
years 2000, 2001, and 2002 had the Trustees not breached their
fiduciary duties by failing to take steps to secure a reasonable
income yield on the ... Trust. [¶] ... This Court should award
damages according to proof at trial against the Trustees and in

841
favor of all income beneficiaries as redress for the Trustees'
breaches of their fiduciary duties. In addition, this Court should
order that the Trustees in the future must take steps to ensure
that the Trust's income is increased so that the income
beneficiaries each year receive an adequate amount of income
based upon the size of the ... Trust.” (Italics added.)
...
DISCUSSION
...
1. General principles.
...
c. A trustee's fiduciary duty, including the duty of impartiality,
and a trustee's discretionary powers.
Trustees owe all beneficiaries, including the income
beneficiaries herein, a fiduciary duty. A fiduciary relationship is a
recognized legal relationship such as trustee and beneficiary,
principal and agent, or attorney and client. (Persson v. Smart
Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1160, 23
Cal.Rptr.3d 335.) Where a fiduciary relationship exists, there is a
duty “‘to act with the utmost good faith for the benefit of the other
party.’” (Ibid.)
The fiduciary duty of a trustee includes “the duty of loyalty
(Prob.Code, 16002); the duty to deal impartially with the
beneficiaries (Prob.Code, 16003); the duty to avoid conflicts of
interest (Prob.Code, 16004); the duty to control and preserve trust
property (Prob.Code, 16006; Rest.2d Trusts, 175, 176); the duty
to make trust property productive (Rest.2d Trusts, 181); the duty
to dispose of improper investments (Rest.2d Trusts, 230, 231);
and the duty to report and account (Prob.Code, 16060).”
(Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1340, 2
Cal.Rptr.3d 798, italics added.)
A trustee is bound to deal impartially with all beneficiaries
(16003; Crocker-Citizens National Bank v. Younger (1971) 4
Cal.3d 202, 219, fn. 7, 93 Cal.Rptr. 214, 481 P.2d 222; Estate of
Nicholas (1986) 177 Cal.App.3d 1071, 1089, 223 Cal.Rptr. 410),
unless the language of the trust provides otherwise. (§16000.)

842
 Accordingly, the law in California is consistent with American
Jurisprudence, which states: “Trustees owe a duty to all trust
beneficiaries, and must treat all equally. Unless the trust
instrument itself provides otherwise, the trustee's duty to each
beneficiary precludes it from favoring one party over another.
Thus, a trustee must act impartially with respect to all
beneficiaries, doing his or her best for the entire trust as a whole.
A trustee who violates his or her duties to deal impartially with all
beneficiaries risks exposure to liability for breach of trust.” (76
Am.Jur.2d (2005) Trusts, §359, fns. omitted, italics added.)
In a situation where the terms of the trust give the trustee
“discretion to favor one beneficiary over another[,][t]he court will
not control the exercise of such discretion, except to prevent the
trustee from abusing it.” (Rest.2d Trusts, §183, com. a, p. 394.)
The Restatement Second of Trusts explains: “In determining
the question whether the trustee is guilty of an abuse of discretion
in exercising or failing to exercise a power, the following
circumstances may be relevant: (1) the extent of the discretion
conferred upon the trustee by the terms of the trust; (2) the
purposes of the trust; (3) the nature of the power; (4) the
existence or non-existence, the definiteness or indefiniteness, of
an external standard by which the reasonableness of the trustee's
conduct can be judged; (5) the motives of the trustee in exercising
or refraining from exercising the power; (6) the existence or
nonexistence of an interest in the trustee conflicting with that of
the beneficiaries.” (Rest.2d Trusts, §187, com. d, p. 403, italics
added.)
If discretion is conferred upon the trustee in the exercise of a
power, “the court will not interfere unless the trustee in exercising
or failing to exercise the power acts dishonestly, or with an
improper even though not a dishonest motive, or fails to use his
judgment, or acts beyond the bounds of a reasonable judgment.
The mere fact that if the discretion had been conferred upon the
court, the court would have exercised the power differently, is not
a sufficient reason for interfering with the exercise of the power by
the trustee. Thus, if the trustee is empowered to apply so much of
the trust property as he may deem necessary for the support of
the beneficiary, the court will not interfere with the discretion of
the trustee on the ground that he has applied too small an

843
amount, if in the exercise of his judgment honestly and with
proper motives he applies at least the minimum amount which
could reasonably be considered necessary, even though if the
matter were left to the court to determine in its discretion it might
have applied a larger amount.” (Rest.2d Trusts, §187, com. e, p.
403, italics added.)
...
a. Plaintiffs' claim the Trustees breached their duty of
impartiality by maintaining a dividend policy which effectively
favors the remainder beneficiaries conflicts with Trust
provisions and therefore would amount to a contest.
The amicus curiae brief contends “California law (Prob.Code,
§16003) compels trustees to treat classes of beneficiaries
impartially and there is not a word or hint in WRH's will that
excuses the Trustees from these obligations.”
To the contrary, the very language of the will authorizes the
Trustees to treat the two classes of beneficiaries, namely, income
and remainder beneficiaries, differently. The will confers
discretion upon the Trustees “to decide what is income and what
is corpus or principal” of the Trust, as well as “to hold funds either
uninvested or invested in non-income producing securities or
property in such amounts, for such periods of time and to such
extent as to them may from time to time seem best....” Said
provisions significantly depart from the strict statutory duty of
impartiality with respect to income production for current income
beneficiaries. Under the code, trustees have “a duty to administer
the trust according to the trust instrument and, except to the
extent the trust instrument provides otherwise, according to this
division.” (§16000, italics added.) Here, the trust instrument, i.e.,
the will, expressly provides otherwise.
Although the will permits the Trustees to depart from the strict
statutory duty of impartiality with respect to income production for
current income beneficiaries, the Trustees nonetheless must
exercise their discretion in good faith and are prohibited from
treating the current income beneficiaries differently based on
animus, bad faith or other improper motives. (Rest.2d Trusts,
supra, §187, com. d.) However, there is no allegation in the
Proposed Petition to the effect that the Trustees' dividend policy is

844
grounded in bad faith or an improper motivation. There is no
allegation the Trustees acted dishonestly.
The bare allegation in the Proposed Petition that the Trustees
breached their fiduciary duty owed to current income beneficiaries
by adhering to a dividend policy which has the effect of favoring
the remainder beneficiaries over the current income beneficiaries,
without more, is insufficient to state a claim for breach of fiduciary
duty to overcome the no contest clause. Said allegation does not
entitle the income beneficiaries to proceed with their Proposed
Petition challenging the Trustees' conduct without risking
forfeiture under the no contest clause.
...
CONCLUSION
There is no question but that the Trustees owe a fiduciary duty
to all the beneficiaries of the Trust and that they are bound by
statutory and case law, as well as by the terms of the governing
instrument. Here, however, notwithstanding the income
beneficiaries' claims the Trustees violated their fiduciary duty,
abused their discretion, and breached their duty of impartiality, the
claims made and the relief sought by the Proposed Petition are
precluded by the language of the Trust provisions, which explicitly
authorizes the Trustees to treat income and remainder
beneficiaries differently.
The no contest clause herein applies to “any proceeding ...
tending in any manner or to any extent to change, annul, revoke,
set aside or invalidate this my Will or any of its provisions,
including but not limited to any trust created herein or hereunder
or any of the provisions of any such trust....” (Italics added.)
Plaintiffs' Proposed Petition to compel the Trustees to alter their
dividend policy and to hold the Trustees personally liable for
breach of fiduciary duty, without more, conflicts with the terms of
the instrument and therefore would amount to a contest.
The order is affirmed.
—————

Notes

845
 1. Fact-sensitive duty: The trustee has a duty to be impartial
between and among the different beneficiaries when investing
and managing the trust property, keeping in mind the different
interests of the different beneficiaries and the purposes of the
trust. What that means, exactly, is a fact-sensitive determination
that varies from trust to trust. The courts, however, have sent a
pretty clear message that absent overriding settlor intent, the
trustee has a duty to produce reasonable income for the income
beneficiaries.
2. Judicial review: Even where the trust instrument authorizes a
trustee, either expressly or implicitly, to favor one beneficiary or
class of beneficiaries over another, the trustee must still act in
good faith. The trustee's decisions and actions are still subject to
judicial review.
3. Remedy: Where a trustee unreasonably delays in selling
underperforming property, the trust beneficiaries can hold the
trustee liable for any loss caused by the delay. See RESTATEMENT
(FIRST) OF TRUSTS §209 (1935).
4. Modern trend—unitrust: Thus far, the discussion has focused
on the traditional notion of a trust: where the life beneficiary
typically has an interest in the income, and the remainderman has
an interest in the principal. The bifurcated interest, coupled with
the trustee's duty of impartiality, has the potential to handicap the
trustee's ability to prudently invest the trust property. Instead of
focusing on total returns, the trustee has to focus on ensuring that
the investments produce a reasonable income for the income
beneficiaries. Might there be another option—another way of
structuring the beneficiaries' interests so that the trustee does not
need to worry about such issues?

Problems
1. Dr. Nicholas Riegler Sr., his son, Dr. Nicholas Riegler Jr., and
their wives created the Doctors Riegler Trust. The trust held
title to certain parcels of real estate. The trust authorized the
trustees, the two doctors, to borrow money and build a medical
clinic on the property, and then lease the property back to the
doctors, with rent being paid to the trust. One-half of the
excessive income generated by the trust was to be paid to each

846
 wife for life. The trustees built the clinic, the doctors leased it,
and the rent they paid was distributed to their wives.
Thereafter, in 1964, Riegler Jr., acting as trustee but without
authority from the trust, borrowed additional funds, and with
other trust funds, purchased a vacant lot for a new medical
clinic he was thinking about building for his own use (the lot
has produced no income whatsoever for the trust since its
purchase, and it has cost the trust income due to the interest
paid on the borrowed funds). In 1968, as trustee he requested
court approval to borrow additional funds to purchase 57 more
acres of unproductive real estate.
At about this same time, Riegler Jr. and his wife were
divorcing. During the divorce proceedings, Riegler admitted
that he was doing everything he could to prevent his ex-wife
from getting any money out of the trust. At a hearing in 1969,
the court denied Riegler Jr.'s request to borrow additional
funds and chastised him for purchasing the vacant lot without
authority. In response, Riegler Jr. offered to purchase the
vacant lot from the trust. As of 1975, he had still not followed
through on the offer, and the trust had still had not distributed
any income since 1964.
Has Riegler Jr. engaged in self-dealing? Has Riegler Jr.
breached his duty of impartiality to the income beneficiaries? Is
Riegler Jr.'s wife/ex-wife entitled to back-income for the period
in question? See Riegler v. Riegler, 553 S.W.2d 37 (Ark. Ct.
App. 1977).
2. Clara and E.W. Bank started the Bank Lumber Co., which did
quite well over the years. In 1954, Clara and E.W. decided it
was time to address their estate planning needs. Clara
executed a will devising the bulk of her estate to a testamentary
trust. The trust appointed her husband the sole trustee, the
income was to be distributed to E.W. during his lifetime, and
upon his death the trust assets to be distributed to their four
children. E.W. created an irrevocable trust in 1954. He
transferred the bulk of his assets to the trust, including his Bank
Lumber Co. stock. The distributive terms of the trust were the
same as those in Clara's trust. Section 2.01 of the trust
expressly authorized the trustee “[t]o retain, whether orginally
(sic) a part of the trust estate or subsequently acquired ... any

847
 property, whether or not such property is ... unproductive, or of
a wasting nature, all without diversification as to kind or
amount.”
Upon Clara's death in 1961, 375 shares of Bank Lumber Co.
stock were transferred to her trust. In 1962, E.W. married Mary.
They lived together until his death in 1969. He died testate,
with a will leaving all his property to Mary. A few years after
E.W.'s death, Mary, as executor of E.W.'s estate, sued the
successor trustee claiming a breach of trust with respect to
Clara's trust. She claimed that although E.W. was to receive
the income from Clara's trust assets, he received less than one
percent per annum of their fair market value between 1962
and 1969, when he died. Oklahoma, the state in question, had
recently adopted a statute that expressly provided that upon
conversion of unproductive property, the beneficiary who was
entitled to receive the income shall be allocated five percent
per annum for the period in which the unproductive property
should have been changed.
Does Mary have a valid claim for breach of the duty of
impartiality and failure to produce a fair stream of income for
the income beneficiary? See Bank v. Bank Lumber Co., 543
P.2d 588 (Okla. Civ. App. 1975).

In re Heller
849 N.E.2d 262 (N.Y. 2006)
ROSENBLATT, J.
In September 2001, New York enacted legislation that
transformed the definition and treatment of trust accounting
income. The Uniform Principal and Income Act (EPTL art. 11-A)
and related statutes (L. 2001, ch. 243), including the optional
unitrust provision (EPTL 11-2.4), are designed to facilitate
investment for total return on a portfolio. The appeal before us
centers on the optional unitrust provision, which permits trustees
to elect a regime in which income is calculated according to a
fixed formula and based on the net fair market value of the trust
assets. We hold that a trustee's status as a remainder beneficiary
does not in itself invalidate a unitrust election made by that
trustee....

848
 I.
In his will, after making certain other gifts of personal property
and money, Jacob Heller created a trust to benefit his wife Bertha
Heller (should she survive him) and his children. Heller provided
that his entire residuary estate be held in trust during Bertha's life.
He appointed his brother Frank Heller as trustee and designated
his sons Herbert and Alan Heller as trustees on Frank's death.
Every year Bertha was to receive the greater of $40,000 or the
total income of the trust. Heller named his daughters (Suzanne
Heller and Faith Willinger, each with a 30% share) and his sons
and prospective trustees (Herbert and Alan Heller, each with a
20% share) as remainder beneficiaries.
Jacob Heller died in 1986, and his wife Bertha survives him.
When Heller's brother Frank died in 1997, Herbert and Alan
Heller became trustees. From that year until 2001, Bertha Heller
received an average annual income from the trust of
approximately $190,000. In March 2003, the trustees elected to
have the unitrust provision apply, pursuant to EPTL 11-2.4(e)(1)
(B)(I). As required by EPTL 11-2.4(e)(1)(B)(III), they notified trust
beneficiaries Bertha Heller, Suzanne Heller and Faith Willinger....
As a result of that election, Bertha Heller's annual income was
reduced to approximately $70,000.
Appellant Sandra Davis commenced this proceeding, as
attorney-in-fact for her mother Bertha Heller, and on August 1,
2003 moved for summary judgment, seeking, among other things,
an order annulling the unitrust election and revoking the letters of
trusteeship issued to Herbert and Alan Heller.... Surrogate's Court
... denied the branches of her motion seeking annulment of the
unitrust election itself and other relief.
Davis appealed Surrogate's Court's order, and Herbert and
Alan Heller cross-appealed. The Appellate Division affirmed the
order ... [and] granted leave to appeal and certified the following
question to us: “Was the opinion and order of [the Appellate
Division] dated August 15, 2005, properly made?” ...
II.
The 2001 legislation that forms the subject of this appeal was
designed to make it easier for trustees to comply with the

849
demands of the Prudent Investor Act of 1994. In addition to
enacting EPTL article 11-A (Uniform Principal and Income Act),
the Legislature both added EPTL 11-2.3(b)(5) to the Prudent
Investor Act and included the optional unitrust provision, EPTL
11-2.4.
Under the former Principal and Income Act, a trustee was
required to balance the interests of the income beneficiary against
those of the remainder beneficiary, and was constrained in
making investments by the act's narrow definitions of income and
principal. A trustee who invested in nonappreciating assets would
ensure reasonable income for any income beneficiary, but would
sacrifice growth opportunities for the trust funds, as inflation
eroded their value; if the trustee invested for growth, remainder
beneficiaries would enjoy an increase in the value of the trust at
the expense of income beneficiaries. Moreover, the need to invest
so as to produce what the former Principal and Income Act
defined as income led to investment returns that failed to
represent the benefits envisaged as appropriate by settlors.
The Prudent Investor Act encourages investing for total return
on a portfolio. Unless the governing instrument expressly
provides otherwise, the act requires that trustees “pursue an
overall investment strategy to enable the trustee to make
appropriate present and future distributions to or for the benefit of
the beneficiaries under the governing instrument, in accordance
with risk and return objectives reasonably suited to the entire
portfolio” (EPTL 11-2.3[b][3][A] [emphasis added]).
The 2001 legislation allows trustees to pursue this strategy
uninhibited by a constrained concept of trust accounting income.
First, the Prudent Investor Act now authorizes trustees
“to adjust between principal and income to the extent the
trustee considers advisable to enable the trustee to make
appropriate present and future distributions in accordance
with clause (b)(3)(A) if the trustee determines, after
applying the rules in article 11-A, that such an adjustment
would be fair and reasonable to all of the beneficiaries, so
that current beneficiaries may be given such use of the
trust property as is consistent with preservation of its
value”.

850
 A trustee investing for a portfolio's total return under the
Prudent Investor Act may now adjust principal and income to
compensate for the effects of the investment decisions on
distribution to income beneficiaries. Alternatively, the optional
unitrust provision lets trustees elect unitrust status for a trust, by
which income is calculated according to a fixed formula.
In a unitrust pursuant to EPTL 11-2.4, an income beneficiary
receives an annual income distribution of “four percent of the net
fair market values of the assets held in the trust on the first
business day of the current valuation year” (EPTL 11-2.4[b][1]),
for the first three years of unitrust treatment. This is true
regardless of the actual income earned by the trust. Starting in
the fourth year, the value of the trust assets is determined by
calculating the average of three figures: the net fair market value
on the first business day of the current valuation year and the net
fair market values on the first business days of the prior two
valuation years (see EPTL 11-2.4[b][2]). Income generated in
excess of this amount is applied to principal.
Under the 2001 legislation, then, a trustee may invest in assets,
such as equities, that outperform other types of investment in the
long term but produce relatively low dividend yields for an income
beneficiary, and still achieve impartial treatment of income and
remainder beneficiaries. The trustee may accomplish this either
by adjusting as between principal and income (see 14 Warren's
Heaton, Surrogates' Courts, at App. 5-25–5-27) or by electing
unitrust status with the result that the income increases in
proportion to the value of the principal (id. at App. 5-14). If a
trust's assets are primarily interests in nonappreciating
investments producing high yields for income beneficiaries, a
unitrust election may initially result in a substantial decrease in
the distribution to any income beneficiary, at least until the
portfolio is diversified. This case presents such a scenario.
III.
Davis argues that the trustees are barred as a matter of law
from electing unitrust status because they are themselves
remainder beneficiaries, and that, in any case, they may not elect
unitrust status retroactively to January 1, 2002. The Appellate
Division held that the legislation does not impede unitrust election

851
by an interested trustee, that such an election is not inconsistent,
per se, with common-law limitations on the conduct of fiduciaries
and that the statute permits trustees to select retroactive
application. We agree.
EPTL 11-2.3(b)(5), the 2001 statute that gives trustees the
power to adjust between principal and income, expressly prohibits
a trustee from exercising this power if “the trustee is a current
beneficiary or a presumptive remainderman of the trust” (EPTL
11-2.3[b][5] [C][vii]) or if “the adjustment would benefit the trustee
directly or indirectly” (EPTL 11-2.3[b] [5][C] [viii]). Tellingly, the
Legislature included no such prohibition in the simultaneously
enacted optional unitrust provision, EPTL 11-2.4. Moreover, in
giving a list of factors to be considered by the courts in
determining whether unitrust treatment should apply to a trust, the
Legislature mentioned no absolute prohibitions (see EPTL 11-
2.4[e][5][A]), and created a presumption in favor of unitrust
application (EPTL 11-2.4[e][5][B]). We conclude that the
Legislature did not mean to prohibit trustees who have a
beneficial interest from electing unitrust treatment.
It is certainly true that the common law in New York contains an
absolute prohibition against self-dealing, in that “a fiduciary owes
a duty of undivided and undiluted loyalty to those whose interests
the fiduciary is to protect” (Birnbaum v. Birnbaum, 73 N.Y.2d 461,
466, 541 N.Y.S.2d 746, 539 N.E.2d 574 [1989]). “The trustee is
under a duty to the beneficiary to administer the trust solely in the
interest of the beneficiary” (Restatement [Second] of Trusts
§170[1]). In this case, however, the trustees owe fiduciary
obligations not only to the trust's income beneficiary, Bertha
Heller, but also to the other remainder beneficiaries, Suzanne
Heller and Faith Willinger. That these beneficiaries' interests
happen to align with the trustees' does not relieve the trustees of
their duties to them. Here, we cannot conclude that the trustees
are prohibited from electing unitrust treatment as a matter of
common-law principle.
That the trustees are remainder beneficiaries does not, by
itself, invalidate a unitrust election. Nevertheless, a unitrust
election from which a trustee benefits will be scrutinized by the
courts with special care. In determining whether application of the
optional unitrust provision is appropriate, it remains for the

852
Surrogate to review the process and assure the fairness of the
trustees' election, by applying relevant factors including those
enumerated in EPTL 11-2.4(e)(5)(A). Application of these factors
here presents questions of fact precluding summary judgment.
...
Accordingly, the order of the Appellate Division should be
affirmed....
—————

Note
California: Like New York, California has adopted the Uniform
Principal and Income Act and the optional provisions permitting
conversion of a traditional trust into a unitrust. California Probate
Code Section 16336 sets forth the conditions under which a
trustee of a traditional trust is authorized (and prohibited) to make
adjustments between principal and income to compensate for
investments made under the California prudent investor rule.
California Probate Code Section 16336.4 provides that unless
expressly prohibited by the terms of the trust, the trustee may
convert the trust into a unitrust. The trustee must give notice to
the trust beneficiaries, and where one or more objects, can
convert to a unitrust only with court approval. Following
conversion to a unitrust under Section 16336.4, the income
beneficiaries are entitled, annually, to four percent of the trust
assets' net fair market value. Under Section 16336.5, the annual
payout percentage can be adjusted to permit more flexibility, but it
must be at least three percent and cannot be more than five
percent. Moreover, the conversion can be ordered by the court in
response to a beneficiary's request. Section 16336.6 authorizes
‘reconversion’ of a unitrust back to a traditional trust or to change
the annual payout.
California Probate Code Section 16336.7 expressly provides
that California's unitrust provisions impose no duty on a trustee to
convert or reconvert a trust or even to consider converting or
reconverting a trust.

Problem

853
 Look back at Problem 2 above (preceding the Heller case). If
that fact pattern arose today, do you think E.W. Bank would have
petitioned to convert the trust to a unitrust?

C. Duty to Act Prudently

Historically, the trustee's principal job was to preserve the trust
property. Under the modern trend, the trustee's principal job is to
make the trust property productive. This shift from preserving the
trust property to making the trust property productive corresponds
with the shift from the traditional trust (which held real property) to
the modern trust (which holds a fund of intangible wealth). The
shift has also put increasing importance on the trustee's duty to
act prudently, particularly as it applies to investing the trust
property (i.e., making it productive). The duty to act prudently,
however, is not limited to the trustee's investment role. Like the
duty of loyalty, it applies to virtually all of the trustee's functions.

1. Articulating the Duty

While virtually every jurisdiction agrees that a trustee has a
duty to act prudently in managing the trust, there are some subtle
but important distinctions in how the duty is worded. Some states,
and the RESTATEMENT (SECOND) OF TRUSTS, say that a trustee has
the duty to act as “a man of ordinary prudence ... dealing with his
own property” (emphasis added). Other states say that a trustee
has a duty to act as “a man of ordinary prudence ... dealing with
the property of another” (emphasis added). The Uniform Trust
Code and the RESTATEMENT (THIRD) OF TRUSTS deftly avoid the
issue by simply not addressing it directly: “A trustee shall
administer the trust as a prudent person would, by considering
the purposes, terms, distributional requirements, and other
circumstances of the trust. In satisfying this standard, the trustee
shall exercise reasonable care, skill, and caution.” UTC §804; see
also RESTATEMENT (THIRD) OF TRUSTS §77.
California essentially follows this approach, but expressly notes
that the trustee's general duty to act prudently is modified by the
more specific powers and duties under California's prudent
investor rule:

854
CPC §16040. California's prudent investor rule
(a) The trustee shall administer the trust with reasonable
care, skill, and caution under the circumstances then
prevailing that a prudent person acting in a like capacity
would use in the conduct of an enterprise of like character
and with like aims to accomplish the purposes of the trust
as determined from the trust instrument.
(b) The settlor may expand or restrict the standard provided
in subdivision (a) by express provisions in the trust
instrument....
(c) This section does not apply to investment and
management functions governed by the Uniform Prudent
Investor Act, Article 2.5 (commencing with Section 16045).

2. Historical Evolution of the Investment Duties

While the trustee's duty to act prudently applies to virtually
every function he or she performs, there is little doubt that, as
applied to the modern trust, the duty to act prudently is most
applicable to the trustee's investment function: the power and
duty to invest the trust property to make it productive. At early
common law, the function of the trust was to preserve the trust
property. No more under the modern trend—that is not good
enough. The function of the modern trust is to actively manage a
fund of intangible wealth. This evolution is most evident with
respect to a trustee's ability and duty to deal with the trust
property.
The issue of investing trust property when the trust property is
intangible wealth first arose in England, the country typically
credited with creating trusts.4 Not surprisingly, the early English
response was to emphasize the importance of protecting and
preserving the trust principal. So concerned were the English with
protecting the trust property that only government securities and
bank annuities were acceptable investments. Relatively early on
the American courts rejected that approach as too conservative,
but they split over the proper response to it. Under what became
known as the Massachusetts rule, in Harvard Coll. v. Amory, 26

855
Mass. 446, 461 (1830), the Massachusetts Supreme Court
stated:
All that can be required of a trustee to invest, is, that he
shall conduct himself faithfully and exercise a sound
discretion. He is to observe how men of prudence,
discretion and intelligence manage their own affairs, not in
regard to speculation, but in regard to the permanent
disposition of their funds, considering the probable income,
as well as the probable safety of the capital to be invested.
On the other hand, the New York courts found this approach too
risky for their liking. The New York Court of Appeals ruled that:
all industrial stocks and bonds were imprudent, speculative
investments for fiduciaries. Unless specifically authorized
by the settlor, the trustee who invested in such securities
was forced to assume the risk of any depreciation from
whatever cause. General discretionary powers in the trust
instrument did not authorize such so-called speculation
with the trust corpus. The “legal list” in states adopting this
rationale was thereby virtually confined to mortgages,
corporate bonds secured by mortgage and government
securities. In the absence of specific statutory or settlor
authorization, many jurisdictions regularly surcharge
fiduciaries for depletion resulting from investment in
unsecured corporate issues.
Legal Lists in Trust Investments, 49 YALE L. J. 891, 893 (1940).
The legal list movement went on to split into two approaches.
Mandatory lists absolutely prohibited any investment that was not
on the approved list, absent express authorization by the settlor
or a court. Permissive lists, on the other hand, listed types of
investments that were presumed “safe” investments, thereby
creating something of a safe harbor for trustees who invested in
securities on the list. Such investment decisions were
presumptively made prudently and in good faith.

3. The Prudent Man Approach

Over time, the Massachusetts rule prevailed over the legal list
approaches and was adopted as the basis of the RESTATEMENT

856
(SECOND) OF TRUSTS approach. The RESTATEMENT approach
authorized trustees to “to make such investments and only such
investments as a prudent man would make of his own property
having in view the preservation of the estate and the amount and
regularity of the income to be derived.” RESTATEMENT (SECOND) OF
TRUSTS §227. Slowly but surely, the Massachusetts rule evolved
into the prudent man rule, which was adopted in one form or
another by nearly all jurisdictions by the latter part of the twentieth
century.
Despite the rule's widespread adoption, courts were criticized
for construing and applying the prudent man rule in a needlessly
restrictive and conservative manner. Under the prudent man
approach, each trust investment was viewed and analyzed in
isolation: was that particular investment decision defensible?
Viewed with 20/20 hindsight, it often was difficult to defend
investment decisions that might have pushed the envelope.
Moreover, because each investment decision was viewed in
isolation, gains associated with other trust investments could not
be used to offset any trust losses.
In addition, the courts branded certain categories of
investments as “speculative,” thereby creating a presumption that
any investment in such categories would be imprudent.
Accordingly, an imprudent investment resulting in a loss would
subject the trustee to a surcharge. Although such “judicial” legal
lists were more limited than their statutory predecessors, they
nevertheless restricted a trustee's investment options.
Furthermore, the traditional common law notion that certain trust
powers could not be delegated impeded sound trust investments
by limiting a trustee's ability to seek professional input.

4. The Prudent Investor Approach

The drafters of the prudent investor doctrine assert that they
were simply restoring the spirit and scope of the approach first
articulated in Harvard College v. Amory while also modernizing it
to reflect and incorporate modern investment theory and
practices. In addition, the Prudent Investor Act is based on an
approach first adopted by the RESTATEMENT (THIRD) OF TRUSTS.

857
See UNIFORM PRUDENT INVESTOR ACT prefatory note (1994), 7B
U.L.A. 3 (2006).
First, the prudent investor approach embraces the portfolio
theory of trust investing. No individual investment decision should
be scrutinized in isolation; rather, courts should focus on whether
the trust's investments are, on the whole, properly balanced. See
UNIFORM PRUDENT INVESTOR ACT §2(b). Consistent with the
portfolio approach is the belief that there is no such thing as an
inappropriately speculative investment. So long as high-risk
investments are offset by low-risk investments such that the
overall trust investment portfolio has an acceptable level of risk in
light of the trust purposes and the circumstances surrounding the
trust, in theory all possible investments are viable options (but the
investments must also be suitable to the trust; i.e., the trustee
should also take into consideration the settlor's objectives in
creating the trust and the beneficiaries' needs and interests).
Second, an inherent byproduct of the portfolio approach to a
trust's investments is the importance of diversification. Trust
investment diversification ensures proper risk management,
which in turn creates a presumption that a trustee's investment
decisions are prudent. Diversification goes hand in hand with the
modern “risk and return” approach to investment and wealth
management. Prior to the prudent investor rule, there was no
independent duty to diversify the trust's investments; each
investment decision was viewed in isolation. The Prudent Investor
Act, however, expressly provides that the trustee has a duty to
diversify unless it would be prudent not to do so. See UNIFORM
PRUDENT INVESTOR ACT §3 (common examples of where it might
be prudent not to diversify include where it would have significant
adverse tax consequences, or in the case of a closely held family
business or a family farm). Prudent investment risk management
inherently includes diversification.
Third, the prudent investor approach acknowledges that
managing a fund of intangible wealth is a very complicated task
that increasingly calls for a high degree of skill, care, and
expertise. Accordingly, the prudent investor approach advocates
that a trustee should delegate the investment process to trained
wealth management experts. Not only does the prudent investor
approach grant the trustee the power to delegate the investment

858
process to a third party, it arguably creates a duty for some
trustees to delegate the investment process to a third party—just
as a prudent investor who was not well-trained in the necessary
market skills would do. See UNIFORM PRUDENT INVESTOR ACT §9.
But delegating the investment process does not mean a trustee
can abdicate its investment duties. In delegating the investment
decisions, the trustee still must act prudently:
(a) ... The trustee shall exercise reasonable care, skill, and
caution in:
(1) selecting an agent;
(2) establishing the scope and terms of the delegation,
consistent with the purposes and terms of the trust; and
(3) periodically reviewing the agent's actions in order
to monitor the agent's performance and compliance with
the terms of the delegation.
See UNIFORM PRUDENT INVESTOR ACT §9(a). A trustee who meets
the conditions set forth above with respect to delegating the
trust's investment decisions will not be liable for any actions
undertaken by—or investment losses incurred by—the agent. See
UNIFORM PRUDENT INVESTOR ACT §9(c).
Finally, the prudent investor approach acknowledges that it has
the potential to be a complicated and potentially expensive
approach. Trustees, however, are not free to simply turn the task
of the trust's investments over to well-paid wealth management
experts and then wholly abandon their responsibilities. In fact, the
prudent investor approach expressly creates a duty for trustees to
avoid unnecessary fees, transaction costs, and other related
expenses. See UNIFORM PRUDENT INVESTOR ACT §7. What
constitutes an “unnecessary” fee, transaction cost, or expense will
depend on the realistic needs and investment goals of each
particular trust, taking into consideration the purpose of the trust
and the circumstances surrounding it.

Estate of Collins
72 Cal. App. 3d 663 (1977)
KAUS, Presiding Justice.

859
 Objectors (plaintiffs) are beneficiaries under a testamentary
trust established in the will of Ralph Collins, deceased. Carl Lamb
and C. E. Millikan (defendants) were, respectively, Collins'
business partner and lawyer. They were named in Collins' will as
trustees. In 1973 defendants filed a petition for an order
approving and settling the first and final account and discharging
the trustees. Plaintiffs objected on grounds that defendants had
improperly invested $50,000 and requested that defendants be
surcharged. After a hearing, the trial court ruled in favor of
defendants, and approved the account, terminated the trust, and
discharged the trustees. Plaintiff beneficiaries have appealed.
FACTS
The primary beneficiaries under the testamentary trust were
Collins' wife and children; his mother and father were also named
as beneficiaries. General support provisions were included; the
will also specifically provided that the trustees pay his daughter
$4,000 a year for five years for her undergraduate and graduate
education.
Paragraph (d) of the declaration of trust recited the powers of
the trustees in the usual, inclusive fashion. Subparagraph (3)
authorized and trustees to purchase “every kind of property, real,
personal or mixed, and every kind of investment, specifically
including, but not by way of limitation, corporate obligations of
every kind, and stocks, preferred or common, irrespective of
whether said investments are in accordance with the laws then
enforced in the State of California pertaining to the investment of
trust funds by corporate trustees.”
Subparagraph (3) also provided: “Unless specifically limited, all
discretions conferred upon the Trustee shall be absolute, and
their exercise conclusive on all persons interest(ed) in this trust.
The enumeration of certain powers of the Trustee shall not limit
its general powers, the Trustee, subject always to the discharge
of its fiduciary obligations, being vested with and having all the
rights, powers and privileges which an absolute owner of the
same property would have.”
Collins died in 1963 and his will was admitted to probate. In
June 1965, the court ordered the estate to be distributed. After
various other payments and distributions, defendant trustees

860
received about $80,000 as the trust principal. After other
distributions, such as the annual $4,000 payment for the
education of Collins' daughter, the trustees had about $50,000
available for investment.
Defendant Millikan's clients included two real property
developers, Downing and Ward. In March 1965, Millikan filed an
action on behalf of Downing and Ward against a lender who
refused to honor a commitment to carry certain construction
loans. In June 1965, defendants learned that Downing and Ward
wanted to borrow $50,000. Millikan knew that the builders wanted
the loan because of their difficulties with the lender who had
withdrawn its loan commitment.
The loan would be secured by a second trust deed to 9.38
acres of unimproved real property in San Bernardino County near
Upland. This property was subject to a $90,000 first trust deed;
the note which secured the first trust deed was payable in
quarterly installments of interest only, and due in full in three
years, that is, in July 1968. The $50,000 loan to be made by
defendants would be payable in monthly installments of interest
only, at ten percent interest with the full amount due in 30 months,
that is, in January 1968.
Defendants knew that the property had been sold two years
earlier in 1963 for $107,000. Defendants checked with two real
estate brokers in the area, one of whom said that property in that
area was selling for $18,000 to $20,000 an acre. They did not
have the property appraised, they did not check with the county
clerk or recorder in either Los Angeles or San Bernardino County
to determine whether there were foreclosures or lawsuits pending
against the construction company. In fact, when defendants made
the loan in July 1965, there were six notices of default and three
lawsuits pending against Downing and Ward.
Defendants obtained and reviewed an unaudited company
financial statement. This statement indicated that the Downing
and Ward Company had a net worth in excess of $2,000,000.
Downing and Ward told defendants that they were not in default
on any of their loans, that they were not defendants in any
pending litigation, and that there had never been any liens filed
on any of their projects. Defendants phoned the bank with whom

861
Downing and Ward had a line of credit and learned that the bank
had a satisfactory relationship with the builders.
Based on this information, on July 23, 1965, defendants lent
Downing and Ward $50,000 on the terms described above. In
addition to the second trust deed, Downing and Ward pledged 20
percent of the stock in their company as security. However,
defendants neither obtained possession of the stock, placed it in
escrow, nor placed a legend on the stock certificates. Defendants
also obtained the personal guarantees of Downing and Ward and
their wives. However, defendants did not obtain financial
statements from the guarantors.
When the loan was made in July 1965, construction in the
Upland area was, as the trial court said, ‘enjoying boom times,
although the bubble was to burst just a few months later.’ From
July 1965 through September 1966, the builders made the
monthly interest payments required by the note. In October 1966,
Downing & Ward Construction Corporation was placed in
involuntary bankruptcy and thereafter Mr. and Mrs. Ward and Mr.
and Mrs. Downing declared personal bankruptcies. Defendants
foreclosed their second trust deed in June 1967, and became the
owners of the unimproved real property. They spent $10,000 in an
unsuccessful effort to salvage the investment by forestalling
foreclosure by the holder of the first trust deed. In September
1968, the holder of the first trust deed did foreclose. This
extinguished the trustees' interest in the property and the entire
investment. In short, about $60,000 of the trust fund was lost.
The trial court made findings of fact and drew conclusions of
law. As relevant, the court found that defendant trustees
“exercised the judgment and care, under the circumstances then
prevailing, which men of prudence, discretion and intelligence
exercised in the management of their own affairs, not in regard to
speculation, but in regard to the disposition of their funds,
considering the probable income, as well as the probable safety
of their capital.” In making the loan, “the cotrustees used
reasonable care, diligence and skill. The cotrustees did not act
arbitrarily or in bad faith.”
DISCUSSION

862
 The trial court's finding that defendants exercised the judgment
and care “which men of prudence, discretion and intelligence
exercised in the management of their own affairs,” reflects the
standard imposed upon trustees by Civil Code section 2261. (See
also, Rest.2d Trusts, §227 (‘Restatement’).)
Plaintiffs contend, and we agree, that contrary to the trial
court's findings and conclusions, defendants failed to follow the
“prudent investor” standard, first, by investing two-thirds of the
trust principal in a single investment, second, by investing in real
property secured only by a second deed of trust, and third, by
making that investment without adequate investigation of either
the borrowers or the collateral.
Although California does not limit the trustee's authority to a list
of authorized investments, relying instead on the prudent investor
rule (see 7 Witkin, Summary of Cal. Law (8th ed.) Trusts, §63, p.
5424), nevertheless, the prudent investor rule encompasses
certain guidelines applicable to this case.
First, “the trustee is under a duty to the beneficiary to distribute
the risk of loss by reasonable diversification of investments,
unless under the circumstances it is prudent not to do so.” (Rest.,
§228; see also, Estate of Beach (1975) 15 Cal.3d 623, 634, 125
Cal.Rptr. 570, 542 P.2d 994, fn. 9; Witkin, supra, at p. 5425, see
generally, Uniform Management of Institutional Funds Act,
Civ.Code, §§2290.1–2290.12, §2290.6.)
Second, ordinarily, “second or other junior mortgages are not
proper trust investments,” unless taking a second mortgage is a
reasonable method of settling a claim or making possible the sale
of property. (Rest., §227, p. 533.) Stated more emphatically:
“While loans secured by second mortgages on land are
sometimes allowed, they are almost always disapproved by
courts of equity. The trustee should not place the trust funds in a
position where they may be endangered by the foreclosure of a
prior lien.... In rare cases equity will sanction an investment
secured by a second mortgage, but only when the security is
adequate and unusual circumstances justify the trustee in taking
this form of investment.” (Bogart, Trusts & Trustees (2d ed.) §675,
p. 274.)

863
 Third, in “buying a mortgage for trust investment, the trustee
should give careful attention to the valuation of the property, in
order to make certain that his margin of security is adequate. He
must use every reasonable endeavor to provide protection which
will cover the risks of depreciation in the property and changes in
price levels. And he must investigate the status of the property
and of the mortgage, as well as the financial situation of the
mortgagor.” (Bogart, supra, §674, at p. 267.) Similarly, the
Restatement rule is that “the trustee cannot properly lend on a
mortgage upon real property more than a reasonable proportion
of the value of the mortgage property.” (Sec. 229.)
We think it apparent that defendants violated every applicable
rule. First, they failed totally to diversify the investments in this
relatively small trust fund. Second, defendants invested in a junior
mortgage on unimproved real property, and left an inadequate
margin of security. As noted, the land had most recently sold for
$107,000, and was subject to a first trust deed of $90,000. Thus,
unless the land was worth more than $140,000, there was no
margin of security at all. Defendants did not have the land
appraised; the only information they had was the opinion of a real
estate broker that property in the area—not that particular parcel
—was going for $18,000 to $20,000 an acre. Thus, any
assumption that the property was worth about $185,000—and
therefore the $140,000 in loans were well-secured—would have
been little more than a guess.
Third, the backup security obtained by defendants was no
security at all. The builders pledge 20 percent of their stock, but
defendants never obtained possession of the stock, placed it in
escrow or even had it legended. They accepted the personal
guarantees of the builders and their wives without investigating
the financial status of these persons. They accepted at face value
the claimed $2,000,000 value of the company shown in an
unaudited statement. Defendant Millikan apparently ignored the
fact that one lender had, for whatever reasons, reneged on a loan
commitment to the builders.
Defendants contend that the evidence sustains the trial court's
findings that they exercised the judgment and care under the
circumstances then prevailing expected of men of prudence. They
rely on the rule that the determination whether an investment was

864
proper must be made in light of the circumstances existing at the
time of the investment. (E.g., Witkin, supra, §63, p. 5425.) That
rule does not help defendants. Nothing that happened after the
loan was made can change the fact that defendants invested two-
thirds of the principal of the trust in a single second deed of trust
on unappraised property, with no knowledge of the borrowers'
true financial status, and without any other security.
We recognize, as did the trial court, that the loan was made in
1965, and defendants, some ten years later, could not be
expected to recall the specifics of their investigation. But that is
the point of this case turned inside out: Defendants were required
to rely on faded memories because their investigation was limited
to casual conversations. No documentation existed, not because
it was lost, but because it was never obtained. Further, it is
defendants' own fault that they filed their ‘first and final account’
more than eight years after assuming their duties.
Defendants seek to place themselves in the position of the
trustee in Day v. First Trust & Sav. Bank (1941) 47 Cal.App.2d
470, 118 P.2d 51, who made investments—most of them in the
1920's—and ran into certain difficulties during the years from
1929 until 1933. Leaving aside the difference between the
depression years, covered in Day, and the recession in the
construction business in the late 1960's, an examination of some
of the investments by the trustee in Day illustrates the difference
between a prudent man and what defendants did here: A
$300,000 mortgage on property appraised at $700,000 and
valued in February 1933 at $555,000; a $225,000 mortgage on
property appraised at $725,000; a $30,000 mortgage on property
appraised at $112,000; a $35,000 mortgage on property
appraised at $83,000; a $15,000 mortgage on property appraised
at $37,000. (Id. at pp. 473–475, 118 P.2d 51.) Here defendants
must be surcharged, not because they lacked prescience of what
would happen, but because they both lacked and ignored
information about what was happening at the time.
Plainly, defendants' conduct did not meet the prudent-investor
standard. They claim, however, that the trust instrument conferred
on them an “absolute discretion.” Therefore, they argue, their sole
obligation was not to act arbitrarily and to use their best judgment.

865
(Coberly v. Superior Court (1965) 231 Cal.App.2d 685, 689, 42
Cal.Rptr. 64.)
We leave aside that even a trustee with “absolute discretion”
may not “neglect its trust or abdicate its judgment,” (Coberly v.
Superior Court, supra, 231 Cal.App.2d at p. 689, 42 Cal.Rptr. at
p. 67) or show a “reckless indifference” to the interests of the
beneficiary. (Rest. §222.) The record before us contains no
evidence that defendants satisfied even the lesser standard of
care for which they contend.
More fundamentally we do not agree with defendants' premise.
While the declaration of trust may possibly enlarge the prudent-
investor standard as far as the Type of investment is concerned, it
cannot be construed as permitting deviations from that standard
in investigating the soundness of a specific investment. This
distinction is well established. Comment v. to section 227 of the
Restatement reads, in part, as follows:
‘v. An authorization by the terms of the trust to invest
in a particular Type of security does not mean that any
investment in securities of that type is proper. The trustee
must use care and skill and caution in making the
selection. Thus, if the trustee is authorized by the terms
of the trust to invest in railroad bonds, he is guilty of a
breach of trust if he invests in bonds of a railroad
company in which a prudent man would not invest
because of the financial condition of the company.’
(Italics added.)
The provisions on which defendants rely are subparagraphs (3)
and (11) to paragraph (d), quoted earlier. Neither supports their
position. Subparagraph (3) merely tracks section 2261 of the Civil
Code and adds that the investments listed therein are permissible
“irrespective of whether said investments are in accordance with
the laws then in force in the State of California pertaining to the
investment of trust funds by corporate trustees.” This adds
nothing. Neither Civil Code section 2261 nor any other authority
which we can locate authorizes different types of investments for
“corporate trustees” as distinguished from amateurs. The
difference is, rather, that the corporate trustee is held to a greater
standard of care based on its presumed expertise. (Estate of

866
Beach, supra, 15 Cal.3d 623, 635, 125 Cal.Rptr. 570, 542 P.2d
994; Coberly v. Superior Court, supra, 231 Cal.App.2d 685, 689,
42 Cal.Rptr. 64; Bogert, supra, §541, p. 453.)
In any event, even if the trust instrument permitted a type of
investment generally frowned on under the prudent-investor rule,
it did not authorize the trustees to make it blindly. Defendants
might have a point, had they purchased a well-secured second
trust deed after careful investigation. Clearly, however, the nature
of their investment is the least of their problems.
Alternatively, defendants rely on the language in subparagraph
(11) that “all discretions conferred upon the Trustee shall be
absolute, ...” This reliance, too, is misplaced.
First, viewed as an exculpatory clause, subparagraph (11) is
subject to the rule of strict construction. (Rest. §222, comment a,
p. 517; Scott on Trusts, Supra, §222.2 and cases cited.)
Second, the “absolute discretion” is “specifically limited” by the
requirement that the trustee is “subject always to the discharge of
its fiduciary obligations, ...”
Third, in context subparagraph (11) refers only to “discretions
conferred on the Trustee” in paragraph (d) of the trust which, as
noted, deals exclusively with powers, as distinguished from the
degree of care with which they are to be exercised. Nor does any
other part of the declaration of trust mention any relevant
discretion which subparagraph (11) would make “absolute.”
Nowhere did the trustor say anything about a discretion not to
diversify, a discretion to invest in a junior encumbrance without
ability to protect against the foreclosure of a senior lien, a
discretion not to make a business-like investigation of the credit
and net worth of the borrower, or a discretion not to insist on an
appraisal of the security given by the borrower.
The orders are reversed with directions to determine the
damages to which plaintiffs are entitled.
—————

Notes

867
 1. Rule of law versus default duty: The Uniform Prudent
Investor Act expressly provides that the duties and standards
created under the Act are default standards and duties that a
settlor can opt out of if he or she so wishes: “The prudent investor
rule, a default rule, may be expanded, restricted, eliminated, or
otherwise altered by the provisions of a trust. A trustee is not
liable to a beneficiary to the extent that the trustee acted in
reasonable reliance on the provisions of the trust.” UNIFORM
PRUDENT INVESTOR ACT §1(b). The issue then becomes how
specific the express terms of the trust must be to constitute
sufficient evidence of the settlor's intent to opt out of the Prudent
Investor Act.
While in theory the Prudent Investor Act provides that it is
default law that settlors can opt out of, in practice the courts have
been consistently skeptical of settlors' attempts at opting out of
the duties imposed by the Act. The courts have rather
consistently held that generic trust language granting a trustee
absolute powers and/or absolute discretion is insufficient
evidence of the settlor's intent to opt out of the particular default
duties imposed by the Prudent Investor Act. Even where a trust
arguably contains specific language authorizing retention of
specific inception assets, the courts tend to construe the
language narrowly as merely authorizing the trustee to invest in
the asset, not as opting out of the applicable duty to diversify. See
Wood v. U.S. Bank, N.A., 828 N.E.2d 1072 (Ohio Ct. App. 2005).
Any attempt at opting out should be written very precisely, with
detailed reference to the particular duty or duties that the settlor
wishes to override, and even then the trustee should proceed
carefully. Scholars are increasingly asking if the courts have not
become so convinced of the wisdom of the modern portfolio
theory and the duty to diversity that de facto the default duties
have become mandatory (i.e., a rule of law as opposed to a
default rule). The bottom line is that most courts view any
attempts at opting out skeptically—and thus so should any trustee
who thinks he or she is authorized to act inconsistently with the
duties set forth in the Prudent Investor Act.
Finally, even to the extent that a settlor might include well-
drafted and precise language in the trust opting out of the duty to
diversify, there is the theoretical question of whether such intent is

868
compatible with the essence of the modern trust. Just as with a
beneficiary's discretionary interest in a trust, granting a trustee
“sole and absolute” discretion is unenforceable because it is
inherently inconsistent with the trustee's fiduciary duties, there
appears to be growing support for a similar approach to trust
terms that purport to grant a trustee “absolute” or “complete”
discretion with respect to trust investments. As the court said in
Estate of Collins: “the ‘absolute discretion’ is ‘specifically limited’
by the requirement that the trustee is ‘subject always to the
discharge of its fiduciary obligations,....” Even assuming,
arguendo, that a settlor expressly authorizes retention of
inception assets that otherwise would violate the trustee's duty to
diversify, while the trustee might be relieved of his or her
immediate duty to diversify, just as a trustee who delegates the
investment decisions still has an ongoing duty to monitor the
agent's actions, a trustee who is relieved of the duty to
immediately diversify still has an ongoing duty to monitor the
situation. Any meaningful change in the property, the market,
and/or the beneficiaries might re-institute the duty under the
trustee's more general and ongoing fiduciary obligations to do
everything in the beneficiaries' best interests.
2. Standard of care and expertise: The general rule is that in
administering a trust, a trustee is to “exercise such care and skill
as a man of ordinary prudence would exercise in dealing with his
own property....” RESTATEMENT (SECOND) OF TRUSTS §174.
Historically, an issue that some courts have struggled with is
whether all trustees are subject to the same standard of care or
whether trustees who hold themselves out as having special skills
or expertise (i.e., a professional trustee) should be held to a
higher standard of care (i.e., to the conduct of a reasonably
prudent expert/professional trustee)? The RESTATEMENT (SECOND)
OF TRUSTS expressly addressed the issue:

The trustee is under a duty to the beneficiary in

administering the trust to exercise such care and skill as a
man of ordinary prudence would exercise in dealing with
his own property; and if the trustee has or procures his
appointment as trustee by representing that he has greater
skill than that of a man of ordinary prudence, he is under a
duty to exercise such skill.

