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Trusts And Estates (Brooklyn Law School)

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TRUSTS AND ESTATES PREWRITES

INTRODUCTION.............................................................................................................................................................................................................................................................................3

PART I: INTESTATE SUCCESSION.....................................................................................................................................................................................................................................................4

Introduction.........................................................................................................................................................................................................................................................................................4

Survivorship:..............................................................................................................................................................................................................................................................................4

Spouses, Descendants, and Intestate Succession.............................................................................................................................................................................................................................5

Spouse’s Intestate Share:..........................................................................................................................................................................................................................................................5

Descendant’s Share:..................................................................................................................................................................................................................................................................5

Other Relatives and Intestate Succession........................................................................................................................................................................................................................................6

Ancestors and Collaterals:........................................................................................................................................................................................................................................................6

More Remote Ancestors and Collaterals:................................................................................................................................................................................................................................7

Altering Intestate Succession............................................................................................................................................................................................................................................................7

Disclaimer...................................................................................................................................................................................................................................................................................7

Advancements............................................................................................................................................................................................................................................................................8

Releases and Assignments:........................................................................................................................................................................................................................................................8

Negative Wills:...........................................................................................................................................................................................................................................................................8

Defining “Spouse”..............................................................................................................................................................................................................................................................................9

Divorce, Separation, Misconduct:............................................................................................................................................................................................................................................9

Common Law Marriage:..........................................................................................................................................................................................................................................................9

Putative Spouses:.....................................................................................................................................................................................................................................................................10

Unmarried Partners................................................................................................................................................................................................................................................................10

Defining “Descendant”....................................................................................................................................................................................................................................................................11

Adoption:..................................................................................................................................................................................................................................................................................11

De Facto Parentage..................................................................................................................................................................................................................................................................11

Stepchildren & Foster Children.............................................................................................................................................................................................................................................12

Children by Assisted Reproduction:......................................................................................................................................................................................................................................12

Descendant for Class Gifts in Donative Documents:............................................................................................................................................................................................................13

PART II: WILLS.....................................................................................................................................................................................................................................................................................15

Formalities for Attested Wills...........................................................................................................................................................................................................................................................15

The Writing Requirement.......................................................................................................................................................................................................................................................15

The Signature Requirement....................................................................................................................................................................................................................................................16

The Attestation Requirement.................................................................................................................................................................................................................................................16

The Presence Requirement:....................................................................................................................................................................................................................................................17

Notarization as an Alternative to Attestation:......................................................................................................................................................................................................................18

Formalities for Unattested Wills....................................................................................................................................................................................................................................................19

Nuncupative Wills (Oral Wills)..............................................................................................................................................................................................................................................19

Holographic Wills....................................................................................................................................................................................................................................................................19

GROUNDS OF CONTEST............................................................................................................................................................................................................................................................19

Intent.................................................................................................................................................................................................................................................................................19

Testamentary Capacity....................................................................................................................................................................................................................................................21

Undue Influence/ Duress (*common law for both UPC and non-UPC states)...............................................................................................................................................................22

Fraud/Forgery..................................................................................................................................................................................................................................................................23

REMEDIES......................................................................................................................................................................................................................................................................24

Integration of Unattested Documents............................................................................................................................................................................................................................................25

Incorporation by Reference....................................................................................................................................................................................................................................................25

Republication:..........................................................................................................................................................................................................................................................................25

Acts having Independent Significance...................................................................................................................................................................................................................................25

Reference to Unattested Writing............................................................................................................................................................................................................................................26

Joint Representation Issues............................................................................................................................................................................................................................................................27

Revocation by Document................................................................................................................................................................................................................................................................28

Revocation by Act............................................................................................................................................................................................................................................................................28

Revocatory Act Performed by Another.................................................................................................................................................................................................................................29

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TRUSTS AND ESTATES PREWRITES

Ineffective Attempt to Revoke................................................................................................................................................................................................................................................29

Presumption of Intent to Revoke...........................................................................................................................................................................................................................................29

Lost or Destroyed Wills...........................................................................................................................................................................................................................................................29

Wills Executed in Duplicate (**JUST NEVER DUPLICATE OKAY**)..............................................................................................................................................................................30

Destroyed by Fraud.................................................................................................................................................................................................................................................................30

Partial Revocation by Revocatory Act...................................................................................................................................................................................................................................30

Codicil of a Revoked Will........................................................................................................................................................................................................................................................31

Revocation by Changes in Circumstances.....................................................................................................................................................................................................................................31

Revocation by Marriage..........................................................................................................................................................................................................................................................31

Revocation upon Divorce........................................................................................................................................................................................................................................................31

Revival..............................................................................................................................................................................................................................................................................................32

UPC Approach.........................................................................................................................................................................................................................................................................32

Common Law Approaches......................................................................................................................................................................................................................................................32

Statutory Rules of Revival......................................................................................................................................................................................................................................................32

Revocation of a Codicil............................................................................................................................................................................................................................................................33

Dependent Relative Revocation (DRR).........................................................................................................................................................................................................................................34

Unattested Handwritten Alteration of Attested (NOT HOLOGRAPHIC) Will................................................................................................................................................................34

Post-Execution Events Affecting Wills...........................................................................................................................................................................................................................................36

Lawyer’s Professional Responsibility....................................................................................................................................................................................................................................36

Changes in the Client’s Estate................................................................................................................................................................................................................................................36

DBR: 3 Important A’s..............................................................................................................................................................................................................................................................36

LAPSE and ANTI-LAPSE..............................................................................................................................................................................................................................................................37

LAPSE:.....................................................................................................................................................................................................................................................................................37

ANTI-LAPSE: *still need INTENT*.......................................................................................................................................................................................................................................37

Will Substitutes................................................................................................................................................................................................................................................................................39

CREATION..............................................................................................................................................................................................................................................................................39

REVOCATION AND AMENDING.......................................................................................................................................................................................................................................39

Subsidiary Law of Wills (a/k/a applying the law of wills to will substitutes).....................................................................................................................................................................40

Protecting Spouses...........................................................................................................................................................................................................................................................................42

Elective Share:.........................................................................................................................................................................................................................................................................42

Premarital and Marital Agreements......................................................................................................................................................................................................................................42

PART III TRUSTS...................................................................................................................................................................................................................................................................................44

Introduction to Private Trusts and Their Elements.....................................................................................................................................................................................................................44

Certainty of Subject.........................................................................................................................................................................................................................................................44

Certainty of Object..........................................................................................................................................................................................................................................................44

Certainty of Intent...........................................................................................................................................................................................................................................................45

NO Certainty of Trustee..................................................................................................................................................................................................................................................46

Trustee Duties..................................................................................................................................................................................................................................................................................47

Duties to Inform and Account................................................................................................................................................................................................................................................47

Duty of Loyalty........................................................................................................................................................................................................................................................................47

Duty of Prudence.....................................................................................................................................................................................................................................................................47

Duty of Impartiality.................................................................................................................................................................................................................................................................47

Trust Restraints on Alienation (CREDITORS)............................................................................................................................................................................................................................48

Support, Discretionary, and Discretionary Support............................................................................................................................................................................................................48

Spendthrift...............................................................................................................................................................................................................................................................................48

Asset Protection Trusts....................................................................................................................................................................................................................................................................50

Trust Termination & Modification................................................................................................................................................................................................................................................51

Modification or termination because of unanticipated circumstances:..............................................................................................................................................................................51

Charitable Trusts.............................................................................................................................................................................................................................................................................52

Cy Pres..............................................................................................................................................................................................................................................................................................53

Enforcing Charitable Trust Obligations........................................................................................................................................................................................................................................54

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INTRODUCTION

Introduction: [POLICY]
 [PROBATE]
Probate performs three essential functions: (1) making property owned at death marketable again, (2) paying
off decedent’s debts, and implementing the decedent’s donative intent respecting the property that remains
ones the claims of creditors have been discharged.
 [NONPROBATE]
Conversely, non-probate is a way to transmit property through will substitutes or non-probate transfers. These
are good as most will substitutes are asset-specific, property that passes through will substitute avoids the high
costs of probate, and a settlor can avoid the formalities of the wills acts (such as attestation and so forth), and
the non-probate process is harder for creditors to crack.
o Furthermore, will substitutes allow the right to possession or enjoyment of the property to be done
outside the probate process after the donees death, and allow lifetime rights of dominion.
o [pure v. impure]
 [pure] Will substitutes are separated into pure and impure substitutes. Pure substitutes
include life insurance, pension accounts, joint accounts, and revocable trust.
 [impure] Conversely, joint tenancies are considered impure will substitutes because they are
not revocable, and become a mere game of survivor between the joint tenants.
 [GENERAL GOALS] Overall there are four policy goals: (1) preserving donative intent, (2) safeguarding
families and their properties especially those who are vulnerable, (3) maintaining a system that is
administrable, and (4) achieving fairness between parties in order to maintain legitimacy of the legal system

Donative Freedom:
 [Note cases] In Hodel v. Irving and Babbitt v. Youpee, the court held that the Indian Land Conservation act
was unconstitutional because it severely limited the rights to leave an interest in property, demonstrating
the power of testation and pursuit of donative intent.
 [partial marriage condition OK] Shapira v. Union Nat’l Bank, the court upheld a condition that required a
testator’s son to marry a Jewish girl, reasoning that the court will enforce the condition since it is a partial
restriction on marriage for inheritance, and not a complete restriction upon a constitutional right.
 In Shapira, a partial restraint on marriage which imposes only reasonable restriction is valid
and not contrary to public policy (there was ample time for Daniel to maturely reflect
decision0.
o [ALTERNATIVELY] if it were the case that the son could not marry at all or could only marry one
person, then such may be void as a violation of the 14th amendment.
o [CONVERSELY] In Maddox, the court held that where a woman lived in a very small town with
little transportation, making it severely restraining to find a Quaker man as conditioned, the marriage
condition is void.

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PART I: INTESTATE SUCCESSION

Introduction

Introduction:
 The rules of intestacy are default, not mandatory, rules, applying only where the decedent has not effectively
provided otherwise by writing a valid will or providing for succession of all assets.
 [policy] There are several aims of the intestacy statute such as protecting a financially dependent family,
avoiding complicated property titles and excessive subdivision, promote and encourage the nuclear family,
encourage the accumulation or property by the individual, and above all, consider what would be the
decedent’s wants and intent.

Survivorship:
Pursuant to Restatement 3d of Property §1.2, only persons who survive the decedent are entitled to succeed to the
decedent’s property by testate or intestate succession.
 [120-hour-requirement] Pursuant to UPC §2-104(a), for the purposes of intestate succession, there is a
requirement of survival of 120 hours which must be established by clear and convincing evidence.
o Pursuant to UPC §2-701, such 120 hour requirement of survival applies to all donative dispositions
such as will substitutes.
 [posthumous conception] Under the UPC, inheritance and other rights are provided to children conceived
after the death of a parent if the embryo is in utero no later than 36 months, or born no later than 45 months
after the parent’s death. Such child, pursuant to §§2-104(a) would need to survive 120 hours after birth by clear
and convincing evidence.
 [definition of death] Under the UDDA §1, and pursuant to UPC §1-107, death is defined as an individual
who, in accordance with accepted medical standards, has sustained either (1) irreversible cessation of
circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including
brain stem, is dead. Such may be established by clear and convincing evidence, including circumstancial
evidence.

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Spouses, Descendants, and Intestate Succession

Spouse’s Intestate Share:

 [no one left, or just shared kids] Pursuant to UPC §2-102, a spouse receives the entire intestate share if no
descendant or parent of the decedent survives the decedent, or if all the surviving descendants are that of the
surviving spouse.
 [No descendants but YES parents] Pursuant to UPC §2-102, a surviving spouse is entitled to the first $300,000
plus ¾ of any balance of the intestate estate if no descendant of the decedent surviving the decedent, but a
parent survives the decedent.
 [spouse got multiple baby daddies] Pursuant to UPC §2-102, a surviving spouse is entitled to the first
$225,000, plus ½ of any balance of the intestate estate, if all of decedent’s surviving descendants’ are also
descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are
not the descendants of the decedent.
 [spouse is a step-parent] Pursuant to UPC §2-102, a surviving spouse is entitled to the first $150,000, plus ½ of
any balance of the intestate estate, if one or more of the descendants are not descendants of the surviving
spouse.

Descendant’s Share:
(see the problem!)
Pursuant to UPC §2-103(a)(1), any part of the intestate estate not passing to the decedent’s surviving spouse, passes
to the decedent’s descendants by representation.
 [Horizontal UPC approach] Pursuant to UPC §2-106, a system of per capita representation at each generation
is adopted. First, the estate must be divided into primary shares at the nearest generation containing at least one
living member. Next a primary share must be allocated to each living member of the primary generation.
Finally, all remaining shares must be combined into a single share and then redistributed pursuant to step 1.
o [class gift] Pursuant to UPC §2-708, where class gifts do not specify distribution manner, they are
distributed pursuant to UPC §2-106.
o Step 1: divide into primary hares at nearest generation containing at least 1 living member
o Step 2: allocate one primary share to each living member of the primary-share generation
o Step 3: combine the remaining primary shares into a single share and assume that the descendants
already allocated a share. Then distribute with accordance to step 1
 [Vertical Strict Per Stirpes] Under a strict per stirpes system, used by some common law states, the first step
is to divide the estate into primary shares at the generation nearest to the decedent. Next, all primary shares
should be allocated. Finally, all shares shall be divided and subdivided to the living descedents of deceased
descendants.
o Step 1: divide estate into primary shares at the generation nearest to the decedent
o Step 2: allocate the primary shares
o Step 3: divide and subdivide each primary share allocated to the living descendants of deceased
children.
 [Modified Per Stirpes] Under UPC §2-709, compared to the strict per stirpes system, the modified requires
the first step to divide the estate into primary shares at the generation nearest to the decedent that contains at
least one living member. (don’t care as much about this one)
o [Step 1]: divide estate into primary shares at the generation nearest to the decedent that contains at
least 1 living member
o Step 2: allocate the primary shares
o Step 3: divide and subdivide each primary share allocated to the living descendants of deceased
children.

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Guardianship:
In non-UPC states, law provides protective proceedings to 2 types of guardians: (1) guardians of the person, a
fiduciary who is judicially charged with the care and custody of the minor, and (2) guardian of the property (the
conservator)

Escheat:
Although extremely rare, sometimes the state can take when a decedent is intestate. In order for escheat to occur,
everyone in the whole family and all collateral relatives would have to be deceased.

Other Relatives and Intestate Succession

Ancestors and Collaterals:

 [to parents]
o Pursuant to UPC §2-103(a)(2), if a decedent does not have any descendants, surviving spouse, then the
estate will pass to the decedent’s parents equally if both survive, or to one if one survives.
o [bad parents]
 [HOWEVER] Pursuant to UPC §2-114, neither a biological parent not a parent’s kindred can
inherit via representation from the child if there is clear and convincing evidence that
immediately before the child’s death the parental rights of the parent could have been terminated
on the basis of nonsupport, abandonment, abuse, neglect, or other actions or inactions that the
parent owed toward the child.
 [to siblings]
o Pursuant to UPC §2-103(a)(3), if a decedent does not have any descendants, surviving spouse, or
parents, then estate will pass to the descendants of the decedent’s parents (siblings) by representation.
 [to extended family on both sides]
o Pursuant to UPC §2-103(a)(4), if a decedent does not have any surviving descendants, spouse,
parents, or siblings, but decedent is survived on both sides by grand-parents’ descendants, ½ of estate
shall go to each side (1/2 to maternal, and ½ to paternal) by representation.
o [to extended on one side]
 [Conversely] Pursuant to UPC §2-103(a)(5), if decedent does not have any surviving
descendants, spouse, parents, or siblings, but decedent is survived on one side (maternal or
paternal) then estate shall pass to that side by representation.
 [to unadopted step-kids]
o [one dead wife] Pursuant to UPC UPC §2-103(b)(1), if there is no other taker, then if decedent has one
deceased spouse who has one or more descendants the estate or part thereof will pass to them through
representation.
o [multiple dead wives] Pursuant to UPC UPC §2-103(b)(2), if there is no other taker, then if decedent
has more than one deceased spouse who has one or more descendants who survive decedent then the
estate or part thereof will pass in equal shares to each side through representation.
 [half-bloods]
o Under UPC §2-107, relatives of the half-blood inherit the same share they would inherit if they were of
the whole blood.
 [in-laws]
o In nearly all jurisdictions, in-laws are excluded from inheriting under intestacy statutes.

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More Remote Ancestors and Collaterals:

 [Parentelic System] A parentela consists of an ancestor and that ancestor’s surviving descendants. In such
system preference goes to persons in nearest parentela. If there are no surviving members, then onto the
next parentela. The UPC only goes up until the 3rd parentela.
o Some American statutes provide that if no member of any parentela survives the intestate, then the
estate passes to the next of kin through a non-representational distribution where relatives take in
their own right—each heir taking an equal share.
o [Civil Law Method] I the civil law method for computing degrees of next of kin, must count
generations (1) up from the intestate to the intestates ancestor who is also an ancestor of the
collateral relative, and down from the common ancestor to the collateral relative.
 In In re Shumavon, first cousins once removed were not eligible distributes under the NY intestacy statute.

Altering Intestate Succession

Introduction:
Disclaimers, advancements, and negative wills provide flexibility around intestacy.
 [Private Agreements] Pursuant to UPC §3-912, unsatisfied intestate heirs can divide up the assets in a
different way by authorizing private agreements
o [HOWEVER] Such private agreements may be taxed. Tax law will tax the transfer and then treat
the private agreement as a separate, taxable transaction.
 [Unascertained Heirs or Heirs who lack Capacity] In formal proceedings and judicially supervised
settlements, both the UPC and UTC provide that in the absence of conflicts of interest, conservators may
represent the protected person. Parents may represent their minor children under certain conditions, and for
the appointment of guardians ad litem to represent the interests of unborn and unascertained parties.

Disclaimer
A disclaimer is the refusal to accept gratuitously transferred property.
 [UPC disclaimer]
o Pursuant to UPC §2-1106, an interest in property (such as an estate) may be disclaimed. Upon the
disclaimer, a future interest held by a person other than the disclaimant will take effect as if the
disclaimant had died immediately before the time of distribution. BUT a future interest held by the
disclaimant is not accelerated in possession or enjoyment.
 [Federal Tax]
o A disclaimant incurs no federal transfer tax consequences if the disclaimer meets the IRC’s definition of
qualified disclaimer.
 [Qualified disclaimer] According to the IRC, a qualified disclaimer must be: (1) irrevocable and
unqualified, (2) in writing and filed within 9 months of the later of the time of the transfer or the
disclaimant’s 21 birthday; (3) the disclaimant must not have accepted the interest or any of its
benefits; and (4) the interest must pass without direction by the disclaimant to either the
transferors spouse or a person other than the disclaimant.
 [Creditor’s rights]
o In the US, it is a prevailing view that a beneficiary can disclaim an interest to prevent creditors from
reaching the property, even if the disclaimer would otherwise qualify a fraudulent conveyance.
o [HOWEVER] In Drye v. US, the court held that a disclaimer of a sons right to take his mothers estate by
intestacy was ineffective to defeat a tax lien against the disclaimant.

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 [POLICY a la DBR]
o A disclaimer is based on the fundamental rule that you don’t have to take property that you don’t want,
with or without reason. This is beneficial. There may be heavy taxes per each transfer, and, by
disclaiming, there is a cut down on the transfers and thus less taxes are taken from the asset. As such,
disclaimers are strategic in two ways: (1) they allow avoidance of a tax trigger, and (2) a disclaimant can
usually figure out what will happen if they do not take this asset and can evaluate if they like that outcome
better.

Advancements
An advancement is a gift made during life that has the effect of reducing the share of the probate estate htat the
donee receives by intestate succession upon the donor’s death. Generally, the only way to avoid this operation of
intestacy, is by executing a valid will.
 [General] All American jurisdictions have statutes providing for advancements. Commonly, they enlarge
the scope of permissible recipients beyond the child and require written evidence of an intent to make an
advancement
 [UPC] Pursuant to UPC §2-109, property giving during lifetime is treated as an advancement against the
heir’s intestate share only if (1) the decedent declared in a contemporaneous writing or the heir
acknowledged in writing that the gift was an advance; OR (2) the decedents contemporaneous writing or
the heir’s written acknowledgement indicates that the gift is to be taken into account in computing the
decision and distribution of the decedent’s intestate share.

Releases and Assignments:

Presumptive heirs/devisees can release their expectancy interests to the decedent or they can even assign their
expectancy interests to other persons or presumptive heirs. However, contracts to release and assign are only
enforceable in equity and if the heir receives fair consideration.
 [EXAMPLE] For instance, in Ware v. Corwell, the court held that a release by a daughter to her mother
prevented the daughter from taking under her mother’s will, even though the will was executed subsequent to
the release agreement.

Negative Wills:
[Statutory Law, because common law rejects] A will is a document that can block a transfer, and such intention to
disinherit is followed even in intestacy, reversing the prevailing common law rule on the basis that it defeats a
testator’s intent for no sufficient reason.
 Thus, pursuant to Restatement 3d of Property §2.7, negative wills are authorized. However, you cannot
disinherit all of your heirs (resulting in escheat, see Jetter), and you cannot fully disinherit spouse (because of
the elective share).
 [UPC] Pursuant to UPC §2-101(b), a decedent may expressly exclude or limit the right of an individual or
class to succeed to property of the decedent passing by intestate succession. If that individual or member
survives the decedent, such share would pass as if the individual or class had disclaimed the intestate share.
 [Cases]
o In Waring v. Loring, the court held that an intestate right is not within the term of statutory rights,
suggesting that the intent to disinherit in a will has no effect on the right to inherit intestate. Thus, a wife
could take an intestate share of her husband’s estate even though he specified in his will that the
provisions of the will for his wife were in lieu of dower and all her statutory rights in his estate.
o Note Cases
 In the Estate of Jetter, the court held that the class to be disinherited needs to be limited to a
group constituting some, but not all of the testator’s heirs.
 In the Estate of Samuelson, under a statute similar to UPC §2-101, the provision in a testators
will stating that he intentionally failed to provide for his half-sister precluded her from taking
by both testate and intestate succession.

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Defining “Spouse”

Introduction:
 [Marriage] Marriage creates a spousal relationship with rights to a share of the estate, family allowance,
protection against intentional disinheritance, and protection against unintentional disinheritance by a
premarital will that the decedent failed to revise.

Divorce, Separation, Misconduct:

Upon dissolution of the marriage, spousal status is lost.
 Marriages can also be void where they are (a) bigamous, (b) incestuous, or (c) preceded by an invalid divorce.
 [UPC] Pursuant to UPC §2-802, an individual who is divorced from the decedent or whose marriage to the
decedent has been annulled is NOT a surviving spouse unless, by virtue or a subsequent marriage, is married
to the decedent at the time of death. A decree of separation that does not terminate the status of spouse is not a
divorce.
o [current state] Pursuant to UPC §2-802(b)(1), even if the current state does not recognize a final
decree of divorce or annulment, an individual is not a spouse unless they re-marry decedent.
o [invalid decree but new marriage] Pursuant to UPC §2-802(b)(2), an individual who, following an
invalid decree of divorce or annulment, gets married to another person, is NOT a spouse.
o [proceeding to terminate marital property] Pursuant to UPC §2-802(b)(3), an individual who was
party to a valid proceeding concluded by an order to terminate all marital property rights is NOT a
spouse.
 [Common Law]
o [Unknown invalid divorce]
 In Holmes v. Fentress, the court held that a former wife was a spouse even though both parties
believed that they were divorced, and both remarried, reasoning that merely stating and believing
one is divorced does not terminate marriage nor does it terminate spousal statute.
 In Holmes, although other parties try to argue equitable estoppel, the court held that for
estoppel to apply, the party to be estopped must have a complete knowledge of the fact.
She could not waive her right to inherit from husband without knowing that she had the
right to inherit.
 [States going beyond UPC]
o [Adultery + desertion] A few states go further than the UPC, and bar a living spouse from taking as
an heir for desertion or adultery.
o [Abuse] Some states bar living spouses convicted for a felony for conduct constituting physical or
financial harm from inheriting.
 [example] For instance, in In re Jellech, a court interpreted physical and emotional abuse of ones
spouse as constructive abandonment.

Common Law Marriage:

In some states, a common law marriage, or a marriage in which two people agree among themselves that they are
going to be “married,” is recognized by law. Pursuant to Restatement 3d of Property §2.2, comment f, in such
states, a common-law spouse is a spouse for purposes of intestacy. [However] If you are common law married in one
of these states, then other states must recognize this, thus screening in spouses.
 [REQUIREMENTS]
o Generally, in order to have a common law marriage, (1) it is required that the parties presently agree
to enter into the relationship of husband and wife; (2) some jurisdictions require co-habitation, or

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openly living together as husband and wife; (3) some require the parties to come out to the world as
husband and wife, and acquire such reputation as such.
 [however] It should be noted that not all jurisdictions require cohabitation or reputation,
but merely regard it as evidence. As such, parties stating “we’re not married, we are just
living together” will destroy a claim.
 [POLICY]
o Common law marriages are evidentiary nightmares. They made more sense when it was more
difficult to get in front of a judge. Now, many states have abolished due to the informality of
common-law marriages making them highly vulnerable to fraud and perjury, and due to the argument
that common law marriage undermines the sanctity of marriage.

Putative Spouses:
A putative spouse is any person who has cohabited with another whom they are not legally married, but in good
faith, believes they are married to that person.
 Pursuant to Rest. 3d of Property §2.2, comment e and MMDA §209, a putative spouse is treated as a legal
spouse for purposes of intestacy.
 Although there are only 6 states that actually recognize putative spouses, the UPC allows courts to adopt
the putative spouse doctrine (or not), and legislatures can enact both UPC and MMDA.
 [POLICY]
o The purpose of the putative spouse doctrine is to protect the financial and property interests of a
person who enters into a marriage believing in good faith it is a valid marriage.

Unmarried Partners
Very few states have inheritance rights for unmarried partners, and previously couples had to resort to a contract
based system. After Obergefell, the pressure of this law was released in part. Nevertheless, sometimes unmarried
partners have rights conferred upon them.
 Contract Law to Confer Spousal Rights
[EXAMPLE] In Estate of Quarg, a husband was married for 2 years, separated, and then for the rest of his
life saw his estranged wife perhaps 5 times over the course of 40 years. During such time, he enjoyed a
relationship with a new woman, who took his surname and lived with him. The unmarried partners always
listed themselves as husband and wife on deed, insurance, and in all respects.
o [rule] In Quarg, the court used contract law to screen-in the woman as a spouse by finding an
implied promise to not leave the unmarried partner impoverished. The court recognized that if an
unmarried adult partner is induced to cohabit in a marital-like relationship by a promise of support,
that promise will be enforced by the court whether it is oral or written, implied or express, or
inferable form the parties acts and conduct.
 [constructive trust remedy] Stating that such will be enforced based on consideration, the
court examined the totality of the circumstances and held that the woman, while not
statutory wife, was his “partner, caregiver, builder of dreams and assets, entitling her to the
equitable remedy of a constructive trust establishing her share of his estate.
o [HOWEVER] Some states only enforce explicit promise; and others, written and explicit.
 [Premarital Agreements] Pursuant to the Uniform Premarital Agreement Act §2, premarital agreements
are only enforceable if it is in writing, and such provides certain rights automatically to unmarried partners
who meet the definitions, but if the partners wish to alter remedies, they must do so in a written agreement
signed by both parties.
 [Domestic Partner w/ common child] Pursuant to PLFD Ch. 6, some parties who live together with their
common child, for the required minimum time, are deemed domestic partners
o [if no common child] Unrelated parties with no common child are presumed to be domestic partners
if they share a common household for a separately established minimum period, a suggested 3 years.
******SEE PROBLEMS ON MARRITAL INTERRUPTION AND DISSOLUTION******

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Defining “Descendant”

Introduction:
 [UPC Screens Out] Pursuant to UPC §2-114, a parent is barred from inheriting from or through a child if:
(1) the parent’s parental rights were terminated and the parent-child relationship was not judicially re-
established; OR (1) the child died before reaching 18, and there is clear and convinging evidence that
immediately before the child’s death the parental rights of the parent could have been terminated under law
on the basis of nonsupport abandonment, abuse, neglect, or other actions or inactions of the parent toward
the child. For the purposes of intestate succession, it will be treated as if parents predeceased decedent.
 [Intestate Succession] Pursuant to §2-116, if a parent-child relationship exists then the parent is the parent
of the decedent for purpose of intestate succession.