869
RESTATEMENT (SECOND) OF TRUSTS §174. The modern trend is to
hold a skilled/professional trustee to the higher standard, often
even if the trustee did not “procure his appointment ... by
representing that he has greater skill than that of a man of
ordinary prudence.”
California Probate Code Section 16014 expressly addresses
the issue of the standard of care to which a skilled/professional
trustee is held:
CPC §16014. Trustee's skills
(a) The trustee has a duty to apply the full extent of the
trustee's skills.
(b) If the settlor, in selecting the trustee, has relied on the
trustee's representation of having special skills, the trustee
is held to the standard of the skills represented.
Has California adopted the RESTATEMENT (SECOND) approach or
the modern trend approach?
3. Duty to delegate? An interesting question that arises under
the Uniform Prudent Investor Act is whether a trustee of ordinary
skill may have a duty to delegate the investment decisions to a
person of greater skill. The language in the Act is more
permissive than mandatory: “A trustee may delegate investment
and management functions that a prudent trustee of comparable
skills could properly delegate under the circumstances.” UNIFORM
PRUDENT INVESTOR ACT §9(a) (emphasis added). Nevertheless,
permitting a trustee to delegate investment decisions is such a
radical departure from the traditional non-delegation approach
that one cannot help but wonder if unsophisticated trustees do
not have something of a de facto duty to delegate—at least if the
trust assets warrant it (due to their size and/or complexity). Is that
not what “a prudent trustee of comparable skills ... [would do]
under the circumstances?” Id. At a minimum, an unsophisticated
trustee should think long and hard about not delegating the
investment decisions under the prudent investor approach.

Problems
1. Settlor created a revocable trust and conveyed approximately
1,541 shares of Enron Corporation stock to the trust.

870
 Thereafter, in 1991, she delivered a letter to the trustee (Bank
of America), that directed it to retain the Enron stock. The letter
went on to state: “I hereby agree to exonerate, indemnify and
hold the Bank harmless from any and all loss, damage and
expense sustained or incurred by the Bank for continuing to
retain these securities as assets of this account. I also relieve
the Bank from any responsibility for analyzing or monitoring
these securities in any way.”
From 1991 to 2000 the number of Enron shares in the trust
increased from 1,541 to 9,500 (due to stock splits), and the
value of the shares relative to the trust's overall value
increased to $789,687.50 (77% of the total value of the trust
assets). But what goes up must come down. The value of
Enron stock proved the wisdom inherent in that old adage.
“Because of declines in Enron stock value, by March 30, 2001,
the shares amounted to approximately 66% of the total market
value of the trust; by June 29, 2001, approximately 64%; by
September 28, 2001, approximately 50%; and by December
31, 2001, approximately 2%. By the latter date, the trust
contained 8,000 shares of Enron stock valued at only $4,800.”
In 2003, Settlor sued Bank of America for breaching its duties
to her under the prudent investor rule.
If Settlor had not written the letter directing Bank of America to
retain the Enron stock, would the trustee's conduct have
breached the prudent investor rule? Did Settlor's letter
completely relieve Bank of America of its duties under the
Prudent Investor Act? See McGinley v. Bank of Am., N.A., 109
P.3d 1146 (Kan. 2005).
2. Assuming a guardian managing a ward's estate has the same
duty to comply with the prudent investor rule as a trustee
managing trust property, how would you analyze the following
fact pattern?
The Liebermans were involved in a serious car accident. The
father was killed, and Joseph and Megan, both minors,
sustained severe and permanent injuries. Megan received
more than $13 million in damages, Joseph $2.5 million. They
were also both awarded additional monthly payments to start
when they reached the age of majority.

871
 On November 1, 2002, Northern Trust Co., as guardian for the
two children, received $15 million. One year later, Northern
Trust's first accounting showed that approximately half of the
children's funds remained in the Trust's short-term investment
account where the money had generated a one percent return
after taxes and guardian fees.
The Liebermans' co-guardian sued Northern Trust for breach
of its investment duties. She argued that if Northern Trust had
just invested the funds in the same fixed income investments
that it invested the rest of the funds, it would have generated a
three percent return. If Northern Trust had invested the money
in a simple Dow Jones Industrial Average Mutual Fund, the
return would have been more than 18 percent over the same
period.
Has Northern Trust violated its duties under the prudent
investor rule? Is it relevant that Northern Trust held itself out as
having particular experience and expertise with the investment
and management of funds for guardianship estates? Is it
relevant that the money-market fund in which Northern Trust
held the funds in question is a statutorily permitted
investment? See In re Estate of Lieberman, 909 N.E.2d 915
(Ill. App. Ct. 2009).
3. Anthony and Lottie Guest executed a family trust in 1997. The
trust assets were the family home, a TD Ameritrade brokerage
account, and certain personal property items (coins, jewelry).
The trust was for their benefit until the death of the survivor,
then the property was to be distributed outright 64 percent to
their daughter and 36 percent to their grandson (the grandson
is disabled and suffers from multiple sclerosis). Following the
death of the settlors, the grandson agreed that his mother
should continue to manage his share of the trust, making
monthly distributions to him to cover his living expenses.
About a year after the death of the second settlor to die, the
daughter, acting as successor trustee, sold the family home
and deposited the net proceeds (approximately $600,000) into
the TD account. She then invested approximately 97.5% of the
funds in the TD account the DWS High Income Series mutual
fund (the DWS fund). The DWS fund consisted almost entirely

872
of “junk bonds,” which are noninvestment bonds and have
ratings identifying them as “vulnerable” to default.
The trust provided in pertinent part that “the Trustees are
authorized” to utilize any of the wide variety of traditional
investment vehicles, including bonds, that the Trustees “in their
discretion may select,” and that “the Trustees have full power
to invest and reinvest the trust funds without being restricted to
forms of investment that the Trustees may otherwise be
permitted to make by law.” The daughter asserts that these
provisions gave her “unbridled discretionary power to invest
and distribute the Trust assets as she saw fit[.]”
Has the daughter violated the prudent investor rule? See
Guest v. Frazier, No. B225938, 2011 WL 986200 (Cal. Ct. App.
Mar. 22, 2011).

873
 V. The Ancillary,
Administrative Duties
As noted above, the RESTATEMENT (THIRD) OF TRUSTS divides the
trustee's duties into two categories: the “core duties” of prudence,
loyalty, and impartiality, and then the “ancillary” duties that
naturally flow from and support those core duties. See
RESTATEMENT (THIRD) OF TRUSTS ch. 15, intro. note. The core
duties go to the essence of the trust—the bifurcated nature of the
trust—and to the difficult decisions a trustee must make in holding
and managing the trust property for the trust beneficiaries. On the
other hand, the ancillary duties are more administrative and/or
ministerial in nature. The ancillary duties flow from the trustee's
administrative function as it relates to the bifurcated nature of the
trust: (1) the trust property, and (2) the trust beneficiaries.

A. Related to the Trust Property

The trustee's primary job is to hold and manage the trust
property for the benefit of the beneficiaries. Obviously prudent
administration of the duty to “hold and manage the trust property”
inherently includes a number of administrative duties. The
trustee's ancillary duties include those administrative duties as
they relate to the trust property. All of the duties can be summed
up as follows: the trustee has a general duty to take care of the
trust property. That phrase, however, is too general to be of much
help. The following material will take a quick look at the more
important administrative duties as they relate to the trust property.

1. Duty to Collect Trust Property

At first blush, the trustee's duty to collect the trust property
sounds inconsistent with the requirement that a settlor fund the
trust to create a trust. The funding requirement appears to put the
burden on the settlor to transfer the property to the trust, while the
duty to collect appears to put the burden on the trustee to go get
the trust property. Not too much should be read into the phrasing.

874
If the trust is an inter vivos trust, the settlor should deliver the trust
property to the trustee. If, however, the trust is a testamentary
trust,5 obviously the settlor cannot deliver the property to the
trustee. An agent of some sort (an executor, a personal
representative, a life insurance company, a broker, etc.) must
deliver the property to the trustee. Where the trustee knows or
should know that someone other than the settlor is to deliver the
property to the trustee, consistent with the duty of loyalty to the
beneficiaries (and to a degree, the duty to act prudently), the
trustee has an affirmative duty to take reasonable steps to check
on the agent's conduct to ensure that the trust receives what it is
legally entitled to receive and that the trust receives it in a timely
manner.
Should the duty to collect apply to a successor trustee who is
taking over from a prior trustee—i.e., does a successor trustee
have a duty to collect the trust property from a prior trustee? See
Moeller v. Superior Court, 16 Cal. 4th 1124, 1128, 1138 (1997).

Problems
1. An executor has a similar duty to collect the decedent's probate
property.
Charlotte Carr died testate. At the time of her death, Charlotte
held a note in the amount of $200 executed by her attorney,
who subsequently also served as the attorney for the executor
of her estate. The executor allowed the sum to remain in the
attorney's hand for some 10 years, at which point the attorney
was insolvent and the estate was unable to collect. Is the
executor liable to the estate beneficiaries for failure to collect
the estate's assets?
2. Decedent's will created a testamentary trust. It was funded with
several pieces of property that were currently occupied by
tenants under valid leases. Not long after the trust was funded,
one tenant refused to pay rent for several months, and another
tenant in another building paid only partial rent. The trustee was
worried that because of the vacancy rate in the area, it might be
difficult to find replacement tenants. Accordingly, the trustee
took no action against either tenant. Both properties ultimately
fell into the hands of a receiver. When the receiver threatened

875
 to evict the tenants in question, both tenants resumed full rental
payments. Is the trustee liable for breach of his duty to collect
the trust property? See In re McIntyre, 48 N.Y.S. 785 (1897).

2. Duty to Segregate Trust Property

Once the trust property has been delivered to the trustee, how
should the trustee “hold” the property? Is the trustee free to
commingle it with his or her own property, or should the trustee
keep it separate and distinct from his or her own property?

Matter of Goldstick
581 N.Y.S.2d 165 (1992)
Wallach, Justice.
[The settlor, Martin Tananbaum, a multi-millionaire with
interests in taxicab fleets, horse breeding, and a raceway in
Yonkers, died in 1970. He established several inter vivos trusts
and a testamentary trust for the benefit of his daughters Minnie
Tananbaum (“Tananbaum”) and Barbara DeGeorge
(“DeGeorge”). He appointed David T. Goldstick and Florence
Levine, co-trustees. In 1989, the co-trustees submitted their final
accountings.]
Tananbaum and DeGeorge filed objections to the “accounts,”
and the trial of the issues as they proliferated consumed about
125 days and generated a 13,000 page transcript. At the
conclusion the court imposed surcharges of $8.7 million in favor
of the two objectants against the two trustees, and removed the
latter from office. They appeal....
...
(3) Surcharge on all profits from commingled real estate
investments....
(a) The commingled investment (surcharge of $2.6 million, plus
interest of approximately $1.4 million). [Compared to other of his
investments,] Goldstick met with greater success in the real
estate market. He invested some $181,125 of trust funds in
various real estate partnerships in which he already had a
substantial interest. These enterprises yielded Goldstick, his co-

876
venturer wife and his corporate alter egos a handsome profit of
more than $2½ million. Approximately 14% of the capitalization of
those partnerships came from the Tananbaum and DeGeorge
trust funds. The court concluded that these huge profits were
realized in part from “self-interested dealing” on the part of the
trustees. Even though the trust beneficiaries profited from these
investments to the extent of $158,544.32, the [trial] court,
somewhat exercised over Goldstick's receipt of $2,599,292 in
profits and fees from the same investment, surcharged the
trustees in the full amount of those receipts....
The first duty of a trustee is that of loyalty to the beneficiaries of
his trust (IIA Scott on Trusts, §170), and he may not jeopardize
that duty for his own personal benefit (id., §170.25). The trustee
has a duty to segregate trust property, and should not mingle trust
funds with his own (Restatement (Second) of Trusts §179,
comment b). Commingling trust funds with a trustee's own funds
has been held a breach of trust, although such a rule is more a
matter of policy than one of law (see Matter of Lincoln Rochester
Trust Company, 201 Misc. 1008, 1013, 111 N.Y.S.2d 45). There
are circumstances when commingling of the assets of several
trusts may be advantageous and thus permissible, such as in
consolidating and thus reducing administrative costs. However, in
those situations it is incumbent upon the trustee to earmark the
funds so they can be traced. A trustee is, of course, liable for
dissipating commingled funds through imprudent investment. On
the other hand, he is not subject to a surcharge for a breach of
trust that results in no loss (III Scott on Trusts §205).
If a trustee commits a breach of trust that results in a personal
gain, he is accountable for that gain. A trustee cannot be
permitted to profit through a breach of trust, even though the profit
is not made at the expense of the trust estate. If a trustee makes
a profit from an improper trust investment, the trust beneficiaries
are entitled to that portion of the profit consisting of appreciation
of misappropriated property (Matter of Birnbaum v. Birnbaum, 157
A.D.2d 177, 555 N.Y.S.2d 982). But where a trustee imprudently
mingles his own (and perhaps another trustee's) funds in an
investment that yields a profit, assuming the trust portion of the
investment can be traced, the trustee should not have to disgorge
his own share of those profits. In other words, any surcharge

877
should be based on that portion of the investment identified as
emanating from trust funds, rather than on the entire investment
(Provencher v. Berman, 1st Cir., 699 F.2d 568, 570–571; Bird v.
Stein, 5th Cir., 258 F.2d 168, 178, cert. denied, 359 U.S. 926, 79
S.Ct. 608, 3 L.Ed.2d 628; Restatement of Restitution §210[2], and
comments b, d).
The beneficiaries must, first of all, be able to point to some
injury resulting from the improper diversion or commingling of
trust assets (Rogers v. United States, 9th Cir., 697 F.2d 886). The
challenge is in apportioning the trustee's profits between those
produced by his own legitimate efforts and those resulting from
the use of commingled trust assets; where there has been such a
commingling the trustee normally bears the burden of identifying
which property and profits should be treated as his own (Leigh v.
Engle, 7th Cir., 727 F.2d 113, 138). Rather than basing the
surcharge on a return of the profits related to that portion (14%) of
the investment emanating from the trust, the court, in its sweeping
condemnation, surcharged the trustees for the entire profit of
nearly $2.6 million, even though some of that profit was earned by
an entity with which Goldstick had no connection. There is no
authority for that approach. The surcharge should have been
limited to that portion of the profits traceable to assets invested
from the trust funds.
We therefore vacate this surcharge and, in light of the necessity
for a remand on other matters, also remand this aspect of the
case for what may amount simply to a recomputation of the
appropriate surcharge in accordance with the foregoing, although
the court would be free to permit further proof by the parties in the
exercise of sound discretion.
—————

Notes
1. Traditional approach: The trial court's ruling, depriving the
trustees of all $2.6 million in profits, is more consistent with the
traditional approach to a trustee's breach of the duty to segregate.
The courts were very strict in their interpretation and application
of the duty to segregate, de facto applying strict liability to any
breaches. This approach was primarily intended to deter a trustee

878
who might otherwise be tempted to commingle the trust property
with his or her own property (or the property of another trust). The
public policy concern underlying commingled funds is that if
something happens to some of the property (say some of the
investments the trustee has made do well, but some lost money),
if the trustee had commingled the trust property with his or her
own property, the trustee would have a conflict of interest: the
trustee would want to claim that the investments that did well
were investments of his or her own property, and that the
investments that did poorly were the trust property investments.
Analogizing the situation to a trustee's self-dealing, the traditional
approach de facto applied the “no further inquiry” rule and either
held the trustee strictly liable (in the case of any loss) or held that
the trustee had to be disgorged of any profits realized as a result
of the breach. Such a strict approach was intended to create a
strong incentive for a trustee not to commingle the trust property.
2. Modern trend approach: The appellate court's opinion in
Goldstick is more consistent with the modern trend approach to
what constitutes a breach of the trustee's duty to segregate. The
modern trend takes more of a negligence approach. The trust
beneficiaries must show not only a duty and a breach, they must
also show damages and causation.
In addition, as the court notes, the modern trend is not so sure
the duty to segregate makes economic sense in all cases. For
trustees who hold multiple trust accounts (typically professional
and/or institutional trustees), there are economies of scale to
permitting such trustees to commingle trust accounts, thereby
saving costs of administration for each individual trust. The
modern trend permits trustees to combine trust accounts for
investment purposes so long as there is proper record keeping to
permit each trust's beneficiaries to protect their interest. See
RESTATEMENT (THIRD) OF TRUSTS §84 cmt. c (2007); UNIF. TRUST
CODE §810(d). Reducing costs of administration is consistent with
the trustee's duty to be prudent in administering the trust.
California's Probate Code provides as follows:
CPC §16009. Trustee's duty to separate and identify property
The trustee has a duty to do the following:

879
 (a) To keep the trust property separate from other property
not subject to the trust.
(b) To see that the trust property is designated as property of
the trust.
How would you describe the California approach? Is it more
consistent with the traditional approach or the more modern trend
approach?

3. Duty to Properly Care for the Trust Property

Once the trustee has possession of the trust property, common
sense and the duty to act prudently dictate that the trustee take
proper care of the trust property. What constitutes proper care is
fact sensitive and depends on the type of property in question
(real property versus personal property; tangible property versus
intangible property). Obviously different types of property require
different types of care. Real property needs to be maintained—if
the property starts to deteriorate, the trustee has a duty to make
any necessary repairs. Intangible personal property typically
requires less care, but the trustee still needs to exercise whatever
care is appropriate relative to the asset. Another important
variable is who has possession of the property in question.
Sometimes a trust beneficiary has possession of the property in
question and that, too, can affect what constitutes taking care of
the property.
Because the duty to care for the trust property is more
administrative and ministerial in nature, it is not uncommon for a
trustee to hire one or more agents to perform the care (i.e., a
gardener to cut the grass). Historically, trustees have been
permitted to hire agents to take care of the more administrative
and ministerial functions related to a trust, but even then the
trustee cannot abdicate his or her duties. The trustee is merely
delegating his or her ministerial duties. And just as in the case of
a trustee who delegates the investment process under the
prudent investor rule, a trustee who delegates an administrative
duty still has a duty to properly select, supervise, and periodically
review the conduct of his or her agents.

880
 Problem
Della created an inter vivos trust, funding it with her personal
residence and other assets. Upon her death, Bobo became
successor trustee. He did not have much experience as a trustee.
He failed to make tax and insurance payments on the house,
failed to make timely mortgage payments (which resulted in five
foreclosure actions against the house, costing the trust $13,000 in
foreclosure fees), failed to rent the house in a timely fashion
following Della's death, and after he finally rented the house, he
deposited some of the rent checks in his personal account. What
claims, if any, can the trust beneficiaries bring against Bobo? See
Murray v. Zajic, No. B203119, 2008 WL 4767354 (Cal. Ct. App.
Nov. 3, 2008).

B. Related to the Trust Beneficiaries

Most of the administrative duties a trustee owes to the trust
beneficiaries concern one central issue: how much information, if
any, does a trustee have a duty to share with the trust
beneficiaries? This issue relates to one of the central issues
concerning a trust: who really owns the property in the trust? One
of the central features of a trust is related to these questions.
Many settlors use a trust because of the privacy it provides; it is a
confidential document. Unlike a will, which is probated upon the
testator's death and thus becomes a public document for all to
see if they wish, an inter vivos trust is a private document. It is not
probated. As a general rule, there is no reason the document
should ever be made public. For the most part, the settlor can
keep private who takes under the trust and how much each
beneficiary takes.6
But how far should/does that principle extend? Can the settlor
keep it confidential from the beneficiaries themselves? To what
extent should the beneficiaries have a right to see the terms of
the trust? To what extent should the trust beneficiaries be entitled
to know what is the scope of the trust property and what the
trustee is doing with the trust property? Who really owns the
property in the trust?

881
1. Duty to Inform Party of Beneficiary Status
The first of the sub-duties related to the duty to inform is the
most logical. Consistent with the duty of loyalty, a trustee has a
duty to promptly inform all parties who have an interest or a
potential interest in a trust of their status as a beneficiary under
the trust. BOGERT'S TRUSTS AND TRUSTEES §962, Duty to furnish
information and permit inspection (2014). The modern trend
agrees, but tries to limit the administrative burden and costs on
the trustee by limiting the duty to those beneficiaries who are
“fairly representative” as opposed to all beneficiaries. See
RESTATEMENT (THIRD) OF TRUSTS §82(1)(a). The notice should
include not only their status as a beneficiary, but also their basic
rights with respect to the administration of the trust and their
rights to further information. Id. California Probate Code Section
16060 puts it rather succinctly: “The trustee has a duty to keep
the beneficiaries of the trust reasonably informed of the trust and
its administration.”

2. Duty to Disclose Terms of the Trust

One of the reasons a settlor opts for a trust over a will is that
the latter is a public document while the former is a private
document. Some individuals would prefer to keep confidential
who gets their property when they die—both from the public and
from the takers. On the other hand, a trustee owes a fiduciary
duty to each trust beneficiary. How is a beneficiary to enforce the
duty if the beneficiary does not know the terms of the trust?
Should a trust beneficiary have: (a) no access to the terms of the
trust, (b) access only to the parts of the trust relevant to his or her
interest in the trust, or (c) access to the whole trust instrument?

Fletcher v. Fletcher
480 S.E.2d 488 (Va. 1997)
COMPTON, Justice.
In this chancery proceeding arising from a dispute over an inter
vivos trust, we consider the extent of a trustee's duty to furnish
information about the trust instrument and about other documents
relating to the trust.

882
 ... During their lifetimes, J. North Fletcher and Elinor Leh
Fletcher, his wife, residents of Fauquier County, accumulated
substantial assets.
Following Mr. Fletcher's death in 1984, Mrs. Fletcher executed
a revocable, inter vivos “Trust Agreement” in December 1985 in
which she placed all her assets. The ten-page document,
containing nine articles, named her as both “Grantor” and
“Trustee.” In August 1993, the Grantor modified the Trust
Agreement by executing a “Trust Agreement Amendment.” The
five-page Amendment replaced Article Six of the Trust Agreement
with a new Article Six.
The Trust Agreement as amended (the Trust Agreement)
contains, among other things, specific provisions for the
establishment of a number of trusts upon the Grantor's death,
including three separate trusts for the respective benefit of
appellee James N. Fletcher, Jr., an adult child of the Grantor, and
his two children, Andrew N. Fletcher, born in 1972, and Emily E.
Fletcher, born in 1976 (sometimes collectively, the beneficiaries).
The three separate trusts were to be in the amount of $50,000
each. The Trust Agreement appointed appellant Henry L.
Fletcher, another adult child of the Grantor, and appellant F & M
Bank-Peoples Trust and Asset Management Group, formerly
Peoples National Bank of Warrenton, as successor Trustees to
act upon the Grantor's death.
Under the Trust Agreement, the Trustees are authorized, in
their discretion, to expend for the benefit of James N. Fletcher, Jr.,
such amounts of the net income and principal of the $50,000 trust
as may be necessary to provide him adequate medical insurance
and medical care during his lifetime, or until such time as the trust
is depleted. In the event the trust is still in existence at Fletcher's
death, then the Trustees are required to transfer and pay over to
his surviving children his or her proportionate share of the
balance of the remaining principal and income.
...
The Grantor died in June 1994. Upon her death, the Trust
Agreement became irrevocable, and the successor Trustees
assumed their duties. They established the three $50,000 trusts,
and the beneficiaries have benefited from them.

883
 In June 1995, beneficiary James N. Fletcher, Jr., instituted the
present proceeding against the Trustees....
The plaintiff ... asserted that he “requested details from the
defendants of both the December 3, 1985 trust and the trust
created with the assets of that trust upon his mother's death,” and
that the Trustees have refused to comply with his request. He
further asserted that he has been provided with only pages 1, 8
and 9 of the 1985 instrument and “two pages” from the
Amendment. The plaintiff also asserted that “[w]ithout a listing of
the precise terms of both trust agreements or a complete listing of
the assets of these trusts,” he is “unable to determine whether or
not the trust estate is being properly protected.”
Plaintiff also alleged that Trustee Henry L. Fletcher “has
repeatedly made a point of justifying his failure to disclose the
requested information ... by stating that it was his mother's
request that the trust terms and dealings be kept confidential,
even from the beneficiaries.” Further, the plaintiff asserts that
Trustee Fletcher “has failed to produce any written direction from
[their mother] with respect to the confidentiality.” This situation,
along with other facts, according to the allegations, has resulted
in “an extremely strained relationship between” the brothers.
Concluding, the plaintiff alleged that because he lacks the
“relevant information” sought, “he is unable to determine whether
or not either trustee is properly performing their duties as a
trustee[ ] according to law.” Thus, he asked the court to compel
the Trustees “to provide full and complete copies of all trust
instruments in their possession that relate to the two trusts
referred to herein.”
In a demurrer, the Trustees asserted that the bill of complaint
failed to state a cause of action. In an answer, the Trustees
denied that any “new trust” was created upon the Grantor's death,
and asserted that the Trust Agreement remained in effect
following the death. The Trustees asserted, however, that upon
the death, “separate trusts were created under the express terms
of the Trust Agreement,” and that the plaintiff has been provided
with “all provisions of the Trust Agreement relating to him and his
children, along with regular accountings relating to his interest

884
under the Trust Agreement.” In sum, the Trustees denied the
plaintiff is entitled to the information sought.
...
Subsequently, the trial court heard argument on the demurrer
and, during the hearing, ruled that the plaintiff was entitled to see
all provisions of the Trust Agreement. The court noted that the
plaintiff's “interests as a child of” the Grantor and as “a beneficiary
of her trust outweighed the arguments advanced” by the
Trustees.
...
The Trustees contend the trial court erred in finding that the
plaintiff had an absolute right to review complete copies of the
Trust Agreement and in ordering them to provide plaintiff with
such copies. Emphasizing that the trust instrument established
three separate trusts, the Trustees argue the trial court's order
“ignores the fiduciary duty of confidentiality between the Trustees
and other beneficiaries under the ... Trust Agreement.” Noting the
use of revocable trusts in planning disposition of assets upon
death, the Trustees say that following a grantor's death, “the
trustees handle the trust assets for the various beneficiaries, in
accordance with the grantor's instruction, in a manner appropriate
for each beneficiary taking into account the unique circumstances
applicable to each beneficiary.”
Continuing, the Trustees observe that a grantor, as here, often
“directs the trustee to segregate trust assets into separate trusts
for the benefit of different beneficiaries.” See Code §55-19.3
(trustee may divide a trust into two or more separate trusts).
According to the Trustees, “Segregation of a trust into separate
trusts for different beneficiaries not only segregates the assets,
but also segregates the trustee's duties to the different
beneficiaries.” The Trustees say that a “trustee has a continuing
duty to the grantor to fulfill the trustee's obligations under the trust
agreement. The trustee also has a fiduciary duty to the
beneficiaries of each trust established under the agreement. The
trustee's duties to the beneficiaries of each separate trust do not
overlap.”

885
 The Trustees point out the plaintiff has not alleged any
wrongdoing on their part “nor has he alleged that he has any
interest under the ... Trust Agreement other than his interest in a
separate trust established for his benefit.” The Trustees state they
have provided the plaintiff with copies of the portions of the Trust
Agreement that pertain to the establishment and administration of
the separate trusts, have submitted a copy of the Trust
Agreement to the trial judge so the court may determine whether
they have disclosed to the plaintiff all relevant information, and
have provided regular accountings to the beneficiaries with
respect to their separate trusts. The Trustees argue that the
family relationship and the “specter” of disharmony, standing
alone do not create a right in the plaintiff to compel disclosure.
Finally, the Trustees argue “the trial court's Order compelling
disclosure violates the public policy that permits individuals to
ensure privacy of their affairs through the use of inter vivos trust
agreements in lieu of wills.”
...
This is a case of first impression in Virginia. The parties have
not referred us to any cases elsewhere that are factually apposite,
and we have found none. Nevertheless, text writers and the
Restatement articulate settled principles that are applicable.
“The beneficiary is the equitable owner of trust property, in
whole or in part. The trustee is a mere representative whose
function is to attend to the safety of the trust property and to
obtain its avails for the beneficiary in the manner provided by the
trust instrument.” Bogert, The Law of Trusts and Trustees §961, at
2 (Rev. 2nd ed.1983). See Shriners Hospitals for Crippled
Children v. Smith, 238 Va. 708, 710, 385 S.E.2d 617, 618 (1989)
(trustee should preserve and protect trust fund for benefit of all
interested in its distribution). See also Rowland v. Kable, 174 Va.
343, 367, 6 S.E.2d 633, 642 (1940) (trustee owes undivided duty
to beneficiary). The fact that a grantor has created a trust and
thus required the beneficiary to enjoy the property interest
indirectly “does not imply that the beneficiary is to be kept in
ignorance of the trust, the nature of the trust property and the
details of its administration.” Bogert, §961, at 2.

886
 Therefore, “[t]he trustee is under a duty to the beneficiary to
give him upon his request at reasonable times complete and
accurate information as to the nature and amount of the trust
property, and to permit him or a person duly authorized by him to
inspect the subject matter of the trust and the accounts and
vouchers and other documents relating to the trust.” Restatement
(Second) of Trusts §173 (1959). Accord Bogert, §961, at 3–4; IIA
Scott, The Law of Trusts §173, at 462 (4th ed.1987). Indeed,
“[w]here a trust is created for several beneficiaries, each of them
is entitled to information as to the trust.” Scott, §173, at 464.
And, even though “the terms of the trust may regulate the
amount of information which the trustee must give and the
frequency with which it must be given, the beneficiary is always
entitled to such information as is reasonably necessary to enable
him to enforce his rights under the trust or to prevent or redress a
breach of trust.” Restatement §173 cmt. c. See In re Estate of
Rosenblum, 459 Pa. 201, 328 A.2d 158, 164–65 (1974).
Turning to the present facts, we observe that the appellate
record fails to establish that the Grantor directed the Trustees not
to disclose the terms of the entire Trust Agreement to the
beneficiaries. The trust instrument, which we have examined,
does not mention the subject. Although the Trustees assert the
Grantor orally gave such instructions, the plaintiff questions this
fact. And, there was no evidentiary hearing below to decide the
matter. Thus, we express no opinion on what effect any directive
of secrecy by the Grantor would have on the outcome of this
case.
Recognizing the foregoing general principles of the law of
trusts, the Trustees nevertheless seek to remove this case from
the force of those rules by dwelling on the fact that three separate
trusts were created. In essence, the Trustees treat this single
integrated Trust Agreement as if there are three distinct trust
documents, each entirely independent of the other, a
circumstance that simply does not exist.
There is a single cohesive trust instrument based on a unitary
corpus. The Trustees seek to avoid the beneficiary's scrutiny of
eight pages of the Trust Agreement. They also seek to prevent
review of Schedule “A,” which lists the cash and securities the

887
Grantor transferred to the trust corpus. This document was not
even included in the sealed papers filed with the trial court.
The information not disclosed may have a material bearing on
the administration of the Trust Agreement insofar as the
beneficiary is concerned. For example, without access to the
Trust Agreement (even though there are numerous separate
trusts established), the beneficiary has no basis upon which he
can intelligently scrutinize the Trustees' investment decisions
made with respect to the assets revealed on Schedule “A.” The
beneficiary is unable to evaluate whether the Trustees are
discharging their duty to use “reasonable care and skill to make
the trust property productive.” Sturgis v. Stinson, 241 Va. 531,
535, 404 S.E.2d 56, 58 (1991) (quoting Restatement (Second) of
Trusts §181 (1959)). Also, the beneficiary is entitled to review the
trust documents in their entirety in order to assure the Trustees
are discharging their “duty to deal impartially” with all the
beneficiaries within the restrictions and conditions imposed by the
Trust Agreement. Sturgis, 241 Va. at 534–35, 404 S.E.2d at 58.
In sum, we hold that the trial court correctly required the
Trustees to disclose the information sought. Thus, the judgment
appealed from will be
Affirmed.
—————

Notes
1. Split of authority: There is general agreement that a trust
beneficiary is entitled to see the terms of the trust so as to be able
to ascertain (1) the extent of his or her interest in the trust and (2)
whether the trustee has breached any duty to the beneficiary. The
courts and uniform laws disagree, however, over how much of the
trust instrument that entitles the beneficiary to see. The Uniform
Probate Code takes more of a traditional view of the issue. The
traditional view arguably favors the view that the settlor owns the
property in the trust. The Uniform Probate Code expressly
provides that a trust beneficiary is entitled to see only “the terms
of the trust which describe or affect his interest and with relevant
information about the assets of the trust and the particulars
relating to the administration.” See UPC §7-303(b).

888
 In contrast, the Uniform Trust Code takes more of a modern
trend approach to the issue. The modern trend favors the view
that the beneficiaries own the property in the trust. The modern
trend expressly provides that a beneficiary who requests a copy
of the trust instrument is entitled to see the entire trust instrument.
UTC §813(b)(1).
2. California approach: California adopts more of a modern
trend approach to the issue. If a beneficiary requests to see “a
true and complete copy of the” terms of an irrevocable trust, the
general rule in California is that the beneficiary is entitled to the
whole document. See CPC §16061.5. If, however, the trust is
revocable, the trustee's sole duty is to the party holding the power
to revoke (typically the settlor), and so a trust beneficiary is not
entitled to see any part of the trust until it becomes irrevocable.
See CPC §16069(a). The material explores this point in more
detail in Section V below.
3. Default rule versus rule of law: In Fletcher, the Virginia
Supreme Court expressly noted that it was not addressing the
issue of whether a settlor can expressly opt out of a beneficiary's
right to see the terms of the trust. Is the beneficiary's right to see
the terms of a trust a default rule that a settlor can expressly opt
out of, or should it be a rule of law that a beneficiary has an
absolute right to insist on? If a beneficiary cannot see the terms of
the trust and/or the trustee's records with respect to the
administration of the trust, how is a trust beneficiary supposed to
protect his or her interest in the trust? See CPC §16068.

3. Duty to Account for Trust's Administration

To the extent the trustee's job is to hold and manage the trust
property for the benefit of the trust beneficiaries, to what extent
are the trust beneficiaries entitled to information about how the
trustee is holding and managing the trust property? Should the
trustee have an affirmative duty to inform the trust beneficiaries of
how the trust is doing, or should the presumption be that the
trustee is doing his or her job and, absent good cause, the trustee
should have no duty to account to the trust beneficiaries?

Cook v. Brateng

889
 262 P.3d 1228 (Wash. Ct. App. 2010)
BRIDGEWATER, P.J.
...
FACTS
¶2 The following facts are undisputed. Diane and John
[Brateng] are siblings. In November 1995, their father, Elmer
[Brateng], executed a living trust, naming himself and Diane as
trustees. Elmer's health deteriorated; two years later, in
November 1997, he was declared incompetent, and Diane
became sole trustee of his trust.
¶3 With Elmer declared incompetent, the trust required Diane,
the sole remaining trustee, to apply all trust property exclusively
for Elmer's benefit. Specifically, the trust required Diane to
“provide as much of the principal and net income of [the] trust as
is necessary or advisable, in [Diane's] sole and absolute
discretion, for my health, support, maintenance, and general
welfare.” CP at 36. The trust also required Diane to make
information available to the beneficiaries:
My trustee shall report, at least semiannually, to the
beneficiaries then eligible to receive mandatory or
discretionary distributions of the net income from the
various trusts created in this agreement all of the receipts,
disbursements, and distributions occurring during the
reporting period along with a complete statement of the
trust property.
CP at 60. Upon Elmer's death, the trust directed Diane, as the
trustee, to divide all remaining trust property among herself, John,
the Salvation Army, and the Finnish Assembly of God Church.
The trust allocated to each Diane and John a 9/20th share and to
each charity a 1/20th share. The trust also directed Diane to
distribute the home to herself, “AS PART OF, AND NOT IN
ADDITION TO, that share of [the] trust distributed to [Diane].” CP
at 46.
¶4 In November 1997, after Elmer was declared incompetent,
Diane decided to move Elmer from his home in Ilwaco,
Washington, into her home in Kirkland, Washington, where she
could more easily care for him. Elmer died in January 2000.

890
 ¶5 During the time Diane cared for Elmer from November 1997
to January 2000, she used $59,176.673 from the trust's liquid
funds to pay for Elmer's medical expenses and personal
expenses, as well as maintaining, repairing, and remodeling the
Ilwaco home. Diane spent $20,319.75 of the trust funds to repair
water damage to the Ilwaco home and to remodel its kitchen. At
the time of Elmer's death, the trust had $16,439.62 in liquid funds
remaining. The only other remaining trust asset was Elmer's
Ilwaco home.
¶6 Diane kept meticulous records of her time and expenses
related to caring for Elmer and her time and expenses related to
driving from Kirkland to Ilwaco. She carefully recorded her time
spent caring for him from 1996 to 1997—before she moved him to
Kirkland—and she recorded her time spent caring for him while
he lived with her in Kirkland as “24 hour In-home Care.” Ex. 26.
She also kept track of the fuel used to drive to Ilwaco, her meals
along the way, and the cost per mile. Finally, she recorded bills
that she personally paid for Elmer, recording the exact amount
and method of payment. Diane's claim against the estate for
acting as Elmer's care giver totaled $142,171.10.
¶7 Although Diane kept these meticulous records, she did not
disclose her intention to claim reimbursement to John until he
filed suit and requested an accounting. Before Elmer's death,
Diane never discussed with John her expenses as a care giver,
the value of her services as a care giver, or her decision not to
encumber Elmer's Ilwaco house to pay for his care.
¶8 John filed suit against Diane in October 2001, which led to
mediation and arbitration under the “Trust and Estate Dispute
Resolution Act”. John appealed the arbitrator's decision and
requested a trial de novo. The trial court issued a memorandum
opinion on June 20, 2008, followed by findings of fact and
conclusions of law on May 26, 2009.
¶9 The trial court concluded that Diane, as trustee of her
father's estate, had a duty to inform John that (1) she decided to
claim and defer charges against Elmer's estate for providing
Elmer's care, and (2) she decided not to encumber Elmer's Ilwaco
house to pay for Elmer's care. The court further concluded that
she breached her fiduciary duties and, thus, could not

891
compensate herself for providing Elmer's care. The trial court
awarded the Ilwaco house to Diane, but gave John a 9/20th
interest in its 2007 appraised value. The court also awarded
Diane a credit for one-half the value of a property adjacent to the
Ilwaco house that is not part of this appeal.6 Finally, the court
awarded John all of his requested fees, totaling $24,425, and
awarded Diane one-half of her requested fees, or $12,358.17.
The net result of the trial court's decision resulted in a $20,716.83
lien in favor of John.
ANALYSIS
I. Duty to Inform
¶10 Diane argues that she did not have a duty to inform John
that she was claiming and deferring her charges for providing
Elmer's care until his death because neither the trust nor the
applicable statutes required her to provide her brother with
accounting statements. She also argues, for the same reason,
that she did not have a duty to inform John that she decided to
refrain from encumbering the Ilwaco house to pay for Elmer's
health costs. We agree.
¶11 A trustee, as a fiduciary, owes beneficiaries the “highest
degree of good faith, care, loyalty and integrity.” Esmieu v.
Schrag, 88 Wash.2d 490, 498, 563 P.2d 203 (1977). “It is the duty
of a trustee to administer the trust in the interest of the
beneficiaries.” Tucker v. Brown, 20 Wash.2d 740, 768, 150 P.2d
604 (1944). A trustee's duties and powers are determined by the
terms of the trust, by common law, and by statute. In re Estate of
Ehlers, 80 Wash.App. 751, 757, 911 P.2d 1017 (1996). At
common law, Washington courts have defined a trustee's duty of
care, skill and diligence to be that degree of care, skill and
diligence that an ordinary prudent man exercises in similar affairs.
In re Nontestamentary Trust of Parks, 39 Wash.2d 763, 767, 238
P.2d 1205 (1951); Monroe v. Winn, 16 Wash.2d 497, 508, 133
P.2d 952 (1943).
¶12 Diane first contends that the trust did not require her to
provide John with an accounting during Elmer's life. Without any
analysis, she cites the following language of the trust to support
her contention:

892
 My Trustee shall report, at least semiannually, to the
beneficiaries then eligible to receive mandatory or
discretionary distributions of the net income from the
various trusts created in this agreement all of the receipts,
disbursements, and distributions occurring during the
reporting period along with a complete statement of the
trust property.
CP at 60 (emphasis added); Br. of Appellant at 14. The crux of
her argument is that the trust language does not require Diane to
provide John with an accounting because he was not “eligible” as
a remainder beneficiary to receive distributions. CP at 60.
¶13 We ascertain a settlor's intent and purpose from the four
corners of the trust instrument, construing all of its provisions
together. Templeton v. Peoples Nat'l Bank, 106 Wash.2d 304,
309, 722 P.2d 63 (1986). Here, Diane had sole and absolute
discretion to use the trust assets to provide for Elmer if he was
incapacitated, as article four, section 3 of the trust stated:
My Trustee shall provide as much of the principal and net
income of my trust as is necessary or advisable, in its sole
and absolute discretion, for my health, support,
maintenance, and general welfare.
CP at 36. Only the trust property not distributed to Elmer during
his lifetime was to be divided between Diane and John as
beneficiaries. Neither Diane nor John was eligible to receive their
distributions during Elmer's lifetime, as the clear intent of the trust
instrument was to provide for his needs. Therefore, any
mandatory accounting was primarily intended to benefit Elmer, as
the sole income beneficiary; we agree with Diane that the trust did
not require her to report receipts, disbursements, and distributions
to John while Elmer was still living. The trust required Diane to
provide Elmer, as the sole income beneficiary, with an accounting
only upon distribution. John does not argue that Diane failed to
report to Elmer.
¶14 Diane also correctly notes that the law did not require her
to provide John with an accounting. Under RCW 11.106.020, a
trustee must provide at least an annual accounting to “each adult
income trust beneficiary ... of all current receipts and
disbursements.” In contrast, any beneficiary, including one

893
holding only a present interest in the remainder of a trust, may
petition the court for an accounting. RCW 11.106.040; see Nelsen
v. Griffiths, 21 Wash.App. 489, 493, 585 P.2d 840 (1978). Lastly, a
trustee has a common law duty to give a beneficiary, upon his
reasonable request, complete and accurate information about the
nature and amount of trust property. Tucker, 20 Wash.2d at 769,
150 P.2d 604. Here, because John was not an income
beneficiary, RCW 11.106.020 did not compel Diane to provide him
with an accounting. Because John never petitioned the court for
an accounting, RCW 11.106.040 did not compel Diane to provide
an accounting. And, finally, because John never requested an
accounting from Diane, she did not have a common law duty to
provide him with such accounting.
¶15 But determining that Diane was not required to provide an
accounting is not dispositive of John's issues because a
mandatory accounting would not have disclosed Diane's decision
to defer charges and to refrain from encumbering the Ilwaco
house during her father's lifetime. Here, any accounting would
have revealed only those receipts and disbursements actually
made. RCW 11.106.020. The plain language definition of these
terms suggests that a trustee need only provide an accounting for
transactions actually paid from the trust. Future contemplated
transactions that have not yet occurred would not be shown on an
accounting. Thus, because mandatory accounting would not have
disclosed Diane's decisions to defer payment for her services
rendered on her father's behalf, we turn to the more general
question of whether Diane had a duty to inform John of how she
was managing the costs associated with Elmer's care.
¶16 A trustee's duty “includes the responsibility to inform the
beneficiaries fully of all facts which would aid them in protecting
their interests.” Allard v. Pac. Nat'l Bank, 99 Wash.2d 394, 404,
663 P.2d 104 (1983) (citing Esmieu, 88 Wash.2d at 498, 563 P.2d
203). “That the settlor has created a trust and thus required the
beneficiaries to enjoy their property interests indirectly does not
imply the beneficiaries are to be kept in ignorance of the trust, the
nature of the trust property, and the details of its administration.”
Allard, 99 Wash.2d at 404, 663 P.2d 104. A trustee's duty
includes the responsibility to inform the beneficiaries periodically
of the status of the trust, its property, and how the property is

894
being managed. Allard, 99 Wash.2d at 404, 663 P.2d 104. “If the
beneficiaries are able to hold the trustee to proper standards of
care and honesty and procure the benefits to which they are
entitled, they must know of what the trust property consists and
how it is being managed.” Allard, 99 Wash.2d at 404, 663 P.2d
104.
¶17 Allard holds that a trustee has a duty to inform
beneficiaries about management of the trust that significantly
affects their interest or, put differently, that a trustee breaches its
duty to inform when it withholds information that would prejudice
the beneficiaries. Allard, 99 Wash.2d at 404–05, 663 P.2d 104. In
Allard, Pacific Bank held in trust for certain beneficiaries a quarter
block of property in downtown Seattle. Allard, 99 Wash.2d at 396,
663 P.2d 104. The property was the sole trust asset. Allard, 99
Wash.2d at 396, 663 P.2d 104. Under the trust provisions, Pacific
Bank had full power to manage trust assets according to the
judgment and care that “prudent men exercise in the
management of their own affairs.” Allard, 99 Wash.2d at 396, 663
P.2d 104. In 1978, Pacific Bank sold the downtown property
before informing the beneficiaries of the sale more than a month
later. Allard, 99 Wash.2d at 397, 663 P.2d 104.
¶18 The beneficiaries brought suit against Pacific Bank for
breach of its fiduciary duties, arguing on appeal that Pacific Bank
had a duty to inform them before selling the property. Allard, 99
Wash.2d at 401, 663 P.2d 104. Our Supreme Court agreed with
the beneficiaries and held that Pacific Bank had a duty to inform
them of the sale. Allard, 99 Wash.2d at 405, 663 P.2d 104. The
court reasoned that, although Pacific Bank could manage trust
assets without seeking the beneficiaries' consent, and although
the trust provisions required Pacific Bank to furnish only an
annual statement for the prior year's investments, Pacific Bank,
as part of its fiduciary duties, had to inform the beneficiaries of all
material facts of the downtown Seattle property transaction before
the sale because such a sale was a nonroutine transaction that
significantly affected the trust estate and the beneficiaries'
interests. Allard, 99 Wash.2d at 403–05, 663 P.2d 104; cf. In re
Estate of Ehlers, 80 Wash.App. 751, 758–59, 911 P.2d 1017
(1996) (holding that a trustee does not breach her duty of care in
failing to provide timely mandatory accounting when the trustee

895
eventually provides accounting and the untimeliness does not
cause any loss to any beneficiary).
¶19 Here, Diane had a duty to inform John about matters that
would significantly affect his interests. But unlike in Allard, in
which selling the only trust asset significantly affected the
beneficiaries' interest, providing Elmer's care was a routine
practice to fulfill the trust's primary purpose, which, therefore, did
not significantly affect John's remainder interest. In fact, the trust
specifically gave Diane authority to “provide as much of the
principal and net income of my trust as is necessary or advisable,
in [her] sole and absolute discretion, for my health, support,
maintenance, and general welfare.” CP at 36. John could also
reasonably expect that his ailing father, declared incompetent by
two physicians and aged 95 at the time of his death, would
require full-time care, which care could consume substantial
portions, if not all, of the trust's assets.
¶20 Because the trust clearly provided for Diane to spend any
amount of trust assets to care for Elmer, John suffered no loss
whether Diane planned to defer the costs and compensate herself
in the future or hire a care giver who she paid during Elmer's
lifetime; he could reasonably expect those types of expenses on
behalf of his incompetent and dependent father and he knew that
the trust provided that Diane could pay for those expenses in her
sole discretion. We hold that Diane had a duty to inform John
about significant matters that affected his beneficial interest in the
estate assets but that she did not breach her fiduciary duty in
failing to inform John about how she was managing the routine
expenses associated with Elmer's care, as John was not
prejudiced by her conduct. Nor did Diane breach her duty to
inform John of her management of the Ilwaco property when,
without telling John, she decided not to encumber the Ilwaco
house for the cost of their father's care.
¶21 The trust divided the remaining estate assets equally to
Diane and John in 9/20th shares, with the Ilwaco home left to
Diane “as part of, and not in addition to” her 9/20th share. CP at
46 (emphasis added) (capitalization omitted). If the value of the
house exceeded Diane's 9/20th share of the remaining estate,
Diane had the option of purchasing the house for any amount of
value exceeding her 9/20th share of the entire estate, in effect,

896
giving John cash payment for his interest in the estate. If Diane
declined to purchase the house, the property would pass as if
Elmer had died intestate.
¶22 It is inconsequential whether Diane took the money from
the trust during her father's lifetime and encumbered the house at
that time to pay herself or whether she deferred her claim for
reimbursement and refrained from encumbering the house. Diane
and John each had a remainder interest in the estate. If Elmer's
needs during his lifetime exceeded the trust's liquid funds, Diane
would necessarily have had to encumber the Ilwaco home to pay
his additional expenses. If the liquid trust funds were depleted,
John and Diane would be entitled to a 9/20th share of the
remainder of their father's estate, here, the Ilwaco house, and
Diane could purchase the house and pay John his 9/20th interest.
Thus, depleting the trust's liquid funds during her father's lifetime
or delaying her payment until after his death did not change the
fact that, with those funds depleted, Diane would have only the
option to purchase the house.
¶23 Further indication that John did not suffer any prejudice is
that he failed to object to Diane's decisions at any point before
Elmer's death, even though he had reason to know that she was
maintaining the Ilwaco home, that she was Elmer's care giver,
and that she would charge the estate for her care giving. John
lived on property adjoining Elmer's Ilwaco home and saw Elmer
visit when Diane took him there. Diane also generally maintained
the Ilwaco home and undertook repairs for water damage.
¶24 John also was on inquiry notice that Diane would charge
the estate for caring for Elmer, as she had absolute authority to
pay for his “health, support, maintenance, and general welfare.”
CP at 36. The trust had paid a nurse to care for Elmer before
Diane took him into her home and care. When Diane started
caring for him, it was certainly foreseeable that she would
reasonably charge for the personal services she rendered. But
John never took care of his father and never inquired about
whether Diane was going to charge the estate for her care. John's
failure to object, even though he had reason to know that Diane
was caring for Elmer and that she would reasonably charge the
estate for her services, belies his assertion now that he suffered
harm as a result of her decisions.

897
 ¶25 We hold that Diane did not have a duty to inform John that
she decided to claim and defer charges against Elmer's estate.
Nor did she owe him a duty to inform him that she decided to
refrain from encumbering the Ilwaco home to pay for Elmer's
care.
...
—————

Notes
1. Duty to keep complete and accurate accounts: Consistent
with the duty of loyalty and the duty to act prudently, a trustee has
a duty to maintain complete and accurate records of all of his or
her activities with respect to collecting, holding, and managing the
trust property. A trustee should be able to account for any and all
of his or her actions and decisions.
2. Duty to account—affirmative or responsive duty? The nature
of the trustee's duty to account has changed over time.
Historically, trustees were more likely to account to a court than to
a beneficiary. Testamentary trusts were subject to probate court
supervision for the life of the trust, and the trustee had a duty to
account, at designated intervals, to the probate court. In addition,
in some states the trustee of an inter vivos trust likewise had a
duty to account to the appropriate court at designated intervals.
Thus, as a general rule, a trustee had no affirmative duty to
account to a beneficiary. See RESTATEMENT (FIRST) OF TRUSTS
§172 cmt. c (1935). Under this more traditional approach,
however, if a beneficiary requested an accounting, then the
general rule was that a trustee had to account to the beneficiary
(but even then, in some jurisdictions the beneficiary had to
institute a judicial proceeding and convince a court that an
accounting was warranted).
The modern trend has been to “privatize” the supervision of
trustees. Increasingly the courts have gotten out of the “trust
supervision” business. The law has shifted the burden of
supervising a trustee to the trust beneficiaries. Concomitant with
that shift in burden, the law has granted beneficiaries greater
rights with respect to an accounting. If a beneficiary requests an
accounting, the beneficiary is entitled to an accounting. Moreover,

898
even in the absence of a request from a beneficiary, as the court's
opinion in Allard evidences, the modern trend is to impose an
affirmative duty on the trustee to inform the trust beneficiaries of
any “nonroutine transaction that significantly affects the trust
estate and the beneficiaries' interests.” The duty to account is no
longer purely ex post reactive. It is not only proactive (but still ex
post), it is proactive and ex ante. To the extent trust supervision
has shifted to the trust beneficiaries, they need greater
information to be in a position to properly handle that
responsibility. Exactly how often a trustee should account, and
exactly what information should be included, depends on the facts
of the situation and often is governed by state statute.
3. Duty to account—to whom? While the modern trend has
been to expand the trustee's duty to account to the trust
beneficiaries, at the same time the modern trend has tried to limit
the trustee's duty to account to the trust beneficiaries so as to
keep the costs of administration associated with the new duty
reasonable. Most states have limited by statute the trustee's
affirmative duty to account to either beneficiaries currently eligible
to receive trust property (either mandatory or discretionary) or to
“representative” beneficiaries. See RESTATEMENT (THIRD) OF
TRUSTS §82(1)(c). Nevertheless, a trustee still has a reactive duty
to account to any beneficiary who requests information or a right
to inspect trust documents. See RESTATEMENT (THIRD) OF TRUSTS
§82(2).
4. Default rule or rule of law: At the macro level, the duty to
account is a rule of law that the settlor cannot completely opt out
of. The settlor can, however, to some extent affect the specifics of
the duty to account: to whom the trustee must account, how often
the trustee must account, and/or what information the trustee
must disclose. The settlor's intent, however, cannot violate the
fundamental principle that a trust beneficiary has a right to
whatever information he or she reasonably needs to protect his or
her interest in the trust. See RESTATEMENT (THIRD) OF TRUSTS §82
cmt. a(2), e.
5. California approach: California imposes an affirmative duty
on the trustee to account, at least annually, to any and all
beneficiaries to whom trust property could be currently distributed
(i.e., any beneficiary currently holding a mandatory or

899
discretionary interest). See CPC §16062. California permits the
settlor to waive the trustee's affirmative duty to account, see CPC
§16064(a), unless the trustee is a party who raises a statutory
presumption of wrongful conduct (an interested drafter, a fiduciary
who caused the instrument to be transcribed, or a care custodian)
and the party does not come within one of the statutory
exceptions (the trustee is related by blood or marriage to the
settlor or an independent attorney issues a certificate of review).
See CPC §16062(e). Notwithstanding settlor's intent, however,
any trust beneficiary may compel an accounting if he or she can
show a reasonable likelihood that a material breach of trust has
occurred. See CPC §16064(b).
Finally, if the trust is an inter vivos revocable trust, the trustee's
sole duty is to the party holding the power to revoke (typically the
settlor), and so a trust beneficiary is not entitled to an accounting.
See CPC §16069(a). The material explores this point in more
detail in Section VI immediately below.

900
 VI. To Whom Does the
Trustee Owe These
Fiduciary Duties?
A. Traditional Rule
A trust is a nonprobate instrument, and historically that status
had legal significance. A will is a testamentary instrument. As a
general rule, it has no effect until the testator's death. It transfers
no property interests until the testator dies. The beneficiaries in a
will hold a mere expectancy, not a property interest.
On the other hand, one of the traditional reasons an inter vivos
trust was deemed a nonprobate transfer was that the
beneficiaries receive a property interest the moment the trust is
funded. The property interest may be a future interest—or even a
contingent interest—but nevertheless it was a property interest
that passed to the beneficiary inter vivos. Because the
beneficiaries took an immediate property interest, the traditional
approach was that a trustee owed all of the fiduciary duties to all
of the beneficiaries from the moment the trust was created.

B. Inter Vivos Revocable Trust

The modern trend recognizes that settlors are increasingly
using inter vivos trusts simply as a vehicle to avoid probate. In
such cases the settlor tends to think that a revocable trust is
nothing more than a will substitute—i.e., that it is functionally
equivalent to a will except it avoids probate. If the settlor thinks
that a revocable trust is functionally nothing more than a will,
should the law agree—at least with respect to the issue of to
whom a trustee owes his or her fiduciary duties? To the extent a
revocable trust is functionally equivalent to a will, should a trustee
owe no fiduciary duties to any of the beneficiaries because, as a
practical matter, any interest they hold is more akin to an
expectancy than a true property interest so long as the trust is
revocable?

901
 In re Estate of Giraldin
290 P.3d 199 (Cal. 2012)
CHIN, J.
A revocable trust is a trust that the person who creates it,
generally called the settlor, can revoke during the person's
lifetime. The beneficiaries' interest in the trust is contingent only,
and the settlor can eliminate that interest at any time. When the
trustee of a revocable trust is someone other than the settlor, that
trustee owes a fiduciary duty to the settlor, not to the
beneficiaries, as long as the settlor is alive. During that time, the
trustee needs to account to the settlor only and not also to the
beneficiaries. When the settlor dies, the trust becomes
irrevocable, and the beneficiaries' interest in the trust vests. We
must decide whether, after the settlor dies, the beneficiaries have
standing to sue the trustee for breach of the fiduciary duty
committed while the settlor was alive and the trust was still
revocable.
...
William Giraldin and Mary Giraldin were married in 1959. When
they married, William had four children and Mary had three.
William adopted Mary's children. Together, they had twin sons,
Timothy and Patrick. William was a successful businessman and
investor and accumulated a substantial fortune.
In February 2002, William created the revocable trust at issue,
the William A. Giraldin Trust (the trust), and made Timothy the
trustee. William was the sole beneficiary during his lifetime. The
remainder beneficiaries were Mary, who was entitled to the
benefits of the trust during her lifetime, and then the nine children,
who would share equally in what remained after both William and
Mary were deceased. William reserved to himself specified rights,
including the rights to amend or revoke the trust, to add or
remove property from the trust, to remove the trustee, and to
direct and approve the trustee's actions, including any investment
decisions. The trust document provided that William could
exercise these rights only in writing.
The trust document also provided that “[d]uring [William's]
lifetime, the Trustee shall distribute to [William] that amount of net

902
income and principal as [William] direct[s].” In the event William
was declared to be incapacitated, the trustee was instructed to
distribute the amount of net income and principal the trustee
deemed to be appropriate to support William's “accustomed
manner of living” with the understanding that “the rights of
remainder beneficiaries shall be of no importance.” The trust
document also provided that “[d]uring [William's] lifetime, the
trustee shall have no duty to provide any information regarding
the trust to anyone other than [William].” After William's death, if
Mary survived him, the trustee “shall have no duty to disclose to
any beneficiary other than [Mary] the existence of this trust or any
information about its terms or administration, except as required
by law.” The document also specified that William “waive[d] all
statutory requirements ... that the Trustee ... render a report or
account to the beneficiaries of the trust.”
The trust document also states that William “[did] not want the
Trustee to be personally liable for his or her good faith efforts in
administering the trust estate,” and that “[t]he discretionary
powers granted to the Trustee under this Trust Agreement shall
be absolute. This means that the Trustee can act arbitrarily, so
long as he or she does not act in bad faith, and that no
requirement of reasonableness shall apply to the exercise of his
or her absolute discretion.” William “waive[d] the requirement that
the Trustee's conduct at all times must satisfy the standard of
judgment and care exercised by a reasonable, prudent person. In
particular, the decision of the Trustee as to the distributions to be
made to beneficiaries under the distribution standards provided in
this Trust Agreement shall be conclusive on all persons.”
When first established, the trust contained no assets. The trust
document indicated that William “had transferred and delivered to
the Trustee the property described in schedule 1, attached,” but
the version of schedule 1 attached to the trust document was
blank. It appears schedule 1 was never completed. Before
establishing the trust, William had indicated the intent to invest
about $4 million, about two-thirds of his fortune, in a company his
son Patrick had started some years before called SafeTzone
Technologies Corporation (SafeTzone). Timothy was also a part
owner of the company. In January 2002, William signed a
document detailing his planned investment in the company. The

903
day he executed the trust document, William also signed another
document stating that “after the trust has been set up William A.
Giraldin and Timothy W. Giraldin will begin the process of selling
stock and converting assets to fulfill the investment into
SafeTzone Technologies corporation of $4 million dollars.” William
signed other documents indicating his intent to invest the money
in the company.
Between February 2002 and May 2003, William made six
payments of various amounts to invest in SafeTzone, ultimately
totaling more than $4 million. The company issued stock to
William. After the investment was fully funded, the stock was
transferred into the name of the trust. William died in May 2005.
By this time, the investment in SafeTzone had gone badly, and
the trust's interest in the company was worth very little.
Four of William's children, Patricia Gray, Christine Giraldin,
Michael Giraldin, and Philip Giraldin (collectively plaintiffs), sued
Timothy in his capacity as trustee of the trust for breach of his
fiduciary duties. They alleged, in effect, that Timothy had
squandered William's life savings for his and Patrick's benefit,
depriving the other seven children of their benefits from the trust.
Plaintiffs sought to remove Timothy as trustee and to compel him
to account for his actions while acting as trustee. An amended
petition alleged that Timothy should be surcharged for alleged
breach of his fiduciary duties regarding the SafeTzone investment
and in making loans to himself and Patrick from trust assets.
A court trial was held in October and November 2008. After the
trial, the court ruled in plaintiffs' favor. It found Timothy had
violated his fiduciary duty in various respects. It also found that
William did not authorize many of Timothy's actions in writing as
the trust required, and that William “was not sufficiently mentally
competent in late 2001 and thereafter to either analyze the
benefits and risks of an investment in SafeTzone ... or to
authorize and direct [Timothy] to make such an investment.” The
court ordered Timothy be removed as trustee and that he make
an accounting of the trust for the period of January 1, 2008 until
his removal. Additionally, it ordered that Timothy be surcharged
“for his breach of the Trust and breach of fiduciary duties owed to
Decedent William G. Giraldin” in the amount of $4,376,044 for the
SafeTzone investment and surcharged $625,619 for other

904
“unsupported disbursements, distributions and loans of Trust
funds....” It also ordered that Patrick return to the trust $155,000
loaned to him from trust funds.
Timothy appealed, raising several issues. The Court of Appeal
additionally asked the parties to brief the question of whether, as
its opinion describes it, plaintiffs had “standing to maintain claims
for breach of fiduciary duty and to seek an accounting against
[Timothy] based upon his actions as trustee during the period
prior to [William's] death.” After receiving the briefing, it found
plaintiffs had no such standing. It explained that Timothy's “duties
as trustee were owed solely to [William] during [the time William
was alive], and not to the trust beneficiaries. Thus [plaintiffs], as
beneficiaries, lack standing to complain of any alleged breaches
of those duties occurring prior to [William's] death. Moreover, the
beneficiaries have no right to compel an accounting of the
trustee's actions for the period in which the trust remained
revocable [citations], and thus also lack standing to seek such
relief for the period prior to [William's] death.”
The Court of Appeal also believed this action alleged a breach
of Timothy's fiduciary duty solely towards the beneficiaries rather
than toward William. “In this case,” the Court of Appeal said,
plaintiffs “were not purporting to pursue [William's] claims, or to
seek redress for alleged wrongs done to him. Instead, they were
seeking to vindicate their own distinct interests, by claiming
[Timothy] had breached duties allegedly owed to them during the
period prior to [William's] death. We hold merely that [Timothy]
owed them no such duties, and thus [plaintiffs] lacked standing to
assert those claims. We express no opinion on the merit of any
theoretical claims that might have been asserted on [William's]
behalf. None were.”
The Court of Appeal reversed the trial court's judgment “without
prejudice to [plaintiffs'] right to seek a new accounting pertaining
solely to the period after [William] Giraldin's death....”
We granted plaintiffs' petition for review limited to the following
question: “When the settlor of a revocable inter vivos trust
appoints, during his lifetime, someone other than himself to act as
trustee, once the settlor dies and the trust becomes irrevocable,
do the remainder beneficiaries have standing to sue the trustee

905
for breaches of fiduciary duty committed during the period of
revocability?”
II. Discussion
William created the trust during his lifetime, and he reserved
the right to revoke it. Property transferred into a revocable inter
vivos trust is considered the property of the settlor for the settlor's
lifetime. Accordingly, the beneficiaries' interest in that property is
“‘merely potential’ and can ‘evaporate in a moment at the whim of
the [settlor].’” (Steinhart v. County of Los Angeles (2010) 47
Cal.4th 1298, 1319, 104 Cal.Rptr.3d 195, 223 P.3d 57, quoting
Johnson v. Kotyck (1999) 76 Cal.App.4th 83, 88, 90 Cal.Rptr.2d
99.) Thus, so long as William was alive, he had the power to
divest the beneficiaries of any interest in the trust. (See generally
Steinhart v. County of Los Angeles, supra, at pp. 1319–1320, 104
Cal.Rptr.3d 195, 223 P.3d 57.)
Consistent with these principles, Probate Code section 15800
provides: “Except to the extent that the trust instrument otherwise
provides..., during the time that a trust is revocable and the
person holding the power to revoke the trust is competent:
“(a) The person holding the power to revoke, and not the
beneficiary, has the rights afforded beneficiaries under this
division.
“(b) The duties of the trustee are owed to the person holding
the power to revoke.” (Italics added.)
The italicized language from section 15800, subdivision (b),
makes clear that so long as the settlor is alive, the trustee owes a
duty solely to the settlor and not to the beneficiaries. The Court of
Appeal viewed this lawsuit as alleging only that Timothy violated a
fiduciary duty towards the beneficiaries during William's lifetime.
Had this been the case, the action could simply have been
dismissed on the basis that no such duty exists. There would be
no need to raise any standing question. But this case does not
simply involve an alleged breach of Timothy's duty towards the
beneficiaries. Although some of the trial court's order underlying
this appeal was ambiguous regarding whether the court had
found a violation of a duty towards the beneficiaries or towards
William, a substantial thrust of this lawsuit and the trial court's

906
order is that Timothy violated his fiduciary duty towards William
during William's lifetime. To the extent, if any, that the trial court
based its order on a breach of duty towards the beneficiaries
during William's lifetime, we agree the court erred. No such duty
exists. But to the extent the court based its order on a violation of
Timothy's duty towards William during his lifetime, we must
decide whether the beneficiaries have standing after the settlor's
death to sue the trustee for breach of that duty.
The Law Revision Commission comment to section 15800
explains that the “section has the effect of postponing the
enjoyment of rights of beneficiaries of revocable trusts until the
death or incompetence of the settlor or other person holding the
power to revoke the trust.... Section 15800 thus recognizes that
the holder of a power of revocation is in control of the trust and
should have the right to enforce the trust.... A corollary principle is
that the holder of the power of revocation may direct the actions
of the trustee.... Under this section, the duty to inform and
account to beneficiaries is owed to the person holding the power
to revoke during the time that the trust is presently revocable.”
(Cal. Law Revision Com. com., 54 West's Ann. Prob. Code (2011
ed.) foll. §15800, pp. 644–645.)
Similarly, section 15801, subdivision (a), provides that when a
beneficiary's consent may or must be given, “during the time that
a trust is revocable and the person holding the power to revoke
the trust is competent, the person holding the power to revoke,
and not the beneficiary, has the power to consent or withhold
consent.” The Law Revision Commission comment to this section
explains that under its rule, “the consent of the person holding the
power to revoke, rather than the beneficiaries, excuses the
trustee from liability as provided in Section 16460(a) (limitations
on proceedings against trustee).” (Cal. Law Revision Com. com.,
54 West's Ann. Prob.Code, supra, foll. §15801, p. 646.)
Section 15802 provides that “during the time that a trust is
revocable and the person holding the power to revoke the trust is
competent, a notice that is to be given to a beneficiary shall be
given to the person holding the power to revoke and not to the
beneficiary.” The Law Revision Commission comment to this
section explains that it “recognizes that notice to the beneficiary of
a revocable trust would be an idle act in the case of a revocable

907
trust since the beneficiary is powerless to act.” (Cal. Law Revision
Com. com., 54 West's Ann. Prob.Code, supra, foll. §15802, p.
646.)
These provisions mean that during William's lifetime, and as
long as he was competent, the trust beneficiaries were powerless
to act regarding the trust. A report of the California Law Revision
Commission also makes this clear. “[T]he proposed law makes
clear that the beneficiaries of a revocable living trust do not have
the right to petition the court concerning the internal affairs of the
trust until such time as the settlor, or other person holding the
power to revoke, is unable to exercise a power of revocation,
whether due to incompetence or death.” (Recommendation
Proposing the Trust Law (Dec. 1985) 18 Cal. Law Rev. Com. Rep.
(1986) pp. 584–585; see 13 Witkin, Summary of Cal. Law (10th
ed. 2005) Trusts, §145, p. 710 [quoting this language].)
The question we must decide is whether the plaintiffs had
standing, after William's death, to allege Timothy's breach of
fiduciary duty towards William. The Probate Code does not
address this question directly. That is, no section expressly states
that the beneficiaries of a revocable trust either have or do not
have this standing. But the code, as a whole, implies that after the
settlor has died, the beneficiaries of a revocable trust may
challenge the trustee's breach of the fiduciary duty owed to the
settlor to the extent that breach harmed the beneficiaries'
interests. As the Law Revision Commission explained, section
15800 merely postponed the beneficiaries' enjoyment of their
rights until after the settlor's death. (Cal. Law Revision Com.
com., 54 West's Ann. Prob.Code, supra, foll. §15800, p. 644.)
As a general matter, the Probate Code affords beneficiaries
broad remedies for breach of trust. Section 16420, subdivision
(a), provides that “[i]f a trustee commits a breach of trust, or
threatens to commit a breach of trust, a beneficiary ... may
commence a proceeding for any of the following purposes that is
appropriate....” (Italics added.) These purposes include “[t]o
compel the trustee to redress a breach of trust by payment of
money or otherwise.” (Id., subd. (a)(3).) The Law Revision
Commission comment to this section states that the “reference to
payment of money in paragraph (3) is comprehensive and
includes liability that might be characterized as damages,

908
restitution, or surcharge.” (Cal. Law Revision Com. com., 54A
Pt.1, West's Ann. Prob.Code (2011 ed.) foll. §16420, p. 256,
italics added.) Subdivision (b) of that section—which states that
the “provision of remedies for breach of trust in subdivision (a)
does not prevent resort to any other appropriate remedy provided
by statute or the common law”—makes clear that the remedies
the section affords beneficiaries are indeed broad.
Section 16462, subdivision (a), provides that “a trustee of a
revocable trust is not liable to a beneficiary for any act performed
or omitted pursuant to written directions from the person holding
the power to revoke....” (Italics added.) This provision is
consistent with section 15800, which provides that the trustee's
duties are owed to “the person holding the power to revoke,” who
in this case is the settlor. If the trustee's duty is to the settlor, and
the trustee acts pursuant to the settlor's directions, the trustee
has violated no duty. But section 16462, including the italicized
language, “to a beneficiary,” also implies that if the trustee does
not act pursuant to the settlor's directions, the trustee may be
liable to the beneficiaries. This implication would make no sense,
and section 16462 would be meaningless, if the beneficiaries
have no standing, ever, to bring an action challenging the
trustee's actions while the settlor was still alive. We see no textual
or other basis to support the dissent's argument section 16462
only governs actions taken after the settlor has died. (Dis. opn.,
post, 150 Cal.Rptr.3d at pp. 222–223, 290 P.3d at pp. 213–214.)
Section 16069 (formerly part of section 16064) provides that
the trustee need not account to the beneficiary “[i]n the case of a
beneficiary of a revocable trust, as provided in Section 15800, for
the period when the trust may be revoked.” Timothy argues this
means that he need not account to the beneficiaries ever for his
actions while the trust could be revoked. The statutory language
is somewhat ambiguous and may, indeed, be read as Timothy
argues. But, as the cross-reference to section 15800 indicates,
section 16069 must be read in context. Section 15800 provides
that during the time the trust is revocable, the settlor has the
rights afforded beneficiaries. We must read section 16069 to be
consistent with section 15800. We do not read section 16069 to
mean that the trustee never has to provide such an accounting,

909
even after the trust becomes irrevocable, i.e., after the settlor's
death.
...
Other than the Court of Appeal in this case, no California court
has held the beneficiaries have no standing in this situation.
Indeed, we are aware of no statute, judicial decision, or other
authority, from this or any other state, denying such standing. The
only California case on point has found standing. (Evangelho v.
Presoto (1998) 67 Cal.App.4th 615, 79 Cal.Rptr.2d 146
(Evangelho).) In that case, the beneficiaries of a revocable trust
sought, after the settlor's death, an accounting from the trustee
for the period during which the trust was revocable. The trustee
argued that “an accounting should not be ordered for the period
when decedent was alive and the trust was revocable by
decedent....” (Id. at p. 617, 79 Cal.Rptr.2d 146.) The Court of
Appeal disagreed.
The Evangelho court noted that while the trustor (i.e., settlor)
was alive, the trust was revocable and subject to section 15800.
(Evangelho, supra, 67 Cal.App.4th at p. 623, 79 Cal.Rptr.2d 146.)
It then explained: “The effect of this section [15800], according to
the Law Revision Commission comment on this code section, is
to postpone the enjoyment of the rights of the beneficiaries of
revocable trusts until the death or incompetence of the settlor or
the person who can revoke the trust. (Cal. Law Revision Com.
com., 54 West's Ann. Prob.Code, supra, foll. §15800, p. 644.)
During the time the trust may be revoked, the trustee is not
required to account to a beneficiary. ([Former] §16064[, subd. (d)]
[provision renumbered §16069 by Stats. 2010, ch. 621, §9].) [¶]
The clear import of the legislative intent of section 15800 and
[former] section 16064 was to postpone the enjoyment of rights
under the trust law by contingent beneficiaries while the settlor
could revoke or modify the trust. During the time the person
holding the power to revoke is competent or alive, a trustee has
no duty to account to contingent beneficiaries for the period when
the trust may be revoked. When the person holding the power to
revoke dies, the rights of the contingent beneficiaries are no
longer contingent. Those rights, which were postponed while the
holder of the power to revoke was alive, mature into present and
enforceable rights under division 9, the trust law.

910
 “Considered as a whole, the various Probate Code sections
impose a duty on the trustee to protect the interests of the
persons who are entitled to the proceeds of the trust. One facet of
the duty is that the protected persons can compel an accounting.
In the case of a revocable trust, two categories of person are
protected. While the trust is revocable, the protected person is the
settlor. However once the trust becomes irrevocable, such as by
the death of the settlor, the beneficiaries become the protected
persons. The Law Revision Commission comments explicitly
speak about ‘postponing the enjoyment of rights of beneficiaries
of revocable trusts until the death or incompetence of the settlor
or other person holding the power to revoke the trust.’ (Cal. Law
Revision Com. com., 54 West's Ann. Prob.Code, supra, foll.
§15800, p. 644.) [¶] Accordingly, the actual words of the code
sections and Law Revision Commission reveal the will of the
Legislature to be that only decedent as settlor could compel an
accounting while she was alive and competent. But once
decedent died, the right to compel the accounting set out in the
code sections passed to the ... beneficiaries.” (Evangelho, supra,
67 Cal.App.4th at pp. 623–624, 79 Cal.Rptr.2d 146, fn. omitted.)
The Court of Appeal here found Evangelho, supra, 67
Cal.App.4th 615, 79 Cal.Rptr.2d 146, “unpersuasive, and
decline[d] to follow it.” It first “note [d] the Evangelho court did not
have the benefit of the Supreme Court's opinion in Steinhart [v.
County of Los Angeles, supra, 47 Cal.4th 1298, 104 Cal.Rptr.3d
195, 223 P.3d 57], with its clear explanation of the special nature
of a revocable trust, to aid in its interpretation of Probate Code
section 15800.” But what we said in Steinhart about revocable
trusts was merely background regarding the legal issue before us,
which was a tax question. We said nothing about revocable trusts
that was not already well established.
The Court of Appeal also stressed that the trustee's duties were
owed to the settlor while he was still alive. It then stated: “And if
the trustee's duties are not owed to the beneficiaries at the time of
the acts in question, the death of the settlor cannot make them
retroactively owed to the beneficiaries.” This statement is correct,
but it does not address the question of whether the beneficiaries
have standing to assert a breach of the duty towards the settlor
after the settlor has died and can no longer do so personally.

911
 The court provided a rather colorful hypothetical to illustrate its
argument: “For example, if the settlor of a revocable trust learned
he had a terminal disease, and was going to die within six
months, he might decide that his last wish was to take his
mistress on a deluxe, six-month cruise around the world—
dissipating most of the assets held in his trust. The trustee, whose
duties are owed to the settlor at that point, would have no basis to
deny that last wish. However, if the trustee's duties were deemed
to be retroactively owed to the trust beneficiaries—say, the
settlor's widow and children—as soon as the settlor breathes his
last breath on a beach in Bali, the trustee would find himself liable
for having failed to sufficiently preserve their interests in the trust
corpus prior to the settlor's death. In other words, the trustee's
act, which was not a breach of any duty owed by the trustee when
he committed it, would suddenly be transformed into a breach of
a different duty that only came into existence when the settlor
died. That is not—and cannot be—the law.”
The court's argument, applied to its hypothetical facts, is
correct. In that hypothetical, the trustee would have breached no
duty, so would have incurred no liability. But that is not the issue
we are deciding. Let us change the hypothetical somewhat. Let
us assume the trustee himself, unbeknownst to and against the
wishes of the settlor (who wishes to leave behind a large trust for
his beneficiaries), goes on the six-month cruise around the world
with trust funds, dissipating most of the trust assets in the
process. The acts do not come to light until the settlor has died
and the beneficiaries discover the trust is devoid of assets. In that
situation, the trustee would have violated his duty to the settlor,
much to the beneficiaries' harm, and, as section 16462 implies,
would be liable to the beneficiaries. The Court of Appeal is correct
that the trustee owes no duty to the beneficiaries while the settlor
is alive and competent, and this lack of a duty does not
retroactively change after the settlor dies. But after the settlor has
died and can no longer protect his own interests, the beneficiaries
have standing to claim a violation of the trustee's duty to the
settlor to the extent that violation harmed the beneficiaries'
interests. A trustee, like our hypothetical one, cannot loot a
revocable trust against the settlor's wishes without the
beneficiaries' having recourse after the settlor has died.

912
 The case of Johnson v. Kotyck, supra, 76 Cal.App.4th 83, 90
Cal.Rptr.2d 99, illustrates the difference between the
beneficiaries' standing before and after the settlor's death. In that
case, the settlor, although still alive, was under the care and
custody of a court-appointed conservator. The question was
whether, in that situation, the beneficiary of a revocable trust was
entitled to receive a trust accounting. The Court of Appeal
concluded the beneficiary was not so entitled. Its analysis is
instructive. The beneficiary had relied “on section 15800, which
postpones the rights of trust beneficiaries ‘during the time that a
trust is revocable and the person holding the power to revoke the
trust is competent.’” (Id. at p. 88, 90 Cal.Rptr.2d 99.) The court
rejected this reliance. “[T]his provision does not mean that a trust
automatically becomes irrevocable when the trustor becomes a
conservatee. The Law Revision Commission comment to section
15800 explains: ‘This section has the effect of postponing the
enjoyment of rights of beneficiaries or revocable trusts until the
death or incompetence of the settlor or other person holding the
power to revoke the trust.’ (Cal. Law Revision Com. com.,
reprinted at 54 West's Ann. Prob.Code (1991 ed.) foll. §15800, p.
644, italics added [by the Johnson court].)” (Ibid.) The court
explained that the conservator, working with the court, was a
person holding the power to revoke the trust. (Ibid.) It concluded,
accordingly, “that section 15800 does not give a beneficiary ...
any right to a trust accounting so long as a conservator retains
authority ... to have the trust revoked and to abrogate [the
beneficiary's] interest in the trust proceeds.” (Ibid., italics added.)
But the Johnson court went on to explain that the conservator
might be liable to the remainder beneficiary later, after the trust
becomes irrevocable, for any malfeasance. It explained that “the
conservator ignores misappropriations of the conservatee's
property at its own peril.” (Johnson v. Kotyck, supra, 76
Cal.App.4th at p. 89, 90 Cal.Rptr.2d 99.) Accordingly, the court
merely concluded that the beneficiary “cannot be accorded all the
rights of a vested beneficiary before the death of the trustor [i.e.,
the settlor].” (Id. at p. 90, 90 Cal.Rptr.2d 99, italics added.) This
discussion suggests that after the settlor dies, the beneficiary
would have standing to complain of the conservator's actions
taken before the settlor's death.

913
 Other legal sources support finding standing after the settlor's
death. Although California's law of trusts is statutory, it also draws
on the common law. “Except to the extent that the common law
rules governing trusts are modified by statute, the common law as
to trusts is the law of this state.” (§15002.) The Law Revision
Commission comment to this section states that it refers “to the
contemporary and evolving rules of decision developed by the
courts in exercise of their power to adapt the law to new situations
and to changing conditions.” (Cal. Law Revision Com. com., 54
West's Ann. Prob.Code, supra, foll. §15002, pp. 484–485.)
Consistently with section 15002, California courts have
considered the Restatement of Trusts in interpreting California
trust law. (See Esslinger v. Cummins (2006) 144 Cal.App.4th 517,
528, 50 Cal.Rptr.3d 538 [interpreting §17200 in a way that made it
consistent with the Rest.2d Trusts].) The Restatement Third of
Trusts, like the Probate Code, does not expressly address the
question here, but it supports the conclusion that beneficiaries do
have standing after the settlor's death to sue for a trustee's
breach of the duty owed to the settlor. Section 74 of that
Restatement provides that while the trust is revocable, the trustee
has a duty to do what the settlor directs (subd. (1)(a)), and that
“[t]he rights of the beneficiaries are exercisable by and subject to
the control of the settlor” (subd. (1)(b)). This section, like the
similar section 15800, is inconclusive on the question before us.
But the comments to this section are instructive. The comment to
subdivision (1)(a), states: “A trustee is not liable to the
beneficiaries for a loss that results from compliance with a
settlor's direction in accordance with the terms of that direction.”
(Rest.3d Trusts, §74, com. b, p. 29.) Later that comment adds,
“As a practical matter, however, in the event of a surcharge
action, the trustee does run a risk in relying on unwritten evidence
to support a defense based on settlor direction or authorization.”
(Id. com. c, p. 30.) These comments imply that a trustee may be
liable to the beneficiaries in at least some circumstances, which in
turn implies that beneficiaries have standing to assert that liability.
One well-known treatise on trust law does address this
question directly. “Consistent with the rule that the duties of a
trustee of a revocable trust are owed exclusively to the settlor, at
least while the settlor has capacity, the rights of non-settlor

914
beneficiaries of a revocable trust generally are subject to the
control of the settlor. Thus, as a general rule, the trustee cannot
be held to account by other beneficiaries for its administration of a
revocable trust during the settlor's lifetime. After the settlor's
death, of course, the trustee is accountable to the trust's other
beneficiaries for its administration of the trust after the settlor's
death. Further, many courts have allowed other beneficiaries to
pursue breach of duty claims after the settlor's death, related to
the administration of the trust during the settlor's lifetime, when,
for example, there are allegations that the trustee breached its
duty during the settlor's lifetime and that the settlor had lost
capacity, was under undue influence, or did not approve or ratify
the trustee's conduct.” (Bogert, The Law of Trusts and Trustees
(3d ed. 2010) §964, pp. 103–105, fns. omitted, italics added; see
Estate of Bowles (2008) 169 Cal.App.4th 684, 692–694, 87
Cal.Rptr.3d 122 [considering this treatise in interpreting California
trust law].) Among the cases the treatise cites to support the
italicized language is Evangelho, supra, 67 Cal.App.4th 615, 79
Cal.Rptr.2d 146. (Bogert, supra, §964, p. 105, fn. 35.)
Bogert also cites some Florida cases. (Bogert, supra, §964, p.
106, fn. 35.) In Brundage v. Bank of America
(Fla.Dist.Ct.App.2008) 996 So.2d 877, 882, the court recognized
that (as in California) the trustee owes no duty to the beneficiaries
of a revocable trust. “However,” the court held, “once the interest
of the contingent beneficiary vests upon the death of the settlor,
the beneficiary may sue for breach of a duty that the trustee owed
to the settlor/beneficiary which was breached during the lifetime
of the settlor and subsequently affects the interest of the vested
beneficiary.” (Ibid.) Another Florida court reached a similar
conclusion while applying New York law. (Siegel v. Novak
(Fla.Dist.Ct.App.2006) 920 So.2d 89, 95.) It explained that
denying standing would be “contrary to our sense of justice—a
trustee should not be able to violate its fiduciary duty ... and yet
escape responsibility because the settlor did not discover the
transgressions during her lifetime. With an interest in the corpus
of the trust after the death of their mother, the [beneficiaries] have
standing to challenge the disbursements.... Without this remedy,
wrongdoing concealed from a settlor during her lifetime would be
rewarded.” (Id. at p. 96, fn. omitted.)

915
 The Uniform Trust Code is also instructive. California has not
adopted the Uniform Trust Code. But it helps to illuminate the
common law of trusts, which, as noted, is also the law of
California except as modified by statute. (§15002.) One section of
that code provides: “While a trust is revocable [and the settlor has
capacity to revoke the trust], rights of the beneficiaries are subject
to the control of, and the duties of the trustee are owed
exclusively to, the settlor.” (U. Trust Code (2000) §603, subd. (a).)
In substance, this provision is similar to section 15800. Like
section 15800, it does not specifically address the question before
us. But the accompanying comment does address the question. It
expressly states what the comment to section 15800 implies:
“Following the death or incapacity of the settlor, the beneficiaries
would have a right to maintain an action against a trustee for
breach of trust. However, with respect to actions occurring prior to
the settlor's death or incapacity, an action by the beneficiaries
could be barred by the settlor's consent or by other events such
as approval of the action by a successor trustee.” (U. Trust Code,
com. to §603, pp. 553–554, italics added.)
We are aware of no common law source denying standing to
beneficiaries in the situation here. The cited sources strongly
indicate that the common law rule is that beneficiaries do have
standing after the settlor's death. Because no California statute
has modified that rule, we find these sources persuasive.
...
—————

Problem
Patrick Tseng was originally from China, where he was married
and had several children. He immigrated to the United States and
lost all contact with his family back in China. In 1954, believing his
family in China to be dead, he remarried and had two children
with his new wife. Patrick then learned that his family in China
was still alive and he reconnected with them. Thereafter, Patrick
created an inter vivos revocable trust with his children from his
second wife appointed co-trustees. He funded the trust with
assets close to $2 million, for the benefit of his second wife and
all of his children. During the last six months of Patrick's life, the

916
trustees transferred $1.8 million out of the trust. His children from
his first wife in China sued, seeking more information about the
terms of the trust and the transfer of the $1.8 million. The co-
trustees asserted that while the trust was revocable, their only
duty was to the settlor and therefore the children from China were
not entitled to any information about the trust operations while the
settlor was alive.
How would you rule on the request for more information about
the trust, and why? See Tseng v. Tseng, 352 P.3d 74 (Or. Ct. App.
2015).

1. There is a narrow exception for when the powers are deemed personal to
the nominated party—only to be granted to and performed by the nominated
person—but that exception is rarely applied. See RESTATEMENT (SECOND) OF
TRUSTS §101 cmt. b (1959).
2. The material hinted at this issue—and has already covered it in part—
when it discussed whether the terms of a trust granting a trustee “sole and
absolute” discretion could actually grant a trustee that much discretion.
3. This is particularly true for an institutional or corporate trustee as opposed
to an individual trustee such as a family member or trusted family friend.
4. More accurately, inter vivos trusts originated in England during the twelfth
and thirteenth centuries, but the basic trust concept, in the form of testamentary
trusts, was developed well before this under Roman law. Roman law, in the
area of trusts, is “modernly” referred to as Napoleonic law. “What is Napoleonic
Law?” would be a proper response to the question “What are the roots of trust
law?”
5. Or an inter vivos trust, but the trust is also to receive some at-death
transfers.
6. See Chapter 11 for “privacy related” matters for a revocable living trust and
why it is common to have an abstract of trust prepared as a separate document
so as to minimize incidents of disclosure.

917
Chapter 15

918
Charitable Trusts

919
 I. Charitable Trust
Creation
A charitable trust is a particular type of trust. Inasmuch as it is a
trust, the first question is whether the requirements for its creation
are the same or different from the requirements to create a
private trust. The key difference is that the trust must be for a
charitable purpose, not for a private purpose. That obviously
gives rise to a rather simple question: what qualifies as a
charitable purpose?