Adoption:
In the US, adopted children inherit from their adoptive parents, and are treated as descendants for inheritance
purposes.
 Pursuant to UAA §4-102(b), for good cause shown (which is in the court’s discretion) a non-step-parent, with
the custodial parent’s permission may petition for adoption as if they were a step-parent.
 [Adoptee cannot take from natural grandparents]
o In Estate of Donnelly, the Donnelly’s had two children. Their son had one daughter Jean Louise, but
passed away soon after her birther. The girl’s mother remarried and the Jean Louise was adopted by
her step-father with written consent of her mother.
 In Donnelly, the court held that an adopted child may not (through intestacy) inherit from
their natural grandparents. They may not represent their natural parent, but only their
adopted parent. The court reasoned that the legislature intended to remove an adopted child
from the natural bloodline and thus the child is given a “clean slate” with the adoptive
family.
 [OVERALL] An adopted child cannot take from his natural parent as an heir, but
enjoys complete inheritance rights from the adoptive parent.
 [HOWEVER] If natural grandparent wishes to provide for the adopted child, they
can have a provision in a valid will.
 [Exceptions]******
o Pursuant to §2-119, an adopted child may inherit through intestacy if adopted by a genetic relative, if
both parents die.

De Facto Parentage
De facto parentage is a legally recognized parent-child relationship that can be created without formal adoption
 [Requirements]
o Pursuant to UPA §609, such requires an individual who claims to be a de facto parent to demonstrate
with clear and convincing evidence that: (1) the individual resided with the child as a regular member of
the child’s household for a significant period, (2) the individual engaged in consistent caretaking of the
child, (3) the individual undertook full and permanent responsibilities of a parent of the child without
expectation of financial compensation, (4) the individual held out the child as the individual’s child, (5)
the individual established a bonded and dependent relationship with the child which is dependent in
nature, (6) another parent of the child fostered or supported the bonded and dependent relationship
required, and (7) continuing the relationship between the individual and child is in the best interest of
the child.
o Currently, UPC §§2-118 and 2-119 are being revised to do the same.

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Stepchildren & Foster Children

 [CANNOT inherit]
o Pursuant to UPC §1-201(5), a “child” includes an individual entitled to take as a child by intestate
succession from the parent whose relationship is involved, and excludes a person who is only a
stepchild, a foster child, a grandchild, or any more remote descendant.
 [EXCEPTIONS]
o [UPC] [last resort before escheat]
 However, under the UPC, as a last resort before escheat, the stepchildren may be given
inheritance rights.
o [California]
 [but for legal barrier] In California, stepchildren or foster children and their descendants are
entitled to inherit from or through their stepparents or foster parents if (1) a parent-child
relationship began during the person’s minority and continued throughout joint lifetimes and (2)
it is established by clear and convincing evidence that the foster or step parent would have
adopted the person but for legal barrier.
 [equitable adoption] In California, foster children who have not been formally adopted by their
foster parents may nevertheless obtain inheritance rights under equitable adoption, which occurs
when under the circumstances there is an implied or expressed contract to adopt.

Children of Parents Not Married to Each Other

 Pursuant to UPC §2-117 and UTC §202, children inherit through their parents regardless of their parent’s
marital status. Furthermore, the UPA screens them into the role of being a parent.

Children by Assisted Reproduction:

Despite challenging the traditional notions of family and parenting, children through assisted reproduction are
legally recognized.
 [Intend to be Parent]
o Pursuant to UPC §2-120 and 2-121, courts will ask “who are the intended parents” often looking to
what people think.
 [Presumed Intended] Under the UPC, courts typically hold that parents are presumed intended
if (1) in a marital relationship with the woman who bares the child or (2) if there is respective
documentation. (i.e., “I am consenting to procedure to create my child” or “I am donor only”)
 [If Parent Dies During IVF]
o Pursuant to R3P §2.5, to inherit from a decedent, a child produced from genetic material of the decedent
by assisted reproductive technology must be born within a reasonable time after decedents death in
circumstances indicated that decedent would have approved child’s right to inherit.
 Under UPC, inheritance and other rights are provided to children conceived after the death of a
parent if the embryo is in utero no later than 36 months, or born no later than 45 months after the
parent’s death. Such child, pursuant to §§2-104(a) would need to survive 120 hours after birth by
clear and convincing evidence.

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Descendant for Class Gifts in Donative Documents:

 [Rules of Construction]
o Pursuant to R3P §1.3, comment a, the rules of construction of a governing instrument are devices that
attribute intention to individual donors in particular circumstances on the basis of common intention.
However, such is rebuttable upon a finding of different intention. If ambiguous, then the rule of
construction will control.
o [Adopted Children]
 [General] Pursuant to UPC §2-705 and R3P §14.5, adopted children are treated as a member of a
class if the donor of the class gift adopted the child; however, issues arise when someone else
adopted the child.
 [Stranger to the Adoption Doctrine] *look to intent*
 [STTA RULE] Under the stranger to the adoption doctrine, a donor is presumed not to
have intended to have the adopted child share in the class gift
 [EXAMPLE] In Ohio Citizens Bank v. Mills, a son married a woman and adopted her
children from previous marriages. Son’s father had an inter vivos trust with distribution to
“living grandchildren.” The court held that the adopted children were not “grandchildren”
for a class gift based on the likely intent of the testator in light of the law existing at the
time of the creation of the trust.
o In Mills, the stranger to the adoption doctrine was the law, under which since an
adoption took place after a testator’s death (and they were not the adoptive parent) it
was presumed that he did not intend the adopted child to be included in the class. The
court held that it was not going to apply a new adoption doctrine retrospectively unless
contrary intention clearly appears.
 [CONVERSELY] Pursuant to UPC §2-705(f) and RS §14.5(2), the stranger to
the doctrine is abrogated if: (1) the adoption took place before the child
reached the age of 18; OR (2) the adoptive parent was the child’s step-parent
or foster parent; OR the adoptive parent functioned as a parent of the child
before the child reached the age 18.
o [Adoption of Adults]
 [Adoption of spouse or unmarried partner] Typically not permitted.
 [Heterosexual]
o In Minary v. Citizen’s Bank, a wife adopted by husband was not treated as a child for
the purposes of a class gift where the court focused on testator’s likely intent.
o [similarly] In In re Belgards Trust, a wife was allowed to inherit from her husband as a
child through intestacy, but was denied such right through class gifts.
 [Homosexual]
o In Adoption of Swanson, a partner adopted to “finalize the close emotional
relationship” was granted the rights.
o [Conversely] In Adoption of Robert Paul, the adoption of a gay man by partner was
denied.
o [De Facto Children]
 [General] Class gifts usually do not extend to de facto children; however UPC §2-705 is being
revised.
o [Stepchildren & Foster Children]
 [General] Pursuant to RS §14.1, comment k, courts usually do not construe gifts to include
stepchildren or foster children.
 [EXCEPTION] In California, courts sometimes consider stepchildren eligible and
recognize a parent-child relationship if it begins during the step-child/foster child’s
minority and continues throughout the parent and child’s joint lifetimes, and if it is
established by clear and convincing evidence that the stepparent or foster parent would
have adopted but for legal barrier.

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o [Non-Marital Children]
 Pursuant to Restatement 3d Property §14.7, in construing a class gift created by someone other
than the child’s genetic parent, the non-marital child is a child of the genetic parent, but only if: (1)
before the age of 18, the genetic parent, the genetic parent’s grandparent or a descendent of such or
spouse of such functioned as a parent of the child; OR (2) the genetic parent intended to dunction as
a parent of the child before the child reached 18, but an event, such as death or incapacity,
intervened to prevent the genetic parent from functioning in that capacity.
o [Children by Assisted Reproduction]
 Pursuant to Restatement 3d of Property §14.8, a child of assisted reproduction whose birth mother
is NOT the surrogate is treated for class-gift purposes as a child of (1) the child’s birth mother; and
(2) another person, if any, who consented to assisted reproduction by the birth mother with intent to
be treated as the child’s other parent.
 [intent = signed writing] Such is established under §14.8 if the person signed a writing or
other record, exhibiting intent to be treated as the child’s other parent.
o [Alternatively] in the absence of a signed writing, intent can be established if the
purported other parent:
 functioned as the child’s other parent within a reasonable time after birth,
 intended to function as the other parent within reasonable time but was
prevented from doing so by an event such as death or incapacity, or
 intended to be treated as the other parent of a posthumously conceived child,
but only
 [EXAMPLE] In In re Martin B, the court, employing a very sympathetic reading, held that
posthumously conceived children were “issue” for the purpose of a class gift in a trust, reasoning
that where a government instrument is silent, children born of new biotechnology with the consent
of their parent are entitled to the same rights as those of a natural child.
 Thus, in Martin, where a son predeceased the grantor but had his semen frozen for his
wife Nancy to use for the purpose of having children, her two resulting sons were part of
the class gift.
 [Similarly] In NY and DC, courts typically rule that where a future estate shall be limited
to issue, posthumous children shall be entitled to take in the same manner as if living at the
death of the parent.

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PART II: WILLS

Formalities for Attested Wills

Introduction to the Formalities:

In general, a will must be in writing, signed by the testator, and attested by credible witnesses. Courts typically take
two approaches to the formalities: (1) strict compliance approach and (2) substantial compliance approach.
 [UPC Requirements]
o Pursuant to UPC §2-502, a will must be in writing, signed by the testator (or in their name by other
individual in testator’s conscious presence and by the testator’s direction); and attested by either 2
witnesses who signed within a reasonable time after witnessing the testator’s signing or
acknowledgement; OR acknowledged by testator before notary.
o [Arguments to make when formalities failed]
 [Harmless Error rule] Under UPC §2-503, a harmless error rule allows a will to be valid
despite not being executed according to the formalities if the proponent can establish by
clear and convincing evidence that the decedent intended the proffered document to
constitute the decedents will. (note: need not try just needs to intend )
 [Substantial compliance approach] A court can take the substantial compliance approach
whereby a testator tried to meet formalities, failed, but the court will accept the will for
probate nonetheless.
 [POLICY]
o Pursuant to Restatement 3d of Property, the purpose of the statutory formalities is to determine whether
the decedent adopted the document as their own will—this serves several functions. First, it serves the
evidentiary function by requiring solid evidence of the existence and contend of the decedent’s
directions. Second, it serves a cautionary function by requiring some indication that the decedent arrived
at these directions with adequate awareness. Third, it serves a protective function by assuring that the
contents and execution of the will were the product of the decedents free choice. Finally, it serves as a
channeling function to facilitate a substantial degree of standardization in the organization, language,
and content of most wills to assure they can be prepared and administered in a fairly routine manner.
Overall, the formalities serve intent!

DBR’s Exhaustive List of Formalities for ANY Jurisdiction

1. Orientation -Get everyone in the same room, oriented where everyone can see someone else
2. Three (3) disinterested witnesses
3. Publication - Say outloud their intention to make will and state their state of mind
4. Signature by testator: Sign at bottom; Witness watches, put dates
5. Attestation - Each witness sign/date; Read outloud attestation clause
6. Integration - Staple that shit. Do not fuckin binder clip
7. Self-proving affidavit -Document whereby the various people involved in the ceremony sign an affidavit
saying they did everything
8. Notarization

The Writing Requirement

 [General: does NOT have to be on paper] All statutes, and UPC require a will in writing. Pursuant to
Restatement 3d of property §3.1, comment I, the requirement of writing does NOT require that the will be
written on paper, but it does require a medium that allows markings to be detected

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o [Video/Audio Recording –NOT satisfy req.]

 Pursuant to §3.1, video or audio recording cannot operate ass the will itself (not even
holographic) because it does not satisfy the writing requirement. However, it may be used as
evidence of intent.
o [Digital Will – CAN satisfy req]
 [Example: computer file] In Rioux v. Coulombe, police found a suicide note directing to an
envelope with a computer disk labeled “this is my will” which contained a file saved to
memory the same day (decedent also noted such in diary and signed the envelope). The court
held that the will was valid as a writing.
 [Example: computer tablet] In In re Estate of Castro, the court held that a will written on a
computer tablet constitute a valid writing, when a man in the hospital facing imminent death
wrote his will on a computer tablet, had 6 witnesses, signed the will in their presence and had
3 of those witnesses sign. The court reasoned that to rule otherwise would put unintended
restrictions on the meaning of “writing.”

The Signature Requirement

 [General] All statutes, including §2-502, require the testator to sign. If the testator does not sign, then
someone can sign the testators name if in the presence and direction of the testator. In non-UPC states,
usually that alternative individual must sign their own names and addresses.
 Location of “Signature” / Unsigned wills
o [EXAMPLE] In Estate of McKellar, the court held that writing name in exordium and not declaring
it as signature to the witnesses fails to satisfy the signature requirement, reasoning that the name may
be anywhere on the instrument as long as it is declared as the signature to the witnesses. Further,
chronologically, writing a name in an exordium is where you start a will not how you execute a will.
 [Exception] However, if the will is holographic, it must be signed at the bottom.
o [HOWEVER] Pursuant to Restatement 3d Property §3.1, comment l, depending on the TOTC,
provisions that appear under testator’s signature may be given effect under the harmless eror
doctrine, but if not, their existence does not invalidate the will and prevent the provisions above the
signature from taking effect.
 Unsigned Note Cases
o In Dalk v. Allen, the court held that where a woman signed all documents, will duplicates, and
POAs, but did NOT sign the actual will, the will was invalid. The court reasoned that although it
was a clear mistake, it was also clear that she did not sign. Intent is there but signature is missing.
(Also, constructive trust cannot be imposed to fix this)
 [Conversely] In Estate of Attia, the court held that unsigned wills can be admitted to probate
under the harmless error type statutes.
 Digitalized Scan of Handwritten Signature
o In Taylor v. Hold, the court held that a digital scan constituted a signature where a man prepared a
one page will on the computer, had two neighbors act as witnesses, and affixed a digital scan of his
handwritten signature to the end of the document, before printing and having witnesses sign. The
court reasoned that the term “signature” includes a mark, or any symbol or methodology, executed or
adopted by a part with the intention to authenticate a writing or record.

The Attestation Requirement

 [Attestation Clause] (really just evidence)
o [General] Attestation clauses are located immediately below the line for the testators signature.
Pursuant to Restatement 3d Property §3.1, comment q, lawyers still routinely use (even though only
required in Louisiana) because it raises a rebuttable presumption that the events recited therein actually
occurred.