A. Charitable Purpose
Shenandoah Valley Nat'l Bank of Winchester v.
Taylor
63 S.E.2d 786 (Va. 1951)
MILLER, Justice.
Charles B. Henry, a resident of Winchester, Virginia, died
testate on the 23rd day of April, 1949. His will dated April 21,
1949, was duly admitted to probate and the Shenandoah Valley
National Bank of Winchester, the designated executor and
trustee, qualified thereunder.
Subject to two inconsequential provisions not material to this
litigation, the testator's entire estate valued at $86,000, was left
as follows:
“Second: All the rest, residue and remainder of my estate,
real, personal, intangible and mixed, of whatsoever kind
and wherever situate, * * *, I give, bequeath and devise to
the Shenandoah Valley National Bank of Winchester,
Virginia, in trust, to be known as the ‘Charles B. Henry and
Fannie Belle Henry Fund’, for the following uses and
purposes:
“(a) My Trustee shall invest and reinvest my trust estate,
shall collect the income therefrom and shall pay the net

920
 income as follows:
“(1) On the last school day of each calendar year before
Easter my Trustee shall divide the net income into as many
equal parts as there are children in the first, second and
third grades of the John Kerr School of the City of
Winchester, and shall pay one of such equal parts to each
child in such grades, to be used by such child in the
furtherance of his or her obtainment of an education.
“(2) On the last school day of each calendar year before
Christmas my trustee shall divide the net income into as
many equal parts as there are children in the first, second
and third grades of the John Kerr School of the City of
Winchester, and shall pay one of such equal parts to each
child in such grades, to be used by such child in the
furtherance of his or her obtainment of an education.”
By paragraphs (3) and (4) it is provided that the names of the
children in the three grades shall be determined each year from
the school records, and payment of the income to them “shall be
as nearly equal in amounts as it is practicable” to arrange.
Paragraph (5) provides that if the John Kerr School is ever
discontinued for any reason the payments shall be made to the
children of the same grades of the school or schools that take its
place, and the School Board of Winchester is to determine what
school or schools are substituted for it.
Under clause “Third” the trustee is given authority, power, and
discretion to retain or from time to time sell and invest and
reinvest the estate, or any part thereof, as it shall deem to be to
the best interest of the trust.
The John Kerr School is a public school used by the local
school board for primary grades and had an enrollment of 458
boys and girls so there will be that number of pupils or
thereabouts who would share in the distribution of the income.
The testator left no children or near relatives. Those who would
be his heirs and distributees in case of intestacy were first
cousins and others more remotely related. One of these next of
kin filed a suit against the executor and trustee, and others

921
challenging the validity of the provisions of the will which
undertook to create a charitable trust.
Paragraph No. 10 of the bill alleges:
“That the aforesaid trust does not constitute a charitable trust
and hence is invalid in that it violates the rule against the creation
of perpetuities.”
Other heirs and distributees appeared and joined in the cause
and asked that the trust be declared void and the estate
distributed among testator's next of kin.
The cause was heard upon the bill and a demurrer filed by the
executor and trustee. The demurrer was overruled and the
contention of the heirs and distributees sustained. From decrees
that adjudicated the principles of the cause and held that the trust
was not charitable but a private trust and thus violative of the rule
against perpetuities and void, this appeal was awarded.
The sole question presented is: does the will create a valid
charitable trust?
Construction of the challenged provisions is required and in this
undertaking the testator's intent as disclosed by the words used in
the will must be ascertained. If his dominant intent as expressed
was charitable, the trust should be accorded efficacy and
sustained.
But on the other hand, if the testator's intent as expressed is
merely benevolent, though the disposition of his property be
meritorious and evince traits of generosity, the trust must
nevertheless be declared invalid because it violates the rule
against perpetuities.
“A charitable trust is created only if the settlor properly
manifests an intention to create a charitable trust.” Restatement
of the Law of Trusts, sec. 351, p. 1099.
Authoritative definitions of charitable trusts may be found in 4
Pomeroy's Equity Jurisprudence, 5th Ed., sec. 1020, and
Restatement of the Law of Trusts, sec. 368, p. 1140. The latter
gives a comprehensive classification definition. It is:
“Charitable purposes include:

922
 “(a) the relief of poverty;
“(b) the advancement of education;
“(c) the advancement of religion;
“(d) the promotion of health;
“(e) governmental or municipal purposes; and
“(f) other purposes the accomplishment of which is
beneficial to the community.”
In the recent decision of Allaun v. First, etc., Nat. Bank, 190 Va.
104, 56 S.E.(2d) 83, the definition that appears in 3 M. J.,
Charitable Trust, sec. 2, p. 872, was approved and adopted. It
reads:
“‘A charity,’ in a legal sense, may be described as a gift to
be applied, consistently with existing laws, for the benefit of
an indefinite number of persons, either by bringing their
hearts under the influence of education or religion, by
relieving their bodies from disease, suffering or constraint,
by assisting them to establish themselves for life, or by
erecting or maintaining public building or works, or
otherwise lessening the burdens of government. It is
immaterial whether the purpose is called charitable in the
gift itself, if it is so described as to show that it is charitable.
Generally speaking, any gift not inconsistent with existing
laws which is promotive of science or tends to the
education, enlightening, benefit or amelioration of the
condition of mankind or the diffusion of useful knowledge,
or is for the public convenience is a charity. It is essential
that a charity be for the benefit of an indefinite number of
persons; for if all the beneficiaries are personally
designated, the trust lacks the essential element of
indefiniteness, which is one characteristic of a legal
charity.” 190 Va. at page 108....
...
In the law of trusts there is a real and fundamental distinction
between a charitable trust and one that is devoted to mere
benevolence. The former is public in nature and valid; the latter is
private and if it offends the rule against perpetuities, it is void.

923
 “It is quite clear that trusts which are devoted to mere
benevolence or liberality, or generosity, cannot be upheld as
charities. Benevolent objects include acts dictated by mere
kindness, good will, or a disposition to do good * * *. Charity in a
legal sense must be distinguished from acts of liberality or
benevolence. To constitute a charity the use must be public in its
nature.” Zollman on Charities, sec. 398, p. 268.
We are, however, reminded that charitable trusts are favored
creatures of the law enjoying the especial solicitude of courts of
equity and a liberal interpretation is employed to uphold them.
Zollman on Charities, sec. 570, p. 391; 2 Bogert on Trusts, sec.
369, p. 1129.
“Courts incline to a liberal construction in order to uphold
charitable donations against the charge that they violate the
perpetuity rule.” Zollman on Charities, sec. 548, p. 379.
With the principle announced we are in accord. That is made
certain by the quotation in Thomas v. Bryant, 185 Va. 845, 40
S.E.(2d) 487, 169 A.L.R. 257, which was approved in Allaun v.
First, etc., Nat. Bank, supra:
“‘Charitable gifts are viewed with peculiar favor by the
courts, and every presumption consistent with the language
contained in the instruments of gift will be employed in
order to sustain them.’ All doubts will be resolved in their
favor.” 185 Va. at page 852....
Appellant contends that the gift qualifies as a charitable trust
under the definition in Allaun v. First, etc., Nat. Bank, supra. It is
also said that it not only meets the requirements of a charitable
trust as defined in Restatement of the Law of Trusts, supra, but
specifically fits two of those classifications, viz.:
“(b) trusts for the advancement of education;
“(f) other purposes the accomplishment of which is
beneficial to the community.”
We now turn to the language of the will for from its context the
testator's intent is to be derived. Sheridan v. Krause, 161 Va. 873,
172 S.E. 508, 91 A.L.R. 1067. Its interpretation must be free from
and uninfluenced by the unyielding rule against perpetuities. Yet,
when the testator's intent is ascertained, if it is found to be in

924
contravention of the rule, the will, in that particular, must be
declared invalid.
“Our first duty is to construe the will; and this we must do,
exactly in the same way as if the rule against perpetuities had
never been established, or were repealed when the will was
made; not varying the construction in order to avoid the effect of
that rule, but interpreting the words of the testator wholly without
reference to it.” Dungannon v. Smith, 12 Cl. and F. 546, at p. 599.
“The Rule against Perpetuities is not a rule of construction, but
a peremptory command of law. It is not, like a rule of construction,
a test, more or less artificial, to determine intention. Its object is to
defeat intention. Therefore every provision in a will or settlement
is to be construed as if the Rule did not exist, and then to the
provision so construed the Rule is to be remorselessly applied.”
Gray's Rule Against Perpetuities, sec. 629. Of like effect are 41
Am. Jur., sec. 13, p. 58, and Rose v. Rose, 191 Va. 171, 174, 60
S.E.(2d) 45.
In clause “Second” of the will the trust is set up, and by clause
“Third” full power is bestowed upon the trustee to invest and
reinvest the estate and collect the income for the purposes and
uses of the trust. In paragraphs (1) and (2), respectively, of clause
“Second” in clear and definite language the discretion, power and
authority of the trustee in its disposition and application of the
income are specified and limited. Yearly on the last school day
before Easter and Christmas each youthful beneficiary of the
testator's generosity is to be paid an equal share of the income. In
mandatory language the duty and the duty alone to make cash
payments to each individual child just before Easter and
Christmas is enjoined upon the trustee by the certain and explicit
words that it “shall divide the net income * * * and shall pay one of
such equal shares to each child in such grades.”
Without more, that language and the occasions specified for
payment of the funds to the children being when their minds and
interests would be far removed from studies or other school
activities definitely indicate that no educational purpose was in the
testator's mind. It is manifest that there was no intent or belief that
the funds would be put to any use other than such as youthful
impulse and desire might dictate. But in each instance

925
immediately following the above-quoted language the sentence
concludes with the words or phrase “to be used by such child in
the furtherance of his or her obtainment of an education.” It is
significant that by this latter phrase the trustee is given no power,
control or discretion over the funds so received by the child. Full
and complete execution of the mandate and trust imposed upon
the trustee accomplishes no educational purpose. Nothing toward
the advancement of education is attained by the ultimate
performance by the trustee of its full duty. It merely places the
income irretrievably and forever beyond the range of the trust.
Appellant says that the latter phrase, “to be used by such child
in furtherance of his or her obtainment of an education”, evinces
the testator's dominant purpose and intent. Yet it is not denied
that the preceding provision “shall divide the net income into as
many equal parts * * * and shall pay one of each equal parts to
such child” is at odds with the phrase it relies upon. The
appended qualification, it says, however, discloses a controlling
intent that the 450 or more shares are to be used in the
furtherance of education, and it was not really intended that a
share be paid to each child so that he or she could during the
Christmas and Easter holidays, or at any other time, use it
“without let or hindrance, encumbrance or care.” With that
construction we cannot agree. In our opinion, the words of the will
import an intent to have the trustee pay to each child his allotted
share. If that be true,—and it is directed to be done in no
uncertain language—we know that the admonition to the children
would be wholly impotent and of no avail.
In construing wills, we may not forget or disregard the
experiences of life and the realities of the occasion. Nor may we
assume or indulge in the belief that the testator by his injunction
to the donees intended or thought that he could change childhood
nature and set at naught childhood impulses and desires.
Appellant asserts that literal performance of the duty imposed
upon it—pay to each child his share—would be impracticable and
should not be done. Its position in that respect is stated thus: “We
do not understand that under the law of Virginia a court would pay
money for education into the hands of children who are incapable
of handling it.” It then says that the funds could be administered
by a guardian or under sec. 8-751, Code, 1950 (where the

926
amounts are under $500), a court could direct payment to be
made to the recipient's parents.
With these statements, we agree. But because the funds could
be administered under applicable statutes has no bearing upon
nor may that device be resorted to as an aid to prove or establish
the testator's intent. We are of opinion that the testator's dominant
intent appears from and is expressed in his unequivocal direction
to the trustee to divide the income into as many equal parts as
there are children beneficiaries and pay one share to each. This
expressed purpose and intent is inconsistent with the appended
direction to each child as to the use of his respective share and
the latter phrase is thus ineffectual to create an educational trust.
The testator's purpose and intent were, we think, to bestow upon
the children gifts that would bring to them happiness on the two
holidays, but that falls short of an educational trust.
If it be determined that the will fails to create a charitable trust
for educational purposes (and our conclusion is that it is
inoperative to create such a trust), it is earnestly insisted that the
trust provided for is nevertheless charitable and valid. In this
respect it is claimed that the two yearly payments to be made to
the children just before Christmas and Easter produce “a
desirable social effect” and are “promotive of public convenience
and needs, and happiness and contentment” and thus the fund
set up in the will constitutes a charitable trust. 2 Bogert on Trusts,
sec. 361, p. 1090, and 3 Scott on Trusts, sec. 368, p. 1972.
The definition of the word “charity” as it appears in Collins v.
Lyon, supra, is relied upon to sustain this position. In that decision
the meaning of the word “charity” as given in Wilson v. First Nat.
Bank, 164 Iowa 402, 145 N.W. 948, was quoted with approval as
follows:
“The word ‘charity’, as used in law, has a broader meaning
and includes substantially any scheme or effort to better the
condition of society or any considerable portion thereof. It
has been well said that any gift not inconsistent with
existing laws, which is promotive of science or tends to the
education, enlightenment, benefit, or amelioration of the
condition of mankind or the diffusion of useful knowledge,
or is for the public convenience, is a charity.”

927
 Numerous cases that deal with and construe specific provisions
of wills or other instruments are cited by appellant to uphold the
contention that the provisions of this will, without reference to and
deleting the phrase “to be used by such child in the furtherance of
his or her obtainment of an education” meet the requirements of a
charitable trust....
Upon examination of these decisions, it will be found that where
a gift results in mere financial enrichment, a trust was sustained
only when the court found and concluded from the entire context
of the will that the ultimate intended recipients were poor or in
necessitous circumstances.
A trust from which the income is to be paid at stated intervals to
each member of a designated segment of the public, without
regard to whether or not the recipients are poor or in need, is not
for the relief of poverty, nor is it a social benefit to the community.
It is a mere benevolence—a private trust—and may not be upheld
as a charitable trust. Restatement of the Law of Trusts, sec. 374,
p. 1156:
“* * * if a large sum of money is given in trust to apply the
income each year in paying a certain sum to every
inhabitant of a city, whether rich or poor, the trust is not
charitable, since although each inhabitant may receive a
benefit, the social interest of the community as such is not
thereby promoted.”
In 2 Bogert on Trusts, sec. 380, we find:
“As previously stated, gifts which are mere exhibitions of
liberality and generosity, without regard to their effect upon
the donees, are not charitable. There must be an
amelioration of the condition of the donees as a result of
the gift, and this improvement must be of a mental,
physical, or spiritual nature and not merely financial. Thus,
trusts to provide gifts to children, regardless of their need,
or to make Christmas gifts to members of a certain class,
without consideration of need or effect, are not charitable. *
* *.” (p. 1218.)
“Gifts which are made out of mere sentiment, and will have no
practical result except the satisfying of a whim of the donor, are

928
obviously lacking in the widespread social effect necessary to a
charity.” (p. 1219.)
Of the cases relied upon in which the trust was sustained as
charitable In re Mellody (Branwood v. Haden), 1918, 1 Ch. 228,
87 L.J. Ch. 185, 118 L.T. 155, and In re Estate of Nilson, 81 Neb.
809, 116 N.W. 971, appear to be as much if not more in point with
appellant's contention than any others.
In the Mellody Case income from the trust fund was to be used
by the trustee “to provide an annual treat or field day for the
schoolchildren of Turton or as many of such children as the same
will provide for.” It will thus be seen that the trustee had control of
and administered the income from the fund and it was devoted to
a supervised annual outing for school children as such. Its
intended use bore a direct relationship to their schooling and
education. The court held that it was a charitable trust because it
(1) tended to the advancement of education, and (2) was “for
purposes beneficial to a particular section of the community.”
Speaking of the annual treat or field day provided for, it said:
“It may well be made, and, I doubt not, often is made, the
occasion for pointing out to the children those objects of the
countryside and nature about which during their school
hours they have read in their books, or which they have
seen in the pictures displayed upon the walls of their
schoolroom. * * *.”
In the Nilson Case, the testator, a then resident of Nebraska,
recited in his will that—“Sixth. Being a native of the Tjosvold,
Harmoen, Kingdom of Norway, where fishing and sailing are the
chief industries, and being acquainted with the social and
industrial conditions of the poorer classes of Norway, my
sympathies go out to industrious and deserving servant girls, and
to widows and orphans of deceased fishermen and sailors.
Desiring to relieve such servant girls and widows and orphans, I
give and bequeath to Akre church congregation (Akre Kirksogn)
six thousand dollars, to be invested * * *”, and the interest to be
distributed on each “Christmas to worthy and needy servant girls
and the widows and orphans of deceased sailors and fishermen
who are not a public charge.” (pp. 810, 811 of 81 Neb.)

929
 The pastor of the congregation or parish, the president of the
county commissioners, and the county treasurer of Akre Kirksogn,
Norway, and their successors in office were designated trustees.
They were peculiarly well situated to know and select who were in
need of and deserving of the testator's assistance. Though the
language used excludes from the class of beneficiaries those who
are public charges, the context of the entire will when the trustees
selected and their implied powers and discretion are taken into
account sufficiently authorizes selection by them of beneficiaries
from the designated class who are in need, deserving and worthy
of help. The court said:
“We are also of the opinion that the designation of the
respective officers whose duty it shall be ‘to carry out the
provisions of this bequest’ impliedly confers upon these
officials the power to select from within the class the
individuals who shall receive the bounty. It was, no doubt,
with reference to the peculiar opportunities for knowledge
as to the condition of the poor servant girls and widows and
orphans afforded to these officers by virtue of their church
relations that the testator selected them to execute the
trust. It was impossible for him to select the individuals. He
could only designate a class, and leave it to his trustees to
select the individual beneficiaries of the charity, and no one
seemed to him to be better fitted or to possess better
qualities than those who resided among the poor people
whom he wishes to help. * * *” (81 Neb. at p. 823.)
In Goodell v. Union Association of Children, etc., 29 N.J. Eq.
32, a bequest of $1,000 was left to Trinity Church Sunday School
with directions that it be safely invested and the interest used to
secure Christmas presents for the scholars of that school. There
was no indication that the recipients were to be those found to be
in necessitous circumstances nor is any implied power or
discretion given to limit or apply the income to such individuals. In
the following language, the court declared that no charitable trust
was created:
“* * * What the gifts are to be does not appear. It does not
appear that they are even to be rewards of merit, or to be
used as means of inducing attendance on the part of the
scholars at the school, or of promoting their good conduct

930
 there, or of inciting them to attention to religious instruction
given to them there; nor whether they are to be given to all
the scholars or part only. The gift is in trust, and it is not a
charity in the legal sense. It is void.” (29 N.J. Eq. p. 35).
...
Nor do we find any language in this will that permits
the trustee to limit the recipients of the donations to the
school children in the designated grades who are in
necessitous circumstances, and thus bring the trust
under the influence of the case styled Appeal of Eliot, 74
Conn. 586, 51 A. 558.
The conclusion there reached was that where a trust is set up
and a class is designated as beneficiary which generally contains
needy persons, the testator will be presumed to have intended as
recipients those members of the class who are in necessitous
circumstances.
Payment to the children of their cash bequests on the two
occasions specified would bring to them pleasure and happiness
and no doubt cause them to remember or think of their benefactor
with gratitude and thanksgiving. That was, we think, Charles B.
Henry's intent. Laudable, generous and praiseworthy though it
may be, it is not for the relief of the poor or needy, nor does it
otherwise so benefit or advance the social interest of the
community as to justify its continuance in perpetuity as a
charitable trust.
...
Here the ultimate beneficiaries of the class are not uncertain or
indefinite. They are the pupils in the three designated grades of
John Kerr School, and though difficulty is encountered in
determining which of the inconsistent provisions of the will
expresses the testator's dominant intent, yet once his true intent
is ascertained the purpose of the trust is not uncertain or
indefinite. It is that the school children receive their two payments
on the designated times and occasions and that, as we have said,
evinces no general charitable intent. No intent to apply the
income to educational, charitable or eleemosynary purposes as
required by the statute is disclosed.

931
 ...
No error is found in the decrees appealed from and they are
affirmed.
—————

Notes
1. The Rule Against Perpetuities: One of the benefits of
classifying a trust as a charitable trust is that it is not subject to
the Rule Against Perpetuities. Saying that the trust is not subject
to the Rule Against Perpetuities de facto means that the trust
could last forever. If a trust does not qualify as a charitable trust, it
is subject to the Rule Against Perpetuities. Historically, a private
trust could not last forever—going on from generation to
generation in perpetuity. The Rule Against Perpetuities essentially
required a trust's future interests to vest within the lives in being
at the time the trust was created, plus 21 years, or the future
interest in question was invalid. Full and proper treatment of the
Rule Against Perpetuities is beyond the scope of this course, but
under the common law approach to the Rule Against Perpetuities,
if the interest violated the Rule, it was void from the moment of its
attempted creation. Hence the claim in Shenandoah Valley made
by the decedent's next of kin. Because the testamentary trust was
in the residuary clause, if the trust failed the property would
immediately fall to intestacy, where the remote heirs would take.1
The modern trend views the Rule Against Perpetuities with
disfavor. Most jurisdictions have modified the Rule, if not
abolished it. The most common modern trend approach to the
Rule Against Perpetuities is to apply the “wait and see” approach.
Rather than striking down a conveyance because it might violate
the Rule Against Perpetuities, the modern trend approach prefers
to wait and let the perpetuities period run before declaring a
conveyance that otherwise would violate the common law
approach invalid. Some jurisdictions apply the “wait and see”
approach using the common law perpetuities period (lives in
being plus 21 years), while other jurisdictions use a statutorily
fixed number of years (typically 90 years—based on the logic that
the average life in being at the time the interest was created
would live 69 years, plus 21 years, which equals 90 years).

932
 California has essentially adopted the Uniform Statutory Rule
Against Perpetuities.
CPC §21205. California rule against perpetuities
A nonvested property interest is invalid unless one of the
following conditions is satisfied:
(a) When the interest is created, it is certain to vest or
terminate no later than 21 years after the death of an
individual then alive.
(b) The interest either vests or terminates within 90 years
after its creation.
If a conveyance is valid under the traditional common law test
(subpart (a)), the interest is valid under the Uniform Statutory
approach. If the interest is not valid under the traditional common
law approach, the courts should wait for 90 years to see if the
interest either vests or terminates. The Rule Against Perpetuities
is not what it used to be.
In addition to changes to the Rule Against Perpetuities, the
modern trend approach to trust law has changed its approach to
the requirement that a trust must have ascertainable
beneficiaries. To the extent a trust fails as a charitable trust, de
facto it is a private trust that historically typically would fail for lack
of ascertainable beneficiaries. The modern trend, however, is to
permit noncharitable private trusts that lack ascertainable
beneficiaries (see Chapter 12). Both the Uniform Probate Code
and Uniform Trust Code (“UTC”) expressly permit noncharitable
purpose trusts for any and all lawful purposes even though there
is no ascertainable beneficiary. UPC §2-907; UTC §409. Such
trusts may last for 21 years, but no longer. This statutory
movement clarifies the legality of noncharitable purpose trusts
and accordingly eliminates the need to litigate over whether they
qualify as honorary trusts and whether they are valid under the
Rule Against Perpetuities.
California has adopted the core concept of the noncharitable
private trust as permitted under the Uniform Probate Code.
CPC §15211. Viability of noncharitable private trusts without
a beneficiary

933
 A trust for a noncharitable corporation or unincorporated
society or for a lawful noncharitable purpose may be
performed by the trustee for only 21 years, whether or not
there is a beneficiary who can seek enforcement or
termination of the trust and whether or not the terms of the
trust contemplate a longer duration.
The interaction between the maximum trust duration permitted
under California's revised Rule Against Perpetuities and
California's noncharitable private trust provisions is a bit
ambiguous. Where two statutory provisions overlap and are
inconsistent, a general rule of statutory construction is that the
more specific statutory provision controls over the more general
statutory provision. It would seem that the 21-year limit in the
California noncharitable purpose trust statute for noncharitable
purpose trusts should control over the longer 90-year option
under the California Statutory Rule Against Perpetuities.
What would be the likely outcome today if the Shenandoah
Valley case were to arise in California?
2. Charitable purpose—settlor's intent versus effect: The
RESTATEMENT OF THE LAW's list of charitable purposes quoted by
the court in Shenandoah Valley is the most common starting point
for analyzing whether a trust's purpose is charitable. In fact, the
California statutory definition of “charitable purpose” is almost
identical. CPC §18502 (a). Where there is ambiguity with respect
to whether a trust purpose qualifies as charitable, most courts will
take extrinsic evidence on the issue.
As the court's opinion in Shenandoah Valley indicates, the
settlor's subjective intent as to the trust's purpose does not
necessarily control. While charitable trusts are generally
considered favorably—and thus historically were treated favorably
under the law (not subject to the Rule Against Perpetuities)—the
courts served as something of a gatekeeper to the status of
charitable trust. The requirement that the trust purpose be
charitable de facto permitted the courts to regulate which trusts
qualified and which did not. The settlor's intent, standing alone,
does not control. The court must also agree that the trust's
purpose is charitable in nature and will serve the public's interests
and benefit. The purpose being served need not be one that most

934
people would consider beneficial to the public, but the court must
be persuaded that the purpose would have sufficient meaningful
beneficial effect for society to warrant granting it charitable status.
In Medical Society of South Carolina v. South Carolina National
Bank of Charleston, 14 S.E.2d 577 (S.C. 1941), the testatrix
devised her home and her collection of “silver, enamels,
porcelain, jade, bronzes, carpets, rugs, pictures, engravings,
books, laces, kashmir shawls, and other articles of interest” in
trust to her Board of Trustees to be operated as the Ross
Memorial Public Museum. Id. at 578. After taking testimony from
experts in the field, the court concluded that because the items
being bequeathed to the trust were “of little or no value to the
public” and because the collection could not grow, the gift lacked
sufficient public benefit to qualify as a charitable trust. Id. at 581.
As the court noted, “there can be no rule laid down for all such
cases as to what is educational or of other benefit so as to
constitute a public charity and, in effect, that each case must
stand upon its own facts and be governed thereby.” Id.
3. Judicial view versus IRS view: Whether a trust has a
charitable purpose is a judicial question, not a question for the
Internal Revenue Service. Technically, whether a trust qualifies as
a charitable trust for tax purposes is irrelevant to the question of
whether the trust qualifies as a charitable trust for judicial
purposes. As a practical matter, however, qualifying a trust as a
charitable trust with the Internal Revenue Service for tax
purposes greatly increases the chances that the trust will also
qualify as a charitable trust for judicial purposes.
4. Mixed trust: A “mixed trust” is one where the trustee is
authorized to use the trust property for both charitable and
noncharitable purposes. Depending on the details of the mixed
use, the mixed trust may or may not qualify as a charitable trust.
Where the trustee has the unfettered discretion to
simultaneously use the trust property for both charitable and
noncharitable purposes, the courts have held that a mixed trust
fails as a charitable trust. This is because, in order to qualify as a
charitable trust, the trustee must be bound to use the trust
property for charitable purposes only.

935
 Whether a trust constitutes a mixed trust depends on the
language in the trust instrument. Where the trustee has the
discretion to choose how much of the trust property goes to the
charitable purpose and how much goes to the noncharitable
purpose, the trust fails as a mixed trust. Where, however, a
trustee is given discretion to choose between a mixture of
charitable purposes, or to choose the particular charitable
purpose to which the trust property is to be applied, such a trust
qualifies as a charitable trust so long as the trustee's discretion is
limited to charitable purposes. The key is the authorizing
language granting the scope of the trustee's discretion. Where the
authorizing language expressly references charitable purposes
and also includes references to noncharitable purposes (i.e., the
language authorizing use of the funds for “other benevolent
purposes” or “or other purposes of liberality,”) the trust will likely
be construed as a mixed trust, which will fail as a charitable trust.
Proper drafting is critical when creating charitable trusts.
A mixed trust must be distinguished from a trust where the
charitable and noncharitable interests are split over time (i.e.,
when the interests are successive, not concurrent). A trust that
grants a life estate in an ascertainable beneficiary and a
remainder interest for charitable purposes (a charitable remainder
trust) does not constitute a mixed trust. Similarly, where the
interests are reversed, a charitable income interest for a period of
time, with the remainder reverting to the settlor (or other
beneficiary) is, logically, known as a charitable lead trust, and
does not constitute a mixed trust. The trust is valid as a private
trust (assuming it meets the requirements of a private trust) for
the duration of the private portion, and then the trust becomes a
valid charitable trust (assuming it meets the requirements of a
charitable trust) for the duration of the charitable portion.
These combinations of charitable and noncharitable split
interests are a specialized area of estate planning.
Notwithstanding potential conflicts of interest, attorneys who work
with the charitable organization often help draft the individual's
estate planning documents. So called “charitable estate planning”
can assist the client with both traditional testamentary/personal
goals as well as those of a charitable nature.

936
 Finally, the most difficult mixed trust is one where the trust has,
simultaneously, a valid charitable purpose and a valid private
purpose. This trust should be distinguished from the “true” mixed
trust in that, here, the beneficiaries of the private portion of the
trust are ascertainable, as is their interest. For example, assume
a settlor creates a trust for her children for life. The terms of the
trust provide that the trust income is to be used for their
comfortable support and maintenance, with any surplus income to
be used for charitable purposes. So long as the private portion of
her trust has ascertainable beneficiaries who can come into court
and enforce the private portion, she arguably created two trusts,
either expressly or de facto: one for charitable purposes and one
for private purposes. If each portion of the trust independently
meets the necessary requirements, both portions of the trust are
valid. Moreover, if the court deems that sufficient standards have
been given for each portion such that the trust could be divided
into two trusts, the court will likely uphold the trust, as opposed to
applying the general mixed trust rule and holding the trust invalid.

Problems
1. Bernie's will creates a testamentary trust “to advance the
principles of socialism.” Following his death, Bernie's heirs
challenge the validity of the trust, claiming that it lacks a
charitable purpose. How would you rule on the challenge?
Assuming, arguendo, you concluded that the trust lacked a
charitable purpose, would you void the trust immediately? See
In re Estate of Breeden, 208 Cal. App. 3d 981 (Ct. App. 1989).
What difference, if any, would it make if the testamentary trust
had been “to advance the interests and causes of the Socialist
Political Party”? See In re Liapis' Estate, 88 Pa. D. & C. 303 (P.
Orph. 1954).
2. Catherine De Mars's holographic will contained the following
residuary clause: “Any amount left go to the poor solders
Leterman Hospital.” Letterman General Hospital was a federally
maintained facility in San Francisco for the treatment and care
of soldiers, many of whom were poor. Catherine had been an
active member of a relief organization that volunteered at the
facility to help the soldiers. Catherine's heirs challenged the
validity of the gift, arguing: (1) that the beneficiaries were too

937
 indefinite, and (2) that it lacked both: (i) a charitable purpose,
and (ii) the intent to create a trust. Can the gift be construed as
a valid charitable trust? See In re De Mars' Estate, 67 P. 374
(Cal. Ct. App. 1937).
3. Settlor created a trust and instructed the trustee to use all the
net income annually for “such charitable or public uses” as the
trustee deemed appropriate. Is this a valid charitable trust?
What if the trust instructions authorized the trustee to use the
net income annually for “human beneficence and charity”? Is
this a valid charitable trust? See In re Sutro's Estate, 102 P.
920 (Cal. 1909).
4. Testator's will divided his estate into two funds, Fund A and
Fund B, and the will directed that the assets in Fund B be sold
and the proceeds be held in trust for the following purpose:
The income of said trust, or so much of the principal as in
the sole discretion of the Trustees may be deemed
desirable or advisable, is to be used for the care, comfort,
support, Medical attention, education, sustenance,
maintenance or custody of such minor Negro child or
children, whose father or mother, or both, have been
incarcerated, imprisoned, detained or committed in any
federal, state, county or local prison or penitentiary, as a
result of the conviction of a crime or misdemeanor of a
political nature.
Has testator created a valid charitable trust? See In re
Robbins' Estate, 371 P.2d. 573 (Cal. 1962)
5. Testatrix's will provided in pertinent part as follows:
Second: The ever-recurring misunderstandings between
the various nations and the peoples of different races
which impede human progress and lead to devastating
wars, are obviously attributable, in large measure, to
differences of environment and language. I believe that
these handicaps can be largely overcome, if the men and
women whose vocation vests in them the power to mold
public opinion, make a conscious effort to that end.
However, their effort will go for naught, unless based on
sound education on their own part, and thorough
understanding of the economics of the various countries
of the world, as well as their historic, diplomatic and

938
 political backgrounds. The molding of public opinion in the
United States, insofar as concerns the attitude of our
citizens toward anything foreign, rests almost entirely with
the press which, in turn, must depend upon editorial staffs
and foreign correspondents. Based on past experience, I
believe that it is fair to say that there is a woeful lack of
any real education on their part in what should be the
foundation of one of the most important patriotic
contributions which they could make to our country and
the welfare of its citizens. I have therefore long cherished
the hope that I might be able to do something to help
toward the correction of these conditions, and to that end I
hereby give and bequeath to The Trustees of The Leland
Stanford Junior University (hereinafter referred to as my
‘Trustees’) all of my estate and property, both real and
personal and wheresoever the same may be situate, in
trust for the foregoing purposes,—subject to the express
terms and conditions hereinafter set forth:
(a) My said Trustees shall establish a Foundation of World
Relations, for the aforesaid purposes; and my said
Trustees shall use and apply the net income derived from
said trust estate for the maintenance of said Foundation.
My said Trustees shall, in their own discretion, determine
from time to time the manner in which said net income
may be best expended for said purposes, in view of the
amount available therefor; and they may, if they deem
such course wise, postpone the expenditure of any sums
for my said trust purposes, until such time as the income
available therefor shall, in their opinion, be adequate to
meet such expense as may be necessary to accomplish
something substantial in the said field of learing [sic] to
which said trust is dedicated.
Has she created a valid charitable trust? See In re Estate of
Peck, 335 P.2d 185 (Cal. Dist. Ct. App. 1959).

B. Unascertainable Beneficiaries
Historically, two key variables distinguished a charitable trust
from a private trust. The first was that the trust had to be for
charitable purposes. The second variable flows from the first.

939
Inasmuch as a charitable trust must have a charitable purpose,
and inasmuch as a charitable purpose typically is for the benefit
of the public, it follows that a charitable trust should not have
ascertainable beneficiaries. Some authorities go so far as to say
that a charitable trust cannot have ascertainable beneficiaries.
While there is some truth and benefit to thinking about the
differences between private and charitable trusts in this way, as is
often the case, such an articulation can be confusing in certain
contexts. In reality, the issue of charitable purpose and
unidentifiable beneficiaries is more a trade-off between the size of
the class of potential beneficiaries and the scope of the possible
benefit to the public at large—a trade-off between the direct
beneficiaries and the indirect beneficiaries.

In re McKenzie's Estate
227 Cal. App. 2d 167 (Ct. App. 1964)
KINGSLEY, Justice.
Robert O. McKenzie died testate leaving a holographic will. The
only portion of said will in dispute herein declares:
“I want a trust to be formed payable as a reward to the person
who decides the cause of Rhomatoid [sic] Arthritis and a cure for
the same to the satisfaction of the Medical Board of the University
of Calif. at L. A.”
...
... Following the trial, the court found that the above quoted will
provision did not qualify as a charitable trust, and failed as a
private trust for lack of an identifiable beneficiary or beneficiaries
and because the interest of the beneficiary or beneficiaries
violated the rule against perpetuities in that the interest or
interests may not vest within the period required by law. As a
conclusion of law, the court declared the aforesaid residuary
clause invalid and that, “All property of decedent disposed of by
the above quoted provision of decedent's last will shall go and be
distributed to decedent's heirs-at-law by intestate succession.”
Accordingly, the trial court entered its Decree Determining Interest
in Estate, ordering the residue of the said estate distributed in
equal shares to the five heirs-at-law surviving the decedent.

940
 From this determination, the Attorney General prosecutes this
appeal.
At the outset, the Attorney General concedes that, unless the
provision of the will in issue qualifies as a charitable trust, it is
invalid for lack of an identifiable beneficiary and violation of the
rule against perpetuities. On the other hand, it is well established
that neither of these requirements or limitations on private trusts
applies to charitable trusts. (People ex rel. Ellert v. Cogswell
(1896) 113 Cal. 129, 45 P. 270, 35 L.R.A. 269; Estate of Hinckley
(1881) 58 Cal. 457.)
A charitable trust has been defined as a “* * * trust for
promoting the welfare of mankind at large, or of a community, or
of some class forming a part of it, indefinite as to numbers and
individuals.” (People ex rel. Ellert v. Cogswell, supra (1896) 113
Cal. 129, 138, 45 P. 270, 271).
Respondents argue that the beneficiary of Mr. McKenzie's gift
is one single person and not the general public; and the fact that
a public benefit may arise by reason of the work of this particular
individual is immaterial, citing Estate of Kline (1934) 138 Cal.App.
514, 32 P.2d 677.
However, “[a] trust for the prevention or cure or treatment of
diseases or otherwise for the promotion of health is charitable”
(Restatement of the Law of Trusts 2d, §372; Scott on Trusts,
§372, pp. 2661–2662); and “A bequest is charitable if: (1) It is
made for a charitable purpose; its aims and accomplishments are
of religious, educational, political or general social interest to
mankind. [Citations] (2) The ultimate recipients constitute either
the community as a whole or an unascertainable and indefinite
portion thereof. [Citations]” Estate of Henderson (1941), 17 Cal.2d
853, 857, 112 P.2d 605, 607, as quoted with approval in Estate of
Robbins (1962) 57 Cal.2d 718, 722, 21 Cal.Rptr. 797, 371 P.2d
573.) The fact that the trust assets may be paid to an individual in
no way deprives the trust of its charitable character if the ultimate
result complies with the test of charitable purpose. (Sheen v.
Sheen (1939) 126 N.J.Eq. 132, 8 A.2d 136; Matter of Judd's
Estate (1934) 242 App.Div. 389, 274 N.Y.S. 902.)
In the Judd case, the trust provision in the will directed the
trustees, “* * * out of the net income thereof to pay each year the

941
sum of one thousand dollars to the person who, in the judgment
of the trustees or other managers of said hospital, shall have
made the greatest advancement toward the discovery of a cure
for cancer. * * *”
The judgment of the trial court holding the above quoted
provision invalid was reversed on appeal, the appellate court
stating:
“The Surrogate has held the trust to be invalid because it
provides for payments to persons who shall have made the
greatest advancement in the discovery of, or who shall eventually
have discovered, a cure for cancer. These provisions, in the
opinion of the Surrogate, invalidate the trust ‘because by its terms
it provides plaintiff for a gift to an individual or individuals for his or
their own use.’ If this be the correct view, then many of the most
useful benefactions of modern times are not to be classified as
charitable.
“We think this conclusion proceeds upon too restricted a
conception of a charitable use. In reaching it, the Surrogate
considered only the immediate destination of the funds and
disregarded what seems to us the dominant purpose and the
wider implications of the trust. If the purpose of the trust were
merely to benefit research workers in cancer, it would not be
saved by reason of the useful nature of their work. [Citations.] But
this involves, we are convinced, a misconception of its purpose.
That purpose is the encouragement of research in the field of
cancer by rewarding those who shall have been most useful in
the investigation of a subject which has baffled the medical
profession. It is not to be supposed that it was the intention to
enrich the unidentified individuals who might happen to be
successful in this research work, except as this was incidental to
the achievement of a purpose to benefit mankind. The real
beneficiaries are those afflicted who are expected to benefit by
the research which may be stimulated by the hope of pecuniary
reward. The trust is not invalid merely because it contemplates
payments to individuals for their private use. That situation exists
in any charitable trust which requires for the discharge of its
functions the employment of compensated employees. They, too,
receive emoluments ‘for his or their own use.’ Yet it will not be
contended that such charities are created in order to compensate

942
their employees. They are created, as was the trust here, to
secure the advantage of their services in effectuating the objects
of the charity. Wherever the question seems to have arisen, it has
been decided in this way. [Citations.]”
By the same token, in Sheen v. Sheen (1939) 126 N.J.Eq. 132,
8 A.2d 136, the provision of the will directing the trustee “to
establish a Trust Fund, the income of which is to be used
annually for the purpose of awarding a prize to the outstanding
Doctor of Medical Science in the United States for each year” was
held to create a valid charitable trust. In answer to the contention
that the awarding of a prize to an individual is incompatible with
the trust being a charitable one, the court had this comment in
reply:
“The benefits of the award are of a two-fold nature,
first, to the outstanding doctor, a sum of money as a
prize or award, and secondly, an indefinite number of
persons in the United States, i. e., the general public,
who must necessarily receive the benefits of the
development of the science of medicine attained through
the study and research of members of the medical
profession, not only the doctor who gets paid in part for
his services, but other doctors who make research and
are not fortunate enough to receive the award. The real
benefits to the public and the benefits intended to be
secured by the trust are the results of the study and
research of the doctors of the United States, as those
results are handed down to the medical profession and
by them to their patients. * * *
“Does the fact that the trust provides for a prize or
award to the doctor invalidate an otherwise valid
charitable trust? I think not. In 14 C.J.S. Charities §15, p.
447, it is stated: ‘A bequest of a fund for the giving of
prizes and medals for educational, medical, or literary,
work, or other deeds beneficial to the general public, is a
valid charitable gift.’”
We deem both the reasoning and the logic of the Sheen and
Judd cases to be controlling in the situation before us. Here the
natural consequences of providing a reward for the discovery of

943
the cause and cure of rheumatoid arthritis is to stimulate research
in this field. In reality, the public is the true beneficiary of what will
result from the operation of this trust. The fact that a particular
individual some day may qualify to receive the reward is but the
instrumentality through which the benefits that will be bestowed
upon the public are brought about. To consider such individual the
beneficiary of the trust is to confuse the trust purpose with the
means provided for achieving that purpose.
The fact that the trust provision of decedent's will does not
provide for a trustee is in no way fatal to the validity of the trust. It
is well settled in this state that a trust will not fail for want of a
trustee. The court will appoint a trustee. (Estate of DeMars (1937)
20 Cal.App.2d 514, 67 P.2d 374; Fay v. Howe (1902) 136 Cal.
599, 69 P. 423; Estate of Upham (1899) 127 Cal. 90, 59 P. 315.)
Nor does this trust fail by reason of the fact that the income of the
trust may be accumulated for longer than the period allowed by
Section 724 of the Civil Code, because charitable trusts are
exempt from restrictions pertaining to accumulations. However,
the matter is one that is subject to judicial supervision (Scott on
Trusts, §401.9.)
We recognize that, in addition to a possible necessity for
dealing, at a future date, with the problem of accumulated
income, there may arise other problems of interpretation in the
event that one person may claim to have shared in the discovery
of the cause but not the cure of the disease involved, while the
cure may be the discovery of a second person. But these
problems may, or may not, ever arise. When, and if, they do, the
court can make appropriate orders in the exercise of its
continuing supervisory powers over its trustee. The mere
possibility of the problems does not affect the existence or the
validity of the trust itself.
The decree appealed from is reversed and the matter is
remanded to the trial court with directions to enter a decree
sustaining the trust, appointing a trustee, and distributing the
residuary estate to such trustee, such decree to reserve in the
court power, on proper application, to instruct the trustee in the
event any problem in interpretation of the trust or in the
management of the trust estate shall hereafter arise.

944
 —————

Problem
Testatrix's will creates a testamentary trust. The trust provisions
instruct the trustee to use the net income to maintain lots #29 and
#30 and their immediate surroundings in the Wilmington and
Brandywine Cemetery. The trust agreement also provides that
any excess net income shall “accumulate” to be used (i) “for the
renewal and replacement ... of the vaults, monuments, [and] iron
fence railing,” (ii) “for the defence [sic], if needful, against any
attempt to condemn the property for any purpose whatsoever,”
and (iii) if that defense is unsuccessful, “to remove the bodies”
from the burial lots “to another location.” Has the settlor created a
valid charitable trust? See In re Latimer Trust, 78 A.3d 875 (Del.
Ch. 2013).

945
 II. Standing to Enforce
Historically, one of the reasons for requiring that the
beneficiaries of a private trust be ascertainable is because the
court needs to know who has standing to sue to enforce the terms
of the trust against the trustee. Inasmuch as the beneficiaries of a
charitable trust cannot be ascertainable, who has standing to sue
to enforce the terms of the charitable trust against the trustee?

Patton v. Sherwood
152 Cal. App. 4th 339 (Ct. App. 2007)
YEGAN, J.
...
Facts and Procedural History
In 2002 appellant Lowell T. Patton and his wife, Mary Lou
Patton, created three CRUTs [charitable remainder unitrusts2] for
their children.... The CRUTs named the children as income
beneficiaries and named four charities as remainder beneficiaries.
The CRUTS were prepared by Attorney Matthew B. Mack of
Estate Strategies for Charities, Inc. They were funded with
professional minor league baseball stock valued at $2.4 million.
Mack named himself administrative trustee and named Mark C.
Sherwood management trustee.
Each CRUT provided that the trustor (appellant) reserved the
right to change a remainder beneficiary and reserved the right
remove and replace the trustees. The CRUTs required that the
administrative trustee prepare annual accountings and that
appellant agrees “to review and approve or object to the
Accounting within ninety (90) days from the date the accounting is
mailed.” (CRUTS, article 5, §5.3, subd. 5.3.5.) If the “Trustor ...
objects in writing to the Accounting within ninety (90) days, then
the Objector shall have one year from the date the accounting is
mailed in which to bring a claim for breach of trust, petition for a
court supervised accounting, or to commence an action for other
remedies.” (Ibid.)

946
 On February 4, 2005, appellant filed a petition to remove Mack
and Sherwood as trustees. Mack and Sherwood claimed they had
already resigned as trustees of one CRUT and declined to step
down as trustees of the two other CRUTs until they were released
from liability and awarded fees and expenses.
The trial court granted appellant's petition to remove Mack and
Sherwood as trustees of the remaining CRUTs. The court
appointed the Ventura County Public Guardian as successor
trustee.
In a separate petition, Mack and Sherwood requested that the
trial court settle their accounting, pay their fees and costs, and
discharge them of liability. Appellant propounded discovery and
objected to the accounting, alleging that Mack and Sherwood had
charged excessive fees and breached their fiduciary duties. The
trial court ruled that appellant lacked standing, relying on section
17200. The trial court said that only a trust beneficiary or trustee
had standing to object to a trust accounting.
The Common Law
It is well established that the settlor of a charitable trust who
retains no reversionary interest in the trust property lacks
standing to bring an action to enforce the trust independently of
the Attorney General. (O'Hara v. Grand Lodge I.O.G.T. (1931)
213 Cal. 131, 139, 2 P.2d 21; Brown v. Memorial Nat. Home
Foundation (1958) 162 Cal.App.2d 513, 538, 329 P.2d 118.)
Under the common law, the state, as parens patriae, superintends
the management of charitable trusts and acts through its attorney
general. (Estate of Schloss (1961) 56 Cal.2d 248, 257, 14
Cal.Rptr. 643, 363 P.2d 875; see Gov.Code, §12598, subd. (a)
[Uniform Supervision of Trustees For Charitable Purposes Act].)
“Other than the Attorney General, only certain parties who have a
special and definite interest in a charitable trust, such as a
trustee, have standing to institute a legal action to enforce the
assets of the trust. [Citations.] This limitation on standing arises
from the need to protect the trustee from vexatious litigation,
possibly based on an inadequate investigation, by a large,
changing, and uncertain class of the public to benefited.
[Citation.]” (Hardman v. Feinstein (1987) 195 Cal.App.3d 157, 161
–162, 240 Cal.Rptr. 483.)

947
 Settlor's Reserved Power
Appellant meritoriously argues that the settlor of a charitable
trust may, under the terms of the trust instrument, reserve the
power to object to a trustee accounting. In L.B. Research and
Education Foundation v. UCLA Foundation, (2005) 130
Cal.App.4th 171, 29 Cal.Rptr.3d 710, a donor gifted $1 million to
the UCLA Foundation (Foundation) to establish an endowed chair
at the UCLA School of Medicine. Donor and Foundation executed
a contract providing that the money would be used by qualified
chair holders to support basic science research activities. (Id., at
p. 175, 29 Cal.Rptr.3d 710.) The contract provided that if the
funds were not used for the designated purpose, the gift would
revert to a contingent donee, the University of California San
Francisco, School of Medicine. (Id., at p. 175–176, 29 Cal.Rptr.3d
710.) Donor sued for specific performance, declaratory relief, and
breach of contract alleging that Foundation had failed to provide
an accounting or employ personnel meeting the criteria for the
chair endowment. Foundation defended on the theory that the
donor had created a charitable trust which only the Attorney
General had standing to enforce. The trial court found that donor
lacked standing to sue and granted judgment on the pleadings.
The Court of Appeal reversed on the theory that donor was
suing on a contract subject to a condition subsequent and had
standing to sue. (L.B. Research and Education Foundation v.
UCLA Foundation, supra, 130 Cal.App.4th at p. 175, 29
Cal.Rptr.3d 710.) In dicta, the court stated that the result would be
the same had the donor created a charitable trust. (Id., at p. 180,
29 Cal.Rptr.3d 710.) It cited Holt v. College of Osteopathic
Physicians & Surgeons (1964) 61 Cal.2d 750, 40 Cal.Rptr. 244,
394 P.2d 932 for the principle that “the ‘prevailing view of other
jurisdictions is that the Attorney General does not have exclusive
power to enforce a charitable trust and that a trustee or other
person having a sufficient special interest may also bring an
action for this purpose. This position is adopted by the American
Law Institution (Rest.2d Trusts, §391) and is supported by many
scholars. [Citations.]’” (L.B. Research and Education Foundation
v. UCLA Foundation, supra, 130 Cal.App.4th, at p. 180, 29
Cal.Rptr.3d 710.)

948
 The court in L.B. Research & Education Foundation v. UCLA
Foundation acknowledged that statutes authorizing the Attorney
General to enforce charitable trusts were enacted to provide
adequate supervision and enforcement of charitable trusts. (Id., at
p. 181, 29 Cal.Rptr.3d 710.) “‘[T]he Attorney General has been
empowered to oversee charities as the representative of the
public, a practice having its origin in the early common law.’
[Citation.] [¶] ‘In addition to the general public interest, however,
there is the interest of donors who have directed that their
contributions be used for certain charitable purposes. Although
the public in general may benefit from any number of charitable
purposes, charitable contributions must be used only for the
purposes for which they were received in trust. [Citations.]
Moreover, part of the problem of enforcement is to bring to light
conduct detrimental to a charitable trust so that remedial action
may be taken.’” (Ibid.)
Under the terms of the CRUTs, appellant reserved the power to
change the remainder beneficiaries, remove and replace trustees,
receive and object to trust accountings, “to bring a claim for
breach of trust,” and petition for a court supervised accounting.
(CRUTS article 5, §5.3, subd. 5.3.5.) If appellant has standing to
compel an accounting, he has the associated right to object to the
accounting. (Campisi and Latham, Cal. Trust and Probate
Litigation (Cont. Ed. Bar 2006) §13.40, p. 425.)
As explained in Holt v. College of Osteopathic Physicians &
Surgeons, supra, 61 Cal.2d at pages 755–756, 40 Cal.Rptr. 244,
394 P.2d 932: “There is no rule or policy against supplementing
the Attorney General's power of enforcement by allowing other
responsible individuals to sue in behalf of the charity. The
administration of charitable trusts stands only to benefit if in
addition to the Attorney General other suitable means of
enforcement are available.” (Fn. omitted; see also San Diego etc.
Boy Scouts of America v. City of Escondido (1971) 14 Cal.App.3d
189, 195, 92 Cal.Rptr. 186 [“right of the Attorney General to sue
to enforce a charitable trust is not exclusive; other responsible
individuals may be permitted to sue on behalf of the charity.”]
Standing To Sue As A Beneficiary

949
 Respondents argue that section 17200 trumps any reserved
power in the trust instruments and that standing is jurisdictional.
(See Johnson v. Tate (1989) 215 Cal.App.3d 1282, 1285, 264
Cal.Rptr. 68, citing Estate of Bissinger (1964) 60 Cal.2d 756, 764,
36 Cal.Rptr. 450, 388 P.2d 682.) Section 17200 provides that only
a trustee or “beneficiary” may petition the probate court
“concerning the internal affairs of a trust.” (See Esslinger v.
Cummins (2006) 144 Cal.App.4th 517, 524, 50 Cal.Rptr.3d 538
[remainder beneficiary standing].) Section 24 states: “‘Beneficiary’
means a person to whom a donative transfer of property is made
or that person's successor in interest, and: ... [¶] (d) As it relates
to a charitable trust, includes any person entitled to enforce the
trust.” (Emphasis added.)
The trial court erroneously construed section 24, subdivision (d)
to mean that a beneficiary must be a person to whom a donative
transfer of property is made and must also be a person who is
entitled to enforce the trust. It ruled that the CRUTs “contain
language that suggests that a trustor may object to an
accounting” but concluded that “a trust instrument cannot convey
standing to a trustor to object to an accounting when the
legislature has only given that authority to trustees and
beneficiaries.”
...
The first sentence of section 24 states that “‘Beneficiary’ means
a person to whom a donative transfer of property is made or that
person's successor in interest....” The Legislature used the word
“and” to link this sentence to subparagraph (d) which states: “As it
relates to a charitable trust, includes any person entitled to
enforce the trust.”
Respondents contend that the phrase “includes any person” is
a qualifying clause, intended to narrow the class of beneficiaries
who can object to an accounting. We reject the argument....
The word “includes” is ordinarily a word of enlargement, not
limitation. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101, 17
Cal.Rptr.2d 594, 847 P.2d 560; Oil Workers Intl. Union v. Superior
Court (1951) 103 Cal.App.2d 512, 570, 230 P.2d 71.) Here the
phrase “includes any person,” as used in section 24, subdivision
(d), expands the class of persons who may bring an action to

950
enforce a charitable trust. One such person is the Attorney
General. (See Ross, Cal. Practice Guide, Probate (Rutter 2006)
§3.83.3, p. 3-31 [construing “any person entitled to enforce the
trust” to be the California Attorney General].) Section 24,
subdivision (d), includes other interested persons, otherwise it
would be redundant with section 17210 which provides that the
Attorney General may stand in the place of the beneficiaries to
enforce the charitable trust. (See Law Revision Com. com. (1990)
Enactment, reprinted at 54 West's Ann. Prob.Code (1991) foll.
§17210, p. 207; Estate of Schloss (1961) 56 Cal.2d 248, 257, 14
Cal.Rptr. 643, 363 P.2d 875.)
Respondents cite older cases holding that settlors/trustors have
no standing to bring an action to enforce a charitable trust....
Those cases, however, predate the 1983 enactment of section 24
which provides: “Beneficiary, as it relates to trust beneficiaries,
includes a person who has any present or future interest, vested
or contingent, and also includes the owner of an interest by
assignment or other transfer and as it relates to a charitable trust,
includes any person entitled to enforce the trust.” (Emphasis
added.) Section 24 was a new provision to the Probate Code....
...
We hold that section 24, subdivision (d) permits the settlor of a
charitable trust to object to an accounting where the settlor has
reserved the power in the trust instrument. Like the donor in L.B.
Research & Education Foundation v. UCLA Foundation, supra,
130 Cal.App.4th 171, 29 Cal.Rptr.3d 710, appellant reserved the
power to receive and object to accountings, to petition for a court
supervised accounting, and to bring a claim for breach of trust.
Our holding is not only consistent with the law, but encourages
the salutary goal of making charitable donations. Charitable gifts
“on condition” that the money is used for the intended gift purpose
would give the trust settlor peace of mind that his or her gift will
actually be used for a charitable purpose. What better way to see
that the gift is delivered than to have an accounting?
The judgment (order overruling appellant's objections to the
trustee accountings) is reversed. Appellant is awarded costs on
appeal.
—————

951
 Notes
1. Common law approach—attorney general: As the court in
Patton notes, the traditional common law approach granted only
the attorney general standing to enforce the terms of a charitable
trust. Over time, however, that approach was criticized on a
number of grounds, most notably that the attorney general's office
simply lacked the manpower to keep track of every charitable
trust and whether the trustees were complying with the terms of
those trusts. Pressure built to expand the scope of the parties
who had standing to enforce the terms of a charitable trust, while
at the same time there was a need to be sensitive to the counter-
concern mentioned in the court's opinion: “to protect the trustee
from vexatious litigation, possibly based on an inadequate
investigation, by a large, changing, and uncertain class of the
public to be benefited.”
The common law rule is no longer the general rule. That being
said, any given member of the public generally lacks standing to
enforce the terms of a charitable trust. Most jurisdictions have
attempted to find some middle ground—some way of recognizing
that certain individuals may have a special relationship to the
charitable trust that justifies granting them standing to sue to
enforce the terms of a charitable trust.
2. Co-trustee: Obviously a trustee has an interest in the trust.
He or she holds legal title. Moreover, a trustee owes a fiduciary
duty to the trust. Where there is more than one trustee, a trustee
can sue his or her co-trustee(s) to enforce the terms of a
charitable trust against a trustee who is breaching those terms.
The California Supreme Court so ruled in Holt v. College of
Osteopathic Physicians and Surgeons, 61 Cal.2d 750 (1964).
There, a majority of trustees of a charitable corporation were
threatening action that arguably would constitute a breach of
trust. The Court held that the corporation's minority trustees had
standing to sue the majority trustees. The Court reasoned that
California's Uniform Supervision of Trustees for Charitable
Purposes Act, which authorized the Attorney General to supervise
charitable trusts, did not preclude trustees from having standing
to bring an action to enforce the terms of the trust. Arguably, the

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same logic applies to a successor trustee, as so held by courts in
other jurisdictions (the issue has not yet arisen in California).
3. Beneficiary: In a private trust, the beneficiary is the party
most likely to bring a suit against the trustee to enforce the terms
of the trust. Historically, a beneficiary had standing if he or she
had an interest in the trust that would be or was adversely
affected by the trustee's action or inaction (or proposed action or
inaction).
Charitable trusts, however, are typically for the benefit of the
public (or a relatively large subset of the public). It is, therefore,
easy to understand the common law's reluctance to grant any and
all members of the public standing to sue the trustee of a
charitable trust. Offsetting the concern for “vexatious litigation,”
however, is the concern that granting standing only to the attorney
general to enforce the terms of a charitable trust may equate to,
for all practical purposes, virtually no enforcement. Accordingly,
the modern trend has been to articulate a middle ground by
identifying members of the public with a special relationship to the
trust. Increasingly, courts are holding that those members of the
public with a special interest in the charitable trust have standing
to enforce the terms of the trust.
The RESTATEMENT (THIRD) OF TRUSTS expressly provides that
standing includes “anyone who has a special interest in the
enforcement of the trust.” RESTATEMENT (THIRD) OF TRUSTS §94(2).
Having a “special interest” requires more of an interest than that
the person was a potential beneficiary, but what exactly
constitutes a special interest is extremely fact sensitive and
remains at the court's discretion. As the official Comment to
Subsection (2), note (g), states:
The special-interest concept and its application involve a
balancing of policy concerns and objectives. The special-
interest requirement provides a safeguard for charitable
resources and trustees by limiting the risk, and frequency,
of potentially costly, unwarranted litigation; but the
recognition of special-interest standing, in appropriate
situations, is justified by society's interest in honoring
reasonable expectations of settlors and the donor public
and in enhancing enforcement of charitable trusts, in light

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 of the limitations (of information and resources, plus other
responsibilities and influences) inherent in Attorney
General enforcement.
While in Patton the court did not expressly adopt the “special
interest” approach, the court in Patton did acknowledge that the
California Supreme Court, in a prior opinion, had noted favorably
that other jurisdictions have adopted and applied the “special
interest” approach. See Holt v. College of Osteopathic Physicians
and Surgeons, 61 Cal.2d 750 (1964). One could argue that the
California courts have implicitly endorsed the “special interest”
approach, though neither court expressly invoked or relied on it to
justify its holding.
4. Settlor: As a general rule, the party must have an interest in
the trust to have standing to enforce the terms of a trust. If the
trust is a revocable trust, the settlor maintains an interest in the
trust and thus generally has standing (though one might assume
it would be easier to revoke the trust than to sue to enforce its
terms against a reluctant or breaching trustee). Where a trust is
irrevocable, however, the general rule is the settlor has no interest
in the trust and thus has no standing.
Historically, this same logic applied to the trustee of a charitable
trust. Assuming the trust was irrevocable, the settlor had no
standing to enforce the terms of the trust. The modern trend,
however, is moving toward granting the settlor standing if he or
she has some rights under the terms of the trust. Where a settlor
has retained a reversionary interest in the trust, that interest is
increasingly considered sufficient to find that the settlor has
standing to sue to enforce the terms of the trust. Where a settlor
has retained some role in the administration of the trust, such as
the settlor's right to receive and approve the accountings, as in
the Patton case, courts are increasingly granting the settlor
standing—just as the court did in Patton.
The RESTATEMENT (THIRD) OF TRUSTS and the Uniform Trust
Code both grant the settlor standing to sue to enforce the terms of
a charitable trust even in the absence of any interest in the
charitable trust. RESTATEMENT (THIRD) OF TRUSTS §94(2); UTC
§405(c). In L.B. Research & Education Foundation v. UCLA
Foundation, 130 Cal. App. 4th 171 (Ct. App. 2005), a California

954
Court of Appeal appeared to be rather open to that position
(though the comment is, admittedly, dicta):
A donor contributed $1 million to establish an endowed
chair at the UCLA School of Medicine, which UCLA
accepted along with the conditions imposed by the donor.
The primary question on this appeal is whether the
agreement created (1) a contract subject to a condition
subsequent or (2) a charitable trust, the answer to which
supposedly determines whether the donor has standing to
sue UCLA and the Regents of the University of California to
enforce the terms of the gift. We find there is a contract
subject to a condition subsequent, not a charitable trust,
and also find that, in either event, the donor has standing to
pursue this action. Because the trial court reached a
contrary result, we reverse.
Id. at 712 (emphasis added).
5. The IRS: Increasingly, the IRS is becoming a player in
enforcing the terms of charitable trusts. The IRS has a rather
large stick that it can use to get a trustee's attention: it can
threaten to revoke the trust's tax-exempt status if the trustee does
not comply with the terms of the trust. The IRS played an
instrumental role in getting the noncomplying trustees removed by
the probate court in the Bishop Estates case in Hawaii. See Rick
Daysog, IRS Wants Bishop Trustees Out, HONOLULU STAR-
BULLETIN, Apr. 28, 1999, at A-1.

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 III. Power to Modify—The
Doctrine of Cy Pres
Because a charitable trust is not subject to the Rule Against
Perpetuities, depending on the particular trust purpose there is a
risk that, over time, the settlor's particular charitable purpose may
become impossible or impractical—or it may even be satisfied
(i.e., a trust is created to help find a cure for a disease, and a cure
is found). If the trust purpose becomes impossible, impractical, or
if it has been fulfilled, de facto the trust has failed. General trust
law provides that where a trust fails, in whole or in part, at any
time (at creation or during the life of a trust), a resulting trust
should be imposed and the property should be returned to the
settlor. What difference, if any, should it make if the trust in
question is a charitable trust?

In re Elizabeth J.K.L. Lucas Charitable Gift

261 P.3d 800 (Haw. 2011)
Opinion of the Court by LEONARD, J.
Petitioner-Appellant Hawaiian Humane Society (HHS)
appeals.... In this case, the Probate Court declined to apply the
doctrine of cy pres to modify a charitable gift of land. The position
of all parties on appeal is that the Probate Court erred in failing to
apply cy pres to approve the proposed land transaction....
I. BACKGROUND
A. The Charitable Gift
The underlying petition in this case stems from HHS's
acquisition of an interest in certain land in the Niu Valley, obtained
through a charitable gift. On December 28, 1976, Elizabeth J.K.L.
Lucas (Mrs. Lucas) granted HHS a 50.6183968% undivided
interest in the land by way of deed. On December 30, 1982, she
conveyed an additional 1.4% undivided interest in the land to
HHS by way of a second deed. Both deeds contain the following
use restriction:

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 [F]or and as a charitable gift, [Mrs. Lucas] does hereby
grant, bargain, sell and convey the property hereinafter
described unto the HAWAIIAN HUMANE SOCIETY ... so
long as the same shall be used for the benefit of the public
for the operation of an educational preserve for flora and
fauna, to be made accessible as an educational experience
for the public under the control and administration of said
Hawaiian Humane Society and its successors and assigns,
and, if not so used, then to State of Hawaii and its
successors and assigns, for and as a public park.
Upon Mrs. Lucas's death in 1986, her remaining 47.981603%
interest in the land passed through her estate to her daughter,
grandchildren, and great-grandchildren (the Thompsons), all of
whom have resided on the land for many years. The Thompsons
formed a Hawai'i general partnership, Respondent-Appellee
Tiana Partners, to which they transferred their interest in the land.
B. Attempts to Use the Gifted Land
After receiving the land, HHS made numerous attempts to plan
a feasible use for the land in furtherance of the deed restrictions.
In consultation with Tiana Partners, HHS considered many
different ideas for effectuating the purpose stated in the deeds,
but ultimately rejected them as physically or economically
unfeasible.
In 2003, HHS commissioned a feasibility study for a proposed
low-intensity development that would be accessible to the public.
The study led HHS to conclude that using the land for a public
educational preserve would be extremely expensive and
impractical. It would require disrupting the Thompson residences
and surrounding neighborhood.
During 2004 and 2005, HHS and Tiana Partners conducted a
series of meetings with various community organizations,
including the Honolulu Zoo, the Hawai'i Nature Center, and the
Department of Education. The purpose of the meetings was to
identify potential uses for the land that would be consistent with
the intent of the gift, beneficial to the community, and physically
and economically feasible. Due to the residential character of the
surrounding neighborhood, an overriding consideration was
maintaining peaceful coexistence with the Thompsons and other

957
residents in the area. Access to the property was also a key
consideration. The land is remote; much of it is steep; and it is
accessible only by two residential roads. Using either road for
public access would have a disruptive impact on the neighboring
residents.
The State of Hawai'i (State) Department of Land and Natural
Resources (DLNR) likewise determined that the land was not
suitable for use as a public park. However, it determined that a
portion of the land, Parcel 2, was best-suited for watershed and
forest reserve purposes.
C. Land Exchange Agreement
HHS and Tiana Partners began considering other ways to
further the intent of the original gift. On September 11, 2006, after
extensive negotiations, they signed a Memorandum of
Understanding (MOU). The MOU contemplates a three-way land
exchange and sale between HHS, Tiana Partners, and the State.
HHS and Tiana Partners agreed to convey their interests in
Parcel 2 to the State. In exchange, the State would release its
executory interest in the remaining parcels. HHS also agreed to
convey its interest in the remaining parcels (1, 20, and 21) to
Tiana Partners, free and clear of the use restriction, for
$1,082,850. HHS would use the proceeds to establish a
segregated fund known as the “Charles and Clorinda Lucas
Educational Fund” (Educational Fund). The principal and interest
would be dedicated exclusively to HHS's educational programs.
These programs are designed to foster compassion and caring
for all life, focusing on the interdependent relationship between
animals, humans, and the environment and our role as stewards
and caregivers.
The MOU conditioned the proposed land exchange upon: (1)
the agreement of the State Board of Land and Natural Resources
(BLNR); (2) the approval of the Hawai'i Legislature, pursuant to
Hawaii Revised Statutes (HRS) §171-50; and (3) the approval of
the Probate Court. At board meetings on December 8, 2006 and
December 14, 2007, the BLNR approved in principle the land
exchange transaction. In December of 2007, the Legislature also
approved the transaction.
D. Petition to Approve Land Exchange

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 On October 28, 2008, HHS filed a Petition to Approve Land
Exchange Free and Clear of Use Restrictions (Petition) with the
Probate Court. The Petition sought an order approving the
proposed land transaction and eliminating the use restriction on
the land. HHS maintained that the Probate Court had authority to
modify the terms of the charitable gift because its stated purpose
was impracticable and could not reasonably be accomplished.
The Attorney General, acting as parens patriae, filed a
response to the Petition on November 19, 2008. He stated no
objection to the relief sought and affirmed that the use restriction
“has been proven demonstrably impracticable or impossible and
... the relief sought in the petition is fair and reasonable and is
consistent with the doctrine of cy pres.” The State filed a joinder in
the Petition on November 21, 2008. The Administrator of the
Division of Forestry and Wildlife of the DLNR filed a declaration
attesting that the DLNR had inspected and reviewed the
properties described in the Petition. The DLNR “determined that
these properties are not presently suitable for use as a public
park, and in particular that Parcel 2 is best used for watershed
and forest reserve purposes.”
Laura Thompson (Thompson), Mrs. Lucas's daughter, filed a
declaration attesting that Mrs. Lucas would have fully supported
the land exchange “as a compromise necessary to further her
deep interest in all things natural and her strong commitment to
education, which can be accomplished far better through the
broad reach of the Hawaiian Humane Society than in a narrow
urban valley.” She attested that Mrs. Lucas “was actively involved
with the Hawaiian Humane Society throughout her life” and
served on its Board of Directors. Mrs. Lucas fully supported its
mission “to promote the bond between humans and animals and
to foster the humane treatment of all animals.” Thompson
believed her mother was not aware of the obstacles preventing
development of the land in accordance with the deeds. She
believed her mother's original intent in gifting the land was “to
benefit the people of Hawai'i through the work of the Hawaiian
Humane Society” and to “help the Society provide an educational
experience for the public.”
E. Probate Court Order and Judgment

959
 Following a hearing, the Probate Court entered the Order
Denying Petition on May 18, 2009. The court stated the following
grounds as its basis for the denial:
1. The deeds provide, “... for and as a charitable gift, does
hereby grant, bargain, sell and convey the property
hereinafter described unto the Hawaiian Humane Society,
... so long as the same shall be used for the benefit of the
public for the operation of an educational preserve for flora
and fauna, to be made accessible as an educational
experience for the public under the control and
administration of said Hawaiian Humane Society, ... and if
not so used, then to State of Hawaii, its successors and
assigns for and as a public park, ...”
2. Even if the Court finds that the deeds create a charitable
trust, the Memorandum of Understanding does not involve
the use of the properties as stated in the deeds. The
Memorandum of Understanding states that the Petitioner
will receive cash in exchange for conveying its interest in
the properties and will use the cash “... to establish a
segregated fund to be known as the ‘Charles and Clorinda
Lucas Educational Fund,’ the principle [sic] and interest of
which fund shall be used exclusively to pay the costs
associated with educational programs designed to foster
compassion and caring for all life, focused on the
interdependent relationship between animals, humans and
the environment and on our roles as stewards and
caregivers.”
3. Mrs. Lucas' charitable purpose as stated in the deeds is
to use the properties for the operation of an educational
preserve for flora and fauna, to be made accessible as an
educational experience for the public. The deeds also
provide that if the petitioner does not use the properties for
the stated charitable purpose, the properties would go to
the State of Hawaii.
4. The doctrine of cy pres does not apply to the Petitioner
since the deeds provide for an alternative if the properties
are not used by the Petitioner as Mrs. Lucas intended.
On August 3, 2009, HHS filed a petition for relief from the
Probate Court's Order Denying Petition. The Attorney General

960
and Tiana Partners filed joinders in the petition for relief, and the
State filed a memorandum of no opposition. All interested parties
agreed that the Probate Court misconstrued the cy pres doctrine
and that it should have approved the transaction.
On December 21, 2009, the Probate Court entered the Order
Denying Relief and the Judgment. HHS timely appealed.
II. POINTS OF ERROR
On appeal, HHS argues that the Probate Court erred in denying
the Petition and refusing to modify the terms of the charitable gift
to approve the proposed land exchange. Tiana Partners filed an
Answering Brief in support of HHS's position. The State filed an
Answering Brief expressing its non-opposition and joinder in
HHS's request for relief.
III. STANDARDS OF REVIEW
Hawai'i courts have not addressed the applicable standard of
review for a lower court's refusal to apply the doctrine of cy pres.
In applying an analogous doctrine to reform the terms of a private
trust, the supreme court analyzed the issue as a question of law.
In re Estate of Chun Quan Yee Hop, 52 Haw. 40, 45–46, 469 P.2d
183, 186–87 (1970). Other jurisdictions have held that whether cy
pres applies is a question of law, reviewable de novo....
Accordingly, we hold that the issue of whether the doctrine of cy
pres is applicable is a question of law, reviewable de novo. Once
cy pres is determined to be applicable, the lower court has
discretion in determining the appropriate modification of the
charitable gift. Obermeyer v. Bank of America, N.A., 140 S.W.3d
18, 22 (Mo.2004).
IV. DISCUSSION
A. Cy Pres Generally
The doctrine of cy pres “permits a gift for a charitable purpose
which cannot, for one reason or another, be carried out as
directed by the donor, to be applied ‘as nearly as may be’ to the
fulfillment of the underlying charitable intent.” 15 Am.Jur.2d
Charities §149 (2011) (Am.Jur.2d). Under the doctrine's traditional
formulation, three elements are required: (1) there must be
property given in trust for a charitable purpose; (2) it must be

961
impossible, impracticable, or illegal to carry out the specified
charitable purpose; and (3) the settlor must have manifested a
general intent to devote the property to charitable purposes. Id....
Cy pres is only applicable to charitable trusts. Restatement
(Third) of Trusts §67, cmt. a (2003) (Restatement 3d); Am.Jur.2d
§149. Various policy considerations underlie its application. First
and foremost, the doctrine stems from the inability of charitable
settlors to foresee the future. Restatement 3d, Reporter's Notes,
cmt. a (recognizing that without cy pres, “many charities would fail
by change of circumstances and the happening of contingencies
which no human foresight could provide against”). Circumstances
change and contingencies frequently arise that the settlor did not
or could not anticipate. This is particularly true for charitable
trusts, as they may be perpetual in duration. Id.; Ronald Chester,
George Gleason Bogert, and George Taylor Bogert, The Law of
Trusts & Trustees §431, at 117 (3d ed. 2005) (Bogert on Trusts).
The “needs and circumstances of society evolve over time,”
impacting the potential benefit of the trust. Restatement 3d §67,
cmt. a. Rather than allowing the trust to fail, cy pres preserves the
settlor's charitable intent by conforming the trust to the
contingencies that arise. Thus “[j]ust as it is against the policy of
the trust law to permit wasteful or seriously inefficient use of
resources dedicated to charity, trust law also favors an
interpretation that would sustain a charitable trust and avoid the
return of the trust property to the settlor or successors in interest.”
Id. at cmt. b. Similarly, because charitable trusts impact a broad
spectrum of the public and “are allowed by the law to be
perpetual,” they often merit a greater exercise of judicial
discretion than a private trust. Id. at Reporter's Notes, cmt. a.
Courts widely recognize that the charitable purpose need not
be impossible to warrant applying cy pres. It is sufficient that
achieving the settlor's stated purpose would be impracticable or
unreasonable to effectuate. Restatement 3d §67, cmt. c (“The
doctrine of cy pres may also be applied, even though it is possible
to carry out the particular purpose of the settlor, if to do so would
not accomplish the settlor's charitable objective, or would not do
so in a reasonable way.”) (second emphasis added); Bogert on
Trusts §438, at 194–96 (recognizing insufficiency of funds as
basis for doctrine); Scott on Trusts §39.5.2, at 2717–20; §39.5.4,

962
at 2740–41; Am.Jur.2d §151 (doctrine is applicable where donor's
directions “cannot beneficially be carried into effect”) (emphasis
added; punctuation altered). “An impractical restriction is one that
is not capable of being carried out in practice.” Am.Jur.2d §157. If
literal compliance would “defeat or substantially impair” the
purposes of the trust, cy pres is applicable. Restatement 2d §399,
cmt. a. The purpose of the trust becomes impaired if “the
application of [trust] property to such purpose would not
accomplish the general charitable intention of the settlor.” 88
Am.Jur. Proof of Facts 3d 469, §10 (2006) (Am.Jur. Proof of Facts
3d).
Thus, cy pres is applicable where a settlor creates a charitable
trust of real property to be used for a particular purpose, but the
property turns out to be unsuitable for that purpose. See Scott on
Trusts §39.5.2, at 2724–25; Roberds v. Markham, 81 F.Supp. 38,
40 (D.D.C.1948) (recognizing that courts may order sale of gifted
land if conditions have drastically changed or land otherwise
becomes unsuitable for its dedicated purpose); Bd. of Educ. of
Rockford v. City of Rockford, 372 Ill. 442, 24 N.E.2d 366, 369–73
(1939) (applying cy pres to allow sale of land in charitable trust
where its dedicated use as school became impracticable due to
shifting populations, deterioration of existing building, and
existence of another school that met needs of the area). In one
case, for example, a settlor gifted certain land to a charity for the
purpose of building a public library upon the land. Bosson v.
Woman's Christian Nat'l Library Ass'n, 216 Ark. 334, 225 S.W.2d
336, 337 (1949). The land turned out to be unsuitable for
constructing a library. Id. The charity reached an agreement with
a county library board under which it would sell the land and use
the proceeds to build a public library upon property owned by the
county board. Id. The board agreed to operate the library for the
benefit and use of the public. Id. at 337–38. On appeal, the court
applied cy pres to approve the transaction. Id. at 338–39. It noted
that cy pres applies where the circumstances “have changed to
such an extent that in order to carry out properly the charitable
intention of the donor, it is necessary to dispose of the trust
property and devote the funds to the acquisition of a more
suitable location[.]” Id. at 338 (internal quotation marks and
citation omitted).

963
 Similarly, a California court applied cy pres where the stated
purposes of the gifted properties became impracticable. In re
Estate of Zahn, 16 Cal.App.3d 106, 93 Cal.Rptr. 810 (1971).
There, the testatrix left two residential properties to the Salvation
Army. Id. at 811. She directed the Flower Street property to be
used as a home for Christian women, and the Keniston Avenue
property as a music home. Id. After her death, the Flower Street
property was taken pursuant to eminent domain and the Keniston
Avenue property was deemed unsuitable for development due to
zoning issues. Id. at 813. The Salvation Army proposed to use the
funds from the Flower Street property to erect and furnish a new
building on a different site. Id. It further proposed to sell the
Keniston Avenue property and use the proceeds to either
construct a music conservatory on another site or endow a music
room under construction at another Salvation Army center. Id.
The court confirmed that cy pres was applicable. Id. at 814. It
concluded that because neither property was suitable for carrying
out the testatrix's declared intentions, the lower, court “properly
directed that her charitable purposes be given effect at some
other suitable locations.” Id.; see also Bogert on Trusts §439, at
218–20 (noting that cy pres is applicable where trust property is
taken under eminent domain).
The third element—general charitable intent—has been a
source of uncertainty and reform. Under the traditional rule, cy
pres may only be applied if the settlor possessed a general
charitable intent. Am.Jur.2d §153. His or her intent must have
encompassed “something beyond the specific terms used in
designating the beneficiary or purpose of the gift or how it shall be
carried into effect.” Id.; see also Restatement 2d §399; Bogert on
Trusts §431, at 119; §436, at 157–60. The donor must have had a
general charitable intent, as opposed to a narrow intent to benefit
only a “particular project, objective, or institution[.]” Am.Jur.2d
§153. For example, where a settlor's dominant intent is to restrict
the charitable gift to the exact purpose specified, courts may
presume that the donor would not have wanted the property to be
applied to any other purpose, however closely related, even if the
original purpose fails. Restatement 2d §399, cmt. d. In such
situations, cy pres is not applicable because the settlor did not
have a general charitable intent. Id.; see also Shoemaker v. Am.

964
Sec. & Trust Co., 163 F.2d 585, 588 (D.C.Cir.1947) (noting that cy
pres does not apply if the settlor's “dominant purpose has
become altogether impossible of achievement”). In contrast, if the
settlor's designation of a particular property or site is incidental to
the dominant charitable purpose, then courts will presume that
the settlor's primary intent was to dedicate the property to
charitable purposes. Shoemaker, 163 F.2d at 589; see also In re
Wilkey's Estate, 337 Pa. 129, 10 A.2d 425, 428 (1940)
(recognizing that cy pres applies where “the physical location of
the edifice or institution provided for in a charitable trust has been
held to be of secondary importance in comparison with the
general purpose for which the erection of the building or the
carrying on of the charitable activity was designed”). In such
cases, cy pres is readily applicable to effectuate the settlor's
general charitable intent. Shoemaker, 163 F.2d at 589.
Increasingly, the “general charitable intent” requirement has
shifted to an “opt-out” framework under which the settlor is
presumed to have a general charitable intent unless the terms of
the trust provide otherwise. See Restatement 3d §67, cmt. b;
Reporter's Notes, cmt. b; Unif. Trust Code §413(a), 7C U.L.A. 509
(2006); Bogert on Trusts §436, at 160 (noting that “it would seem
preferable” either to employ presumption in favor of general intent
or apply cy pres regardless of whether the settlor's charitable
intent was general or specific); but see Am.Jur. Proof of Facts 3d
§6 (noting that “presumption of general charitable purpose has
not yet been discussed in the reported decisions”). Commentators
have noted that the “general intent” requirement is vague and
difficult to apply consistently. Ronald Chester, Cy Pres or Gift
Over?: The Search for Coherence in Judicial Reform of Failed
Charitable Trusts, 23 Suffolk U.L.Rev. 41, 45–46 (1989); accord
Bogert on Trusts §436, at 159–60; §437, at 183–89 (noting
widespread inconsistency in applying this requirement). It turns
on a fine, and often subjective, distinction between a settlor's
dominant and incidental or subsidiary objectives. See Bogert on
Trusts, §437 at 183–89. In contrast, the opt-out rule provides a
clearer delineation that avoids guesswork as to the subtleties of
the settlor's intent.
Finally, in applying cy pres, courts must generally seek a
purpose that conforms to the donor's objective “as nearly as

965
possible.” Am.Jur.2d §157. This may be attained by limiting or
modifying the objective; by diverting the funds to another use in
the “same generally contemplated field”; or by directing sale of
the subject property. Id.; Am.Jur. Proof of Facts 3d §10;
Restatement 2d §399, cmt. p (cy pres allows sale of land even if
“the settlor in specific words directed that the land should not be
sold and that the institution should not be maintained in any other
place”). In the case of a sale, the proceeds may be applied to
purchase a new, more suitable site, or to further the settlor's
charitable intent in another manner. See Am.Jur. Proof of Facts
3d §21. Where a charitable gift of property is subject to use
restrictions, the court may apply cy pres to modify or eliminate
those restrictions. Id. at §22; Bogert on Trusts §431, at 115; Scott
on Trusts §39.5.2, at 2716.
In determining the appropriate modification, courts must
consider a variety of factors and evidence to ascertain what the
settlor's wishes would have been had he or she anticipated the
circumstances. Restatement 3d §67, cmt. d. Chief among them is
the settlor's probable intent. Id. Where the settlor is deceased,
this intent may be discerned from extrinsic evidence as well as
the language of the trust instrument. Such evidence includes the
interests and attitudes that motivated the settlor's gift; his or her
involvement or interest in particular charitable institutions; and the
settlor's “relationships, social or religious affiliations, personal
background, charitable-giving history, and the like.” Id.; accord
Bogert on Trusts §442, at 257–58. The language of the trust
instrument is also pertinent. Restatement 2d §399, cmt. d.
The modern approach to cy pres also emphasizes considering
the efficiency and beneficial impact of the proposed use.
Restatement 3d §67, cmt. d. As the settlor's intent cannot be
known for certain, applying cy pres necessarily involves some
level of speculation. Id.; accord Scott on Trusts §39.5.2, at 2709
(noting that courts must make “an educated guess” as to the
settlor's wishes). Thus, it is generally “reasonable to suppose that
among relatively similar purposes, charitably-inclined settlors
would tend to prefer those most beneficial to their communities.
Restatement 3d §67, cmt. d (emphasis omitted; punctuation
altered). To an increasing extent, courts thus seek to apply the
trust property toward “a scheme which on the whole is best suited

966
to accomplish the general charitable purpose of the donor.”
Restatement 2d §399, cmt. b. Finally, the wishes of the trustees,
the Attorney General as parens patriae, the beneficiaries, and
other interested parties also warrant consideration. Id. at cmt. f;
Bogert on Trusts §442, at 258.
B. Gift over Rule
Having established the broad contours of the cy pres doctrine,
we now turn to the heart of the issue on appeal: whether the
Probate Court erred in concluding that cy pres is not applicable in
this case. The Probate Court reasoned that cy pres does not
apply because the deeds provide an alternative distribution in the
event that the primary charitable purpose fails. It concluded that
“if [HHS] does not use the properties for the stated charitable
purpose, the properties would go to the State of Hawaii.”
The Probate Court's rationale appears to invoke the gift over
rule. A gift over is a provision that sets forth an alternative
distribution in the event that the primary purpose of the charitable
gift fails. Am.Jur.2d §151. The presence of a gift over provision
may potentially preclude application of cy pres in two ways: (1) by
negating the existence of a general charitable intent, and (2) by
providing an alternative distribution in the event that the settlor's
original purpose fails. Restatement 2d §399, Reporter's Notes,
cmt. c; Am.Jur.2d §151; Scott on Trusts §39.5.2, at 2710–13;
§39.7.5, at 2795–97; 14 C.J.S. Charities §56 (2011).
The first application of the gift over rule is only relevant to the
traditional requirement that the settlor exhibit a general charitable
intent. Under this reasoning, the gift over confirms the settlor's
narrow and specific intent. 14 C.J.S. Charities §56. This is
especially true where the gift over is to a non-charity, such as a
possibility of reverter. Nelson v. Kring, 225 Kan. 499, 592 P.2d
438, 444 (1979); In re Goehringer's Will, 69 Misc.2d 145, 329
N.Y.S.2d 516, 521 (N.Y.Surr.Ct.1972) (noting that presence of gift
over provision “is a clear manifestation that [the] testator had a
particular rather than general charitable intention”); Roberds, 81
F.Supp. at 40–42 (concluding that because deed contained
possibility of reverter if land ever ceased to be used for its
prescribed purpose, settlor's intent was specific to that purpose).
Such a provision indicates that the settlor only wished to dedicate

967
the property to a specific purpose and, if that specific purpose
failed, to not dedicate it to charity at all. In re Goehringer's Will,
329 N.Y.S.2d at 521 (“[A] specific gift over will almost conclusively
preclude any determination that he had other than an intent to
benefit the particular charity.”).
In contrast, where the gift over is to another charity or
charitable purpose, many courts recognize that it confirms a
general charitable intent. See Bogert on Trusts §437, at 165–70;
Scott on Trusts §39.5.2, at 2713; First Nat'l Bank of Chicago v.
Elliott, 406 Ill. 44, 92 N.E.2d 66, 74 (1950). Such a provision
illustrates the settlor's intent to dedicate the property to charity,
even if the original purpose fails. Bogert on Trusts §437, at 165–
70.
Here, the deeds provide an alternative charitable purpose: for
the land to be used by the State as a public park. Under the
traditional formulation of the charitable intent requirement, the gift
over in this case confirms Mrs. Lucas's general charitable intent.
Thus, regardless of the continuing viability of the general intent
requirement, the gift over provision does not prevent application
of cy pres under the first rationale.
In any event, it does not appear that the Probate Court applied
the first rationale of the gift over rule. The Order Denying Petition
contains no mention of general charitable intent. Instead, the
Court's reasoning conforms to the second rationale. It concluded
that because the deeds direct an alternative distribution, cy pres
is inapplicable.
This second application of the gift over rule provides that cy
pres is inapplicable as the trust property should be applied toward
its alternative purpose. 14 C.J.S. Charities §56. The rule reasons
that the settlor foresaw the potential failure of the first purpose
and accordingly provided an alternative purpose. Id. Thus,
effectuating the alternative distribution matches the settlor's intent
more closely than applying cy pres to maintain the first, failed
purpose.
A number of cases affirm the straightforward application of this
rule. In Roberds v. Markham, for example, the settlor conveyed
property in trust to a church for its continuing operation as a
church or place of worship. 81 F.Supp. at 39. The deed provided

968
that if the property ever ceased to be used for church purposes, it
would revert to the settlor's heirs and assigns. Id. Many years
later, when the character of the surrounding neighborhood had
changed and the church's population had shifted, the trustees
sought to sell the property and re-erect the church at another,
more suitable location. Id. The court concluded that because the
deed contained a possibility of reverter, the settler had intended
the land to revert to her heirs and assigns if its use as a church
ever became impracticable or impossible. Id. at 40–42. It
therefore did not apply cy pres to permit the sale. Id. at 42; ...
Yet this application of the gift over rule is subject to an
important caveat. Where the alternative distribution is unfeasible,
impracticable, or impossible, then the gift over rule does not
preclude the application of cy pres to save the first charitable
purpose. Am.Jur. Proof of Facts 3d §19; 14 C.J.S. Charities §56;
Restatement 3d §67, cmt. b. In such cases, applying the
alternative purpose would likewise frustrate or substantially impair
the settlor's intent. Cy pres is thus necessary to save the trust
from failure.
...
... Fundamentally, the doctrine exists to save a charitable trust
from failure while preserving the settlor's original, charitable
intent. Restatement 3d §67, cmt. b. Thus where both the primary
and alternative charitable distributions are impracticable, courts
may presume that the settlor would have intended one or both
purposes to survive under application of cy pres.
Here, the deeds provide that if the first purpose—an
educational nature preserve operated by HHS—fails, the property
passes to the State “for and as a public park.” This secondary
purpose, however, is likewise impracticable. The DLNR
determined that the land was unsuitable for use as a public park,
and that only a portion of the land could be used as a forest
preserve and watershed. Thus, the Legislature approved the
proposed land exchange, and the State filed a joinder in HHS's
Petition. Redirecting the land to the State would not effectuate
Mrs. Lucas's charitable intent. Rather, it would result in the failure
of the trust.... [B]oth the primary and alternative purposes of the
gift are impracticable, as the land cannot feasibly be used for

969
either purpose. The Probate Court therefore erred in concluding
that the gift over rule precludes application of cy pres.
C. Cy Pres Applies to Approve the Proposed Land Exchange
HHS, Tiana Partners, and the State request this court to
remand the case with instructions to apply cy pres to approve the
proposed land exchange free and clear of the use restrictions. We
agree that cy pres so applies in this case.
As discussed above, cy pres applies where: (1) property is
given in trust for a charitable purpose; (2) it is impracticable to
carry out the specified charitable purpose; and (3) the settlor
manifested a general intent to devote the property to charitable
purposes. Supra part IV(A). Here, those elements are met. Mrs.
Lucas conveyed the land to HHS for charitable purposes for the
use and benefit of the public. The parties do not dispute, and the
evidence readily establishes, that Mrs. Lucas's specified
purposes for the land are both impracticable.
The conveyance also satisfies the traditional requirement of
general charitable intent. In determining whether the settlor
possessed a general charitable intent, courts consider the
language of the instrument, the nature and duration of the gift, the
character of the recipient organization, the presence or absence
of a reversionary clause, and the mode for effectuating the gift.
Am.Jur.2d §154. Courts may also consider extrinsic evidence of
the settlor's probable intent. Am.Jur. Proof of Facts 3d §20;
accord Bogert on Trusts §437, at 160–73. If the settlor intended
the gift to “be continued within the limits of its general purpose”
rather than cease upon the failure of its specific purpose, this
constitutes a general intent. Obermeyer, 140 S.W.3d at 24. Gifts
in support of educational goals often demonstrate a general
charitable intent because there is a perpetual need and use for
them. Id.; accord Bogert on Trusts §436, at 157.
In this case, the deeds convey the land “for and as a charitable
gift” for the purpose of educating the public. They specify an
alternative means of achieving the charitable purpose in the event
the first method fails. The deeds thus confirm that Mrs. Lucas did
not intend the trust to fail should use of the land become
impracticable. See Bogert on Trusts §437, at 165–70 (gift over to
another charitable purpose confirms general charitable intent);

970
accord Scott on Trusts §39.5.2, at 2713; First Nat'l Bank of
Chicago, 92 N.E.2d at 74. The declaration of Mrs. Lucas's
daughter, evidencing Mrs. Lucas's probable wishes regarding the
property had she been alive, further supports a general charitable
intent.
Finally, the proposed land exchange closely conforms to Mrs.
Lucas's original purpose. The deed restriction contemplates a
nature preserve to function “as an educational experience for the
public.” Mrs. Lucas's daughter attested that her mother intended
to generally benefit the people of Hawai'i by enabling HHS to
provide “an educational experience for the public.” The
Educational Fund preserves those goals by promoting
educational programming that focuses on the natural
environment. This use of the funds also comports with Mrs.
Lucas's lifelong interest and involvement with HHS. It
accomplishes her probable wishes regarding the use of the land
had she been aware of the obstacles preventing its
development.... This unanimous accord further supports applying
cy pres to approve the transaction. See Restatement 2d §399,
cmt. f; Bogert on Trusts §442, at 258 (recognizing that wishes of
trustees, beneficiaries, attorney general, and other interested
parties warrant consideration). There is no evidence, either
extrinsic or in the deeds themselves, to support a contrary
conclusion.
V. CONCLUSION
For these reasons, we conclude that the Probate Court erred in
concluding that cy pres is not applicable to approve the proposed
transaction on the basis that the deeds provide for an alternative
distribution. Accordingly, we vacate the Judgment and remand to
the Probate Court to apply cy pres consistent with this Opinion.
—————

Notes
1. Logic underlying traditional approach: As the court notes, the
traditional approach to cy pres involved three elements: “(1)
property is given in trust for a charitable purpose; (2) it is
impracticable to carry out the specified charitable purpose; and
(3) the settlor manifested a general intent to devote the property

971
to charitable purposes.” The logic underlying the doctrine is
revealed by its name. Cy pres is French for “as near as possible.”
Inasmuch as the settlor had a general charitable intent, and within
that general charitable intent a more specific charitable intent, if
that particular specific charitable intent becomes impossible or
impractical, a presumption arises that the settlor would prefer the
court pick another specific charitable intent “as near as possible”
to the original specific intent (and within the settlor's general
charitable intent) instead of having the charitable trust fail. Cy
pres, however, cannot be carried out unilaterally by the trustee; it
requires court approval. California has long recognized the
doctrine of cy pres.
2. General charitable intent: Who really owns the property in a
charitable trust: the settlor (or his or her heirs) or the public? How
you answer that question may affect how you view the doctrine of
cy pres. Once a charitable trust has been validly created, is it, for
all practical purposes, the public's property? Or does the public
only acquire a limited interest in the property subject to the
settlor's ongoing intent and control? While that phrasing
oversimplifies the issue, it offers one way to think about the issue.
The requirement of general charitable intent is consistent with
the view that the settlor still owns the property in a charitable trust
and therefore the settlor must consent to the proposed
modification. The logic is that the settlor's more general charitable
intent constitutes a form of consent to a court applying cy pres if
the specific charitable intent the settlor selected becomes
impossible or impractical. In that respect, cy pres is analogous to
the modification doctrine as it applies to private trusts. It applies
where an unforeseen change in conditions frustrates the settlor's
intent. Historically, modification of a private trust also required the
consent of all beneficiaries. Inasmuch as a charitable trust has no
ascertainable beneficiaries, courts de facto substitute the settlor's
consent for the consent of the beneficiaries. The settlor's consent
is inferred from the general charitable purpose. One could even
argue that implicit in the traditional cy pres doctrine is the
argument that the general charitable intent is more important than
the specific charitable intent.
The modern trend implicitly argues that the traditional approach
accords too much weight to the element of general charitable