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 [example] For instance, in Young v. Young, the court held that a will, regular on its face but
without an attestation clause, is invalid where witness could not recall whether the required
procedures were followed.
 [exception case] However, in Estate of Clar and Jackson v. Patten, the courts held wills invalid
based on witness testimony persuasively contradicting the attestation clause.
o [Lawyer Liability]
 [liable] A lawyer who supervises may be liable to intended devisees if the lawyer causes the will
to be invalidly executed.
o [example] In In re Grant, the court censured a lawyer for altering a will after the
death of the decedent to conceal the fact theat the will have been invalidly executed.
 [not liable] HOWEVER, a lawyer is typically not liable of a will if the decedent dies before the
lawyer completes preparation of a will or arranges execution.
o [exception: unreasonable delay] In White v. Jones, court held lawyers liable to the
devisees named in the testator’s letter to his solicitor giving directions regarding the
preparation of a new will because the will was simple and the preparation was
unreasonably delayed.
 [Reasonable Time Req.]
o In Estate of Peters, the court took a strict compliance approach and held that a witness cannot sign an
unreasonable time after the testator, reasoning that a witness has an observatory function and a
signatory function. Thus, where a witness signed (a) 18 months after testator and (b) after testator’s
death, the attestation requirement was unsatisfied, and the will was invalid.
 [Similarly] In California’s Estate of Saueressig, the court held that witnesses signatures should
be affixed to the document at least by the time it becomes operative (the death of the testator).
 [Conversely] Pursuant to UPC §2-502, the reasonable time requirement can be satisfied even if
the witnesses sign after the testator’s death.
 [ON EXAM] Can argue for substantial compliance. Can argue harmless error. Can perhaps
fix with an attestation clause.

The Presence Requirement:

 In some states, witnesses must sign the will in the presence of the testator. Some state statutes commonly
impose that the testator sign or acknowledge in the presence of the witnesses, and that the witnesses sign in the
presence of each other.
o [EXAMPLE] In Stevens v. Casdorph, the court took a strict compliance approach and held that a will
must be signed by a testator in presence of both witnesses or signed outside their presence and
acknowledged to both witnesses while they are simultaneously in the presence of each other or the
testator. Thus, in Stevens, where a man signed at a bank, where the witness bank tellers had not seen him
sign, and the witnesses signed separately from each other and separately from the testator, the requirement
was unsatisfied.
 [However] The dissent argued that all parties new the man was at the bank to execute the will, there
was no evidence of fraud, duress, undue influence or incapacity, so the majority’s strict adherence to
the narrow interpretation of statute fails to protect the testator by reaching contrary purpose.
 [EXCEPTION] Conversely, in Wade, the court held that a will that failed to comply with the
requirements was valid where the witness sign and then acknowledged the signature in the presence
of the other witness and the testator.
 Various Tests Implemented in Various Jurisdictions (*implement all*)
o [Line-of-vision-test]
 In the line of vision test, the presence requirement is at minimum that the testator, without changing
his position, might have seen the will being attested, not necessarily that he actually saw it.
o [Conscious Presence Test]
 More liberal, the conscious presence test recognizes that a person can sense the presence of another
without seeing the other person.

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o [UPC]
 Pursuant to UPC §2-502, witnesses need not sign in the presence of the testator or each other,
witnesses only need to witness testator sign or testator acknowledge signature.
o [Stevens v. Casdorph strict compliance] ^

Notarization as an Alternative to Attestation:

 Pursuant to UPC §2-502(a)(3)(B), notarization may be used as an alternative to attestation.
o [EXAMPLE] In Estate of Hall, where a testator signed a will that was notarized but not attested,
the court recognized that notarization can be an alternative to attestation upon clear and
convincing evidence of testator’s intent to make a will.
 In Hall, the court held that there was clear and convincing evidence of intent to make a
will where a testator prepared a joint will expressly revoking all prior wills and codicils,
the testator told his wife to destroy the original will, and the wife also testified the intent
to create a will. Thus, the will was admitted to probate.

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Formalities for Unattested Wills

Nuncupative Wills (Oral Wills)

 [General] A minority of states allow, by statute, personal property to pass via oral wills, but this is usually
limited to (a) soldiers in active military service and (b) mariners or sailors at sea.
 [RULE] Some states allow persons in their last illness to make wills if: (1) they are dying and know it; (2)
they express orally the intent to make an oral will; AND (3) they call upon “competent” witnesses (usually
at least two) to witness the spoken words of testators last will. Typically, witnesses should put the testimony
into writing within a prescribed time after the act.

Holographic Wills
*NOT VALID IN NY*
 [UPC] Pursuant to UPC §2-502(b), a will is a valid holographic will, whether or not witnessed, if the signature
and material portions of the document are in the testator’s handwriting.
 [Varying jurisdictional requirements]
o All jurisdictions require the testator to sign the will, some states require a certain number of witnesses to
prove testators handwriting, and some require it to be dated, others require it to be signed at the bottom of
the document.
 [POLICY THEORIES]
o Some courts validate a holographic will containing some non-holographic matter under one of two
theories: (1) the intent theory and (2) the surplusage theory
 [intent] Under the intent theory, words or marks not intended by the testator need not be in the
testator’s handwriting.
 [surplusage] Under the surplusage theory, adopted by Restatement §3.2, comment b, the portions
of the document in the testators handwriting are given effect as a holographic will if they make
sense as will standing alone, without regard to the portions of the document not in the testator’s
handwriting.
o [New York] In NY, holographic wills are not recognized because the state wants a better channeling
function, lawyers to be needed, less litigation, and consistency (so much variation in holographic will
statutes).
 [EXAMPLE: 1st Generation] In Estate of Black, the court followed a substantial compliance approach, holding
that a holographic will was valid despite being written on partially preprinted stationers form, since the non-
holographic incorporated matter was neither material to substance nor validity. The court reasoned that based
on common sense and public policy it would not make legislative sense to not allow, since policy favors
validity and the legislative purpose was to prevent fraud.
 [2nd Generation] Later, the state statute, which had previously required holographic wills be
“entirely” written, specified that “material provisions” must be written.
o [CONVERSELY] In Estate of Johnson, the court held that a printed will form with random portions in
handwriting lacking sufficient language did not constitute a valid holographic will

GROUNDS OF CONTEST
[General] Pursuant to §2-517, a provision in a will purporting to penalize an interested person for contesting the will
or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting
proceedings.
Intent
(*cannot be cured by §2-503 harmless error)

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 [Common Law]
o In order for extrinsic evidence to be used to establish intent, the nature of the document must be
ambiguous.
 [Statutory Law] Pursuant to UPC §2-502(c) and Restatement, the intent of a document constitutes a
testator’s will can be established by extrinsic evidence. The document need not be ambiguous to do so.
o [unambiguous expression of intent in document = refutable presumption]
 In addition, pursuant to Restatement 3d Property §3.2, a clear, unambiguous expression of
testamentary intent in the document, raises a strong (but not irrefutable) presumption that the
document was executed with testamentary intent. Such presumption is only refutable by clear and
convincing evidence to the contrary.
o [holographic wills]
 For holographic wills, this includes intent for portions of the document that are not in the
testator’s handwriting. Pursuant to Restatement 3d Property §3.2, comment c, testamentary
intent may be established by extrinsic evidence. (Such can also be used to establish meaning)
 [Extrinsic Evidence Proves Intent]
 In Estate of Kuralt, the court held that there was testamentary intent for a valid
holographic codicil based on extrinsic evidence. In Kuralt, looking to all the evidence, the
court reasoned that in light of a long relationship, history of support, impending death,
checks accompanying letter, and, in particular, Kuralt’s use of the word “inherit,” the
decedent’s letter was a valid holographic codicil.
 [Dissent] It should be noted that the Kuralt dissent suggested application of the harmless
error statute; however, such statute can only be used to cure formalities NOT intent.
 [Extrinsic Evidence NOT permitted]
 [CONVERSELY] In Edmundson v. Estate of Fountain, the court ruled that where
testamentary intent cannot be ascertained from the face of the document, extrinsic
evidence may not be admitted. Thus, the title “last will” did not cure a document that
lacked any language indicating intent to give or leave property to children.
o [Sham Wills]
 Sometimes courts use extrinsic evidence to show lack of testamentary intent.
 [Example] In Lister v. Smith, a testator executed a codicil to his will, but extrinsic evidence was
presented and a jury found that he never intended the codicil to be operative, and merely intended
to force a family member to give up house.
 [Similarly] In Vickery, the court denied probate to a will when evidence showed that the
decedent execited it to satisfy a requirement for initiation into a Masonic order.
 [Similarly] In Fleming v. Morrison, the court denied probate where a will, regular on face,
had evidence showing that the decedent told drafting lawyer it was a fake made for the
purpose of inducing woman to have sex with him.
o [Conditioned Wills] Conditioned wills are those executed in contemplation of imminent danger
 [Not conditioned]
 In Eaton v. Brown, the court held that there was testatementary intent where a decedent
said she was going on a jouney and may not return, made her last bequest, then returned
from trip but died months later. The court reasoned that she was thinking about the
possibility of death, and making her last commands.
 In Estate of Mallet, the court held that a holographic will stating “if I should expire from
this operation, I wish my wife inherit everything” was not a conditional will, but instea
expressed testators inducement for writing a will.
 In Albright, the court held that a will was not conditioned on a residuaty divesee being a
minor at the time of testator’s death.
 [Conditional] [CONVERSELY] In Estate of Blankenship, the court held that the will was
clearly and unambiguously condition where a husband and wife do a joint will stating that in the
event they both die simultaneously or within a short time of each other, their daughter anne
would not take. They die 3 years apart.

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Testamentary Capacity.
[Age Requirement]
Pursuant to UPC §2-501 and almost all Non-UPC states, 18 is the minimum age for the execution of the will. Such
age need be purely physical nd not mental age or capacity.
[Mental Requirement]
A person must have mental capacity in order to make or revoke a donative transfer. Pursuant to UPC §2-501, the
mental capacity requirement is that a person must be of “sound mind” to make a will.
 [General] Pursuant to Restatement 3d Property §8.1, a person must have mental capacity in order to make
or revoke a donative transfer. If the donative transfer is a will, or a revocable gift, the testator or donor must
be capable of generally knowing and understanding the nature and extent of their property, bounty and
disposition.
o [irrevocable only] HOWEVER, it the donative transfer is in the form of an irrevocable gift, the donor
must have the mental capacity necessary to make or revoke a will and must also be capable of
understanding the effect that the gift may have on the future financial security of the donor and the
donor’s dependents.
 [RULE] In order to determine whether the mental capacity requirement is satisfied, courts typically look at
mental ability NOT actual knowledge. Thus, a testator need not have actual knowledge of the objects in his
bounty, he only need have sufficient mind to know the objects.
o [ability> actual knowledge] In Williams v. Vollman, the court held that an elderly testator was
competent to execute a will at a time when his wife and daughter were deceased, but he was unaware
of their deaths because the news was kept from him for hear that it would weaken his resolve to live.
o [Evidence to establish lack of capacity]
 [NO Capacity] Although there is a presumption of capacity, in Fletcher v. DeLoach, the court
held that a testatrix did not have the necessary capacity to execute a will by looking to the
evidence of (a) her mental and physical condition before and immediately after execution of the
will, (b) the conversations, acts, and appearance of the testator, and (c) the character of the
testamentary scheme and reasonableness of distributions.
 Thus, in Fletcher, the court reasoned that where the testatrix was depressed,
disorientated, declining in appearance and cleanliness, and enacted a big change in her
testamentary scheme, she did not have the required capacity to execute a will.
o [NOTE: character of scheme] Unequal distribution does not per se raise a
presumption of incapacity. Rather, unequal treatment of those who ostensible have
equal claims, or preference to the exclusion of another, may be deemed unnatural
by a jury.
 [CONVERSELY] In Selb’s Estate, the California court held that the 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 holdin that a testator lacked mental capacity!]
 [Malpractice/Professional Responsibility]
o In Gonsalves v. Alameda, the court held that a drafting attorney is not liable for malpractice for
failing to investigate client’s capacity. HOWEVER, a lawyer should not prepare a will of other
dispositive instrument for a client who the lawyer reasonably believes lacks requisite capacity.
 [Lucid Interval]
o [General] Pursuant to Restatement 3d of Property §8.1, comment m, a person who is mentally
incapacitated part of the time but who has lucid intervals during which they meet the standard for
mental capacity can, in the absence of an adjudication or statute to the contrary, make a valid will or
valid inter vivos donative transfer, provided such is made during the lucid interval.
 [Example] In Lucero, the court held that there was sufficient capacity where a will was executed
during a lucid interview. Despite living with dementia and cortical atrophy, Lucero enjoyed
lucid intervals as evidenced by Lucero attending a branding at a ranch, engaging in normal
conversations, recognizing family, and engaging in appropriate discussions with them.

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 [Similarly] In Bye v. Mattingly, a court upheld the validity of a will, based on the lucid
interval doctrine notwithstanding that the decedent had been diagnosed with Alzheimer’s
disease and was under conservatorship.
 [Insane Delusion/Monomia/Partial Insanity]
o An issue here is whether the testator was experiencing an insane delusion, whereby the testator
adheres to a belief, with no foundation in fact, against all evidence and reason.
 [RULE] In Kingdon v. Sybrand, the court held that an insane delusion does not necessarily
affect the validity of a will, evidence must go further and establish that the will itself was the
product of the delusion, and the testator divides his property in a way which, but for the
delusion, he would not have done.
 [Example] In Estate of Koch, the court held that a will was valid by reason of insane
delusion, reasoning that the decedents feelings toward his children were produced by
beliefs held by decedent which were unfounded in fact and these beliefs were the reason
decedent excluded his natural objects from the bounty of the will.
o [use only to distinguish on exam] In Koch, the testator believed the wife was bad
and no one cared for him, he demonstrated suicidal tendancies, was recommended
psychiatric treatment. When his health and mind deteriorated, his daughter sought
to have him committed, after which he wrote letters to his kids to never come
home again.
 POLICY PRECAUTIONS A lawyer who drafts a will has the duty to take special precautions to preserve
testator’s intent.
o [No-Contest clauses] Although such may not work under the UPC if there is a probable cause fo the
proceeding, a lawyer may nevertheless employ a no-contest provision. However, this would not be a
major deterrent of contesting unless the potential contestant was left a substantial gift.
o [will substitute] Many suggest using will substitutes, in particular, a revocable inter vivos trust on the
theory that such are more resistant to capacity and undue influence challenges.
o [traditional precautions] A lawyer should take general precautions of having all preliminary
conferences in the presence of the beneficiaries, building a record, and warning testators if there is
irregularity in their proposed plans.