972
intent. From the modern trend perspective, inferring a settlor's
consent (or lack of consent) from the presence or absence of
general charitable intent is: (1) too formalistic, and (2) too
artificial. Some settlors likely never consider the possibility that
their charitable purpose may one day become impossible or
impractical. In fact, too often the task of asking what the settlor
would like done if he or she had known that the specific charitable
purpose would become impossible or impractical is pure
speculation. Thus, the traditional common law view de facto
creates a presumption against application of cy pres absent
general charitable intent. The modern trend, however, implicitly
argues the presumption should be in favor of cy pres absent
evidence of the settlor's intent that cy pres should not apply. The
settlor's original intent, after all, was to make a charitable gift. The
modern trend approach is also consistent with the view that the
public owns the property in a charitable trust—or, at the very
least, that the property is closer to that end of the spectrum than
the alternative (continued private ownership by the settlor or the
settlor's estate/distant relatives).
As the court noted, both the RESTATEMENT (THIRD) OF TRUSTS
and the Uniform Trust Code abolish the requirement of general
charitable intent. Instead, they create a presumption of consent
and require the settlor to expressly opt out of the presumption.
See RESTATEMENT (THIRD) OF TRUSTS §67 cmt. b, reporter's notes
cmt. b; UTC §413. The court states that “the opt-out rule provides
a clearer delineation that avoids guesswork as to the subtleties of
the settlor's intent.” While that may be true going forward, does it
make sense (and is it fair) to apply that approach to gifts and
trusts created before the modern trend approach was articulated?
Obviously, eliminating the need to prove general charitable intent
will de facto increase the likelihood that cy pres will be applied. Is
that merely a property grab by the public or is that actually more
consistent with the settlor's original intent?
3. Impossible, impracticable, or illegal—or inefficient? When the
court first introduces the traditional approach to cy pres, it states
the standard of frustration properly. The particular charitable
purpose must have become “impossible, impracticable, or illegal.”
Later though, when the court analyzes that element, the court
uses some alternative phrasing: “impracticable or

973
unreasonable...,” “the property turns out to be unsuitable....” Is the
court holding to the traditional approach, or is the court subtly
shifting toward the modern trend?
The modern trend openly calls for a more relaxed standard for
analyzing whether it is appropriate to apply cy pres to a particular
charitable intent. The RESTATEMENT (THIRD) OF TRUSTS, section 67,
adds an additional economic consideration:
Unless the terms of the trust provide otherwise, where
property is placed in trust to be applied to a designated
charitable purpose and it is or becomes unlawful,
impossible, or impracticable to carry out that purpose, or to
the extent it is or becomes wasteful to apply all of the
property to the designated purpose, the charitable trust will
not fail but the court will direct application of the property or
appropriate portion thereof to a charitable purpose that
reasonably approximates the designated purpose.
Is “wasteful” more of a subjective consideration than the others,
or is it implicit in the traditional “impractical” consideration? Does
it broaden the applicability of the doctrine, or is it just a better
statement of what has always been implicit in the doctrine? Does
it reflect a shift toward the “public ownership” end of the
spectrum? If the public deems application of the trust property
toward that specific charitable purpose “wasteful,” is the public
now free to change the purpose of the trust? Or is that just what a
reasonable settlor would do if he or she were still alive and in
control? Is this nothing more than a “probable intent”-type
approach to unforeseen changes that may affect a charitable
trust?
The Uniform Trust Code takes an even more aggressive
approach to the public ownership issue of who owns property in a
charitable trust as it applies to the doctrine of cy pres:
UTC §413. Cy Pres
(a) Except as otherwise provided in subsection (b), if a
particular charitable purpose becomes unlawful,
impracticable, impossible to achieve, or wasteful:
(1) the trust does not fail, in whole or in part;

974
 (2) the trust property does not revert to the settlor or the
settlor's successors in interest; and
(3) the court may apply cy pres to modify or terminate the
trust by directing that the trust property be applied or
distributed, in whole or in part, in a manner consistent
with the settlor's charitable purposes.
(b) A provision in the terms of a charitable trust that would
result in distribution of the trust property to a noncharitable
beneficiary prevails over the power of the court under
subsection (a) to apply cy pres to modify or terminate the
trust only if, when the provision takes effect:
(1) the trust property is to revert to the settlor and the
settlor is still living; or
(2) fewer than 21 years have elapsed since the date of
the trust's creation.
In support of that approach, the official Comment to this
Uniform Trust Code section asserts: “In the great majority of
cases the settlor would prefer that the property be used for other
charitable purposes. Courts are usually able to find a general
charitable purpose to which to apply the property, no matter how
vaguely such purpose may have been expressed by the settlor.”
This last comment, however, arguably supports the position that
the UTC is not favoring public ownership but rather favors the
settlor's intent—it just views the settlor's intent differently from the
traditional common law approach. Consistent with that view, the
UTC grants a settlor standing to petition a court to apply cy pres
to modify the settlor's charitable trust. See UTC §410(b). The
UTC believes cy pres is consistent with and furthers settlor's
intent, and that if the settlor were still alive, the settlor himself or
herself would want to be part of the process.
The debate about whether the inefficient use of trust funds is an
appropriate grounds for applying cy pres was a central issue in
the California case of San Francisco Foundation v. Superior
Court, 37 Cal. 3d 285 (1984). The California Supreme Court's
statement of the facts sets the table for the examining the issue:
The Buck trust was created by the will of Beryl Buck, a
Marin County resident, who died in 1975, leaving the bulk

975
 of her estate to be held in trust and used for providing “care
for the needy in Marin County” and for other charitable,
religious, or educational purposes in that county.... The will
names the foundation [the San Francisco Foundation] as
the entity in charge of distribution [i.e., the distribution
trustee] and requires that all income be distributed “not
later than the end of the year following the year of receipt.”
...
On January 30, 1984, the foundation petitioned under
Probate Code section 1120 for an order that “the Buck
Trust be modified so that [after a three-year transition
period] the income may be distributed throughout the entire
Bay Area served by the foundation, with preference for
funding from the Buck Trust to be given to grant proposals
for charitable purposes in Marin County.” The petition
alleges that the value of the trust assets at the time of Mrs.
Buck's death was $10 to $12 million with a projected
annual income of “much less than $2 million,” whereas the
anticipated annual trust income in 1984–1987 will be at
least $27 million. Exhibits before us establish that the value
of the trust assets on June 30, 1983 was $360 million, and
that the area served by the foundation (throughout which
the petition seeks authority to distribute trust income)
consists of the City and County of San Francisco and the
Counties of Alameda, Contra Costa, and San Mateo, as
well as Marin County.
The County of Marin responded on February 14, 1984, by
filing the following: (1) A motion to remove the foundation
as trustee (Prob.Code, §1123.5), essentially on the ground
that the foundation's activities in connection with its petition
for modification constituted a breach of trust and rendered
it unfit....
San Francisco Foundation, 37 Cal. 3d at 290–92.
The foundation's petition to modify the trust terms, and the
probate court's ruling, are discussed by the California Court of
Appeals in subsequent litigation involving the trust:
... In essence, the [foundation's] petition asked the court to
apply the cy près doctrine because the size of the Buck

976
 Trust income and the relative affluence of Marin County
made “it ... impracticable and inexpedient to continue to
expend all of the income from the Buck Trust solely within
Marin County.”
In response to the petition for modification, John Elliott
Cook, Marin County, and the Marin Council of Agencies
filed a petition to remove the San Francisco Foundation as
distribution trustee....
The petition for modification and the petition for removal of
trustee were tried before the court beginning in February of
1986. After a six-month trial, the probate court issued a one
hundred thirteen-page statement of decision. In its written
decision, the probate court refused to apply the cy près
doctrine to modify the Marin-only restriction. The court
reasoned that all of the Buck Trust income could be spent
effectively and efficiently in Marin County. Moreover, the
court found that the geographic restriction in the Buck Trust
was “unequivocal.”
Nevertheless, the probate court found that Mrs. Buck
intended that the benefits of expenditures made in Marin
County “would and should extend beyond Marin's borders.”
According to the probate court, the breadth of purposes
allowed in the Buck Trust also permitted the trustee to fund
“major projects” in Marin County. Such major projects might
include a social policy institute, an environmental research
center, or a center on aging. Consequently, the statement
of decision specifically provided that “Buck Trust funds
may, in accordance with the terms of the Trust, be spent on
projects and purposes, the benefits of which extend beyond
Marin County, so long as the funds are spent in Marin
County.”
Estate of Buck, 29 Cal. App. 4th 1846 (Ct. App. 1994). The
probate court's order did not address the petition to remove the
foundation as distribution trustee, but the foundation
subsequently agreed to resign.
The case gave rise to a lively academic discussion that
influenced the current approach reflected in the RESTATEMENT
(THIRD) OF TRUSTS and the Uniform Trust Code.

977
 Like most jurisdictions, California still follows the more
traditional, common law statement of the cy pres doctrine; but at
the same time, like many jurisdictions, it tends to take an
increasingly liberal approach to applying the doctrine.
4. Scope of the doctrine: Should the court have used cy pres to
save the trust in Shenandoah Valley? The general rule is that cy
pres cannot be used to save a trust that fails to qualify as a
charitable trust because it lacks a proper charitable purpose.
Instead, the doctrine is used to save a charitable trust that would
otherwise fail because the particular valid charitable purpose is
impossible, impractical, or illegal.
If a jurisdiction has not adopted the modern trend noncharitable
private purpose trust, should the courts be open to applying cy
pres to benevolent trusts? Would this approach be consistent with
the modern trend logic that doing so is consistent with the settlor's
probable intent?
5. The March of Dimes foundation: The March of Dimes, a
large charitable foundation, was founded in 1938 by then-U.S.
President Franklin D. Roosevelt. The foundation's mission was to
help eradicate polio, a disease that primarily affected children.
The devastating occurrences of polio epidemics at the time made
it a frightening disease for every parent. With the introduction and
widespread use of the polio vaccine beginning in the mid-1950s,
the disease effectively disappeared in America. Yet the March of
Dimes still exists. How did the foundation's mission change over
time and what is its mission today? If the foundation's legal form
were that of a trust, would the doctrine of cy pres likely apply?

Problem
The Kolbs' floral business was something of an institution in
Storm Lake, Iowa. The business was well known to all, and the
family was well liked by all. Sadly, in the mid-1960s tragedy struck
when the Kolbs' grandson was killed in a hunting accident. The
Kolbs negotiated a deal with the city to create a trust to erect and
maintain a fountain and garden in memory of the grandson at a
specific location in one of the city's parks. The Kolbs funded the
trust by deeding farmland they owned to a trust, with the net
income to be used to maintain the fountain and garden.

978
 In 2003 the City created a redevelopment proposal for the part
of the city that included the park with the memorial to the Kolbs'
grandson. The City proposed relocating the fountain and garden
to permit the redevelopment project. The trustee sued to block the
project; and in the alternative, to declare a resulting trust. The City
countersued, requesting that the trustee be removed, and that the
court apply cy pres. The trustee opposed cy pres on the ground
that the purpose of the trust had not become impractical,
unlawful, or impossible; rather the purpose was frustrated
because the City simply wanted to use the land for a different
purpose.
Should the court apply cy pres? See Kolb v. City of Storm Lake,
736 N.W.2d 546 (Iowa 2007).

1. On the other hand, a well-drafted trust will not only take into consideration
the Rule Against Perpetuities, it will try to have the trust last as long as
permitted by the Rule. A relatively recent example of that, and of the difficulties
it can pose, play a prominent role the 2011 film, The Descendants. In the
movie, valuable family oceanfront acreage on Kauai (Hawaii) is held in a trust
established generations earlier. The trust is now bumping up against the Rule
Against Perpetuities. The movie examines the family dynamics that can arise in
the agonizing discussions surrounding the potential sale of the trust property to
a developer.
2. A CRUT is one form of a charitable remainder trust. Charitable remainder
trusts are, for the most part, beyond the scope of this introductory class—but a
few comments may help you understand the case. As is typical with all
charitable remainder trusts, a CRUT is an irrevocable trust with a noncharitable
income beneficiary (e.g., one or more individuals) whose income interest lasts,
pursuant to the trust terms, for some period of time (a certain number of years,
or time measured by a beneficiary's life, etc.) and at such time, the trust assets
are then distributed to a qualified charitable organization. In a CRUT, the
income payout is measured by a specified percentage of the value of trust
assets.

979
Chapter 16

980
Powers of Appointment

981
 I. Introduction
A. Conceptual Introduction
From an academic perspective, most students have a difficult
time with powers of appointment. Having no prior experience,
familiarity or conceptual understanding of what a power of
appointment is, they have no sense of what it does or when it is
used. In addition, the terminology surrounding powers of
appointment is completely foreign to them. Accordingly, a basic
conceptual understanding of the term is needed before one can
begin to master the legal nuances of the doctrine.
While the term “power of appointment” may seem foreign and
new, most students are familiar with its sibling doctrine: the power
to revoke. In the context of a trust, the power to revoke is a power
held by the settlor that provides flexibility. If a trust is revocable,
and after creating the trust, certain circumstances change, the
settlor can invoke the power and terminate (or modify) the trust. In
essence, the power to revoke gives the settlor the ability to
override the terms of the trust—to say to the trustee, regardless of
the terms of the trust, “Give the trust property back to me [the
settlor].” The settlor can then, if he or she wishes, create a new
trust with new terms that take into consideration the changed
circumstances.
In many respects a power of appointment is analogous to a
power to revoke, but it is a power held by a third party (someone
other than the settlor). A party holding a general power of
appointment has the power to tell the trustee, regardless of the
terms of the trust, to give the property to “me”—the party holding
the power (or, in effect to someone else, to whom I direct—in
whose favor I appoint). Just as a power to revoke grants the
settlor the ability to override the express terms of the trust
regarding the beneficiaries' interests, so too a power of
appointment grants the party holding the power the ability to
override the express terms of the trust regarding the beneficiaries'
interest. Just as a power to revoke adds flexibility to a trust by
permitting the settlor to override the terms of the trust if he or she

982
deems it appropriate (presumably based on changed
circumstances, but not required), so too a power of appointment
adds flexibility to a trust, permitting the party holding the power to
override the terms of the trust if the party deems it appropriate
(presumably, but not necessarily, based on changed
circumstances). Again, one initial, conceptual, way to think about
powers of appointment as applied to a trust is that a power of
appointment is analogous to a power to revoke in the hands of
someone other than the settlor (i.e., a third party).
Technically, a power of appointment gives one party the right to
direct the disposition of property legally held by another party. The
typical setting is the trust. If a party holds a power of appointment,
that party has the power to direct the trustee to transfer the
property subject to the power in accordance with the terms of the
power. A power of appointment, however, is not limited to a trust
setting. It can be used in a variety of settings. How that can
happen you will understand better as you become more
comfortable with the concept and doctrine of the power of
appointment.
Now that you understand what a power is conceptually, the
technical definition is that a power exists:
whenever a person has the discretion to determine what
persons are to receive beneficial interests in property or to
determine the amount of beneficial interest in property to
be received by certain persons. Obviously, one who is the
complete and unqualified beneficial owner of property has
such discretion but we do not regard him as having, in
addition to such ownership, a power of appointment.
A. James Casner, Estate Planning—Powers of Appointment, 64
HARV. L. REV. 185, 185–86 (1950) (emphasis in original).
You will become more comfortable with that definition as you
become more familiar with the concept and doctrine. A power
gives the party holding the power the ability to direct who should
receive property, the title of which is vested in another party. For
example, assume S transfers property to T to hold in trust, for the
benefit of S during S's lifetime, then to UC-Nirvana (S's alma
mater). S, however, also retains a power to revoke and a power to
appoint the property to whomever S wants in S's will. While S is

983
alive, S can revoke the trust if circumstances change (or if S
changes his or her mind), and upon S's death, S can override the
terms of the trust and appoint the property to anyone if
circumstances change (or if S changes his or her intent that UC-
Nirvana should receive the property).
The power need not reside in the settlor. In practice, a power of
appointment most often is granted to someone other than the
settlor. For example, assume S sets up an irrevocable trust by
transferring property to the trustee, T. The dispositive provisions
of the trust call for income to be paid to S's daughter, D, for D's
life, and at D's death the trust assets are to be distributed to S's
grandchild, G (or G's estate if not then living). The trust document
may also provide that D has a power of appointment, or it might
be that G is given a power of appointment, or the document may
give such power to T—or even to some other third party. The
power of appointment may be given to almost anyone.

B. Terminology
Powers of appointment have their own unique terminology that
needs to be mastered to understand the legal components.
Again, although powers of appointment are not limited to trusts,
that is the legal setting in which powers are most commonly
associated and most commonly used. Accordingly, we will use the
trust context as the backdrop for our discussion.
The party who creates the power is called the donor. The party
who receives the power, who holds the power of appointment,
and who has the power to exercise it, is called the donee. In
practice, the donee is commonly referred to as “the power holder.”
While the latter is more intuitively descriptive, the term donee
shall be used in this chapter.
The parties in whose favor a power can be exercised, i.e., the
people who can receive the property if a power is exercised, are
called the permissible appointees, the eligible appointees, the
potential appointees, or the objects of the power. A party who
actually has property appointed to him or her under a power of
appointment is called an appointee.

984
 The scope of a power can vary. There are two basic categories
of powers: a general power of appointment, or a special power of
appointment. The difference turns on in whose favor the power
can be exercised. If the party holding the power (the donee) can
exercise it by appointing the property for his or her own benefit
(i.e., appoint the property to the donee, to the donee's creditors,
to the donee's estate, or to creditors of donee's estate), the power
is called a general power of appointment (often referred to in its
abbreviated form: GPA). The class of eligible appointees may
extend beyond just the donee, but so long as the donee can
exercise the power for his or her own benefit (as defined above),
it is a general power of appointment. De facto, a party holding a
general power of appointment can give the property to anyone
because he or she can give it to him or herself first and then
proceed to give it to someone else.
On the other hand, a special power of appointment (also known
as a limited power of appointment or non-general power of
appointment) is any power that is not a general power (i.e., any
power where the party holding the power (the donee) cannot
appoint the property to him or herself, to the donee's creditors, to
the donee's estate, or to creditors of donee's estate). Where the
power of appointment is a special power of appointment, the
class of eligible appointees or objects is typically rather small. The
key, however, is not the size of the class of eligible appointees,
but rather who is included. As long as it excludes the donee, the
donee's creditors, the donee's estate, and creditors of donee's
estate, the power is a special power of appointment.
Powers are not only defined by the scope of the eligible
appointees or objects in whose favor they can be exercised,
powers are also defined by when they can be exercised.
Focusing on this variable, there are three basic types of powers.
A power is either presently exercisable, testamentary, or
postponed. The California statutory definitions do a good job of
articulating the basic differences between and among these
different types of powers:
CPC §612. Types of powers
(a) A power of appointment is “testamentary” if it is
exercisable only by a will.

985
 (b) A power of appointment is “presently exercisable” at the
time in question to the extent that an irrevocable
appointment can be made.
(c) A power of appointment is “not presently exercisable” if it
is “postponed.” A power of appointment is “postponed” in
either of the following circumstances:
(1) The creating instrument provides that the power of
appointment may be exercised only after a specified act
or event occurs or a specified condition is met, and the
act or event has not occurred or the condition has not
been met.
(2) The creating instrument provides that an exercise of
the power of appointment is revocable until a specified
act or event occurs or a specified condition is met, and
the act or event has not occurred or the condition has
not been met.
The amount of property in a fund subject to a power can vary. A
power can be exercised over all the property in question, or it can
be limited to a maximum percent or amount of property. In
addition, the terms of a power can stipulate how often the power
can be exercised: only once or more than once (e.g., quarterly or
annually). It is not uncommon for a party to have a power to
appoint up to five percent of the principal in a trust annually.
Finally, inasmuch as a power is discretionary, a well-drafted
power typically will provide for takers in default. Takers in default
are the parties who will receive the property subject to the power
of appointment if the donee fails to exercise the power of
appointment. Such parties should be expressly identified (either
by name or by description) in the instrument creating the power.
As used in a trust, powers typically are designed to provide
flexibility with respect to the trust administration. They permit the
donee holding the power to de facto override the terms of the
trust if they wish. Building flexibility into the power of appointment
(permitting the donee to appoint up to five percent of the principal
each year) adds even more flexibility to the trust.

986
C. Powers of Appointments—General versus
Special
The law of powers of appointments is often, as with various
concepts and doctrines regarding trusts, deeply entangled with
the law of tax—in particular, federal estate and gift taxes. While
an in-depth discussion of tax-related matters is well beyond the
scope of this book, suffice it to say that the previously discussed
distinction between general and special powers of appointments
is at the heart of the tax issues. A general power of appointment
can be a terrible thing for gift and estate tax purposes, whereas a
power of appointment that is the more limited special variety
usually does not create tax problems.
Ostensibly, the following is a tax case, but it nevertheless
provides a good (albeit sad) illustration that may help distinguish
the two types of powers of appointments.

Jenkins v. United States

428 F.2d 538 (5th Cir. 1970)
GOLDBERG, Circuit Judge:
We consider here the application of federal estate tax
provisions to an unexercised and evanescent power of
appointment. The executors of the estate of Martha O. Jenkins
seek approval of the decision below excluding from the
decedent's estate the value of certain property subject to a power
of appointment. Though equitable considerations invite us to
affirm the ruling below in an effort to ameliorate the apparent
harshness of the tax in this particular case, legal imperatives
leave us no choice but to reverse and hold that the tax must be
paid.
This case grew out of the lives—and deaths—of two sisters,
Ada Lee Jenkins and Martha O. Jenkins. These sisters, both of
whom were unmarried, lived together in Midland, Georgia, for
many years prior to their deaths. Although they owned a
substantial amount of property, they lived in a simple, frugal
manner. On December 23, 1958, both sisters, who were then in
their seventies, executed wills. These wills were very similar in
wording and provisions, each sister leaving the other a life estate

987
coupled with a power of invasion or consumption over the
testatrix's property.
On September 24, 1962, Ada Lee Jenkins died. Shortly after
her sister's death Martha O. Jenkins decided that she did not wish
to serve as executrix under her sister's will, and on October 4,
1962, she executed a document renouncing her designation as
executrix. She apparently took no other action with regard to the
will of her sister. Although she had previously been in good
health, on October 10, 1962, Martha suffered a heart attack, and
on the following day she died. Because of the short period of time
—only seventeen days—between the deaths of the two sisters,
Ada's will had not been probated at the time of Martha's death.
The wills of both sisters were filed and admitted for probate on
October 25, 1962. Two nephews of the sisters, Alonzo Wimberly
Jenkins, Jr., and McLendon Wash Jenkins, qualified as the
executors of both estates.
The will of Ada Lee Jenkins contained several provisions
leaving her surviving sister a life estate coupled with a power of
invasion or consumption over certain real and personal property
located in Muscogee County, Georgia. Each of the relevant
provisions of the will included language substantially identical to
the following:
“Should my sister, Martha O. Jenkins, survive me, then in
that event, I give, bequeath and devise to Martha O.
Jenkins all my right, title and interest in and to * * * [certain
named property] * * * to have, hold, use and enjoy for and
during her natural life, with full and unlimited power and
authority to dispose of the same in fee simple by gift or
otherwise at any time during her life without accountability
to anyone, * * * and should my sister not dispose of my
interest in said [property] during her lifetime, then on her
death the same shall pass to and become the absolute
property of [a certain named remainderman]. * * *”
These provisions of the will led to a disagreement between the
Commissioner of Internal Revenue and the executors of the
estate of Martha O. Jenkins as to the amount of estate taxes due.
When the executors computed and filed an estate tax return for
the estate of Martha O. Jenkins, they excluded from her gross

988
estate the value of the property in which she received a life estate
with powers of invasion by her sister's will. The Commissioner,
however, ruled that the value of this property must be included
because Martha's powers of invasion constituted a general power
of appointment over such property. After paying the additional
estate taxes required by the Commissioner's ruling, the executors
filed a claim for a refund. When this claim was disallowed, the
executors filed suit in the United States District Court for the
Middle District of Georgia, seeking a refund in the amount of
$26,962.73.
As plaintiffs in the district court the executors advanced four
alternative contentions in support of their position that the value of
the property in dispute should not be included in Martha O.
Jenkins' estate for estate tax purposes. First, they contended that
Martha did not have a general power of appointment because she
could dispose of the property only inter vivos and not by will....
Third, they contended that Martha did not possess an exercisable
general power of appointment at the time of her death because
Ada's will have not yet been probated....
The district court, hearing the case on stipulated facts, entered
judgment for the plaintiffs. In its opinion the court accepted
plaintiffs' first and third contentions, rejected their second
contention, and did not reach the fourth. Jenkins v. United States,
M.D.Ga.1968, 296 F.Supp. 203. The government appeals to this
court. For the reasons hereinafter given, we are compelled to
reject each of the plaintiffs' contentions, and we therefore reverse
the judgment of the district court.
I.
Plaintiffs' first contention is that decedent did not have a
general power of appointment because her power could be
exercised only inter vivos and not by will. We reject this
contention because it involves a patent misconstruction of the
relevant provisions of the Internal Revenue Code.
Section 2041 of the Code provides that the value of the
decedent's gross estate shall include the value of property over
which the decedent at the time of his death possessed a “general
power of appointment.” For estate tax purposes, therefore,
property over which a decedent possessed such a power is

989
treated as if the decedent actually “owned” the property in the
conventional sense. Section 2041(b)(1) defines a “general power
of appointment” as “a power which is exercisable in favor of the
decedent, his estate, his creditors, or the creditors of his estate.”
The statutory definition is thus cast in the disjunctive. A power of
appointment is a general power under §2041(b)(1) if the donee of
the power can exercise it in favor of himself or his estate or his
creditors or the creditors of his estate. Professors Lowndes and
Kramer have succinctly described a general power in the
following language:
“A general power is a power under which the donee of the
power can appoint the property subject to the power to
himself, his estate, his creditors or the creditors of his
estate, either directly or indirectly. It is not necessary that
he be able to appoint to all four of these objects. The power
will be general if it can be exercised in favor of any one of
them.” Lowndes & Kramer, Federal Estate and Gift Taxes
§12.5, at 262 (2d ed. 1962).
...
In the case at bar the decedent received by virtue of her sister's
will a life estate in the property involved with an unlimited power
of disposition. Thus she had the power to make inter vivos
dispositions of the property, but she could not dispose of the
property by will. In statutory terminology, she had the power to
appoint the property to herself or to her creditors, but she did not
have the power to appoint the property to her estate or to the
creditors of her estate. In view of the definition contained in
2041(b)(1), the fact that decedent could appoint to herself or to
her creditors was sufficient to make her power of appointment a
general power. Her inability to make appointments either to her
estate or to the creditors of her estate was irrelevant.
...
III.
Plaintiffs' third contention is that decedent did not possess an
exercisable general power of appointment at the time of her death
because the will of Ada Lee Jenkins had not then been probated
or filed or offered for probate. Plaintiffs prevailed on this issue in

990
the district court. 296 F.Supp. at 206–208. Our examination of this
contention, however, leads us to the conclusion that it must be
rejected.
We note at the outset that there is no language in the will itself
which evidences a desire on the part of Ada that Martha's
possession of the power of appointment was to be postponed
until some time after Ada's death. On the contrary, the relevant
provisions of the will are couched in terms of the moment when
Martha survived Ada, i.e., the moment of Ada's death:
“Should my sister, Martha O. Jenkins, survive me, then in
that event, I give, bequeath and devise of Martha O.
Jenkins all my right, title and interest * * *”
The district court, however, found significance in the language
of Item Sixteen of the will, which provides in part:
“Upon the probate and admission to record of this my will, it
is my desire that my executrix, executors or executor
administer my estate with the control or supervision of any
Court or other authority and to that end, reposing special
confidence in them, I relieve them and each of them of
accountability to any Court or other authority in the
administration, management and final distribution of my
estate.” (Emphasis added.)
The district court placed special emphasis on the first seven of
the quoted words. We cannot agree, however, with the court's
apparent conclusion that these words expressed a desire on the
part of the testatrix to postpone her surviving sister's possession
of the power of appointment. On the contrary, when these words
are read in the context of the entire sentence, it is clear that they
have reference only to the procedure of probating the will, and not
to the timing of the passage of the power of appointment to
Martha O. Jenkins.
Moreover, we find nothing in Georgia law which leads us to
conclude that Martha's possession of the power would have been
postponed until probate or until any other point in time later than
the death of Ada. In the absence of any contrary provision in the
will itself, we think it is clear that Martha received an exercisable
general power at the moment of Ada's death.

991
 ...
We are compelled to reject plaintiffs' contention that Martha O.
Jenkins could not have exercised her power of appointment prior
to the probate of her sister's will. Under Georgia law she could
have made conveyances of the property involved in this case at
any time after her sister's death, subject only to subsequent
perfection of the record title. The fact that she did not then
possess a fully perfected record title is not controlling for federal
estate tax purposes. The substantive powers she received at the
time of her sister's death clearly came within the definition of a
general power of appointment in §2041(b)(1) of the Internal
Revenue Code, and these powers were clearly exercisable at the
time of her death.
...
Nothing in [any] ... judicial decision can relieve the decedent's
estate of the burden of paying estate taxes on the value of the
property embraced by her power of appointment. Both Martha O.
Jenkins and Ada Lee Jenkins planned their testamentary
dispositions in such a manner that the surviving sister (Martha)
would be able to exercise control over the property of the testatrix
(Ada) immediately upon the death of the latter. This being true,
the executors of Martha's estate cannot reasonably complain
when confronted by the estate tax consequences of the sisters'
plan of disposition. The fact that Martha died unexpectedly very
soon after the death of Ada cannot change the character of the
property interest which Martha possessed. The conclusion is
inescapable that Martha received an exercisable general power of
appointment at her sister's death and possessed the exercisable
power at her death. The estate taxes demanded by the
Commissioner must therefore be paid.
...
The judgment of the district court is reversed.
—————

Notes
1. Basic tax rules for a general power of appointment: The sad
case of the Jenkins sisters illustrates the foundational estate tax

992
law regarding general powers of appointments. If you have one,
you are, for all intents and purposes, the owner of the property. In
Jenkins, the court ruled that if a party dies holding a general
power of appointment, the power is tantamount to full ownership
over the applicable property. This pseudo form of “ownership” is
what causes the problems. If one has a power to appoint that is
general, then whatever trust assets are subject to being
appointed will be included in the decedent's (donee's) estate for
estate tax purposes. This is often referred to as an “artificial”
inclusion, as the assets are included in the decedent/donee's
estate purely for estate tax purposes (i.e., the donee, having not
exercised the power, does not affect the disposition of the assets
upon his or her death). The assets are not subject to probate, but
rather are disposed of by the underlying document.
Returning to an earlier example for illustration, assume S sets
up an irrevocable trust by transferring property to the trustee, T,
and the dispositive provisions of the trust call for income to be
paid to S's daughter, D, for D's life, and at D's death the trust
assets are to be distributed to S's grandchild, G (or G's estate if
not then living). In addition, the trust document provides that D
has the power to appoint all or any portion of the trust assets, at
any time during life or at death through her will, to herself, her
estate, her creditors, or the creditors of her estate. The power
could include even more permissible appointees than this—it
doesn't matter because in any of these permutations, D has a
general power of appointment. Assume that D dies having never
exercised this power (and she did not exercise it in her will). For
estate tax purposes, the fact that D died holding a general power
of appointment will result in the then-current value of all of the
trust assets to be included in D's estate for estate tax purposes.
Again, note that this inclusion is for tax purposes only and will not
affect the trust dispositive provisions (here, distributing everything
to G or G's estate).
In the alternative if, in our example, D (or in the Jenkins case,
surviving sister, Martha) had no power of appointment
whatsoever, their “life interests” would, at their death, end with the
value of the life interest being zero. This would not result in any
inclusion of the value of trust assets in the decedent's estate (the
value of a regular life estate at the death of the life estate

993
beneficiary is nothing). In Jenkins and our example, however,
while the life estate extinguished any real value of the
beneficiaries' interests, dying with a general power of
appointment results in inclusion of the value of all trust assets in
the estate for estate tax purposes.
There is no escaping the negative tax ramifications for the
holder of a general power of appointment.1 Exercising such a
power at one's death and appointing it, or redirecting it, to
someone, will still result in the inclusion of all such property in the
decedent's estate. An inter vivos appointment, discussed later in
this chapter, will implicate gift issues. All of this is consistent with
the notion that a having a general power of appointment is
tantamount to ownership of the property.
2. Special powers of appointments and taxes: Generally,
holding only a special power of appointment will not implicate the
aforementioned negative estate and gift tax issues. A trust clause
giving, for example, D, the “power to appoint to anyone other than
to D, D's estate, D's creditors, or the creditors of D's estate,” is
common language used to preclude the power from being the
dreaded (for tax purposes) general power of appointment. Note
that such a clause still provides a great deal of flexibility, which is
at the heart of why someone might be given a power of
appointment, without creating tax problems for the donee. All of
this again raises the point that one wishing to practice in the
estate planning area needs a comprehensive knowledge of tax
matters (the overlap between taxes and powers of appointments
is much deeper than discussed here). A trust clause giving D the
“power to appoint all or any portion of the trust assets to anyone,”
may have been intended not to include D as a permissible
appointee, but this phrasing has saddled D with a general power
of appointment. Taxes notwithstanding, a clause so drafted would
allow D to take all of the trust assets for herself, perhaps
something unintended by the settlor. Good estate planners also
need to have good drafting skills.
3. A power of appointment in favor of the donee—but not
deemed a general power of appointment? There is one form of a
power of appointment that, at first blush, may appear to be a
general power but, utilizing previously discussed trust material,
may actually be a harmless special power. In Chapter 13 the

994
concept of an “ascertainable standard” was discussed (relating to
discretionary powers). The ascertainable standard is a very
important concept in tax law. Assume that in our previous
example, S's trust gave D the power to appoint to herself but only
if necessary for her health, education, support, or maintenance.
While this is a power to appoint to oneself, the limitation by this
form of ascertainable standard removes it from the tax definition
of a general power of appointment.
This was also an issue in the Jenkins case. Excised from the
case excerpt above was the argument that the power given to
Martha by her sister Ada Lee was not a general power of
appointment by reason of this ascertainable standard exception
to the definition. The pertinent parts of the rather sad facts, as
well as the court's analysis, are set forth below:
Plaintiffs next advance the contention that decedent's
power of appointment was not a general power because it
came within the “ascertainable standard” exception found
in [the statute]. This [applicable part of the law]:
A power to consume, invade, or appropriate property for
the benefit of the decedent which is limited by an
ascertainable standard relating to the health, education,
support, or maintenance of the decedent shall not be
deemed a general power of appointment.
Plaintiffs make much of the fact that decedent had a
substantial amount of property of her own and of the fact
that she lived in an exceedingly frugal manner. Because of
these facts, which are undisputed, plaintiffs contend that
“there was no likelihood” that decedent would ever have
exercised any of her powers of disposition over the
property involved. Therefore, plaintiffs ask us to conclude,
decedent's power of appointment was limited by an
ascertainable standard within the meaning of the Code. We
reject this contention, as did the court below.... The district
court's analysis of this issue was eminently correct, and we
quote with approval from the opinion below:
“In this connection the evidence shows that at the time of
her sister's death Martha O. Jenkins was 82 years of age
and was possessed of a substantial estate in her own
right consisting of real and personal property having a

995
 value of approximately $150,000.00. The evidence
further shows that the two sisters lived in a very
conservative manner, growing their own vegetables and
raising their own chickens and spending not more than
about $5.00 a week for groceries. They wore black
cotton dresses and would spend money on nothing
unless it was absolutely necessary. It is interesting to
note that they resisted until the end the urgings of their
relatives that they buy themselves a television set, which
fact may be regarded not only as evidence of their
frugality but as a monument to their discretion.
“The Court is convinced that Martha O. Jenkins would
never have encroached upon her sister's estate to satisfy
any of her own meager wants or needs, first because
she had no need to do so, and second because the
remaindermen named in her sister's will were the same
remaindermen who were the beneficiaries under her own
will later probated, but the question is not what she would
have done with the property, but rather what she could
have done with it.” ...
The district court was correct in holding that the relevant
inquiry is not what the decedent may have planned to do
with the property, but rather what she was empowered to
do. An ascertainable standard must be a prescribed
standard, not a post-prescriptive course of action. The
acting out of the standard is irrelevant, for it is the script
rather than the actor which controls a decision concerning
the existence of an ascertainable standard. In determining
what the decedent was empowered to do, courts must look
to the express language of the instrument creating the
power, or to the language of the instrument as modified by
state law....
In the instant case the instrument creating the power—the
will of Ada Lee Jenkins—gave Martha O. Jenkins “full and
unlimited power and authority to dispose of the (property) in
fee simple by gift or otherwise at any time during her life
without accountability to anyone.” It is difficult to imagine a
more unlimited, open-ended, freewheeling power than this.

996
 Moreover, Georgia law does not modify such language by
implying any ‘support and maintenance’ limitation....
In the words of the district court, “we can only conclude that
the will gave Martha O. Jenkins an unlimited right to
consume or give away inter vivos any or all of her sister's
property regardless of whether such encroachment was for
support and maintenance or for some other purpose.” ...
Her complete power over the property during her lifetime
was not modified by any standard other than one she might
impose on herself. Thus her power was not limited by any
“ascertainable standard.” ...
Jenkins, 428 F.2d at 545–46.

D. Standard Applicable to Exercise

A power of appointment is a discretionary power. Recall that
Chapter 13 included a discussion of discretionary trusts—trusts
where a beneficiary's interest in either the principal or the income
is discretionary. While a power of appointment is discretionary,
and in that respect appears similar to a trustee's discretionary
power to disburse trust property, an important distinction exists: a
donee holding a power of appointment owes no fiduciary duty to
the eligible appointees/objects or to anyone else. Just as a settlor
can revoke or not revoke a trust as he or she wishes, with no
legal concern for how the settlor's decision might affect other
parties, so too with a power of appointment. The donee owes no
one a fiduciary duty. The donee can exercise or not exercise the
power as he or she wishes, with no legal concerns for how the
donee's decision might affect any other party. There is no
fiduciary duty associated with a power of appointment. It is truly at
the donee's discretion, and a court has no power to review the
donee's decision (so long as it does not violate the terms of the
power).

997
 II. Creation of a Power of
Appointment
Whether a power of appointment has been created and, if so,
what type of power of appointment has been created, is a
question of the donor's intent.

In re Kuttler's Estate
325 P.2d 624 (Cal. Ct. App. 1958)
ASHBURN, Acting Presiding Justice.
...
Decedent died a widow on February 28, 1956, leaving three
grandchildren as her sole heirs; two brothers and a sister survived
her, as did Earl Hayter to whom she was engaged to marry. Her
estate consisted of cash, stocks, bonds, trust deed notes,
furniture and household and personal effects; also certain real
property appraised at $52,500; the entire estate was valued at
$143,000.
Her sister, Bertha McQuarrie, and her fiance, Earl Hayter,
petitioned for probate of the holographic instrument; their
application was opposed by Michael M. Kuttler as guardian for the
three minor grandchildren. The objections were sustained and
probate of the document was denied. It reads:
“Los Angeles 15, Calif. February 16th,—56 To whom it may
concern: If at any time I should pass on before I have a
recorded Will: This is to certify that I do not want Mike
Kuttler or Vera Kuttler, my deceased Sons' wives to have
one thing or one cent of what I have: nor the children Joan,
Bill or Nancy Ann as I never see them so I enjoy no
pleasure from them.
“Notify Earl Hayter or my sister Bertha McQuarrie DO-7-
7821—for them to dispose of my belongings as they see fit.
Signed Mrs. Ethel May Kuttler 2/16/56”.

998
 The trial judge ruled that the instrument is not testamentary in
character, was not intended to be testamentary, was not intended
to dispose of decedent's property and did not do so. From the
order denying probate Hayter and McQuarrie appeal.
The effect of the instant ruling is to vest decedent's ‘belongings’
in the three grandchildren whom she expressly disinherited.
There is no escape from the conclusion that Mrs. Kuttler did
intend this document to operation as her will. Testamentary
intention is thus defined in Re Estate of Sargavak, 35 Cal.2d 93,
95, 216 P.2d 850, 851, 21 A.L.R.2d 307: ‘The testator must have
intended, by the particular instrument offered for probate, to make
a revocable disposition of his property to take effect upon his
death.’ To this definition the court added this caution: ‘It bears
emphasis that we are here concerned not with the meaning of the
instrument, but with the intention with which it was executed.’ 35
Cal.2d at page 96, 216 P.2d at page 851.
...
... [T]he writing in question affords irrefutable internal evidence
of the requisite testamentary intent. First it disinherits in explicit
language decedent's only heirs (she left no children and no other
grandchildren); then it confers a power of appointment upon
Hayter and McQuarrie with respect to her entire “belongings.”
“A power of appointment, which may be created by deed or by
will, is defined, generally, as a power or authority given to a
person to dispose of property, or an interest therein, which is
vested in a person other than the donee of the power.” In re
Lidston's Estate, 32 Wash.2d 408, 202 P.2d 259, 265. No
particular form of words is necessary to the creation of such a
power. 3 Tiffany Real Property, 3d Ed., §685, p. 20; In re
Rowlands' Estate, 73 Ariz, 337, 241 P.2d 781, 784; In re Lidston's
Estate, supra, 202 P.2d 266; 96 C.J.S. Wills §1062 d, p. 702.
Such a disposition of a testatrix' property satisfies the cases next
cited, which hold that it is essential to a valid will disinheriting all
or any of the heirs that it also make some valid disposition of
decedent's property....
Powers of appointment have been recognized as valid in this
State....

999
 Though urged upon him, the trial judge ignored the proposition
that the writing created a valid power of appointment. The
question considered below was whether there was an outright gift
to Hayter and McQuarrie followed by precatory words. But
solution of the question of existence of a power of appointment is
the proper approach to this case. The language of In re Estate of
Sloan, supra, 7 Cal.App.2d 319, 341–342, 46 P.2d 1007, 1018, is
pertinent: “As has been announced in numerous decisions the
word ‘precatory’ is properly applied to an expression by a trustor
wherein a hope, a wish, a desire, a recommendation, or a request
is indicated by him. Necessarily, the words by which a precatory
trust is created constitute an entreaty, and is beseeching, or
suppliant, or prayerful in its nature. * * * Considering the language
employed by the donor of the power in the instant matter, even by
viewing it in the light of the most auspicious authorities to which
the attention of this court has been directed, it is impossible to
give to such language a construction which would admit of a
conclusion favorable to the suggestion made by appellants to the
effect that it is precatory in character. The donor's required
disposition of his estate was plain, direct and conclusive. It
constituted not an entreaty, nor a wish, a desire, a request, a
recommendation, or anything of that sort. It is most apparent that
the power created by its donor was mandatory.”
The donee of a general power of appointment may exercise it
in his own favor. In legal effect such a power gives him an
absolute ownership....
Respondents argue that a power such as the one at bar is
invalid because it delegates to another the authority to make a will
for the testatrix, thus evading the statutes relating to the making
of wills. The California cases above cited involve the distribution
of a part of the property or less than the entire estate in
decedent's property, and hold such a power to be valid. The
underlying theory is that the subject matter passes from the
donor's estate directly to the appointee and not from the donee or
his estate. In re Estate of Baird, 120 Cal.App.2d 219, 227, 260
P.2d 1052; In re Estate of Masson, supra, 142 Cal.App.2d 510,
512, 298 P.2d 619; 39 Cal.Jur.2d §3, p. 613. In one sense a
power to dispose of a part of testatrix' property through an
appointment to a third person does amount to the making of a will

1000
for her pro tanto. But the legal concept is to the contrary. There
appears to be no difference in principle between a power to
appoint the taker of a part of testatrix' property and a power to so
dispose of all of it.
...
Most courts in this country which have been confronted with our
present inquiry have held that general power to be valid though
covering all or substantially all of decedent's estate. In In re
Tinsley's Will, 187 Iowa 23, 174 N.W. 4, 5, 11 A.L.R. 826, the
entire content of the will was as follows: “In case of any serious
accident, after my just debts are paid, I direct that my aunt Miss
Mary E. Clark, take entire charge of my estate for disposal as she
sees fit. J. Clark Tinsley.” The sixth objection to its probate was:
“[I]t leaves the disposal of property to another person. The
decedent did not by said instrument, and could not, delegate to
an agent the power to make a will for him.” It was held that this
document was testamentary in character, the court saying at page
6 of 174 N.W.: “Any writing by which a person undertakes to
make disposition of his property or estate to take effect after his
death is testamentary in character, and, if duly signed, witnessed,
and published, is entitled to admission to probate. * * *
Unrestricted power of disposal is an attribute of absolute
ownership. Quite in point, also, is Cheney v. Plumb, 79 Wis. 602,
48 N.W. 668, where the instrument was in form as follows: ‘When
I have done with my property, I want John R. Cheney and his wife
to pay all my debts and collect my dues and dispose of my things
as they think best, only I want Sarah A. Williams to have my silver
spoons * * * (and after several legacies) and remainder to keep
and dispose of as they think best.’ This was held sufficient to vest
the property absolutely in the persons named. See also, Benz v.
Fabian, 54 N.J.Eq. 615, 34 A. 760. And the trial court was justified
in holding the instrument testamentary in form, and not a mere
trust or power expiring with the death of Mary E. Clark, there is no
room to doubt.”
Baldwin v. Davidson, 37 Tenn.App. 606, 267 S.W.2d 756, 757,
involved this clause of a will: “B. W. Davidson, Sr. shall turn over
to my Sister Mrs. O. P. Brakefield my share to be distributed as
she shall see fit.” The word “share” referred to his interest in a
certain business. This language was held to create a power of

1001
appointment which could be exercised in the donee's own favor;
also held that it amounted to an absolute gift of the property to her
(267 S.W.2d at pages 757–758).
Appeal of Richburg, 148 Me. 323, 92 A.2d 724. The will
contained this provision: “I direct my executor to dispose of my
clothing and other personal articles and effects as he in his sole
discretion may deem best.” 92 A.2d at page 725. This language
was held to create a valid power of appointment. At page 726 of
92 A.2d the court said: “The appellant argues that assuming the
executor would not take whatever property might pass under the
Second Paragraph of the will to his own use, and for his own
benefit, it cannot be doubted that the language thereof gives him
a power of appointment over it. This Court said very recently, In re
Estate of Meier, 144 Me. 358, 362, 69 A.2d 664, 666, ‘that the
power of disposition of property “is the equivalent of ownership’”,
and it cannot be doubted that under the terms of the Second
Paragraph, the executor was given ‘power of disposition’ over
such articles as might fit the description of property therein. The
title thereto would vest in him, under the will, and remain with him
until he passed it elsewhere. * * * Conceivably, he may have used
the words ‘dispose of’ in the sense of ‘destroy’, assuming the
property in question had no monetary value but this Court cannot
rewrite the document for him, and his words have the very
definite, well-established meaning in testamentary use which the
appellant ascribes to them.”
In re Lidston's Estate, supra, 32 Wash.2d 408, 202 P.2d 259,
261: “I further direct my Executor dispose of any balance after the
aforementioned gifts have been paid according to his wise
discretion.” The executor proposed to distribute the property to his
own wife and two other persons. The lower court held that this
part of the will was not testamentary and the ruling was reversed.
The difference between a power and a trust was explained at
page 266, of 202 P.2d, where it was said: “No technical, special,
or particular form of words is necessary for the creation of a
power of appointment; if the testator's intention to confer the
power appears from the entire will, full effect will be given to such
intention. In Thompson, Wills, 588, §394, the rule as supported by
the authorities is stated as follows: ‘No particular form of words is
necessary for the creation of a power; any expression, however,

1002
informal, being sufficient if it clearly indicates an intention to give
a power. All that is necessary is an indication of a clear intention
to accomplish some proper purpose by the donor through the
donee. It may be conferred by express words, or may be
necessarily implied. * * *’” It was also remarked on that same
page that: “It seems to us that as a layman the testator could
hardly have used more appropriate language to express his
intention to confer upon his executor the power to dispose of the
residuum of the estate in a manner determinable by him.”
Respondents cannot prevail upon the argument that the use of
the word “notify” or the giving of Mrs. McQuarrie's telephone
number in the second paragraph of the writing indicates a sense
of urgency, or that deceased used the words “dispose of my
belongings” in the sense of authorizing Hayter and McQuarrie to
transfer her personal effects, jewelry and removable objects to a
place of safekeeping in order to protect them from falling into the
hands of the daughters-in-law. Nothing but speculation underlies
that argument. It is true that the word ‘dispose’ is: “A broad any
comprehensive term, with many shades of meaning, described as
‘nomen generalissimum,’ and standing by itself, without
qualification, * * * has been said to have no technical
signification.” 27 C.J.S. p. 345. But it has a familiar meaning when
used in wills, as is evident from the quotations of the Richburg,
Tinsley and Lidston cases, supra.
What Mrs. Kuttler obviously desired was that her donees have
the power to distribute her “belongings” if she should die before
executing a new and formal will. To say that she wanted
something less is to deny the obvious. Of course, the fact that she
expected to make a later and more formal will would not detract
from the testamentary character of the one in question. Richberg
v. Robbins, 33 Tenn.App. 66, 228 S.W.2d 1019, 1022; Henderson
v. Henderson, 183 Va. 663, 33 S.E.2d 181, 183; 1 Page on Wills
(Lifetime Ed.) §50, p. 112; 94 C.J.S. Wills §129, p. 905.
...
The order of October 23, 1956, is affirmed with respect to the
denial of appellant Hayter's petition for letters testamentary; in all
other respects it is reversed with instructions to admit to probate
the holographic document of February 16, 1956....