Undue Influence/ Duress (*common law for both UPC and non-UPC states)
[General] Pursuant to the Restatement 3d Property §8.3, a donative transfer is invalid to the extent that it was
procured by undue influence, duress and fraud.
 [Duress]
o A transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that
coerced the donor into making a donative transfer that the donor would not otherwise have made.
 [Undue influence]
o In order to determine whether such existed, courts should look at whether the wrongdoer exerted such
influence of the donor that is overcame donor’s free will and caused the donor to make a donative transfer
that the donor would not otherwise have made.
o [presumption of undue influence]
 Based on circumstantial evidence, courts usually accept a presumption of undue influence arises if the
alleged wrongdoer was in a (1) confidential relationship with the donor and (2) there were suspicious
circumstances surrounding the preparation, formation, or execution of a donative transfer.
 [Confidential Relationship] Pursuant to Restatement §8.3, a confidential relationship giving rise
to a presumption of undue influence includes (1) a confidential fiduciary relationship (i.e.
lawyer), (2) a reliant relationship, or (3) a dominant/subservient relationship where the testator
felt they had to listen.
o [Suspicious Circumstances] Pursuant to Restatement §8.4, existence of a confidential
relationship is not enough, there must also be suspicious circumstances. Courts typically

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consider several factors, such as (1) the extend to which a donor was in a weakened
condition, (2) the extent to which the alleged wrongdoer participated in the procurement of
the will, (3) whether the donor received independent advice from an attorney, (4) whether
the will was prepared in secrecy or haste, (5) whether the donor’s attitude towards others
changed by reason of relationship with wrongdoer, (6) whether there is a discrepancy
between previous and new wills, (7) whether continuity of purpose runs through the wills,
and (8) whether the disposition of the property is such that a reasonable person would
regard it as unnatural, unjust, or unfair.
 [EXAMPLE] In Lipper v. Weslow, the court recognized the test for undue influence
is whether such control was exercised over the mind of the testatrix as to overcome
her free agency and free will and was substituted by the will of another such that the
testator did what they would not usually have done but for that control.
 In Lipper, the court held that there was no undue influence of the testatrix
where she was of sound mind, strong will, and excellent physical condition,
even though there was evidence that the alleged wrongdoer was a lawyer who
bore malice, lived next to testator, had a key, the testator had no independent
counsel, there was an unnatural disposition, and there was evidence that some
provision of the will was untrue.
o [If unnatural disposition issue on exam] However, it should be
noted that in Lipper, the court held that despite the unnatural
disposition of property, a record containing an explanation of such
decision will maintain the validity of the will.
 [EXAMPLE] SEE FATHER DEVINE AS WELL.
o [Domestic Partners]
 Sometimes courts find undue influence based on cohabitation in cases of domestic partners where it
would not be found for spouses.
 Pursuant to Restatement 3d Property §8.3, a testator’s domestic partner is as much a natural object of
a testator’s bounty as a donors spouse. Thus, leaving a substantial devise to an unmarried partner is no
basis for invalidation on grounds of undue influence.
 [previously] In Lamborn v. Kirkpatrick, the court invalidated the will of a childless widower
that his partner wrote for him as she sat at his bedside 12 days before death, using cohabitation
as a basis for finding undue influence.
o [CONVERSELY] In Evans v. May, the court declined to hold that a devisees 30-year
relationship as the decedents life mate constitutes undue influence as a matter of law.
 [Lawyer Involvement]
o [Beneficiary] Based on MRPC §1.8(c), a lawyer is forbidden from naming themselves as beneficiaries in a
testamentary document because they are prohibited from soliciting a substantial gift. However, a lawyer
can benefit, just not disproportionately.
o [Fiduciary] Pursuant to MRPC §1.7, a lawyer is not necessarily prohibited from being a fiduciary in a will,
but such will be subject to general conflict of interests.
o [Testamentary Appointment] If a will provides that a drafting lawyer is to be hired to represent the PR,
usually such is not binding on the PR, because clients have the right to hire their own attorneys. However,
is the pr is subject to such as a condition, courts have been mixed.

Fraud/Forgery
Testators may be defrauded in a variety of ways, primarily fraud in the execution and fraud in the inducement.
 [General Fraud] Pursuant to the Restatement 3d Property §8.3, a donative transfer is invalid to the extent that
it was procured by undue influence, duress and fraud. A transfer is procured by fraud if the wrongdoer
knowingly or recklessly made a false representation to the donor about a material fact that was intended to and
did leaf the donor to make a donative transfer that the donor would not otherwise have made.

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o [EXAMPLE] In Latham v. Father Devine, the court held that a beneficiary is liable for undue influence
and fraud where, through false representations, physical force, and murder, he prevents a testator from
executing a will that would give to another.
 NOTE: Pursuant to UPC §2-803, courts den killers rights to their victims property.???
REMEDIES
 [Constructive Trust] 
o One equitable remedy that courts may apply is a constructive trust to prevent unjust enrichment. A claim
for constructive relief based on wrongful acts can be asserted against innocent beneficiaries as well.
o [example] In face of undue influence and fraud in Father Devine, as a remedy, the court put the property
in a constructive trust for the rightful beneficiary, reasoning that anything short of an equitable remedy
would be unjust.
o [example] In Pope v. Garrett, the court held that where a testator’s sister and niece used physical force,
preventing her from signing a will, the rightful beneficiary was entitled to the imposition of a
constructive trust.
 [Tortious Interference] 
o A person who by undue influence, duress, fraud, or other tort causes decedent to divert property from one
who would otherwise receive it may be liable for damages in tort for wrongful interference. Unlike a will
contest, consequential and punitive damages are available under a tortious interference claim.
 [Living Probate] 
o Very few courts allow testators to prove wills while they are still alive. Nevertheless, Ark. ND, and Ohio
permit.
 [Settlement/ADR] 
o Will contests, however, usually end in settlement. For example, in Seward Johnson, the case settled with
$40M of the approximately $400M Johnson & Johnson estate going to the children, who argued that the
will was a product of undue influence of Johnson’s third wife.

***************************SEE WILLS PROBLEM***********************************

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Integration of Unattested Documents

Integration
Pursuant to Restatement 3d of Property, to be treated as a part of a will, a page or other writing must be present
when the will is executed and must be intended to be part of the will. However, in most jurisdictions, papers that
were not present when the will was executed can be regarded as part of the will by incorporation by reference or by
republication.

Incorporation by Reference
Pursuant to UPC §2-510 and Restatement 3d Property §3.6, a writing in existence when a will is executed may be
incorporated by reference is the language of the will (1) manifests this intent and (2) describes the writing
sufficiently to permit its identification with reasonable certainty.
o [example] In Simon v. Grayson, the court held that a document may be incorporated by reference to a
will even if it was created after the will but, before a later codicil was executed. Further, the court held
that a document is sufficiently identified by a will even if it bears a different date from the date that is
referenced, so as long as it serves the same function as the one stated in the will.
o [HOWEVER] Some states, such as NY and CT, refuse to recognize this doctrine.
 [example] For instance, in Hatheway v. Smith, a court reasoned that the only power, given by
the statute of wills, is that of disposing of property by means of a writing containing in itself
language by which the subject and object of the testamentary gift intended is therein expressed.
 [Incorporation in Holographic Wills]
o Many states are divided over whether a valid holographic will can incorporate a writing that is not in
the testators handwriting. For instance, a typewritten document is not valid as a holographic will, thus
it is hard to determine if it can be stapled to such.
 [example] In Allen v. Maddock, the court held that where a testator had an invalid will but
executed a valid codicil referencing the will that the will was incorporated by reference.

Republication:
Republication is another method to subvert the incorporation by reference requirement that only documents in
existence when the will was executed can be incorporated. Republication occurs when a valid codicil to a will is
thought of as the equivalent of re-execution of the will.

Acts having Independent Significance

(Reference to Property)
 [UPC] Pursuant to UPC §2-512, 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 they occur before or after
the testator’s death.
o For example, the execution or revocation of another individual’s will.
 [Common law] Pursuant to Restatement §3.7, the meaning of a dispositive or other provision in a will may be
supplied or affected by an external circumstance referred to in the will unless the external circumstance has no
significance apart from its effect upon the will.
 [Example Note Cases]
o [Unascertained Classes of Takers]
 Courts have upheld devises for unborn and unascertained classes of takers. For instance, in
Stubbs, a court upheld a devise to a testator’s sister and upon her death to partners whoever they
may be.

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 [Similarly] courts upheld a devise of all property to “whoever shall take good care of me
and maintain, nurse, clothe, and furnish me with proper medical treatment.” And
similarly, the court in Renheimer, the court upheld a devise to the party who “may be
farming amy farm and taking care of me at my death”
o [Content Bequests]
 Courts have upheld devises of contents. For example, in Gaff, the court upheld a devise of the
contents in a draw of a safe. Similarly, in Creamer, a court upheld a devise of one bureau and its
contents.
 [conversely], the court held that in In re Robinson, where a devise of a desk contained a
key to a box, the devisee was not entitled to the contents of the box.
o [Will of another person]
 Courts typically hold that a will of another person is not a testamentary act of the decedent and
has independent significance. Thus, a testator can direct property to be distributed in according
with the will of another even if the other will was executed later.
 [Example] For instance, in In re Tipler, the court upheld a will and codicil that left most
of the testatrix’s estate to her husband, and if he predeceased her than the disposition
would follow his will.
o [NO independent significance]
 There is typically no independent significance where a designation of one or more divisees in an
unattested writing to be prepared by the testator after the wills execution. A devise to the persons
named in a separate unattested letter to be prepared by a testator on a future date is invalid.
(unless enforceable as a secret trust or authorized by statute).

Reference to Unattested Writing

(*reduces formalities of incorporation and independent significance*)
Sometimes a testator may dispose of tangible personal property without having to meet the requirements of the
doctrines of incorporation by reference or acts having independent significance.
 Pursuant to UPC §2-513, a will may refer to a written statement or list to dispose of items of tangible personal
property not otherwise specifically disposed of by the will, OTHER THAN MONEY. To be admissible as
evidence of the intended disposition, the writing must be (1) signed by the testator AND (2) describe the items
and the devisees with reasonable certainty.
o For example, in Jones v. Ellison, the court held that a note found in the testator’s jewelry box was
sufficient to demonstrate her intent to give the devisee the items found in the jewelry box.

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Joint Representation Issues

Introduction:
Lawyers frequently represent both spouses when designing an estate plan, helping to reduce unnecessary legal fees
and assure the plans are compatible.
 [MRPC] Pursuant to MRPC 1.6, a lawyer shall not reveal information relating to the representation of the
client without informed consent. Further, pursuant to MRPC §1.7, a lawyer shall not represent a client if
representation involves a concurrent conflicts of interests. Thus, where spouses engage in joint representations,
issues may arise, such as where there is an extramarital affair and secret codicil,
o [Solution] In such cases, the Florida Advisory Opinion suggests not revealing the confidential
information, and withdrawing from the case. Here, the duty of confidentiality is seen to take precedence.
In withdrawal, the lawyer should inform both parties of the conflict.
o [Alternative] However, under Restatement §112, comment i, some courts have considered a
discretionary approach whereby the lawyer would have discretion to determine whether the lawyer
should dislose.
o [NEW YORK APPROACH] [Separate Representation; Same Lawyer] Some advocate separate
representation of multiple clients by the same lawyer. Under such approach, clients agree that lawyer will
not disclose info to the other without permission.
o [EXAMPLE] In A v. B, the court held that a law firm could disclose an extramarital child to a husband’s
wife because (1) the permissible disclosure rules differed, (2) the firm learned about the husband’s
paternity from a 3rd party and not from the husband himself, and (3) the spouses had signed an agreement
indicating their intent to share all information with each other. (despite there not being a waiver of
confidentiality).

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Revocation by Document

Introduction
Pursuant to UPC §2-507(a)(1) and Restatement §4.1, a will may be revoked by executing a subsequent will that
revokes the previous expressly or by inconsistency. Pursuant to 4.1, courts typically find that where a later will
makes a complete disposition of the testator’s estate, it is presumed that the testator intended the later will to replace
the earlier. (*unless rebutted by c + c evidence). Conversely, if the later will does not make a complete disposition,
then it is presumed that the later will was intended to supplement the earlier will.
 Revocation by Inconsistency (implied revocation)
o [paystub/business card codicils] In Gilbert, the court held that where a will does not have a revocation
clause and only distributes a part of the residuary estate, it shall be treated as a codicil and not as a
second will to revoke the first because it is not sufficiently inconsistent. Furthermore, the codicils were
written on a business card and a paystub, suggesting he probably did not intend for such to replace his
will.
 [similarly] in Danford’s Estate, the court ruled that the fundamental question is whether the later
will “was intended to wholly supplant the earlier will.”

Revocation by Act

Introduction [Cancellation/Burning/Tearing]
Pursuant to UPC §2-507(a)(2), a testator may revoke by performing a revocatory act on the will, such as burning,
tearing, cancelling, obliterating, or destroying, provided the act is performed with the intent and purpose of
revoking the will.
 [cancellation]
o [touching words]
 Under the UPC, a cancellation need not touch the words of the document; however, under common
law, the words must be touched.
 [EXAMPLE] In Kronauge v. Stoecklein, the court held that writing in the margin of a will
without signature does not effectively revoke the will, reasoning that since the writing does not
touch the wording and does not purport to be signed, it is invalid cancelling. Had she signed, the
margin writing may have been alid as a revocation by subsequent will.
 [Conversely] The court in Kroll held that a testator effectively revoked her will by writing
“VOID-NEW WILL DRAWN UP 6-28-90”.
 [conversely] The court in Estate of Dickson held that the words of cancellation that touched the
notarial seal of the self-proving affidavit attached was sufficient as an act of revocation.
o [throwing away]
 In Alabama v. Winter, the court held that merely putting a will in a paper stack/throwing it away is
not sufficient to cancel or abandon the will because it did not materially or permanently destroy the
efficacy of the document.
 [burning/tearing] Touching of the words is typically not required for revocation by tearing or burning.

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Revocatory Act Performed by Another

Pursuant to UPC §2-507, the performance of the revocatory act may be performed by another person, but it becomes
a question of whether the other person’s act was done in the testator’s presence.
 [No Presence = NOT revoked] In Estate of Banker, the court held that a will was not revoked because it
must be done int eh physical and mental presence of the testator. Thus, where a testator remained in bed in
a different room while his will was destroyed, such will was not revoked.
o [EXCEPTION] However, under UPC §2-507, if a testator calls an attorney and says to destroy it,
then the revocation would be valid.

Ineffective Attempt to Revoke

Typically, if a testator wants to revoke, but someone else intervenes and prevents revocation or revocation is invalid,
the will remains effective. Without physical act, the intent to revoke is insufficient.
 [destroying copy NOT effective] For example, in Estate of Tolin, the court held that mistakenly
destroying a copy rather than the original, will NOT constitute an act sufficient for revocation.
o [constructive trust remedy] In Tolin, the court held that a constructive trust may be imposed
under the unique facts that there was a clear intent to revoke, that such intent was frustrated by
mistake in destroying a copy instead, and that the beneficiary benefitted from the testator’s
mistake at the expense of the intended beneficiary.
 [conversely] In Estate of Charitou, on facts similar to Tolin, the court refused to
implement a constructive trust because of the absence of wrongdoing.
 [use of Tolin constructive trust elsewhere]
 In Allen v. Dalk, the court refused to implement a constructive trust where in an
execution ceremony the testator signed all documents but mistakenly forgot the
most important one—the will.
 In Nelson, the court held that unjust enrichment is sufficient for the imposition
of a constructive trust and proof of wrongdoing or fraud is unnecessary.
o [ADVICE] I would advise a lawyer to make a copy look as much like a copy as possible,
especially with all the technology available.
 ON EXAM: try substantial compliance, 2-503 (provided there is intent), and constructive trust.

Presumption of Intent to Revoke

In Estate of Bakhaus, the court held that if a will contestant proves that the testator had custody of the will, a will
that is found physically mutilated is presumed to have been revoked. However, this presumption is rebuttable.
 Pursuant to Restatement §4.1, comment j, the presumption regarding a mutilated will must be tempered
when the act is a blemish that could easily have occurred by accident. Although such are technically
sufficient, they must be shown to be done with intent to revoke.
o [will in messy barn w/tear] In Estate of May, the court recognized that even where there is a
presumption of an intent to revoke upon mutilation of a document, intent nevertheless governs and
the presumption is rebuttable. As such, the May court held that there was no revocatory intent
where the decedent told Mr. Brandt that he had a will on two different occasions, where no other
will was found, and particularly where a Mrs. Brandt, who would have taken under the previous
will, corroborated her husband’s testimony.
 [However] it is suggestable that without Mrs. Brandt’s corroboration, this case could have
gone either way.

Lost or Destroyed Wills

When a will cannot be found, there is a presumption of intent to revoke; however, this presumption is rebuttable, but
the standard for such differs among jurisdictions:
 In Estate of Crozier, the court held that the presumption is rebuttable only by clear and convincing
evidence.

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o [conversely] Restatement §4.1, comment j, requires a lower standard of proof, recognizing that the
will might have been accidentally lost or destroyed.
 In Estate of Leggett, the court used a different standard, holding that the amount of evidence needed to
rebut presumptions depended on the nature of the testator’s situation that might suggest either the
likelihood or unlikelihood that the testator intended to revoke.
 [Restrictive lost wills statutes]
o Some jurisdictions require multiple witnesses to prove provisions and prove in existence at death.

Wills Executed in Duplicate (**JUST NEVER DUPLICATE OKAY**)

 [general] If an act of revocation is performed with revocatory intent on one of the duplicates, it also revokes the
other duplicate. However, an issue arises where one copy of a will is retained by a lawyer while the testators
copy is lost at death. (testator may be reckless if they know lawyer’s copy is safe).
o [HOWEVER] Some courts have found that the existence of duplicate wills is sufficient to conclude that
the wills remained unrevoked.
 [example] In Stiles v. Brown, the court held that there was no revocation when Stiles’ will was not
found, because Stile’s lawyer twice gave Stiles the legal advice that is he desired to revoke he
would have to destroy both copies and Stiles made no effort to destroy the lawyer’s duplicate.
o [testator w/ both copies] In Etgen v. Corboy, the court held that where duplicate originals were In the
possession of the testator, and one was altered, while the other is original, neither was entitled to the
presumption that it was the true will.

Destroyed by Fraud
 [general] where a person obtains access to a testators will and wrongfully destroyes it, the will is not revoked,
because the act is not accompanied by a testator’s intent to revoke. Unfortunately, this fraud is difficult to catch.
o [fraud caught] In the Estate of Legeas, the court held that where a conservator/beneficiary of an old
will, stole and destroyed a testator’s new will, the will was fraudulently destroyed and not revoked.
Furthermore, since this was considered tortious interference, the wrongdoer had to pay hefty
compensatory and punitive damages.

Partial Revocation by Revocatory Act

 Pursuant to Restatement §4.1, comment c, partial revocation by subsequent will is authorized throughout the
US. However, some states do not allow partial revocation.
o [example] In Hansel v. Head, the court hed that the oliteration of the name on one member of a class that
is to receive ½ net cas assets is NOT material to the overall testamentary plan, and thus, that portion of
the will should be admitted to probate and share allocable to the obliterated name shall be disposed
through intestacy.
 [CONVERSELY] In Johannes Estate, on very similar facts to Hansel, the court denied the
probate of the will entirely.
o [Example] In Seeley, the court held that there was valid partial revocation where a testator cut a provision
that granter her son an option to purchase a property, reasoning that the testamentary scheme is relatively
unchanged.
 [CONVERSELY] In Dodson v. Walton, the court held a will void where a testator’s will devised
an estate to 6 people equally, and then cancelled one name, reasoning that the testamentary scheme
had changed.

Codicil of a Revoked Will

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 Pursuant to Restatement 3d §4.1, comment n, revocation of a will by act does not revoke a codicil to the will. If
the codicil depends on the revoked will for meaning, however, the codicil may have no effect as a matter of
construction.
o Further, most US courts hold that if the will and codicil are necessarily interdependent as to be incapable
of separate existence, the revocation of the will ipso facto revokes the codicil.
 Conversely, in the UK, courts have held that a will may be revoked, but its codicil can only be
revoked if the act is performed upon it.

Revocation by Changes in Circumstances

Introduction:
 Pursuant to UPC §2-508, §2-804, and Restatement §4.1, the dissolution of a testator’s marriage Is a change in
circumstance that presumptively revokes any provision in the testators will in favor of their former spouse.

Revocation by Marriage
 Marriage automatically revokes a premarital will.
o [example] In Estate of Spencer, the court held that where a testator bequeathed his entire estate to a
woman by her maiden name and then married her, the will was revoked by such subsequent marriage.
The court reasoned that upon marriage, without a provision made for contingency of such marriage, the
will is revoked. This was a strict interpretation of the statute.
 [similarly] In Erickson, the court held that where a testator executed a will, and then married his
wife two days later, the will was revoked because there was no contingency of subsequent
marriage pursuant to the statute. In Erickson, the court determined that whether a will provides of
the contingency of subsequent marriage, such should be determined (1) from the language of the
will itself and (2) without resort to extrinsic evidence of intent.

Revocation upon Divorce

 In UPC §2-804 that divorce (or annulment) alone revokes any testamentary provision favoring a former spouse.
In non-UPC jurisdictions it is widely held that a divorce (or annulment) accompanied by a property settlement
revokes any testamentary provision favoring a former spouse.
o [however] in Rasco, the court held that no revocation occurred in a situation where the divorced couple
continued to live together after the divorce and never carried out the property settlement agreement.

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Revival

General
There are two common law revival views: (1) automatic revival and (2) anti-revival (where you can never revive).
NY is an antirevival state.

UPC Approach
In general, UPC §2-509 establishes a set of presumptions, WHICH APPLY in three situations that start out with Will
#2 revoking Will #1.
 [wholly revoked by act = NO REVIVAL]
o Pursuant to UPC §2-509(a), where a subsequent will wholly revokes a previous will, there is a
presumption of no revival
 [partly revoked by act = REVIVAL]
o Pursuant to UPC §2-509(b), where a subsequent will partly revokes a previous will, there is a
presumption of revival.
 [revoking will is then revoked = NO REVIVAL]
o Pursuant to UPC §2-509(c), where a subsequent will that previously revoked a will in whole or in part is
thereafter revoked by another later will, there is a presumption of no revival.

Common Law Approaches

 [Ecclesiastical Rule] *preferred to
o Under the Ecclesiastical Rule, whether a will would be revived would depend on intent (Williams v.
miles)
o [examples]
 In Hawes, the court ruled that destruction of a subsequent will is not itself sufficient to
demonstrate intent to revive.
 In Gould’s will, the court held that careful preservation of a revoked will by a testator can be
counted as indication of an intent to revive
 In May v. McCormick, the court held that in absence of evidence of intent to revive, a revoked
will is not revived by the destruction of a later will that expressly revoked all prior wills.
 [The Common Law Rule]
o Under the Common-Law rule, as in Goodright v. Glasier, where the a will is revoked automatically by a
subsequent will, and then that subsequent will is revoked by act, then the original will is revived.
 [Restatement]
o Pursuant to Restatement §4.2, a will that was revoked by a later will or by act may be revived by re-
execution of the will, by executing a codicil indicating intent to revive the previously revoked will.
 Pursuant to 4.2, a will revoked by dissolution of marriage may be revived if the testator remarried
the spouse or if the dissolution of the marriage is nullified. (along with the above)

Statutory Rules of Revival

 In the US, 14 jurisdictions maintain an anti-revival stance and require either re-execution of the revoked will or
the execution of a codicil showing intent to revive.
o In Estate of Boysen, the court looked to testators intent in ruling that there are three questions for the
trier of fact to determine circumstances of revocation: (1) whether the testator, at the time he revoked the
later will, knew if the earlier will was in existence; (2) if the testator did know that the earlier will was in
existence, whether he knew the nature and extent of his property and the disposition made of his property

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by earlier will, particularly with respect to persons with a natural claim on his bounty., and (3) whether
the testator disclosed an intent to make the disposition which the earlier will directs.
 In Boysen, the court held that a testator, at the time he had revoked a will, did not intent to
revive an earlier will because the second will expressly revoked all prior wills and codicils,
and the second will was revoked when the decedent tore it in half.

Revocation of a Codicil
 In Estate of Herring, the court applied the common law rule of revival, holding that the subsequent revocation
of a codicil leaves the will in force and in effect as written.

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Dependent Relative Revocation (DRR)

General
The common law doctrine of Dependent Relative Revocation (DRR) gives testator results that come close to actual
intention when actual intention, though established to court’s satisfaction, cannot be given effect.
 [Restatement 3d Property §4.3] Under DRR, a partial or complete revocation of a will is presumptively in
effect if the testator made the revocation (1) in connection with an attempt to achieve a dispositive objective that
fails under applicable law; OR (2) because of a false assumption of law, or because of a false belief about an
objective fact that is established by clear and convincing evidence. Such presumption is, however, rebuttable.
o [Evidence of Intent]
 [In Callahan’s Estate, the court looked to the evidence of intent, and held that where a wife
and husband tore up their wills with the goal of reviving the old ones, the husband died
shortly after re-executing the old will, but the wife dies soon after without executing, the DRR
doctrine applied and to the later will.
 Although challengers argued that the testatrix in Callahan had adequate opportunity
to repare a new one, the court reasoned that the wife’s grief of husband’s death,
necessity for arrangements, and loss she felt constituted adequate explaination of
failure to discuss the matter of a new will.
 [CONVERSELY] In Estate of Patten, the court ruled that the doctrine of DRR applies only if
the testator clearly intended that the revocation of the old will be conditioned upon the
validity of the new one. In order to determine intent, the proponent must show (1) that the
testator executed the new will at the same time or soon after the destruction of the old will,
and (2) that the wills are similar.
 Thus, in Patten, the court held that DRR did not apply where intent of the testator
could not be proved since there was no evidence the testator executed the new will at
the same time or soon after the destruction of the old will and, while somewhat
similar, the contents of the will were sufficiently different.
o [Uncompleted Plans] *note cases*
 In Dougan’s estate, the court held that where a testator had a will prepared but died before
getting to the office to execute it, DRR applied.
 In Estate of Ausley, the court held that where a testator died during the drafting of the till,
DRR applied.
 In Daoang, the court held that the settlor of a revocable trust had sufficiently manifested the
intent to amend the trust by signing a letter sent by his attorney to confirm the settlors plans to
amend the trust, even assuming the subsequent execution of a more formal document was
contemplated.

Unattested Handwritten Alteration of Attested (NOT HOLOGRAPHIC) Will

 Testators sometimes attempt to alter a will by marking them up. In the absence of the §2-503 harmless error
rule, the inserted unattested language cannot be given effect. Thus, it becomes an issue of whether crossed-
out attested language stands as a partial revocation or whether the revocation is ineffective under DRR.
o In Schneider v. Harrington, the court held that where a testator cancels or obliterates portions of
their will in order to substitute different provisions, and in such a way as to show a clear intent that
he renovation is conditional on the validity of the substitution, and the substitution fails for want
of proper authentication, then through DRR, the will stands as originally drawn.
 Thus, in Schneider, where the testator changed the devisee to 1/3 of her original will and
the will had no residual clause, the court determined that the testatrix intended the

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cancellations to only be effective if the substitutions were valid and they were invalid, the
original will is upheld through DRR.
 Under UPC §2-507,testators changes may have been given effect.
 [Conversely] In Rucl v. Hardy, the courts held that DRR was inapplicable where
legacies were revoked because a reduction of 80% of the legacy tends more to
show a preference on a testators part that her legatees should have nothing rather
than that they should have the full sum.

Express Revocation by Subsequent Instrument (NO DRR)

 In Crosby v. Alton Ochsner Med Foundation, the court held that DRR does not apply when a will contains an
express revocation, reasoning that there is nothing from which it could be inferred that a testator intended only
to revoke conditionally.

Partial Application of DRR:

 In Arrowsmith, the court held that DRR did not apply to a will with express revocation but lacking a needed
perpetuities clause, reasoning that plucking the necessary clause needed for a document and inserting it into a
new will is inconsistent with the justifications for DRR.
o [CONVERSELY] In Estate of Angerson, the Court held that DRR applied with regard to a provision in
the testator’s first will that was otherwise wholly revoked by her second will due to attorney error.

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Post-Execution Events Affecting Wills

Lawyer’s Professional Responsibility

 If a lawyer has no reason to believe that has been supplanted by another lawyer, it is not only his right but may
be his duty to advise client of any changes of fact ot law which may defeat client’s testamentary purpose. (i.e. if
the lawyer has the will for “safekeeping” it is likely there is a continuing relationship)

Changes in the Client’s Estate

 Many doctrines traditionally involve a two-stage analysis which (1) classifies the devise and then (2) applies the
doctrine based on the classification.
o Pursuant to Restatement §5.1, a specific devise is a testamentary disposition of a specifically identified
asset, a general devise is a disposition usually of a specified amount of money, and a residuary devise is
whatever is left over.