1003
 —————

Notes
1. Vested in another: In Kuttler, the court makes what at first
blush might sound like a strange statement: “A power of
appointment, which may be created by deed or by will, is defined,
generally, as a power or authority given to a person to dispose of
property, or an interest therein, which is vested in a person other
than the donee of the power.”
The more common setting for and use of a power of
appointment is in a trust. Legal title to the property subject to the
power (the trust property) is vested in the trustee. Typically,
someone other than the trustee will hold the power of
appointment. Hence, legal title to the property subject to the
power of appointment (the trust property) is vested in someone
other than the donee—the title is vested in the trustee.
Nevertheless, the donee has the power to override the terms of
the trust and to order the trustee to disburse the trust property
pursuant to the proper exercise of the power.
In Kuttler, the power of appointment was over the decedent's
probate estate. Who holds vested title to a decedent's probate
estate is a bit more complicated: “When a person dies, title to his
or her property vests in the heirs or devisees, subject to
administration.” Olson v. Toy, 46 Cal. App. 4th 818, 825 (Ct. App.
1996). Upon the decedent's death, title immediately vests in the
appropriate heirs or devisees, subject to administration. California
Probate Code Section 7001 expressly so states: “The decedent's
property is subject to administration under this code, except as
otherwise provided by law, and is subject to the rights of
beneficiaries, creditors, and other persons as provided by law.”
The last clause's reference to “other persons as provided by law”
includes an individual holding a power of appointment over the
probate estate.
2. Creditor's rights: A donee holding a power of appointment
over property obviously has some rights with respect to the
property. Can a donee's creditors reach the property subject to
the power?

1004
A. Special Power of Appointment
The analysis is fairly easy with respect to a donee holding a
special power of appointment. A donee holding a special or
limited power of appointment cannot appoint the property to him
or herself, to his or her creditors, to his or her estate, or to
creditors of his or her estate. In essence, a donee who holds only
a limited or special power of appointment is analogous to an
agent. The donee has no rights in the property per se, but as an
agent can transfer the property to an eligible appointee. But just
as an agent has no rights in the principal's property, so too a party
holding only a special or limited power of appointment has no
rights in the property subject to the power. Thus, the general rule
is: creditors of a donee holding a special or limited power of
appointment have no right to reach the property—neither while it
is subject to appointment nor after an appointment has been
made. California follows this general rule with respect to creditor's
rights and a special power of appointment. See CPC §681; 50A
CAL. JUR. 3d Powers of Appointment §44 (2015).

B. General Power of Appointment

The analysis is more complicated for creditors of a donee
holding a general power of appointment. On the one hand, a
donee is analogous to an agent in that he or she acts for another
(the donor). Technically, a donee is not an agent, but conceptually
it may help to think of a donee as analogous to an agent. A donee
holding a general power of appointment, however, can appoint
the property to him or herself, to his or her creditors, to his or her
estate, or to creditors of his or her estate. For all practical
purposes, is not the donee of a general power of appointment the
de facto owner? The property subject to the power is analogous
to money in the donee's checking account. All the donee has to
do is express his or her intent to use the property and he or she
will have all rights over that property. As such, should the property
be treated as the donee's property for purposes of creditors'
rights?
The traditional approach to the question is implicitly reflected in
the terminology. The traditional approach adopts a traditional
property-based view of the transaction, adopting the “gift” model

1005
of the transaction. Under the traditional “gift” model, the donor has
made a gift of the power to a donee, but the donee does not
“own” the property unless he or she “accepts” the gift. The
clearest form of acceptance would be if the donee exercised the
general power of appointment to appoint the property to him or
herself. Then the property would clearly be the donee's property,
and creditors of the donee could reach the property. But under the
traditional “gift” model, so long as the donee does not exercise
the power in favor of the donee, he or she has not accepted the
property. Therefore, the donee's creditors cannot reach the
property.
Kuttler reflects the modern trend. The court stated: “The donee
of a general power of appointment may exercise it in his own
favor. In legal effect such a power gives him an absolute
ownership.” If the general power of appointment gives the donee
absolute ownership, should not the donee's creditors be able to
reach the property even if the donee has not exercised the power
in his or her own favor? Despite the language in Kuttler, under the
modern trend general rule, creditors of a donee holding a general
power of appointment over property cannot reach the property
unless the donee exercises the power of appointment. It does not
matter in whose favor the power is exercised—the donee or an
eligible third party. The general rule is that the property is treated,
by operation of law, as if it had passed through the donee's hands
when the donee exercised the power, during which time the
creditors' rights attached to it.
Some jurisdictions, however, have taken the modern trend to its
logical extreme and deem the donee of a general power of
appointment as the owner of the property even in the absence of
the donee's exercise of the power (though with some conditions
on when the donee's creditors may reach the property). California
has adopted this approach to a general power of appointment
and creditors' rights. California law basically treats the property
subject to a general power of appointment presently exercisable
as the donee's property:
CPC §682. Creditor rights general power of appointment
(a) To the extent that the property owned by the donee is
inadequate to satisfy the claims of the donee's creditors,

1006
 property subject to a general power of appointment that is
presently exercisable is subject to the claims to the same
extent that it would be subject to the claims if the property
were owned by the donee.
(b) Upon the death of the donee, to the extent that the
donee's estate is inadequate to satisfy the claims of
creditors of the estate and the expenses of administration
of the estate, property subject to a general testamentary
power of appointment or to a general power of
appointment that was presently exercisable at the time of
the donee's death is subject to the claims and expenses to
the same extent that it would be subject to the claims and
expenses if the property had been owned by the donee.
(c) This section applies whether or not the power of
appointment has been exercised.

Problems
1. Testatrix's will devised to her daughter a farm called “Allendale”
for life. The will went on to provide: “Provided, however, that the
power to dispose of said real estate by will is hereby expressly
granted unto my said daughter.” Is the daughter's power
general or special? See St. Matthews Bank v. De Charette, 83
S.W.2d 471 (Ky. 1935).
2. Clause II of Testator's will was intended to dispose of $600,000
of assets to take full advantage of the unified tax credit. Clause
II made eight specific bequests, totaling only $260,000. Clause
II went on to provide as follows:
In the absence of full and complete instructions from me
to my Executor or Executrix, the persons to receive
something under this Clause II and what each is to
receive shall be appointed by my Executor or Executrix in
his or her sole and absolute discretion, consistent with the
stated objective of this Clause II, but this ... power of
appointment shall not be used to increase or enlarge any
bequest I make to any persons who serve as my Executor
or Executrix, by this will or any codicil to it.
Inasmuch as the power fails to designate a specific class of
eligible beneficiaries, is the power general or special? See

1007
 Leach v. Hyatt, 423 S.E.2d 165 (Va. 1992).
3. Testator creates a testamentary trust. The terms of the trust
give Ms. Dickinson the right to receive the trust income for her
life. The trust goes on to grant her a testamentary power to
appoint the principal, and any undistributed income, free of
trust, to such person or persons as she may designate in her
will. The trust, however, also has a spendthrift clause. In light of
the spendthrift clause, should the power of appointment be
construed as a general or special power? See Dickinson v.
Wilmington Trust Co., 734 A.2d 605 (Del. Ch. 1999).

1008
 III. Exercise of a Power of
Appointment
Whether a power of appointment has been properly exercised
depends on the interaction of several variables: (1) the type of
power of appointment; (2) the terms of the power of appointment;
(3) the donor's intent; and (4) the donee's intent.

A. Inter Vivos—Timing of Exercise

A latent issue with respect to a presently exercisable power of
appointment is whether it can be exercised in the donee's will or
must it be exercised while the donee is still alive in a deed (the
most common instrument used to exercise an inter vivos power).
While a will is executed inter vivos, it is not effective until the
testator's death for most purposes. Nevertheless, the American
approach deems a will effective upon execution for purposes of
revoking another will. A will is not completely testamentary in
nature. For purposes of exercising a presently exercisable power
of appointment, should a donee be permitted to exercise the
power in his or her will?
The general rule is that a power that is “exercisable by deed or
will” is a presently exercisable power, and a donee can validly
exercise such a power in his or her will. Moreover, a power that is
“exercisable by deed” is a presently exercisable power. A donor
can specify that a power “exercisable by deed” cannot be
exercisable by will, but absent such express intent the general
rule is that a presently exercisable power can be exercised inter
vivos in a deed or in the donee's will. An instrument that gives the
donee a power to appoint the property, or a “presently exercisable
power,” is presumed to give a presently exercisable power that is
exercisable by deed or will. See RESTATEMENT (THIRD) OF PROP.:
WILLS & DONATIVE TRANSFERS §17.4 (2011); CPC §630.

B. Testamentary Power—Timing of Exercise

1009
 One of the principal reasons a settlor may use a power of
appointment is to add flexibility to the administration of the trust.
While the settlor is alive, he or she can retain flexibility over the
trust by retaining the power to revoke the trust. If, after creating
the trust, the circumstances surrounding the settlor change, or if
the circumstances surrounding one or more of the beneficiaries
change, the settlor can revoke the trust. If the settlor wishes, he
or she can create a new trust with new terms to reflect the new
circumstances and the settlor's new intent. The power to revoke
provides the flexibility the settlor may want to make sure that the
trust serves the settlor's changing intent. But how can a settlor
build in flexibility with respect to the period after the settlor's
death? Most settlors achieve that flexibility by granting a power of
appointment over the property to someone they trust. Which type
of power, and the scope of the power, is up to the settlor.

Carmichael v. Heggie
506 S.E.2d 308 (S.C. 1998)
GOOLSBY, Judge:
Doris Carmichael appeals a determination by the trial court that
she cannot presently exercise a power of appointment to convey
a fee simple interest in a tract of farm land to her son. We affirm.
Facts and Procedural Background
In his last will and testament, William Boyd Carmichael named
his wife Doris executor of his estate and gave her a life estate in
his undivided half-interest in an eighty-acre farm. The will also
granted Doris a general power of appointment through which she
could appoint the property to any appointee, including her estate,
in her last will and testament. If she did not exercise the power of
appointment in her will or if she predeceased William, the
property was to transfer to William's then living grandchildren.
The will also gave Doris, in her capacity as executor, the right to
sell assets. William died, and his will was probated July 22, 1985.
Doris survived her husband.
By deed dated October 14, 1994, Doris transferred her interest
in the tract of land to her son Milton B. Carmichael. On December
6, 1994, she executed a will exercising the power of appointment

1010
in favor of Milton. In her will, she stated she believed the transfer
had occurred with the October deed. Doris also executed a
contract with Milton agreeing not to change her will in exchange
for his caring for her in her old age.
Milton initiated an action for partition against Jane Heggie, who
owned the other half-interest in the property. In her answer and
counterclaim, Heggie questioned Milton's ownership interest in
the land and requested the court interpret William's will to quiet
title in the land. A guardian ad litem was appointed to protect the
interest of the minor and unborn potential heirs.
The trial court held Doris could exercise the power of
appointment only through her will upon her death, when the will
was probated. It further found that Doris's authority as executor of
William's estate did not expand her power of appointment. The
deed from Doris to Milton, therefore, conveyed only a life estate
per autre vie and no other legal interest.
Discussion
1. Doris argues the trial court erred in holding she had not
exercised the power of appointment in favor of Milton. She
asserts that through the execution of her will, the execution of the
contract to will, and the transfer of her interest in the property, she
had conveyed a fee simple interest to Milton....
Generally a contract to make a will is enforceable, provided it
possesses all the essential elements of a legal contract. Caulder
v. Knox, 251 S.C. 337, 162 S.E.2d 262 (1968). “One who
contracts to will property in effect parts with his rights to act
inconsistent therewith and in effect reserves to himself a life
interest only.” Id. at 346, 162 S.E.2d at 267 (1968).
We are unaware of any South Carolina cases to date
specifically considering the effect of a contract to will on a
testamentary power of appointment. The Restatement (Second)
of Property, however, provides as follows:
A donee of a power of appointment not presently
exercisable cannot contract to make an appointment in the
future that is enforceable by the promisee. Though the
promisee cannot obtain damages or the specific property if
the promise is not performed, the promisee may obtain

1011
 restitution for value that the promisee gave for the promise
from the person who received the value.
Restatement (Second) of Property §16.2 (1986).
The rationale behind this rule is to fulfill the donor's intent that
the selection of the appointees be made “in the light of the
circumstances that may exist on the date the power becomes
exercisable.” Restatement (Second) of Property §16.2 cmt. a
(1986). Furthermore, as the Restatement explains, “A contract to
appoint in a certain manner made prior to the date the power
becomes exercisable, if valid, would defeat the donor's intent.” Id.
We adopt the Restatement rule and hold Doris, as the donee of
a testamentary power of appointment, may not in a contract to will
bind herself to exercise the power in a certain manner. The
contract to will Doris executed in favor of Milton is therefore
invalid, and the trial court correctly held Doris could not make an
inter vivos transfer of a fee simple interest in the property to
Milton.
...
AFFIRMED.
—————

Notes
1. Testamentary/postponed power and flexibility: From a “time
of exercise” perspective, a donor has essentially three options: (1)
a presently exercisable power, (2) a postponed power, or (3) a
testamentary power. By picking a testamentary power, the donor
has expressed his or her intent that he or she wants the donee to
wait as long as possible—until the donee's death—before
deciding what would be the best thing to do with the property
subject to the power (i.e., before deciding whether to exercise the
power, and if so, in whose favor to exercise it). This allows—and
forces—the donee to take into consideration all the changes that
occur during the donee's life. Hence, the RESTATEMENT's position
and the court's ruling that a donee cannot inter vivos contract with
respect to how he or she is going to exercise a testamentary
power appointment. The same logic applies, though to a lesser
degree, to a postponed power.

1012
 2. Release of a power of appointment: The presumption is that,
absent express contrary intent by the donor, a donee can release
a power of appointment. RESTATEMENT OF PROPERTY §334. While a
donee cannot exercise a testamentary power of appointment inter
vivos, a donee can release a testamentary power of appointment
inter vivos. Where an inter vivos contract to exercise a
testamentary power would have the same legal effect as a
release, the court may construe the contract as a valid release.
See Wood v. Am. Sec. & Trust Co., 253 F. Supp. 592, 594
(D.D.C. 1966).
A release of a power of appointment need not be complete; it
can be partial. For example, a donor can create a power of
appointment that may be exercised presently or testamentarily.
The donee can release the ability to exercise the power presently,
thereby converting it into a testamentary power, or vice versa.
Another common example involves the scope of the power. A
power of appointment can be either general or limited. Assume a
donee holds a power that can be exercised in favor of a class that
includes the donee (which would then make it a general power).
The donee can release the power to appoint the property to the
donee, the donee's creditors, the donee's estate, or the creditors
of the donee's estate, thereby converting the power into a limited
power.
3. Testamentary exercise consistent with contract: If a donee
contracts inter vivos to exercise a testamentary power of
appointment in a certain way (which is invalid—see above), and
thereafter the donee exercises the power at time of death
consistent with the contract, the general rule is that the donee's
inter vivos contract to exercise the power that way does not affect
the validity of the testamentary exercise.
4. Donee is donor: What if the donee in the Carmichael case
had been the donor? If the donee grants him or herself a
testamentary power of appointment, but then inter vivos contracts
with respect to the testamentary power of appointment, should it
matter that it is the donor who holds the power? New York law
provides that where the donee is also the donor, the party can
contract inter vivos with respect to how the power will be
exercised at time of death. The logic is that because the donee
and the donor are the same party, permitting the inter vivos

1013
contracting with respect to the testamentary appointment is
actually intent promoting because it is the same party's intent.
McKinney's EPTL §10-5.3(a) (2015).

Problem
Fred and Frances Cox executed their respective lawyer-
prepared wills. Each will provided that should the decedent have
a surviving spouse, all of his or her estate passed to the surviving
spouse. Each will also provided that, in the event the decedent
did not have a surviving spouse, his or her property went to other
relatives.
Thereafter, Fred and Frances executed an inter vivos trust.
They funded the trust with four parcels of real property. The trust
expressly provided that:
Each Settlor shall have the absolute right and power
without restriction, to appoint his or her share of the trust
estates including his or her share of community and
separate property. Such power of appointment shall be
exercisable by will and may be exercised in favor of the
Settlor who is testator/trix of that particular will, or the
creditors of said Settlor, or said Settlor's estate or any other
person or organization.
The trust had an express provision indicating how the property
subject to the power of appointment should be distributed in the
event the power was not exercised.
Thereafter the testators/settlors died without revising their wills.
Can a will executed before a trust granting a power of
appointment be deemed to exercise the power if the will
otherwise meets the requirements to exercise the power?

C. Manner of Exercise
Whether a power of appointment has been properly exercised
is first and foremost a question of the donor's intent. One must
start with the terms of the granting instrument: what type of power
did the donor create, and what conditions, if any, did the donor
put on the exercise?

1014
 In re Passmore
416 A.2d 991 (Pa. 1980)
ROBERTS, Justice.
This case poses the question whether donee Laura Passmore
effectively exercised a power of appointment that her husband,
donor Charles F. Passmore, created in her favor. Unlike the
Orphans' Court Division of the Court of Common Pleas of
Dauphin County, we conclude that donee did effectively exercise
that power.
In 1970, donor executed a “Revocable Agreement of Trust” by
which he created a revocable inter vivos trust for his own benefit
as well as the benefit of donee and donee's sisters. Donor named
appellee, National Bank and Trust Company of Central
Pennsylvania (the Bank), as trustee. Donor provided that, upon
his death, if he is survived by donee, the Bank is to divide trust
principal and form two new trusts. One of the new trusts, “Trust
A,” is to consist of “such fractional portion of [original trust
principal] that qualif[ies] for the marital deduction in determining
the Federal estate tax on the estate of [donor]....” Remaining
principal is to comprise the other trust, “Trust B.” Donor gave the
Bank discretion to pay donee income and principal from Trusts A
and B. Donor also gave the Bank discretion to pay donee's sisters
principal from Trust B.
Donor further provided that, upon donee's death,
“all the property then held in Trust A shall be distributed as
she may by her will appoint, making specific reference to
Trust A under this Revocable Agreement of Trust. The
power to make such appointment, the conditions to which it
may be made subject, and the permissible beneficiaries
shall be without restriction or qualification of any kind.”
Donor added that, should donee “fail to exercise effectively her
power of appointment over any part of the property in Trust A, the
principal held in Trust A at her death shall be added to,
considered part of, and administered and distributed in the same
manner as the property held in Trust B.” Donor created no other
power of appointment in donee's favor.

1015
 Donor died in March of 1975. Donee died twenty-one months
later. In her will, after directing payment of funeral expenses,
donee exercised her power of appointment over Trust A principal
as follows:
“I give, bequeath and devise all of my property, of whatever
nature and wherever situated, and expressly intend this act
to constitute the exercise of any power of appointment
which I may possess or enjoy under any Will or trust
agreement executed by my husband, Charles F. Passmore,
and/or the disposition of any property in which I may
possess an interest as a beneficiary of a trust or otherwise
am entitled to participate or share in its disposition or
distribution, in trust, to be administered in a manner and for
purposes hereinafter stated:....”
The “manner” of administration and “purposes” of the trust include
payment of income and principal, at the named trustee's
discretion, to donee's sisters. Upon the sisters' death, donee's
trustee is to pay twenty-five percent of the remainder to the Blind
Association of Harrisburg and seventy-five percent of the
remainder to the Good Shepherd Lutheran Church of Paxtang
(the Church).
In April of 1978 the Bank filed a Second and Final Account. The
Bank proposed to disregard donee's exercise of her power of
appointment, add Trust A principal to Trust B, and distribute the
total fund in the manner donor provided in the event donee
ineffectively exercised her power. The Church and the executor-
trustee under donee's will took exception, claiming the Bank
incorrectly disregarded donee's valid exercise of her power of
appointment. The Bank and exceptants entered into a Stipulation
of Facts, which included:
“9. It was Laura's intention, in executing her will ... to
exercise her power of appointment over Trust A under the
Charles Passmore Revocable Agreement of Trust....
On the parties' briefs, the orphans' court entered a final decree
dismissing the exceptions and holding that, under Schede Estate,
426 Pa. 93, 231 A.2d 135 (1967), donee's exercise of her power
of appointment is ineffective for want of specific reference to Trust

1016
A in her appointment clause. Both donee's executor-trustee and
the Church have appealed.
We agree with appellants that the orphans' court's reliance
upon Schede Estate, supra, is misplaced. In Schede, the donor
gave his spouse power to appoint principal of the donor's
testamentary trust “unto such person or persons, excluding
herself, her estate or her creditors, as my wife may by her last will
and testament or any writing in the nature thereof designate and
appoint by specifically referring to this Will....” The donee, who
had remarried, in her will sought to exercise the power in favor of
her new husband by way of the following language: “I give, devise
and bequeath all of the rest, residue and remainder of my
property, both real and personal of every kind and nature and of
which I may have a power of appointment....” The donee in
Schede, however, made no reference of any kind to the power of
appointment her husband had created. This Court, in agreeing
with the orphans' court that the donee's attempt to exercise the
power was ineffective, stated:
“the law has been clearly settled that strict and literal
compliance with the terms of a special power of
appointment is absolutely necessary for its valid and
effective exercise. That means that the appointing
instrument must specifically refer in the instant case to the
power which was granted by (the donor's) will and which
(the donee) seeks to exercise and execute. A general
residuary clause, even if and when it included the words, ‘I
hereby exercise every power of appointment which I
possess,’ would not and does not comply with and fulfill the
donor's condition and is not a valid exercise of the special
power of appointment granted to (the donee).”
Schede Estate, 426 Pa. at 96, 231 A.2d at 137.
Here, however, unlike in Schede, donee in her will not only
expressed her intention to exercise the power her husband
conferred upon her but also made specific and express reference
to the power her husband created. At the same time as she made
a general bequest of “all of [her] property,” donee deliberately
“exercise(d) ... any power of appointment which [she] may
possess or enjoy under any Will or trust agreement executed by

1017
[her] husband, Charles F. Passmore....” Trust A was, indeed, the
only power of appointment her husband had conferred upon her.
The specific and express reference donee made here to the
power her husband donor created was in full compliance with
donor's expressed objective. Husband donor here, unlike in
Schede, did not intend or mandate that donee exercise the power
created only by a strict and verbatim recital of his words. What he
did direct was a reasonable substantive compliance with his
expressed intention that his wife identify his grant of power to her
by her deliberate act. Although donor did employ language stating
that donee is to “mak[e] specific reference to Trust A under this
Revocable Agreement of Trust,” donor immediately added that
“[donee's] power to make such appointment, the conditions
to which it may be made subject, and the permissible
beneficiaries shall be without restriction or qualification of
any kind.”
This latter clause, like any other part of a writing, must be
viewed in light of the entire instrument. See e.g., Cahen Estate,
483 Pa. 157, 394 A.2d 958 (1978); Shehadi v. Northeastern
National Bank of Pennsylvania, 474 Pa. 232, 378 A.2d 304
(1977). So too, we must avoid any interpretation which would
attribute to donor an intention that only a repetition of his verbatim
language will satisfy the power. For such an interpretation would
frustrate the objectives of donor in creating the power of
appointment.
In our view, by adding both that “[donee's] power to make such
appointment” and “the conditions to which it may be made
subject” “shall be without restriction or qualification of any kind,”
donor revealed that his true objective was not to create barriers
hindering attainment of the substantive goals embodied in the
power of appointment. Instead, donor intended that donee identify
the power by deliberate act. As Commentary discussing similar
language of a donor states, here it is “quite reasonable to
conclude that, although the donor, in creating the power,
prescribed by a specific formality, his effective intent was merely
to require sufficient formality to insure against a hasty act by the
donee.” V American Law of Property, Powers of Appointment
§23.44, p. 578 (Casner ed. 1952).

1018
 Consistent with the donor's intent, donee not only fulfilled
donor's substantive limitations but also fulfilled donor's formal
requirement of identifying and executing the power conferred. The
decree of the orphans' court concluding to the contrary therefore
must be reversed.
Appeal at No. 37 May Term, 1979 dismissed. Decree reversed
and case remanded for proceedings consistent with this opinion.
Each party pay own costs.
KAUFFMAN, Justice, dissenting.
In Schede Estate, 426 Pa. 93, 231 A.2d 135 (1967), this Court
stated:
For over a hundred years, the law has been clearly
settled that strict and literal compliance with the terms of
a special power of appointment is absolutely necessary
for its valid and effective exercise. That means that the
appointing instrument must specifically refer in the
instant case to the power which was granted by [the
donor's] will and which [the donee] seeks to exercise and
execute. A general residuary clause, even if and when it
included the words, “I hereby exercise every power of
appointment which I possess,” would not and does not
comply with and fulfill the donor's condition and is not a
valid exercise of the special power of appointment
granted to [the donee].
Id. at 96, 231 A.2d at 137 (emphasis supplied). See also Roger's
Estate, 218 Pa. 431, 67 A. 762 (1907); Slifer v. Beates, 9 S. & R.
166 (1822); Price's Estate, 27 Pa.Dist. 561 (O.C. Phila. Co.
1918).
Thus, the courts of this Commonwealth have long required
strict and literal compliance with all conditions on form of exercise
imposed by the instrument creating a power of appointment. In
this case, the donor (Charles) gave the donee (Laura) a power
over a certain trust (Trust A) exercisable by will only by express
reference to that specific trust under the named trust agreement.
Simply stated, the donee failed to comply with her donor's
express instructions. Therefore, I would hold that the attempt to
exercise the power of appointment was ineffective.

1019
NIX, Justice, concurring.
I agree with Mr. Justice Kauffman that a strict reading of our
decision in Schede Estate, 426 Pa. 93, 231 A.2d 135 (1967)
would force the conclusion that the power was not effectively
exercised. However, I believe the majority has elected the wise
course of not being bound by the rigidity of Schede Estate, supra.
Limitations on the manner of the exercise of a power of
appointment should be recognized only where a legitimate
purpose is obtained by the insistence upon literal compliance.
Such was not the case here.
—————

Notes
1. Specific reference required: As reflected in the court's
opinion in Passmore, historically, if the creating instrument
expressly provided that the power could be exercised only if it
included an express reference to the power (or the instrument
creating the power), the courts typically applied strict compliance
in analyzing whether the power had been exercised. One could
argue that, in some ways, the majority in Passmore implicitly
adopted a substantial compliance approach. Such an “intent”-
based approach is not too surprising given the overall movement
of the law in this field.
California has statutorily addressed the degree of compliance
issue as it applies to powers of appointment. How would the
Passmore case come out in California?
CPC §630. Compliance with donor's intent
(a) Except as otherwise provided in this part, if the creating
instrument specifies requirements as to the manner, time,
and conditions of the exercise of a power of appointment,
the power can be exercised only by complying with those
requirements.
(b) Unless expressly prohibited by the creating instrument, a
power stated to be exercisable by an inter vivos
instrument is also exercisable by a written will.
CPC §631. Degree of compliance required with donor's intent

1020
 (a) Where an appointment does not satisfy the formal
requirements specified in the creating instrument as
provided in subdivision (a) of Section 630, the court may
excuse compliance with the formal requirements and
determine that exercise of the appointment was effective if
both of the following requirements are satisfied:
The appointment approximates the manner of
appointment prescribed by the donor.
The failure to satisfy the formal requirements does not
defeat the accomplishment of a significant purpose
of the donor.
(b) This section does not permit a court to excuse
compliance with a specific reference requirement under
Section 632.
CPC §632. Power requiring specific reference
If the creating instrument expressly directs that a power of
appointment be exercised by an instrument that makes a
specific reference to the power or to the instrument that
created the power, the power can be exercised only by an
instrument containing the required reference.
LAW REVISION COMMISSION COMMENTS
This section permits a donor to require an express reference
to the power of appointment to ensure a conscious exercise
by the donee. In such a case, the specific reference to the
power is a condition to its exercise. This condition precludes
the use of form wills with “blanket” clauses exercising all
powers of appointment owned by the testator. The use of
blanket clauses may result in passing property without
knowledge of the tax consequences and may cause
appointment to unintended beneficiaries....
2. No specific reference required: If the instrument creating the
power does not require a specific reference to the power or the
instrument creating the power, what should be necessary to
exercise the power? Must there be a reference—any reference,
but some reference—to the power? If the power is a testamentary
power of appointment, should a generic residuary clause with no
reference to the power be sufficient? Should it matter if the power

1021
is general or specific/limited (assuming the taker(s) under the
residuary clause are eligible appointees)? What difference, if any,
should it make if there is a “blanket” clause purporting to exercise
any and all powers of appointment the testator may hold?
a. Standard residuary clause plus general power of
appointment: A general power of appointment is about as close
as one can get to actual ownership without it being actual
ownership. All the donee has to do to get the property is accept
the offer. A standard residuary clause transfers all of the testator's
property that has not otherwise been transferred. Should a
standard residuary clause be deemed to exercise a general
power of appointment that the testator held?
i. General rule: The court discussed the different approaches in
First Citizens Bank & Trust Co. v. Fleming, 335 S.E.2d 515 (N.C.
App. 1985):
In North Carolina and a minority of other states, a power of
appointment upon which no restrictions are imposed is
exercised by a residuary clause. G.S. 31–43; Trust Co. v.
Hunt, 267 N.C. 173, 148 S.E.2d 41 (1966). It has been
suggested that this rule was originally created to guard
against the inadvertent failure of a life tenant to exercise a
general power of appointment. Trust Co. v. Hunt, 267 N.C.
173, 148 S.E.2d 41 (1966).
In a majority of American jurisdictions, however, residuary
clauses do not exercise a power unless the power is
mentioned in the residuary clause. Thus a majority of
American jurisdictions are more concerned with the
inequity of inadvertent exercise of powers of appointment
than of inadvertent failure to exercise powers of
appointment....
ii. California: The California legislature has entered the debate
and resolved the issue statutorily as follows:
CPC §641. Power of appointment & general residuary clause
(a) A general residuary clause in a will, or a will making
general disposition of all the testator's property, does not
exercise a power of appointment held by the testator

1022
 unless specific reference is made to the power or there is
some other indication of intent to exercise the power.
iii. “Some other indication of intent to exercise the power”: What
constitutes “some other indication of intent to exercise the
power”? To what extent should the court be open to extrinsic
evidence to provide that intent? The California Law Revision
Commission Comments to Section 641 provide as follows:
Such other indication of intent to exercise the power may
be found in the will or in other evidence apart from the will.
Section 640 sets forth a nonexclusive list of types of
evidence that indicate an intent to exercise a power of
appointment. An exercise of a power of appointment may
be found if a preponderance of the evidence indicates that
the donee intended to exercise the power. See Bank of
New York v. Black, 26 N.J. 276, 286–87, 139 A.2d 393, 398
(1958).
CPC §640. Evidence of donee's intent to exercise power
(a) The exercise of a power of appointment requires a
manifestation of the donee's intent to exercise the power.
(b) A manifestation of the donee's intent to exercise a power
of appointment exists in any of the following
circumstances:
(1) The donee declares, in substance, that the donee
exercises specific powers or all the powers the donee
has.
(2) The donee purports to transfer an interest in the
appointive property that the donee would have no
power to transfer except by virtue of the power.
(3) The donee makes a disposition that, when considered
with reference to the property owned and the
circumstances existing at the time of the disposition,
manifests the donee's understanding that the donee
was disposing of the appointive property.
(c) The circumstances described in subdivision (b) are
illustrative, not exclusive.

1023
 In support of the view that the “other indication of intent to
exercise the power” should include evidence other than just the
terms of the will, the California Law Revision Commission
Comments cite Bank of New York v. Black, 139 A.2d 393, 398
(N.J. 1958). In Bank of New York, the testator's will gave his wife
(Julia Byrd) a testamentary general power of appointment over
the principal of a trust that was for her benefit. The donee's bare-
bones will provided in pertinent part:
Second: I give, bequeath and devise all of my estate, both
real and personal, or mixed, wheresoever situated, whether
in being or in expectancy, to my daughter Mary Martin
Black of Warrenton, Virginia. Should my said daughter
Mary Martin Black predecease me, I give, bequeath and
devise all of my estate, both real and personal and mixed,
in equal share to my grandsons, namely Josiah Macy, Jr.,
Archer Martin Macy, and Noel Everit Macy, and I hereby
request said grandsons to equally share the responsibility
of the care and maintenance of Aubrey Henry Martin, Jr.
Although it made no express reference to the power she held
under her husband's will and even though it did not include a
blanket clause purporting to exercise any and all powers of
appointment she may hold, her daughter Mary Martin Black, the
taker under the residuary clause, argued that the clause
expressed the intent to exercise the power of appointment in her
favor. The lower court found that the general residuary clause did
not exercise the general power of appointment.
On appeal, the New Jersey Supreme Court began its analysis
of the issue by addressing the issue of the burden of proof that
should apply. The Court said the while the daughter had the
burden of proving the donee's intent to exercise the power, the
burden of proof was only by a preponderance of the evidence—
not by clear and convincing evidence or any other standard. The
Court went on to note the fact-sensitive nature of determining the
testator's intent:
The meaning and intention of the testator must be
determined, not by fixing the attention on single words in
the will, but by considering the entire will and the
surroundings of the testator when he executed the will, and

1024
 by ascribing to him, so far as his language permits, the
common impulses of our nature. Torrey v. Torrey, 70 N.J.L.
672, 59 A. 450.
Ultimately, of course, each case must be determined upon
its own facts and circumstances, but the fundamental
purpose of the inquiry always remains. Our primary desire
is to effectuate the wishes of the deceased if they are
reasonably and lawfully discoverable and adequately
proven.
26 N.J. at 285.
The Court then turned to the text of the will and the
circumstances surrounding its execution. The Court was
particularly impressed with the very close relationship between
the mother and daughter. In addition, the Court noted that the
testatrix's estate totaled only approximately $25,000. The
property subject to the power of appointment totaled
approximately $300,000. The Court continued its analysis:
Mary and her mother were as close as human affection and
esteem could bind them, and one searches in vain for a
cause why, under these circumstances, without
explanation, the mother, at the infirm age of 82 years,
stricken with palsy and leaning more heavily upon her
daughter for comfort and physical aid, should intentionally
deprive her of the only sizable inheritance involved.
To the contrary, in sweeping language Julia Byrd [the
testatrix] endowed Mary Martin Black “with all my estate,
both real and personal, or mixed, wheresoever situated,
whether in being or in expectancy * * *.” Although she had
the full power and authority to withdraw the whole or any
part of the capital of the trust in question, she never
reduced it to possession or converted it to her enjoyment.
Could the fund as it thus existed be termed or regarded by
her as an expectancy? Regardless of the strict legalistic
definition of the phrase, the possibility that she used it to
refer to the trust fund contributes something to the
composite of various factors ultimately portraying the
testatrix' intention.

1025
 The scrivener of Mrs. Byrd's will was a Virginia lawyer
located in Warrenton. He drew the residuary clause, which
by Virginia statute was sufficient to execute the power
donated to the testatrix. The rule that the law of the donor's
domicile governs the determination of whether the donee of
a power intended to exercise it, despite the fact that the
donee has a different domicile, is, to say the least,
abstruse. It is said by some authorities to run contrary to
legitimate expectation and has been condemned as
illogical. Goodrich, Conflict of Laws, §177 (1949); 2 Beale,
Conflict of Laws, §288.1 (1935); 5 American Law of
Property, §23.3 (1952). Withholding our judgment on the
merits of this controversy over which is the more seemly
choice of the law, it is enough to say that we can
appreciate, at least in part, why a Virginia lawyer might
regard the residuary clause in question as fully complying
with Mrs. Byrd's desire to exercise her power of
appointment in favor of her daughter.
...
It may well be that none of the incidents related above is
adequate in and of itself to prove the required intention. Yet
the combination of all the circumstances in their aggregate,
as they integrate with one another and reflect upon the
problem as a whole, is sufficient to sustain the appellant's
burden of proof in the case sub judice.
Essential justice does not permit “a discernible intention of
the testator” to be defeated. The Quantum of proof may be
supplied by logical inferences if they are sufficiently
persuasive to carry the necessary conviction. We
accordingly, from the whole record, conclude that Mrs. Byrd
intended to and did appoint the trust fund to her daughter.
26 N.J. at 291–94.
The bottom line is that, while a standard residuary clause
should be presumed not to exercise a power of appointment, it is,
to an extent, a question of testator's intent. Thus, if the court is
open to extrinsic evidence of the circumstances surrounding the
testator at time of execution, there is always a chance the
extrinsic evidence may support a good faith argument that the
residuary clause should nevertheless be construed as exercising

1026
the testator's power of appointment. That being said, one would
assume such results will be rare. The rest of this discussion will
accordingly focus on the terms of the residuary clause and will
assume there is no extrinsic evidence to help in the analysis.
b. Standard residuary clause plus special power of
appointment: There is an even weaker argument that a special
power of appointment should be deemed exercised by a standard
residuary clause that makes no express reference to the power of
appointment. Many commentators argue that, conceptually, the
best way to think about a special or limited power of appointment
is to analogize the donee to an agent. An agent has no interest in
the property in question and there is no scenario under which he
or she can claim ownership. Nevertheless, if the residuary clause
leaves the donee's/testator's property to one or more eligible
appointees under the limited power of appointment, should the
residuary clause be deemed to have exercised the power of
appointment?
The overwhelming majority rule is that a standard residuary
clause does not exercise a special or limited power of
appointment. Re-read California Probate Code Section 641. Is it
limited to general powers of appointment? Might a standard
residuary clause exercise a special or limited power of
appointment if there is “some other indication of intent to exercise
the power”?
c. Standard residuary clause that includes blanket appointment
clause: A blended residuary clause is one that not only disposes
of the testator's residuary property, but also contains a “blanket”
exercise clause that purports to exercise any and all powers of
appointment held by the testator. Should such a blended
residuary clause, which contains a blanket exercise of any and all
powers of appointment the testator may hold but makes no
specific reference to any particular power of appointment, be
deemed to exercise a general or limited power of appointment
held by the testator?
The RESTATEMENT (SECOND) OF PROPERTY, Section 17.2,
provides as follows with respect to blanket appointments:
If the donee by deed or will manifests an intention to
exercise all powers the donee has, the manifested intention

1027
 includes the exercise of both general and non-general
powers that are exercisable by the deed or the will.
Re-read California Probate Code Section 640 above. Are the two
in agreement? Which one—the RESTATEMENT approach to blanket
appointments or the California approach to blanket appointments
—is broader in scope (at least expressly broader)? Re-read
California Probate Code Section 632. What is the interaction
between the two statutory provisions (Section 632 and Section
640)? In California, does a blanket appointments clause exercise
a power of appointment that expressly requires an express
reference to it?

Problem
When Mr. Wood passed away, his will created a testamentary
trust. The trust granted his wife a life estate interest and a power
of appointment. With respect to the power, the trust specifically
provided as follows:
[I]f my wife survives me, then she shall have the absolute
power exercisable only by a written instrument other than a
will delivered to the Trustee during her lifetime to appoint
any part of the principal and any undistributed income of
Trust “A” in favor of herself, her estate or any person.
The trust went on to provide for how the property subject to the
power should be distributed in the event Mrs. Wood failed to
exercise the power.
Thereafter, Mrs. Wood began to experience some difficulties
managing her affairs, so a conservator was appointed for her (but
there is substantial evidence that she was still competent). The
conservator, who was also a notary, prepared an instrument that
expressed Mrs. Wood's intent to exercise the power of
appointment under her husband's testamentary trust. Mrs. Wood
exercised the instrument on November 3, 1970, and the
conservator acknowledged it. Mrs. Wood instructed the
conservator to deliver the instrument to her attorney with
instructions that it be filed with the trustee. The conservator took
the document to the office of Mrs. Wood's attorney. A few days
later Mrs. Wood called her attorney's office to make sure that
everything had been done to exercise the power of appointment.

1028
Her attorney assured her it had. Mrs. Wood died on November
22, 1970. The attorney did not deliver the instrument to the
trustee until over a month later, on December 28, 1970.
Was the power of appointment validly exercised? See Estate of
Wood, 32 Cal. App. 3d 862 (Ct. App. 1973).

D. Atypical Exercise Scenarios

1. Appointment in Trust; Creating a New Power
of Appointment
The standard exercise scenario is where the donee, in full
compliance with the power of appointment, appoints the property
in question outright to an eligible appointee. That is the classic
valid appointment. But what if, instead of appointing the property
outright, the donee appoints the property in question to a trust for
the benefit of an eligible appointee? What if, instead of appointing
the property outright to an eligible appointee, the donee grants
the eligible appointee a power of appointment over the property in
question? If the donee could have appointed the property outright
to the appointee, is it permissible to give the appointee a power of
appointment over the property? Should it matter if the power is a
general power or a special power (either the original power or the
new power)?
The general rule is that, unless the donor expresses a contrary
intent, the donee has all the same powers and rights to “give” the
property to an eligible appointee as the donor would have had (so
long as the ultimate possible appointees are consistent with the
terms of the original power). Inasmuch as a donor could have
given the property in question to an eligible taker outright, in trust,
or subject to a power of appointment, the donee arguably has the
same right and power. So long as the ultimate possible takers are
eligible appointees of the original power, the donee can grant the
property as he or she deems appropriate. Assuming a donee has
a power to appoint the property among the donee's children, the
donee can even appoint the property to T, a trustee, to hold and
distribute the property among the donee's children as the trustee
deems appropriate. Likewise, a donee of a special or limited
power may exercise the power by:

1029
 (1) Creating a general power in an object of the non-
general power, or
(2) Creating a non-general power in any person to
appoint to an object of the original non-general power.
RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS §19.4
(1986).
Absent the donor's express contrary intent, the donee of a
general power arguably has even greater power to appoint the
property in question in trust or subject to a power of appointment.
Inasmuch as the power is a general power, the donee can
appoint the property to him or herself, and then transfer the
property in trust or create a new power of appointment. Whatever
the donee of a general power can do indirectly, the donee should
be able to do directly. RESTATEMENT (SECOND) OF PROP.: DONATIVE
TRANSFERS §19.2-3 (1986).

2. Appointee Dies before Appointment

Effective: Lapse and Anti-Lapse?
Assume a donee, D, holds a testamentary power of
appointment, and the donee executes a valid will that validly
exercises the power of appointment to an eligible appointee, A.
Thereafter, however, the eligible appointee to whom the property
was appointed, A, predeceases the donee (and the donee fails to
revise his or her will). Should the doctrines of lapse and anti-lapse
apply to an otherwise effective exercise of a power of
appointment? Should it matter if the power was a general or
special power of appointment? If it is a special power of
appointment, should it matter if the appointee's issue are not
eligible takers under the original power?

Dow v. Atwood
260 A.2d 437 (Me. 1969)
WILLIAMSON, Chief Justice.
This action by the Administrator ... of the Estate of Harold F.
Atwood for the construction of the will and instructions for the

1030
disposition of property is reported to us on an agreed statement of
facts.
We are concerned with the wills, duly probated, of Harold F.
Atwood and of his widow, Leonora. The wills read:
Will of Harold:
“After the payment of my just debts, funeral charges and
expenses of administration, I dispose of my estate, as
follows:
First—
I, give, bequeath and devise all of my property, real,
personal, and mixed, wherever found and however
situated, to my wife, Leonora S. Atwood, to her so long as
she lives, after which, it is my wish that she give, bequeath
and devise the same to my brother, Alfred L. Atwood, to
him and his heirs forever.”
Will of Leonora:
“I give, bequeath and devise to Alfred L. Atwood that
property which came to me under the will of my late
husband, Harold F. Atwood, it being my intention to hereby
appoint said property to the said Alfred L. Atwood by the
exercise of the special testamentary power of appointment
given to me in said will, but in nowise to appoint or
bequeath to the said Alfred L. Atwood any property other
than that belonging to the estate of Harold F. Atwood in
which I have heretofore had a life estate.”
Harold at his death on October 5, 1945 was survived by his
wife Leonora, and as his heirs at law his brother Alfred L. Atwood,
his sister Elizabeth A. Record, and children of a deceased brother
Roger. Leonora died on September 13, 1965.
Alfred died intestate on August 19, 1965 subsequent to the
execution of Leonora's will. He was survived by his wife Mary,
who, as administratrix of his estate is a party to this action, and by
his only heirs at law, his daughters Mary A. Rideout and Priscilla
A. Norton, who also are parties herein.
...