DBR: 3 Important A’s

 Ademption (specific devise)
o An Ademption is where a specific devise is no longer in an estate (sold/destroyed/lost). The devisee
would not take anything;
o [Doctrine of Ademption by Extinction]
 In the doctrine of ademption by extinction and under UPC §2-606, a specific devise is adeemed if
the testator no longer owns the specifically devised property at death
 [example] In Estate of Hume, the court held that they will not inquire the reason as to why the
specifically devised property is not found
o [if general devise] however, if this was a general devise the devisee could take a substitute worth the
same amount.
 Advancements
o When gifts are made by the testator during life to someone who is a devisee under the will, the UPC
provides that the advancements must be in writing claiming such.
 Accession (a/k/a “accretions”)
o Unlike ademptions, where the estate has more assets the classification will determine the disposition.
 [general/residuary] Any accessions will go to the residuary clause.
 [specific] Any accessions, usually stock (or a pregnant animal) will go to the devisee.

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Post Execution Events Affecting Wills:

LAPSE and ANTI-LAPSE

Step 1: Is there a lapse? Step 2: Does an anti-lapse statute apply?

LAPSE:
 Under §2-604, a devise, other than the residuary devise, that fails for any reason, becomes part of the residue.
 [120-hour survival requirement]
Pursuant to UPC §2-702, a devisee must survive 120 hours after the testator to receive devise.
o [Exception] In Estate of Kerlee, the court held that where a sister only survived a testator by 74 hours,
the devise in favor of the testators sister did not lapse because the survival statute was nullified by
language in his will “requiring that the devisee survive the testator.”
 [Devolution of a Lapsed Devise]
In absence of an applicable anti-lapse statute or expressly designated alternative taker, lapsed devises devolve
in accordance with a few rules.
o [Lapse of NON-Residue] A lapse in a dispositive provision other than the residuary clause, will cause
the lapsed divises of personal property to pass to the decedents residuary devisees.
o [Lapse of Residue] When all the residuary devisees predecease the testator, the reside becomes
intestate property.
 [No-Residue-of-a-residue-rule] If the residuary clause is in facor of more than one person,
and if that clause does not create a class gift, the conventional view is that the death of one or
more but not all, causes the share intended for the decased devises to pass by intestacy
 [CONVERSELY] Under the UPC, the other residuary devisee would get the rest of
the residue.
 [Class Gifts]
Pursuant to Restatement 3d of Property §13.1, a class gift is a disposition to beneficiaries by group label (and
not individual name) intended to take as a group, and such membership of class will typically fluctuate until
distribution.
o [NO anti-lapse] In the absence of an anti-lapse statute, he class gift imports a built in gift over to the
other takers.
 [anti-lapse] However, pursuant to UPC §2-603(2) and RS §5.5, for a lapsed class gift (that is
not a multigenerational class gift), a substitute gift is created in the surviving descendants of
any deceased devisee. The policy behind this is to preserve equality of treatment among
different lines of succession.

ANTI-LAPSE: *still need INTENT*

Anti-lapse statutes do not reverse lapse, they leave the requirement of survival intact, and provide a statutory
substitute gift.
 Pursuant to §2-603, if a devise is not in the form of a class gift, and the deceased devisee leaves surivivng
descendants, a substitute gift is created in the devisees descendants who may take via representation.
o [Alternatives] However, if the decedent provides alternative devisees, then a substitute gift will be
superseded by such alternative by reason of intent.
 [Rules of Construction] Anti-lapse statutes establish a rule of constructions, not a mandatory rule. Thus,
pursuant to §2-601, they are applied in absence of contrary intent on part of the testator.
o [MERE SURVIVORSHIP LANGUAGE IS NOT ENOUGH]
o However, as exemplified in Ruotolo and under UPC §2-603, mere words of survivorship alone are
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 [EXAMPLE] In Ruotolo v. Tietjen, the court held that where a decedent’s will leaves a
devise to his stepdaughter “if she survives me” and she dies 17 days before him, the
ambiguity is solved in favor of anti-lapse, reasoning that where the testator did not
provide an alternative beneficiary, and would die partially intestate if without the anti-
lapse, thus it is presumed he would not want to die intestate.
 [conversely] In Bankers Trust Co v. allen, the court concluded that words of
survivorship alone CAN demonstrate contrary intent.

It should be noted that pursuant to UPC §2-803 and R3P §8.4, courts deny killers succession rights to the victims
property.

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Will Substitutes

General:
 [Policy Pros] For a will substitute, there are no formalities, no indicia of authenticity, and they allow ou to take
more quickly and efficiently by avoiding the probate process, and will substitutes are more difficult for creditors
to get to. A pure will substitute allows the donor to retain lifetime enjoyment and dominion while designating
another person to receive future possession, thus it is important to express the right to revoke.
o Under common law, the will substitute cannot be changed to express the right to revoke. However, under
the UPC, all are revocable unless expressly made irrevocable.

CREATION
Pursuant to Restatement §7.1, a will substitute is an arrangement respecting property or contract rights that is
established during the donor’s life under which (1) the right to possession or enjoyment shifts outside of probate to
the donee at the donor’s death; and, (2) substantial lifetime rights of dominion, control, possession, or enjoyment are
retained by the donor.
 Revocable Trusts & The Present Transfer Test
The law recognizes the validity of a revocable inter vivos trust, even one where the settlor retains the right to
income for life, based on the present transfer test. Under the present transfer test, upon creation of the trust, the
settlor transfers an equitable remainder interest in the res to the remainder beneficiary.
Sometimes issues arise where the trust is self-declared (i.e. there is no 3rd party trustee):
o [No present transfer] In Mathias v. Fantine, the court held that for a valid trust, there must be a
separate coexistence of the legal estate and the equitable estate, thus where a grantor named himself
grantor, trustee, and beneficiary (with a revocable remainder beneficiary), the merging of the legal and
equitable title defeated the attempted trust.
 [However] perhaps if the remainder beneficiary was irrevocable interest this would
be valid.
 [YES present transfer] Conversely, in Farkas v. Williams, the court held that there was a
present transfer where the settlor did not retain all of the powers of normal ownership of
stock, the settlor had a fiduciary duty to the beneficiary as the trustee, and the trust was
executed in a formal manner, thus, the trust was valid.
 [undue influence/duress/fraud] A trust is void to the extent that its creation was induced by undue influence,
duress, or fraud.
 Other Will Substitutes & The Present Transfer Test
o Other will substitutes are seen as valid through the present transfer test (such as life insurance, totten
trusts, joint accounts, and joint tenancies).

REVOCATION AND AMENDING

 [General] Pursuant to UTC §602, unless the terms of a trust expressly provide that the trust is irrevocable, the
settlor may revoke or amend the trust.
o [must revoke as prescribed by trust] In Pilafas, the court held that a will is presumably revoked if it
was in the testators possession, but lost at his death, however, for a trust, if the settlor reserves the
power to revoke a trust in a particular manner and under certain circumstances, he may only revoke the
trust in the stated manner and circumstances as described, reasoning that beneficiaries are entitled to
full compliance.. (Rest. 2d Trusts §330).
 In Pilafas, the court held that a trust was not revoked where the settlor did not deliver a
written revocation to the trustee and reserved the right to revoke through such manner. It

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should further be noted that Pilafas knew how to revoke, he had worked on this trust and
amended it many times.
 [Revocability]
o [common law]
Under the Restatement 3d Trusts §63, although wills are revocable no matter what, the transfer in a
trust is irrevocable unless the settlor expressly retains a power to revoke. This presumption is
rebuttable.
 [Statutory Law]
Conversely, under UTC §602(a), unless the terms of a trust expressly provide that the trust is
irrevocable, the settlor may revoke or amend the trust (this does not apply retrospectively.
o [how to revoke]
Pursuant to Restatement of Trusts §63, where a revocable trust does not provide a means for how to
revoke, clear and convincing evidence of settlors intent to revoke orm modify is needed. If there is an
expressed method of revocation, the settlor can eexercise the power only by substantial compliance
with the method proscribed.
 [ERISA]
ERISA is the Employee Retirement Income Security Act and provides that ERISA shall supersede any and all
state laws. For instance, UPC §2-804, was preempted by ERISA in Eglehoff.
o [Substantial Compliance Doctrine]
In Metropolitan v. Johnson, where a man had errors on his life insurance form, the court held that
where ERISA preempted state law but was silent on a topic, the substantial compliance doctrine
applied. Under the followed 4th Circuit substantial compliance test, the court looks to whether the
insured (1) evidences their intent and (2) attempts to effectuate the change by undertaking positive
actions.
 Thus, in Met. v. Johnson, the court held that the settlor substantially complied when he took
positive action to effectuate a change in policy, he filled out the form indicating wish to
change beneficiary, he designated new beneficiaries, he mailed them in, the entollement
center sent him a confirmation letter, and they never sent alerts for errors.
 [unsigned change-of-beneficiary forms]
 In Davis v. Combes, the 7th Circuit applied the substantial complicance doctrine
when an insured employee failed to sign a change of beneficiary form, but
substantially complied.
 [conversely] In McMath, the 9th circuit held that an unsigned form was ineffective.

Subsidiary Law of Wills (a/k/a applying the law of wills to will substitutes)
 Pursuant to Restatement 3d Property 7.2, although a will substitute need not be executed in compliance
with statutory formalities of a will, there are applicable rules to all testamentary dispositions
 [Revocation Upon Divorce]
o [pour over trust revoked by divorce if one scheme]
 In Clymer v. Mayo, the court took a functional approach and held that revoking interests of
a former spous applies to a revocable pour-over trust where considering the time and
manner in which the trust was created and funding, the decedents will and trust were
integrally related components of one testamentary scheme.
 Also, pour over trusts are valid pursuant to UTC §401(1), R3P §3.8 and UPC §2-511.
o [Statutes]
 Under UPC §2-804, any testamentary disposition is revoked upon divorce or annulment of
the benefits to the former spouse or the former spouse’s relatives.
o [no revocation upon divorce]
 In Hilman v. Maretta, the court held that were a state law was preempted by FEGLIA,
congress clearly intended that insurance proceeds go to the named beneficiary, and thus

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where a man never changed the beneficiary of his federal life insurance policy, his ex-wife
was allowed to collect.
 Anti-Lapse
o Anti-lapse statutes apply by their terms only to wills.
 However UPC §2-706, applies language similar to 2-603 antilaps to beneficiary
disignations in life insurance, pension plans, and POD accounts in favor of descendants.
 Fortunately, pursuant to UPC §2-804, the slayer rule denies killers succession rights to their
victims property (also §8.4).

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Protecting Spouses

Elective Share:
In American law, spouses are protected against intentional disinheritance by the elective share.
 [The Partnership Theory of Marriage] Under the Partnership theory of marriage, marriage is seen as an
economic partnership and each spouse is entitled to an equal share of the marital property. In this context,
marital property is property acquired during the marriage other than by gift, devise, or inheritance. In such
community property states, the elective share is 50% of the marital property.
o *does not require surviving decedent*
 [Conventional Elective Share] Conversely, in the conventional elective share, the spouse can elect to take a
1/3 share of the marital property. However, it should be noted that sometimes spouses only get a life interest
instead of a fee simple under these statutes.
 [UPC Elective Share] Pursuant to §2-202, the elective share provides disinherited spouses 50% of the estate
which is augmented by UPC §2-203-§2-211. The augmented estate, consists of the sum of the decedents net
probate estate, non-probate transfers, and property owned by the surviving spouse, then the estate is adjusted
pursuant to §2-203(b) depending on how long they are married.
o [support theory] Under the support theory of the UPC, pursuant to §2-202(b), the UPC asks what is
needed for proper support and provides a supplemental share of $75K

Approaches to Elective share in WILL SUBSTITUTES

Restatement 3d Property §9.1 supports the elective share application to will substitutes. However, were such is not
the case, some courts have been unwilling to permit a decedent to use will substitutes to deprive the surviving
spouse of an elective share have historically used two approaches: the illusory transfer test and the fraudulent
transfer test.
o [illusory transfer test] In Newman v. Dore, the court held that where a husband executed a trust
transferring all property to trustees w/ cross-actions for pending dissolution of marriage in order to evade
the elevtive share, the conveyance was illusory and thus part of the decedents estate.
 [Recent Approaches]
o In Sullivan v. Burkin the court held that a revocable trust was valid and thus not part of the husbands
estate and not subject to the elective share.
o In Knell v. Price, the court held that any transfer in which the decedent retained dominion and control over
the property during life is subject to the spouse’s elective share
o In Dreher, the court held that the decedent retained sufficient control over the revocable trust to render it
illusory for purpose of elective share, but valid for other purposes.

Premarital and Marital Agreements

 Pursuant to UPC §2-213, someone can contract out of the elective share through a premarital or marital
agreement. But, in the absence of statute, such depends on the validity of contract law.
o In Wellington, the court held that mere failure to disclose a party’s true financial situation was not a
sufficient ground to setting aside a premarital agreement, it required showing of actual fraud to enforce.
(PROSPECTIVELY OVERRULED)
o In Rosenberg, in place of the Wellington Rule, courts, in the absence of statute, consider several factors
for the validity of a marital agreement: (1) whether it contains a fair and reasonable provision as measured
at the time of its execution, (2) whether the contesting party was fully informed of the other party’s worth
prior to the agreements execution or should have had independent knowledge of such, and (3) whether a

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waiver by the contesting party is set forth. Courts also take into consideration the factors of worth, agre,
intelligence, literacy, business acumen, and prior family ties.

Protecting Other Family Members

Protection Against Unintentional Disinheritance

[Omitted Child/ Pretermitted Heir] Children can be intentionally disinherited in almost every state. Most statutes
and UPC only protect child who became a child of the testator after the will’s execution, and a few protect any
omitted child. Typically, a child may take a share of her deceased parents estate if born/adopted after the parent
made the will unless if appears on its face that the omission was intention
o [UPC approach] Pursuant to UPC §2-302, if a testator fails to provide for their will for their children
born or adopted after execution, such omitted heir will receive a share as follows:
 If the testator had no child living when the will was executied, the omitted child receives the
share as if the testator died intestate unless the will devised all of the estate ot the other parent
of the omitted child.
 If the testator had children when the will was executed, the omitted child is entiteed to limited
to devises made to the then-living children, or an equal share to each child
o [codicil republishing will] In Azcunce, the court held that when a testator executes a codicil that
expressly republishes the original will, the testator’s child who was born after the will, but living at the
time the will was republished, does not come within the meaning of the pretermitted child statute.
 In Azcunce, the codicil was only executed to change a trustee for tax purposes. Yet, the court
still determined that the child did not come within the statute.
 [Alternatives]
Alternatively, when an heir is unintentionally disinherited and the estate may able to institute
a malpractice suit against the attorney, implement a constructive trust, or apply the intent-
effecting doctrine.
 [Intent-Effecting Doctrine] Pursuant to Restatement §34, comment b, the doctrine of
republication by codicil is to be applied unless the effect would be inconsistent with the
testators intent (unless the codicil expressly republishes will).