1031
 The controversy is between Harold's heirs and estate (Harold's
group), Alfred's heirs and estate (Alfred's group), and the
Guardian Ad Litem.
The objective of the case it to determine who may be entitled to
the property remaining at Leonora's death. Different solutions are
urged by Harold's group, Alfred's group, and the Guardian Ad
Litem.
In construing the will, our task is to find the intent of the testator
and to give effect thereto if possible. We must also bear in mind
the presumption against intestacy....
Harold, in his will, created a life estate in Leonora with a
testamentary power in her to appoint the remainder to his brother
Alfred. The power of appointment under the will was a special and
not a general power. Accordingly Leonora gained nothing under
the will apart from her life interest and the limited right to appoint
by will to Alfred....
Alfred's group contends that Alfred at Harold's death and under
his will acquired a vested remainder....
The position of the Alfred group in our view is not found within
the plain meaning of the plainly expressed provisions of Harold's
will. If the testator had not intended to create a power in his widow
to appoint the remainder to Alfred by her will, he could have
simply given the remainder to Alfred, as suggested.
...
We are faced then with the disposition of the remainder, not by
way of a vested interest in Alfred at the death of Harold, but upon
the failure of Leonora to make an effective appointment to the
only person authorized by the donor of the power.
It is immaterial for the moment whether the words “if I wish” in
the will are “softened words of command”, to use the phrase of
Bogert, supra, Sec. 48, or precatory in meaning. See Clifford v.
Stewart, 95 Me. 38, 45, 49 A. 52; Jordan et al. v. Jordan et al.,
155 Me. 5, 150 A.2d 763. In either case, at Leonora's death there
was no eligible receiver. The law is well settled that an appointee
under a power must be living at the effective date of the
appointment. MacBryde v. Burnett, 45 F.Supp. 451 (D.C.Md.); 3

1032
Restatement, Property §349; 72 C.J.S. Powers §43 b; Simes and
Smith, Future Interests 2nd Ed. §§917, 984; 5 American Law of
Property §§23.7, 23.46.
...
The Alfred group gains nothing from the operation of the anti-
lapse statute. 18 M.R.S.A. §1008 reads:
“When a relative of the testator, having a devise of real or
personal estate, dies before the testator, leaving lineal
descendants, they take such estate as would have been
taken by such deceased relative if he had survived.”
As we have seen, the power to appoint to Alfred was special
and not general. Thus the rule that a general power of
appointment may be considered a property interest passing under
an anti-lapse statute is not applicable. Thompson v. Pew, 214
Mass. 520, 102 N.E. 122; Daniel v. Brown, 156 Va. 563, 159 S.E.
209, 75 A.L.R. 1377 and annot.; 5 American Law of Property
§23.47; Restatement, Property §350; Schwartz, Future Interests
and Estate Planning §13.14.
Under a testamentary special power the appointee takes from
the donee and not from the donor of the power. “Lapse statutes
are designed to effectuate the purpose of the testator (who, in
these cases, is the donee of the power).” Simes and Smith, supra
§984.
Assuming without deciding that the anti-lapse statute could
apply in the case under a special testamentary power, the statute
does not benefit Alfred's heirs. Alfred was not a blood relative of
Leonora and therefore the anti-lapse statute would not preserve
for others a gift to him under her will.
We conclude that Alfred's group took nothing under Harold's
will or from the testamentary power in Leonora to appoint the
property. The group of course retains any interest it may have by
intestacy.
...
So ordered.
—————

1033
 Notes
1. Traditional approach: Anti-lapse provides that where a gift
lapses, if the predeceased beneficiary meets the requisite degree
of relationship and has surviving issue, the gift passes to the
issue of the predeceased beneficiary. There are two questions
with respect to applying lapse and anti-lapse to an exercise of a
power of appointment where the appointee predeceases the
donee: (1) is an exercise of a power of appointment the type of
“transfer” to which lapse and anti-lapse should apply? and (2) if
so, who is the person with whom the appointee must meet the
degree of relationship—the donor or the donee?
The general rule is that an individual must survive a decedent
in order to take property from the decedent. The same default rule
applies to taking under an exercise of a power of appointment. A
donee cannot exercise a power of appointment in favor of a
deceased appointee. Where a party who was intended to take
under a testamentary power of appointment predeceased the
donee/testator, the power is deemed not to have been exercised.
If the predeceased appointee's estate were permitted to take, the
estate could simply serve as a conduit and the property could end
up being given to someone who was not an eligible taker (if the
power were a special power).
As the Dow case indicates, historically the courts were more
open to the argument that lapse and anti-lapse should apply to
the exercise of a general power of appointment than to the
exercise of a special power of appointment. The donee of a
general power of appointment all but owns the property subject to
the power. Thus, if the donee expressed the intent to exercise the
power, that act was like an act of ownership. Accordingly, the
property in question should be treated like any other property of
the donee. So long as the appointee meets the degree of
relationship with the donee, the issue of the predeceased
appointee should be entitled to the property under anti-lapse.
Application of anti-lapse to an appointee of a special power of
appointment, however, is more complicated. The donee is more
like an agent for the donor than an owner of the property. The
appointee's issue who would take in the appointee's place under
anti-lapse may not be eligible appointees under the donor's power

1034
of appointment. Does it make sense to apply anti-lapse to a
special power of appointment? Historically, the courts were in
agreement that anti-lapse should not apply where a donee
exercised a special power of appointment in favor of an eligible
appointee who had predeceased the donee.
2. Modern trend: The modern trend has been rather critical of
the traditional narrow application of anti-lapse to powers of
appointment. The modern trend analogizes an exercise of a
power of appointment to a devise, with the appointee being a
devisee. If the devisee is an eligible appointee, and the devisee
meets the requirements of the anti-lapse doctrine, the argument is
that applying anti-lapse doctrine to powers of appointment is just
as “intent-promoting” as it is when applied to any other type of
testamentary transfer. Hence, the modern trend has been to
expand application of the anti-lapse doctrines to powers of
appointments. The first RESTATEMENT OF PROPERTY provided that
anti-lapse applied to general powers of appointment, but was
silent on the issue of whether anti-lapse should apply to special
powers of appointment. RESTATEMENT (FIRST) OF PROP.: FUTURE
INTERESTS §350 (1940). The second RESTATEMENT OF PROPERTY
took the position that anti-lapse should apply to both general and
special powers of appointment. Moreover, it asserted that the
doctrine should apply so long as the predeceased appointee met
the degree of relationship with either the donor or the donee (and
so long as neither expressed a contrary intent). RESTATEMENT
(SECOND) OF PROP.: DONATIVE TRANSFERS §18.5 (1984).
The 1990 version of the Uniform Probate Code followed the
RESTATEMENT (SECOND) OF PROPERTY approach, applying the anti-
lapse doctrine to both general and non-general powers, as well as
applying it to anyone who met the degree of relationship
requirement with respect to either the donor or the donee. UPC
§2-603. Under the modern trend, it is irrelevant whether the issue
of the predeceased appointee are eligible takers. So long as the
predeceased appointee was an eligible taker, so too are his or her
issue. Inasmuch as the issue of a predeceased appointee may
take indirectly under anti-lapse, the modern trend authorizes the
donee to appoint the property directly to the issue where the
eligible appointee predeceases the donee, even if the issue are

1035
not technically eligible takers under the terms of the power. See
UNIF. POWERS OF APPOINTMENT ACT §306.
The states are spread out across the spectrum between the
traditional approach and the modern trend approach. California
has adopted the modern trend approach:
CPC §673. Death of appointee before effective exercise of
appointment
(a) Except as provided in subdivision (b), if an appointment
by will or by instrument effective only at the death of the
donee is ineffective because of the death of an appointee
before the appointment becomes effective and the
appointee leaves issue surviving the donee, the surviving
issue of the appointee take the appointed property in the
same manner as the appointee would have taken had the
appointee survived the donee, except that the property
passes only to persons who are permissible appointees,
including appointees permitted under Section 674. If the
surviving issue are all of the same degree of kinship to the
deceased appointee, they take equally, but if of unequal
degree, then those of more remote degree take in the
manner provided in Section 240.
(b) This section does not apply if either the donor or donee
manifests an intent that some other disposition of the
appointive property shall be made.
CPC §674. Death of eligible appointee before exercise of
special power
(a) Unless the creating instrument expressly provides
otherwise, if a permissible appointee dies before the
exercise of a special power of appointment, the donee has
the power to appoint to the issue of the deceased
permissible appointee, whether or not the issue was
included within the description of the permissible
appointees, if the deceased permissible appointee was
alive at the time of the execution of the creating instrument
or was born thereafter.
(b) This section applies whether the special power of
appointment is exercisable by inter vivos instrument, by

1036
 will, or otherwise.

E. Flawed Blended Exercises

As discussed briefly above, it is not uncommon for a donee
holding a power of appointment to exercise his or her power of
appointment by using a blanket clause in the residuary clause of
his or her will (such blended exercise is not limited to residuary
clauses, but this is the most common scenario under which such
blending occurs). The default assumption is that the appointive
property should simply be blended with the donee's/testator's own
residuary property and the aggregate distributed to the takers
under the terms of the clause in question. Sometimes, however,
blending the two pots of property can be flawed for one reason or
another (see below). Where such blending would be flawed, the
courts have developed a number of doctrines to maximize the
effectiveness of the exercise and the apparent intent.

1. Selective Allocation
A fairly simple example of selective allocation to maximize the
decedent's intent and to maximize the effectiveness of an
exercise of a special power of appointment is where a donee
blends the property over which the donee has a power of
appointment with his or her own property and then gifts the
aggregate to both eligible and ineligible appointees. Selective
allocation essentially “unblends” the property and allocates it to
the appropriate takers so as to maximize the exercise of the
power of appointment and to promote the donee's intent.
For example, assume Tess has a testamentary special power
of appointment over a trust that contains $200,000 to appoint the
property among her children. Tess has a residuary estate that
totals $300,000. Tess's validly executed will has a residuary
clause that provides as follows: “I give all the rest, residue and
remainder of my estate, including any property over which I hold a
power of appointment, as follows: 50% to my surviving spouse,
and 50% to my surviving children equally.” Although Tess's will
purports to give the property equally to her spouse and children,
in funding the gifts the court would be sensitive to the fact that

1037
Tess's spouse is not entitled to receive any of the property subject
to the special power of appointment. The court would fund the
children's share first with the property subject to the special power
of appointment because they are the only eligible takers of that
property. That $200,000 would be allocated first to the children's
$250,000. The court would then add another $50,000 out of the
testator's own property to bring the total up to $250,000, the
share of the property passing under the residuary clause to which
the children are entitled. The court would then fund the surviving
spouse's $250,000 with the remaining funds from the property
that the testator owned in her own name. Selective allocation is
used to ensure that only eligible parties receive the appropriate
property while at the same time allocating to maximize the
effectiveness of the gifts in question.

2. Capture
Assume Tess has a presently exercisable general power of
appointment over a trust that contains $500,000, to appoint as
she deems appropriate among her parents' children (including
herself or her estate). Tess has a residuary estate that totals
$100,000. Tess's validly executed will has a residuary clause that
provides as follows: “I give all the rest, residue and remainder of
my estate, including any property over which I hold a power of
appointment, as follows: the property over which I hold a power of
appointment to my brother Bob, and the residue of my estate to
my surviving children equally.” Tess's brother Bob predeceased
Tess, and he has no surviving issue. What, if anything, should
come of Tess's attempt to exercise the general power of
appointment?
The court was presented with a similar scenario in Fiduciary
Trust Co. v. First National Bank of Colorado Springs, Colorado,
181 N.E.2d 6 (Mass. 1962). The court stated in pertinent part:
It is a recognized principle in the law of property that where
the donee of a general power attempts to make an
appointment that fails, but where, nevertheless, the donee
has manifested an intent wholly to withdraw the appointive
property from the operation of the instrument creating the
power for all purposes and not merely for the purposes of

1038
 the invalid appointment, the attempted appointment will
commonly be effective to the extent of causing the
appointive property to be taken out of the original
instrument and to become in effect part of the estate of the
donee of the power.' Fiduciary Trust Co. v. Mishou, 321
Mass. 615, 624, 75 N.E.2d 3, 9, and cases cited. This so
called principle of ‘capture’ (Amerige v. Attorney General,
324 Mass. 648, 656, 88 N.E.2d 126) which, ‘like some
other principles applicable to general powers of
appointment, owes its origin to the conception that the
grant of a general power is in itself almost tantamount to a
grant of ownership’ (Old Colony Trust Co. v. Allen, 307
Mass. 40, 42, 29 N.E.2d 310, 311) has no application in
cases of special powers, where the ineffectively appointed
property passes to takers in default of appointment (Thayer
v. Rivers, 179 Mass. 280, 290, 60 N.E. 796; Hooper v.
Hooper, 203 Mass. 50, 58–59, 89 N.E. 161; see Old Colony
Trust Co. v. Richardson, 297 Mass. 147, 155, 7 N.E.2d
432, 121 A.L.R. 1218) or, in some cases, to the objects of
the power where there are no takers in default provided.
Id. at 7–8.
A blended residuary clause is generally presumed to manifest
an intent by the donee to exercise sufficient dominion and control
over the property subject to the general power of appointment to
subject it to the capture doctrine.
California recognizes the capture doctrine. See CPC §672(b).

1039
 IV. Failure to Exercise a
Power of Appointment
As noted at the start of the chapter, because a power of
appointment is discretionary and thus may never be exercised, a
well-drafted power of appointment will provide for who should
take in the event the power is not validly exercised. Where a
power of appointment has such a provision, it controls whether
the power is a general power or a special power. Where there is
no express “takers in default” clause addressing who should take
in the event the power is not validly exercised, who should take?
Remember the power of appointment terminology. The party
who creates the power is called the “donor.” The party to whom
the power is given is called the “donee.” The power terminology is
based on the “gift” model, except it is deemed that there is no
acceptance unless the donee “exercises” the power (and even
then, in the case of a special power of appointment, the donee is
deemed not to have ever held any interest in the property). If the
gift model is the controlling model, if the power is not exercised
and the “gift” is not accepted, the interest still belongs to the
donor. Donor's intent should control. In the absence of an express
“takers in default” clause, the donor should be presumed to have
retained whatever he or she did not expressly give. The starting
assumption for who should get the property subject to the power
of appointment if the power was not completely exercised and if
there was no express “takers in default” clause is the property
should pass through the donor's estate—but that is only the
starting point.

Crawford v. Crawford
296 A.2d 388 (Md. 1972)
SINGLEY, Judge.
The case was heard below on an agreed statement of facts,
which may be briefly summarized. Mrs. Crawford married Francis
I in 1905. There were two sons: Francis J. Crawford (Francis II),
born in 1909, and Francis III (Francis Albert Crawford, Jr.), born in

1040
1914. When Francis I died in 1922, he was 59 years of age; Mrs.
Crawford was 36; Francis II, 13, and Francis III, seven. The year
1935 was of consequence, because in that year Francis III, the
younger son, would attain age 21.
In 1940, Francis II married Hollus Field (Hollus), one of the
appellees, and together they moved to one of the farms. They
had one son, Francis J. Crawford, III (Francis IV), who is also an
appellee. Francis II continued to farm the place which he
occupied until his death in 1967, survived by his widow, Hollus,
and by Francis IV. Thereafter, Hollus and Francis IV remained on
the farm until Mrs. Crawford gave them notice to vacate in 1969.
During the interim, Francis II and Hollus had built a barn, a silo
and a loafing barn, at least partly at their expense, and had
erected or maintained the fencing and gates. Except for one year,
however, Mrs. Crawford had paid the taxes.
The chancellor concluded, quite rightly, we think, that by a true
and proper construction of the will of Francis I, Mrs. Crawford took
an estate durante viduitate, an estate during widowhood, which is
a life estate subject to a special limitation, ... an estate which
would be terminated by the widow's death or remarriage. Despite
the inartistic manner in which the will was drafted, this much is
palpably clear.
A troublesome aspect of the matter flows from the
circumstance that there is no express limitation over in remainder
upon termination of the estate during widowhood, and the
remainder would pass in intestacy should Mrs. Crawford fail to
exercise her power to divide, unless a limitation over can be
implied.
...
In the instant case, at the time of the death of Francis I, Mrs.
Crawford and Francis II and Francis III were the primary objects
of the testator's bounty. In McElroy v. Mercantile-Safe Deposit and
Trust Co., 229 Md. 276, 283–284, 182 A.2d 775 (1962), we
reviewed the well-settled rules of construction, the distillation of
which is that the general intent of the testator is in every case the
controlling consideration. It certainly could be argued that Francis
I intended to vest a remainder in Francis II and Francis III which
would come into possession in undivided one-half shares upon

1041
the remarriage or the death of Mrs. Crawford. The question is,
under what circumstances may a limitation over be implied?
V American Law of Property §23.63, at 644–645 (1952) deals
with the situation where A devises a life estate to B and gives B a
narrowly restricted power to appoint the remainder among the
children of A:
“The situation last considered includes a typical so-called
‘special’ power of appointment. The donor of such a special
power, having a general intent to benefit the members of
the designated class of permissible appointees, may
foresee the possibility that the donee will fail to exercise the
power. If he does foresee it, the donor likely will include in
the instrument creating the power an express gift in default
of appointment and the gift in default likely will be in favor
of the class of persons designated as permissible
appointees. On the other hand, it may not occur to the
donor of such a power that the donee may fail to exercise
it. In that event there will be no express gift in default of
appointment and, if the donee should die not having
exercised the power, the question whether the appointive
property passes to the members of the class of permissible
appointees or to the donor's heirs or residuary devise(e)s
will be raised. That question is considered in this Section.
“As a general proposition, it seems clear that the appointive
property should pass, in such a situation, to the designated
class of permissible appointees. The donor of the special
power of appointment has (1) a general intent to benefit the
members of the specified class of permissible appointees
and (2) an intent that the apportioning of the appointive
property within the class shall be within the discretion of the
donee of the power. The fact that the donee has failed to
apportion the property within the class should not defeat
the donor's intent to benefit the class. Accordingly the
appointive property should pass to the class and an equal
division of it among the members of the class seems to be
the closest approximation to the intent of the donor.”
...

1042
 The preferable view would seem to be that the result will be
accomplished by implying a gift over to the permissible
appointees in default of the exercise of the power of appointment
where there is no specific limitation over in favor of the
appointees, ... Section 367(2) of the Restatement, Property, at
2030, states that before a gift over can be implied the power must
be expired. Either the remarriage of Mrs. Crawford or her death
would result in expiration of the power. Restatement, Property,
supra, §367 comment d, at 2033; Wilks v. Burns, 60 Md. 64
(1883); 3 Tiffany, The Law of Real Property, supra, §707, at 77.
Alternatively, the proposition may be implemented and the
same result reached by treating the special power of appointment
as an imperative power which will be executed by the courts in
the event of the termination of the prior estate without an exercise
of the power by the donee, see Restatement, Property, supra,
§367, comment c, at 2032; Miller, supra, §256, at 733; Kales,
Estates, Future Interests §637, at 730–32 (1920); 2 Simes &
Smith, Future Interests §§1032–1033, at 495–506 (2d ed. 1956);
Moser, Some Aspects of Powers of Appointment in Maryland, 12
Md.L.Rev. 13, 20 (1951);2 Simes, Powers in Trust and the
Termination of Powers by the Donee, 37 Yale L.J. 63 (1927)....
We now turn to the meaning of the phrase “... said Real Estate
to be divided as aforesaid and not sold prior to A D 1935.” The
chancellor concluded that this was a special power of
appointment vested in Mrs. Crawford in the exercise of which she
could divide the farms between Francis II and Francis III....
We are inclined to accept and expand the conclusion reached
below. What we think Francis I intended was that Mrs. Crawford
should have only the narrowly restricted power to divide the farms
between Francis II and Francis III either by deed of appointment
or by the terms of her own will.
...
To hold otherwise would result in an intestacy, which should be
avoided if sound reason permits, ...
—————

Notes

1043
 1. Special power of appointment: Inasmuch as a special power
of appointment grants a donee such little control and interest over
the property subject to the power of appointment, in the event of a
failure to exercise the power of appointment, the donee's estate
has no real claim to the property. Typically, however, a special
power of appointment is to a limited class of eligible appointees.
In the event of a failure to exercise the power of appointment,
should the property in question be treated as property of the
donor and pass through the donor's probate estate, or should the
property in question be treated as an implied gift by the donor to
the eligible appointees and be distributed equally to the eligible
appointees? As the court's opinion in Crawford evidences, even
under the traditional approach, where the eligible class is limited
in size, the courts tended to imply a gift to the eligible appointees
in the event the donee failed to appoint the property (or, in the
alternative, the courts deemed the power an “imperative power”
and exercised it for the donee).
The modern trend approach to failed appointments with no
express default takers continues that approach, expanding it to
provide that even where there is an express “takers in default”
clause, if it fails for some reason, the implied gift to the eligible
takers kicks in. But under both the modern trend and the
traditional approach, if the class of eligible takers is not small and
well-defined, a court would be hard-pressed to not return the
property to the donor's estate under the failed gift reasoning.
2. General power of appointment: Inasmuch as a general
power of appointment grants a donee almost complete control
over the property subject to the power of appointment, in the
event of a failure to exercise the power of appointment, should
the property in question be treated as property of the donor and
pass through the donor's probate estate, or should the property in
question be treated as an implied gift by the donor to the donee
and pass through the donee's estate?
The more traditional approach was to return the property to the
donor's estate under the failed gift reasoning. The modern trend
is to give the property to the donee's estate under a variation of
the implied gift theory based on the nearly complete gift theory
inherent in a general power of appointment.

1044
 1. The donee of a power of appointment may, however, refuse to accept it by
making a “qualified disclaimer.” Just as with disclaiming a gift of an asset, such
a disclaimer is tantamount to never holding the power. Disclaimers are
discussed in Chapter 4.

1045
Index

Abandonment, 69
CA statute, 69
Abatement, 331–32
CA statute, 332
Acts of independent significance
basic doctrine, 264–69
CA statute, 265
to validate pour-over wills, 442–53
Ademption
(Ademption by extinction; for Ademption by satisfaction, see
Satisfaction)
generally, 316–325
avoidance doctrines, 317–24
change in form, 317
common law, 316
conservatorship, 323–24
construe at death, 322–23
durable power of attorney, 323–24
identity approach, 316–17
modern intent approach, 317–22
outstanding balance doctrine, 323
replacement property, 317
stocks, 325–27
UPC approach, 317
Administrator, 4, 389
Adoption
generally, 70–85
attempted adoption, 81–85
CA statute, 70–71
equitable adoption, 75–81

1046
 general rule, 70–71
inclusion in class gifts,
post-death adoption, 70–75
same-sex couples, 75
stepparent adoption, 70–75
step-partner adoption, 75
Advancements
generally, 93–96
CA statute, 95
common law, 93–94
hotchpot, 93–94
modern trend, 94–95
vs. satisfaction, 95
Ancestors, intestate shares
generally, 49–52
CA approach, 52
collateral relatives, 51
degree of relationship approach, 51
degree of relationship with parentelic tiebreaker approach, 51
parentelic approach, 50–51
Ancillary probate, 390
Anti-lapse
See also Lapse
generally, 297–310, 314
CA statute, 302
degree of relationship, 306–07
no contrary intent, 307–09
power of appointment,
scope, 295, 306–07
vs. class gift, 314
Asset protection trust, 504–06
Attested wills
See also Holographic Wills; Pour-Over Wills; Revocation of
Wills; Scope of Will; Wills, Construction
generally, 161–89
CA statute, 168–69
codicil, 219–20

1047
 common law approach, 162–66
curative doctrines, 168–69
electronic wills, 176–78
execution, 189
functions served by requirements, 165–66
harmless error, 168–170
integration,
interested witness, 186–87
judicial philosophy, 167–68
modern trend, 166–69
presence requirement, 181–84
signature requirement, 178–81
strict compliance, 167–68
substantial compliance, 168
swapped wills, 188–89
typical formalities, 166–67
witnesses requirement, 181–83
writing requirement, 176–78
Augmented estate, 335
Avoiding probate, 5–7, 386–91
Bars to succession
generally, 93–105
abandonment, 69
disclaimer, 100–05
elder abuse, 152–55
slayer doctrine, 96–100
Benevolent trust, 609–10
Bequest, 4–5, 29
Capacity
See Testamentary capacity
Care custodian doctrine, 143–44, 146–47
Certificate of independent review, 144, 147
Change in form doctrine, 317
Charitable trusts
See also Trusts

1048
 generally, 607–47
administrative deviation, 521–22
beneficiaries, 621–25
benevolent trust, 609–10
charitable purpose, 607–19
creation, 607–25
cy pres, 631–47
enforcement, 625–631
philanthropic inefficiency, 644–47
Rule against Perpetuities, 615–17
standing, 625–31
Class gifts
definition, 311
factors in analysis, 313–14
transferor's intent, 313
vs. anti-lapse, 314–15
Codicil, 219–20
Republication by codicil, 253–57, 261
Cohabitants
See Spouses
Collateral relatives
See Ancestors
Community property
generally, 30–32, 333–40
death, treatment at, 32
migrating couples, 336–39
quasi-community property, 337–39
stepped-up basis, 373
vs. community property with right of survivorship, 372–74
vs. elective/forced share, 334–35
Community property with right of survivorship, 374
Conflicts of interest
See Trustee's Duties
Conscious presence, 182–84
Constructive trust, 96–98, 160, 426–38
Contracts concerning wills

1049
 generally, 270–72
CA statute, 271–72
equitable estoppel, 271
joint will, 272
mutual will, 188, 272
presumption against, 272
Contracts with payable on death clauses
CA statutes, 364, 370–71
common law approach, 359
defined, 359
modern trend approach, 359–64
multiple-party accounts, 369–71
nonprobate transfer, 364
pension plans, 364–65
Corpus, 397–98
Curative doctrines
harmless error, 168–75,
misdescription,
scrivener's error,
substantial compliance, 168, 189, 201, 215, 223–24, 279, 455,
675
Curtesy, 335
Cy pres, 631–47
general charitable intent, 637–38
gift over rule, 639
Dead hand control, 440
Declaration of trust, 410, 415
Degree of relationship, 43, 51
Dependent relative revocation, 238–49
Descent and Distribution Statutes
See Intestate distribution scheme
Devise/devisee, 4, 29
Directed disposition, 7–9, 29–30
Disclaimer, 100–05

1050
Discretionary trust, 463–474
Disinheritance, 74
Dispensing power, 168
Divorce
revocation of will, 229–30
same-sex couples, 231–2
will substitutes, 230–31
Dower, 335
Duplicate originals, 227–28
Duress, 151–52
Elder abuse, 152–55
Elective share, 334–36
vs. community property, 334–36
Equitable adoption, 75–81
Inheritance rights, 81
Equivocation, 278–79
Estate planning, 7–9, 21–23,
See also Professional responsibility
Estate taxes, 22, 474, 482, 524, 652–57
Executor, 4
Exoneration of liens, 330
Expectancy, 41–42, 413
Extrinsic evidence, admissibility
See Wills, construction
Facts of independent significance
See Acts of independent significance
Failed gifts
See also Ademption; Anti-lapse; Class gifts
Fiduciary, 143, 145, 402,
Fiduciary duties, 397, 471–473, 530–605, 629
See also Trustee's duties
Fraud

1051
 generally, 147–51
elements, 148
fraud in the execution, 151
fraud in the inducement, 150
remedy, 149
rule statement, 148
vs. undue influence, 149
Future interests, 115, 374–375, 397–98, 513, 549, 595, 615
Generation-skipping transfer tax, 22, 116
Gift over clause, 307
Gifts—time of death
failure, See Failed gifts
demonstrative gifts, 295–96
general gifts, 295–96
residuary gift, 295–96
specific gift, 295–96
Gifts to attorneys, 135–46
CA statutes, 143–44
interested drafter doctrine, 143–44
presumption of wrongdoing, 135–144
Gift taxes
See also Estate taxes
generally, 22, 474, 482, 524
Guardianship
capacity, 111–13
Half-bloods, 48–49
Harmless error, 168–70
Heirs, 5, 41–42
defined, 26
Heirs apparent, 41–42
Holographic wills
See also Attested Wills; Revocation of wills; Scope of will; Wills,
construction
generally, 189–205
CA statute, 191

1052
 codicil, 219–22, 252–53
judicial approach, 206
material provisions, 201–05
testamentary intent, 198–99, 211
Homicide doctrine
See Slayer doctrine
Honorary trusts, 422–28, 616–17
Hotchpot, 93–94
Identity approach, 316–17
See also Ademption
Incapacity, planning for
advanced health care directive, 393
asset management, 391–93
durable power of attorney, 391–92
durable power of attorney for health care decisions, 392–93
health care management, 392–93
living will, 393
revocable trust, 391–92
Incorporation by reference
basic doctrine, 257–62
to validate pour-over wills, 442–43
In-law inheritance doctrine, 34–37
Insane delusion
generally, 118–25
any factual basis test, 122
CA approach, 122–23
causation, 118
rational person test, 121
unnatural disposition, 123
vs. mistake, 118, 122
Integration, 251–53
Interested witness, 186–87
In terrorem clauses
See No contest clauses
Inter vivos trusts

1053
 See also Trusts; Pour-over wills; Revocable trusts
generally, 5–7, 355, 385–93
capacity, 115–16
creditors rights, of settlors, 498–506
defined, 5, 115, 385, 396–99
divorce, 230–31
revocability, 453–61
vs. will, 385–93, 532–33
writing requirement, 429–33
Intestacy/intestate, 20–23
See also Intestate distribution scheme
Intestate distribution scheme
See also Adoption; Advancements; Ancestors' Intestate Shares;
Issue
generally, 25–91
CA statutes, 26–28, 34–35, 47–48
cohabitants, 57–59
community property, 30–32
conceptually, 25–26
concurrent estates, 29–32
disinheritance, 74
domestic partners, 54–57
expectancy, 41–42
half-bloods, 48–49
in-law inheritance share, 34–37
issue's share, 43–48
next of kin, 49–52
per capita at each generation, 46–48
per capita with representation, 45–48
per stirpes, 45–48
putative spouses, 55–56
recapture doctrine, 34–37
registered domestic partners, 54–57
same-sex couples, 54–55
separate property, 28–29
spouse, qualifying, 53–59
spouse, share, 33–34
survival requirement, 37–42

1054
Issue
See also, Adoption
generally, 61–63
calculating shares, 43–49
inheriting “from and through”, 61–62
out-of-wedlock child, 64–70
parent-child relationship, 60–70
parents married, 63–64
per capita at each generation, 46–48
per capita with representation, 45–48
per stirpes, 45–48
posthumously born, 85–86
posthumously conceived, 86–92
presumption, 63–65
qualifying, 64–65
survival requirement, 37–42
taking by representation, 44
Joint tenancy, real property
See also Multiple party accounts
generally, 5–6, 29–32, 115
construction rules, 301
creation, 115
creditor's rights,
devisablility, 29–30
divorce, 230–231
probate avoidance, 29–30
non-probate transfers, 5–6
slayer doctrine, 99
stepped-up basis, 372–73
survival requirement, 37–42
transfer on death deed, effect, 383–84
termination by operation of law, 230–231
vs. community property stepped-up basis, 372–73
vs. community property with right of survivorship, 372–74
vs. POD designation, 362
vs. transfer on death deed, 376–380
Joint will, 272

1055
Lapse, 301–02
See also Anti-lapse
Latent ambiguity, 277
Legacy/legatee, 29
Liens, gifts subject to, 330–31
Life insurance, 5–9, 115, 355–364, 441
divorce, effect, 230–31
survival requirement, 38–42
Line of sight, 181–82
Living will, 392–93
creditor's rights, 483–94
Mandatory trust Interest, 463–70
spendthrift clause, 483–94
transferability, 481
vs. discretionary support trust, 477–481
vs. support trust, 477–81
Marital property
See Community property; Elective share
Medical directive, 392–93
Migrating couples, 336–39
Misdescription doctrine
as curative doctrine, 188
as construction doctrine, 278
Mortgages, gifts subject to, 330
Multiple party accounts
generally, 369–72
agency/convenience account, 369–70
CA approach, 370–71
joint tenancy account, 369–70
payment on death account, 369–70
Mutual wills/mirror wills, 188, 272
Negative disinheritance, 74
No contest clauses, 132–34, 156
Non-directed dispositions, 7–9, 29–30

1056
Non-probate transfers
generally, 3, 5–7, 355–85
community property with right of survivorship, 374
inter vivos trusts, See Inter Vivos Trusts
joint tenancy, 5–7, 355, 365–73
legal life estates, 5–7, 355, 374–75
life insurance contracts, 5–7, 355–59
multiple party accounts, 369–72
payment on death (POD) clause, 359
payment on death contracts, 359–64
pension plans, 8, 364–65
stepped-up basis, 373
transfer on death deed, 375–85
vs. probate, 5–7
Omitted child
See also Overlooked child
generally, 346–54
CA statutes, 350–52
presumption, 351
share of omitted child, 352
Omitted spouse
generally, 340–46
CA statutes, 344–45
presumption, 342–46
share of omitted spouse, 344–45
Outstanding balance doctrine, 323
Overlooked child, 346–54
CA statutes, 351–2
Parentelic approach, 49–50
Patent ambiguity, 277
Paternity, 64–65
Payment on death contracts
See Contracts with payable on death clauses
Pension plans, 6, 8
payment on death contract, 362, 364, 441

1057
Per capita at each generation, 46–48
Per capita with representation, 45–48
Personal representative, 4
Plain meaning rule, 277–79, 280, 282
Planning for incapacity
See Incapacity, planning for
Portfolio approach
See also Trust investments
duty to delegate, 566
investment decisions, 559–66
Posthumously born, 85–86
Posthumously conceived, 86–92
Pour-over clause
defined, 440–53
validation, acts of independent significance, 442–43
validation, incorporation by reference, 442–43
validation, UTATA, 443–53
Powers of appointment
generally, 649–92
allocation doctrine, 687
anti-lapse, 682–86
appointment in trust, 681–82
appointment subject to new power of appointment, 681–82
ascertainable standard, effect, 658–60
blanket exercise clause, 676–680
blended residuary clause, 680
capture doctrine, 687–88
conceptual overview, 649–50
contract to exercise, 670–71
creation, 660–65d
creditors' rights, 665–67
defined, 650
discretionary nature, 660
donee, 651
donor, 651
donor's intent, 660–67

1058
 exclusive power, 651
exercise of power, 671–81
failed appointment, 688–92
failure to exercise, 688–92
flawed appointment, 686–88
general power, 651
inter vivos/lifetime power, 667–68
lapse, 682–86
limited power, 651
nongeneral power, 651
no takers in default, 688
objects of the power, 651
permissible appointees, 651
permissible objects, 651
potential appointees, 651
power holder, 651
presently exercisable vs. postponed power, 651–52
release, 670
residuary clause, exercise, 676–80
specific reference requirement, 671–80
self-settled power of appointment, 670–71
special power, 651
takers in default, 652
tax consequences, 652–60
terminology, 651–52
testamentary power, 651–52, 668, 670
types of powers, 651–52
Precatory language, 407
Presence requirement
conscious presence, 182–84
line of sight, 181–82
Pretermitted spouse/child
See Omitted spouse/child
Principal and Income Act, 559–62
Probable intent doctrine, 25, 211, 244–245, 292, 299, 316, 321,
639–44
Probate administration

1059
 ancillary probate, 390–91
avoiding probate, 5–9
creditors' claims, 4
opening probate, 4
terminology, 4–5
Probate court, 4
Probate property, 4–5
Professional responsibility
common law approach, 15
dual representation, 460–61
duty of confidentiality, 460–61
duty to disclose, 460–61
modern trend approach, 15–21
negligence vs. breach of contract, 15
standing, 15
Prudent person investment doctrine, 564–65
Prudent person standard, 563–64
Prudent investor doctrine, 565–74
Putative spouse, 55–56
Quasi-community property, 337–40
Recapture doctrine, 34–37
Registered domestic partners, 31–32, 54–55, 63, 372
See also Same-sex couples
pretermitted spouse, 340
termination, 231–32
Remedial trusts
constructive trust, 96–98, 160, 426–38
equitable basis, 97, 160, 432–38
resulting trust, 425–26
secret trust, 436–38
semi-secret trust, 437–38
unclean hands, 433
Republication by codicil, 253–57, 261
Res, 397–98
Resulting trusts, 425–26

1060
Revival, 233–38, 246–47
Revocable trusts
mechanics of revoking, 454–61
pour-over clause, 441
presumption when silent, 454
Revocation of wills
See also Dependent relative revocation; revival
generally, 215–49
by act, 222–24
by operation of law, 229
by presumption, 224–28
by writing (expressly vs. inconsistency), 221–222
CA statutes, 219, 227, 229–31
dependent relative revocation, 238–249
duplicate originals, 227–28
express revocation, 218–19
implied revocation, 224–28
lost will doctrine, 228
omitted child/spouse, 232
wills vs. codicils, 219–21
Rule against perpetuities
See also Charitable trusts
generally, 21
ascertainable beneficiary, exception, 421
charitable trust, 608–17, 631
honorary trust, 427–28
noncharitable purpose trust, 428, 616–18
malpractice, 21
measuring life, 427
perpetuities reform, 616–17
rule statement, 615
savings clause, 21
Uniform Statutory Rule against Perpetuities, 616
Same-sex couples
See also Registered domestic partners
generally, 54–55, 63, 231–32
adoption, 75

1061
 community property, 31–32
intestate distribution scheme, 54–55
pretermitted spouse, 340
marriage, 54–55
revocation by operation of law, 231–232
Satisfaction, 316, 328–29
Scope of will
acts of independent significance, 264–69
incorporation by reference, 257–62
integration, 251–53
republication by codicil, 253–57
tangible personal property list, 262–264
Secret trust, 436–38
Self-dealing, 534–47
Semi-secret trust, 437–38
Settlor, 11, 385, 396–97
Signature, 178–80, 196–98
Simultaneous death
See Survival requirement
Sound mind, 108–17
Spendthrift clause, 483–507, 510, 513–15
Spousal protection
See also Community property; Elective share; Omitted spouse
generally, 333–336
community property approach, 30–32, 333–40
quasi-community property, 337–40
separate property approach, 334–335
Spouses—qualifying; inheritance rights
bigamous spouse, 56–57
calculating share, 27, 33
cohabitants, 57–59
common law marriage, 57–59
contract claim, 270–72
intestate share, 27, 33
marriage and property rights, 30–32

1062
 marriage requirement, 53–54
putative spouse, 55–56
registered domestic partners, 54–55
same-sex couples, 54–55
Statute of descent and distribution, 25
See also Intestate distribution scheme
Statutory investment lists, 563–65
Stock, gifts of, 325–27
Strict compliance, 162–66, 168–75, 179–80, 188, 190–91, 215,
233, 261–62, 277, 455, 675
Substantial compliance, 168, 189, 201, 215, 224, 675
Support trust, 480–82
Survival requirement
generally, 37–41
CA statutes, 40–41
common law, 38
evidentiary standard, 38–40
mechanics, 40
Uniform Simultaneous Death Act, 39
wills, non-probate instruments, 39–41
Swapped wills, 188–89
Tangible personal property list, 262–264
Taxes
See also Estate taxes
disclaimer, 104
estate planning, 23
powers of appointment, 652–60
revocable trusts, 387–88
spendthrift clause, exceptions, 491–93
stepped-up basis, 373
support trusts, 482
trust modification, 524–25
trustee's powers, 474
vs. beneficiary's interest, 21–22
Termination of domestic partnership, 231–232

1063
Testamentary capacity
See also Fraud; Insane delusion; Undue influence
generally, 107–17
policy considerations, 116–17
remedy, 107, 116–17
requirements, 108–12
vs. non-probate capacity, 112–13, 115–16
Testamentary intent, 13, 198–99, 211
Testamentary trusts
secret trust, 436–38
semi-secret trust, 437–38
vs. inter vivos trusts, 439–441
writing requirement, 429
Testate, 4
Testator/testatrix, 3
Tortious interference with an expectancy, 155–60
Transfer on death deed, 375–85
Transfers to minors
generally, 9
guardianship, 440
trusts, 440
Trust protector, 505–06
Trustee's powers, 528–29
Trusts
See also Charitable trusts; Trusts, construction; Inter vivos
trusts; Revocable trusts; Rule against perpetuities; Trust
investments; Trustee; Trustee's duties; Trustee's powers
generally, 395–605
ascertainable beneficiaries, 419–21, 424
asset protection trust, 504–06
bifurcated gift, 396–99
beneficiaries, 396–99
beneficiaries' interests, 396–99, 463–483
Claflin doctrine, 512–13
conceptual nature, 395–99
constructive trusts, 96–98, 160, 426–38

1064
corpus, 397
creation, 396–99
creditor's rights, 483–98
creditor's rights, settlor as beneficiary, 498–506
declaration of trust, 410, 415
deed of trust, 410, 415
delivery, 395–96, 419
discretionary trust, 463–74
discretionary trust, purpose, 470–83
exculpatory clauses, 464–69, 572
failed gift, 295–301
funding, 399, 409–19
future profits as property interest, 413
honorary trust, 422–28
intent to create, 403–09
inter vivos trust, 396
mandatory trust, 463–70
modification, 516–25
no trustee—not fail, 624
non-charitable purpose trust, 426–28
ongoing gift, 397–98
precatory words, 405–07, 472, 661–662
purchase money resulting trust, 433
requirements, 399–403
res, 397
resulting trusts, 425–26
revocability, 453–61
secret trust, 436–38
self-settled asset protection trust, 504–05
self-settled trusts, 498–506
semi-secret trust, 437–38
settlor, 396
special needs trust, 522–24
spendthrift clause, 483–504
structure, 396–99
support trust, 480–82
taxation, 21–22, 440, 474, 482, 487–493, 496, 524–25, 552–53,
566, 581, 618, 631, 652–658, 676

1065
 termination, 507–15
terminology, 396–99, 407
testamentary trust, 429, 433–41
transfer in trust, 410, 415
transfers to minors, 9, 440
trust protector, 505–06
trustee's powers, 528–31
unfulfilled material purpose, 508–15
unitrust, 557–62
vs. inter vivos gift, 395
writing, 429–439
Trustee
See also Trustee's duties; Trust investments; Trustee's powers
accepting position, 531
compensation, 532
co-trustee, suit to enforce trust, 629
defined, 396–99,
discretionary trust, scope of discretion, 463–83
duties, see Trustee's Duties
exculpatory clauses, 464–69, 572
liability of third parties, 528–30
office of trusteeship, 531–32
powers, 528–31
professional trustee, 440, 544, 573–574, 580
trust not fail for want of trustee, 532
Trustee's duties
See also Trustee's powers; Trust investments
“absolute discretion”, 472, 571–72
allocating principal and income, 549–562
discretionary distributions, 463–474
duty against self-dealing, 534–47
duty not to commingle, 578–80
duty not to delegate, 566, 574
duty of loyalty, 533, 534–49
duty of loyalty, exceptions 545–47
duty of prudence, 533, 563–76
duty to account, 587–94
duty to act in good faith, 471–73

1066
duty to act reasonably, 471–73
duty to administer trust, 533
duty to avoid conflicts of interest, 534–45
duty to be impartial, 534, 549–62
duty to care for and maintain, 580
duty to collect trust property, 577
duty to control costs, 566–67
duty to delegate, 566, 574
duty to disclose, 582–87
duty to diversify, 566
duty to earmark, 578–80
duty to generate income, 549
duty to inform, 582
duty to inquire, 471, 542–45, 581–606
duty to secure possession, 577
duty to segregate, 578–80
duty to sell, 549–57
duty to supervise, 566, 581
enhanced discretion, 472–73
exculpatory clauses, 572
inception assets, 552–57
investments analyzed individually, 565
legal list, 564–65
ministerial responsibilities, 576–81
no further inquiry rule, 544–47
pooling trust funds, 580
portfolio approach, 565–66
power to reallocate proceeds, 549–50
property distribution, 398, 463–83
professional trustee, 573–74
prudent investor, 565–76
Prudent Investor Act, 565–76
prudent man, 565
range of discretion, 470–74
risk management, 565–74
scope of discretion, 470–74
selecting trustee, 531–33, 541
settlor's authorization, 545–46, 553–557, 567–73

1067
 settlor's purpose, 472–73
standard of care, 533, 563, 573–74
taxes, 474
trust investments, 563–75
underperforming property, 549–50
Uniform Prudent Investor Act, 560, 563, 565–76
unitrust, 557–62
Trustee's liability to third parties, 528–29
Trustee's powers, 528–29
Trust investments
generally, 563–74
allocating principal and income, 549–550
authorization to retain v. duty to
diversify, 566–74
duty to avoid unnecessary costs, 566–567
duty to delegate, 566, 574
duty to diversify, 566
duty to diversify, exceptions, 566
inception assets, 552–57
investment decisions, 564–76
investments analyzed individually, 565
pooling trust funds, 580
portfolio approach, 565–66
Principal and Income Act, 559–62
professional/corporate trustee, standard, 573–74
prudent person, 533, 563–76
risk management, 565–74
settlor's authorization, 545–46, 553–557, 567–73
statutory/legal list, 564–65
risk management, 565–74
Uniform Prudent Investor Act, 560, 563, 565–76
Undue influence
See also Gifts to attorneys
generally, 125–47
burden-shifting approach, 126–47
certificate of independent review, 144, 147
confidential relationship, 128–29

1068
 indicia of, 125–26, 131
inference of, 125–26, 131
judicial presumption of, 126–32
no contest or in terrorem clause, 132–134
non-traditional relationships, 134–41
prohibited transferees, 143
statutory presumption of, 143–47
unduly benefits, 132
Uniform Probate Code (UPC)
ademption, 317–18, 323
anti-lapse, 307–09
beneficiary's right to see terms of trust, 586
contract concerning wills, 270–71
contract with payable on death clause, 363–64, 375
elective share, 335
harmless error/dispensing power, 168–69
holographic will, 202–03
interested witness, 186–87
issue, calculating intestate shares, 46–47
negative disinheritance, 74
non-charitable purpose trust, 428, 616, 617
omitted child, 349
residuary clause, partial failure, 299
power of appointment, anti-lapse, 685–86
revocation by act, 223
satisfaction, 328–29
survival requirement, 39
tangible personal property list, 262
will execution requirements, 167–68, 181
Uniform Prudent Investor Act, 560, 563, 565–76
Uniform Testamentary Additions to Trusts Act (UTATA), 443–
53
Uniform Trust Code
administrative deviation, 521–22
beneficiary's consent, 512
beneficiary's right to see terms of trust, 586–87
charitable trust, standing, 631

1069
 compensation, 532
creditors' rights, 495
cy pres, 643–47
duty to act prudently, 563
general charitable intent, 643–44
no further inquiry rule, 546–47
non-charitable purpose trust, 428
revocation by will, 454–55
spendthrift clause, exempt creditors, 494–96
spendthrift clause/trust, 492–96, 515
standing, 631
third party liability for breach, 530
transferability of discretionary interest, 481
trust modification/equitable deviation, 521–22, 525
trust protector, 265, 291
trust revocability, 453–55
trust termination, 515
trustee's duties, to whom owed, 605
trustee's powers, 529
unfulfilled material purpose, 515
virtual representation, 512
Unitrust, 557–62
Wills
See Attested wills; Holographic wills; Pour-over wills
Wills Act Formalities
See Attested wills
generally, 161–213
attested will, 161–89
CA statute, 168–69, 191
conscious presence, 182
holographic will, 189–213
line of sight, 182
modern trend, 166–69
signature requirement, 178–80, 196–198
testamentary intent, 191, 198–200
traditional approach, 162–66; 190–91
witness requirement, 181

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 writing requirement, 176
Wills and other time of death gifts, construction
admissibility of extrinsic evidence, 273–94
common law, 277–79
drafting mistake, 277–94
equivocation, 278–79
failure of time of death gift, 297–301
latent ambiguity, 277
misdescription doctrine, 278
modern trend, 279–85
patent ambiguity, 277
plain meaning rule, 277
probable intent doctrine, 292, 299, 316, 321
reforming wills, 285–94
vs. rewriting, 285
vs. validity, 273–75
Will substitutes, 5, 595
See also Inter vivos trusts, Life insurance, Nonprobate
transfers, Payment-on-death contracts, Pension plans, Pour-
over clause, Superwills
capacity, 115–16
inter vivos trust as, 385–93
Witnessed wills, 161–89
See also Attested wills

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