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PART III TRUSTS

Introduction to Private Trusts and Their Elements

Overview: (GENERALLY UTC §402)

A trust is a remarkably flexible tool used for a variety of purposes, providing the benefits of flexible management
and tax avoidance. The elements of a trust include the (1) res, (2) intent, (3) trustee, (4) beneficiary, and (5)
purposes. There are three parties to a trust: the settlor, the trustee (having a legal title), and the beneficiary (having
an equitable title). A settlor may create two types of trusts: inter vivos and testamentary.
 [uses of trusts]
o [revocable inter vivos] Trusts are created for overall donative purposes. Revocable inter vivo trusts carry
no tax advantages, but they avoid probate.
o [irrevocable inter vivos] Usually irrevocable inter vivos trusts can be structured to offer tax advantages
by freezing the value of assets.

Substantive Requirements: 3 Certainties

[General] Trusts, other than charitable trusts, have 3 substantive requirements: (1) certainty of subject, (2) certainty
of object, and (3) certainty of intent.

Certainty of Subject
 Pursuant to Restatement Trusts §41, an expectation or hope of receiving property in the future, or an interest
that has not come into existence or has ceased to exist, cannot be held in a trust.
o [expectancy cannot be res] In Brainard v Commissioner, the court held that there was no trust res at the
time of the declaration of a trust when Brainard orally declared a trust for future profits from stock trade,
reasoning that an expectancy CANNOT be the subject of a trust.
o [uncashed checks] However, some courts have held that uncashed checks can be completed gifts and thus
trust property; others require the delivery of the check.

Certainty of Object
In a private trust, there must be at least 1 identifiable beneficiary; however, in a charitable trust there must be no
identifiable beneficiaries.
 [General] Under the Restatement, a trust may have a beneficiary who, although not identifiable now, may be
ascertainable within time. Furthermore, a the settlor must have intent to give a beneficial interest (those who
benefit incidentally are not beneficiaries.
 [Indefinite Class]
o Pursuant to Restatement §46, if there is an indefinite class the transferee shall select, the tustee has the
power but no duty to distribute the property.
o [Powers of Appointment to Determine Beneficiaries]
 Powers of appointment held solve the indefinite class issue. There are two kinds of power that
trustees have to determine beneficiaries: (1) discretionary power and (2) mandatory power.
Discretionary power is almost always valid unless the appointees is so indefinite it is impossible to
identify any person the donor intended, under which the trustee has total discretion to pick.
Conversely, although §46 treats mandatory and discretionary power alike, Clark v. Campbell shows
that the traditional test for validity of a mandatory power is more stringent.
 [“friends” too indefinite] In Clark v. Campbell, the court held that there was a mandatory
power, reasoning that the trust imposed upon the trustee an imperative duty to dispose of
items among the testator’s “friends.” Further, the court held a mandatory power of

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appointment is valid ONLY IF ALL potential appointees of the power are identifiable, and in
Clark, “friends” was too indefinite
 [UTC] However, under the UTC, powers of appointment are considered discretionary if
executed within a reasonable time.
 [Note Cases]
o In District of Columbia v. Adams, the court held that language created a mandatory
power rather than discretionary where the settlor said “to whom the property is to be
distributed” and such is uncertain.
o [Meaning of “relatives”]
 Pursuant to §2-711, the donative disposition to relatives or family is presumptively a disposition to
heirs.
 In Binns v. Vick, the court held that a trust failed for want of definite beneficiaries where the
settlor left the residue of the estate to be distributed among “relatives” and the testator only
had one sole heir.
o [Animal Beneficiaries]
 In trusts, there must be one ascertainable HUMAN beneficiary. However, the UTC provides for
allowing a trust for animals but sets a time limit.

Certainty of Intent
 Under Restatement §13 and §14, a trust is created only if the settlor properly manifests an intent to create a
trust relationship, and such can be created without notice to or acceptance by any beneficiary or trustee.
o For instance, in Matter of Brown, the court recognized that delivery was not necessary to constitute a
valid trust.
o However, for real property, there must be a proof in writing formally creating a trust.
o In Winthrop, the court held that an imperfect gift should not be salvaged by attributing to the would be
donor a fictitious intent to create a self-declared trust.
 [Winthrop Rule] In Winthrop, the settlor executed a deed of trust waiting for her husband’s estate
to be delivered to her. When a remaining portion of her husband’s assets were not transferred
before her death, the court held that there was not sufficient intent to add the remaining amount to
the trust, reasoning that where words of present transfer are conspicuously absent and she could
have instead granted her interest in her husband’s trust.
 [constructive trust] [CONVERSELY] The Restatement §16 provides that the trust intent of
someone who dies or becomes incompetent before the transfer is complete may be given
effect by constructive trust in order to prevent unjust enrichment of the property owner’s
successor’s in interest.
o It should be noted that although substantial compliance and harmless error can be used to cure
formalities, they CANNOT be used to cure intent.
 Precatory Language (instructions in will)
o Pursuant to Restatement 3d Trusts §13, unless a testator or other transferor manifests an intention to
impose enforceable duties on the transferee, the intention to create a trust is lacking an no trust is created.
Courts consider several factors such as: (1) specific terms and overall tenor of words, (2) the definitiveness or
indefiniteness of property; (3) the ease or difficulty of ascertaining possible purposes and terms; (4) the interests or motives that
influenced transferor; (5) the financial situation, dependents and expectations of the parties, (5) the transferers prior conduct
statement sand relationships with beneficiaries, (6) personal and any fiduciary relationships, (7) other dispositions being made, (8)
whether the result of construing would not be one that would likely be desired.
 In Colton, the court held that potentially precatory language in a will was properly interpreted as
intent creating a trust where a will goes to a wife and “recommends” she take care of decedents
mother and sister, and “request” the wife make such gift and provision as she see best.
 In Colton, the court reasoned that it would be natural for the testator to suppose that a
request, which, in its terms implied no alternative, addressed to his will and principal legatee
would be understood and obeyed as strictly as though it were in the language of direction
and command.

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NO Certainty of Trustee
 Pursuant to Restatement and Adams, a trust does not fail for lack of trustee. If a trustee declines, is unable,
or ceases to act, unless the trusts creation or continuation depends on a specific person serving as trustee,
the court will appoint the trustee as needed.
o In Adams, the court held that a disclaimer by a trustee will not defeat a conveyance. Thus, where a
trustee denied knowing about a trust, disclaimed interest as trustee, and refused to assert the trust,
the trust was valid and a new trustee appointed.
 Adams may, however, have created a different result if the creation of the trust depended
on the particular trustee serving.
 Resignation of Trustee
o Although pursuant to §701, a trustee can always disclaim, where a trustee accepts, the trustee can
only resign (1) with permission from the appropriate court, (2) in accordance with the terms of the
trust, or (3) with the consent of the beneficiaries.

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Trustee Duties

General
Pursuant to UTC §402, the trustee has fiduciary duties to perform. Such duties include (1) duty to inform and
account, (2) duty of loyalty, (3) duty of prudence, and (4) duty of impartiality.

Duties to Inform and Account

 For the duties to inform and account, trustees have the duty to keep beneficiaries reasonably informed about
administration of the trust. This is a fundamental, non-waivable duty.
o Pursuant to UTC §813, the trustee need only keep them informed; however, pursuant to UPC §7-303,
the trustee must disclose all provisions that affect a beneficiaries interests.

Duty of Loyalty
 Pursuant to UTC §802, a trustee shall administer the trust solely in the interests of the beneficiaries to comply
with the trustee duty of loyalty. Although fundamental, the settlor may waive this duty pursuant to UTC §105.
o The testator must act solely in interest of the beneficiary in order to prevent potential self-dealing, Thus,
there is a breach of the duty of loyalty where the trustee is on both sides of a deal. If such occurs, there
is no further inquiry, the deal is voidable at request of the beneficiaries even if the deal is fair.

Duty of Prudence
 Pursuant to UTC §804, 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 such standard,
the trustee must exercise a reasonable duty of care, skill, and caution.
o [Prudent Investor Rule]
 Under the Restatement’s Prudent Investor Rule, a trustee must make investments as a prudent
man would make of his own property having in the view the preservation of the estate and the
amountand regularity of income to be derived.
o [Modern Portfolio Theory]
 Under the modern portfolio theory there are two distinct risks: (1) market risk and (2) firm
specific risk. In assessing such risks, an investor should determine the level of volatility willing
to accept and should diversify the portfolio in accordance with the market risks.

Duty of Impartiality
 Pursuant to UTC §803, if a trust has two or more beneficiaries, the trustee shall act impartially in investing,
managing, and distributing the trust property, giving due regard to the beneficiaries respective interests.
o In Dennis, the court held that a trustee violated the duty of impartiality, reasoning that it is the trustees
duty to take corrective action would arise from the fact that he knows (or plainly ought to know) that his
present course of action will injure the remaindermen; settled law requires him to act impartially, with
due regard for the respective interests of both the life tenants and remaindermen.
 In Dennis, the court found that where a trustee failed to maintain buildings, renovate, modernize,
or take other reasonably obvious steps that might have preserved value, and then sold at the
lowest price point, the gradual deterioration in favor of larger short term payments had violated
the duty of impartiality. He should have been aware.

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Trust Restraints on Alienation (CREDITORS)

Support, Discretionary, and Spendthrift Trusts

Introduction:
There are three types of trusts: (1) support, (2) discretionary, and (3) spendthrift.

Support, Discretionary, and Discretionary Support

 Support trusts is one which contains a provision directing the trustee to pay or to apply for the benefit of the
beneficiary as much income as necessary for the beneficiary’s education and support, and thus is limited to
such. Support trusts have non-transferable interests and creditors CANNOT reach them.
 Discretionary trusts are those which contain a provision giving the trustee discretion to apply for as much
income as the trustee sees fit. Thus, a trustee has absolute discretion to refuse to make any payment to
beneficiary. If discretionary, the trust is considered inalienable.
o [example] In O’Shaughnessy, the court held that the IRS could not enforce a tax levy against a
discretionary trust beneficiary’s interest.
o [Range of Discretion]
 By conferring discretion, a settlor manifests intent to trust in trustees judgement, and the
discretionary power is only subject to judicial control to prevent misinterpretation or abuse of
discretion.
 [Incentive Trust]A trust may be conditioned on certain incentives and the beneficiary must satisfy
such conditions.
o [Creditor’s Rights]
 [UTC Approach] Pursuant to UTC §504(b), a creditor may not compel a distribution that is
subject to the trustee’s discretion, even if (1) the discretionary is expressed in the form of
standard distribution; OR (2) the trustee has abused the discretion.
 [Restatement Approach] Pursuant to Restatement §60, in a discretionary trust, the creditor of
the beneficiary is entitled to receive or attach any distributions the trustee makes or is required to
make in the exercise of that discretion after the trustee has knowledge of the transfer or
attachment. However, such amounts may be limited by beneficiaries needs, and this is always
subject to judicial review.
 [Trustee Liability] Under the Restatement §60, if the beneficiary of a discretionary
trust assigns their interest or if creditors have served with process to reach the interest,
then the trustee is liable to the assignee or creditor if the trustee first pays the
beneficiary.
 [Protective Trusts] Protective trusts give beneficiary’s the right to the income, but provides that,
upon attempted alienation, voluntary or involuntary, the beneficiarys right is forfeites and the
trust becomes a discretionary fund.

Spendthrift
 (prob do not use this on your exam) [General] There are two restraints on alienation in spendthrift trusts: (1)
disabling restrains and (2) forfeiture restraints.
o [disabling restraints] under disabling restraints, terms of a transfer seek to invalidate a later transfer
of that interest. Such are invalid if the restraint would make it impossible at any time to transfer such
interest.

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o [forfeiture restraints] under forfeiture restraints, terms of transfer that seek to terminate, an interest in
the event of later transfer. Valid if they will terminate at the end of a life.

Pursuant to UTC §501, to the extend a beneficiary’s interest is not protected by a spendthrift provision, the court
may authorize a creditor to reach the interest.
 [Spendthrift] Pursuant to UTC §502, a spendthrift provision is valid only if it restrains both voluntary and
involuntary interests.
o [Exceptions to Spendthrift]
Pursuant to UTC §503, even where a trust contains a spendthrift provision, such is unenforceable
against (a) a beneficiary’s child/spouse/former spouse who has a court order or judgement for
support or maintenance; (b) a judgement creditor who provided services for the interest in the trust
(lawyer); or (c) the federal government.
 [Child Support]
For instance, in Hurley, the court held that a spendthrift trust was reachable for child support,
alimony, and separate maintenance.
 [Intentional/Gross Negligence Torts]
In Sligh, the court held that a spendthrift provision does not apply to tort judgement creditors
of intentional torts or acts of gross negligences ao that the creditor can go after the equitable
interest and the legal interest.
o In Sligh, the court reasoned that the public policy considerations when
enjorcing spendthrift provisions do not weigh in the favor of enforcing
spendthrift trust provisions as against a claim of tort creditors or those
found liable for gross negligence.
 [Policy considerations to by weighed]
o In Sligh, the court recognized the public policy considerations such as (1)
the right of donor to dispose of their property as they wish, (2) the public
interest in protecting spendthrift individuals from personal pauperism so
they do not become burdens, and (3) the responsibility of creditors to
make themselves aware of their debtors spendthrift protections.
 [supported by Restatement] Pursuant to Restatement §59, the nature of a pattern of
tortious conduct ma on policy grounds justicy a courts refusal to allow spendthrift
immunity to protect the trust interest and lifestyle of the beneficiary, especially one
whose willful or fraudulent conduct causes serious harm.

 [VALIDITY]
o In Broadway National Bank v. Adams, the court held
 The spendthrift provisions were held valid as they applied to an income interest. Spendthrift
restrains on principal are valid.
o In Estate of Vought, the court held that a spendthrift clause was valid and the assignment of interest
was void where a man sold his $1M interest in a remainder for $100K.
 [policy arguing] However, it could be argued that it is against public policy for a man to have
an estate to live on, but not an estate to pay debts with; however, donors freedom of
desposition has been viewed as more worthy of protection.
 What do Spendthrifts do?
o [Before Income Due] Pursuant to Restatement Trusts §58, comment d, a beneficiary of a spendthrift
trust may assign interest to creditor, but a spendthrift clause will make the assignment revocable.
o [Income due but Not distributed]
 Pursuant to Restatement 3d 53, property that has become distributable but is retained beyond a
reasonably necessary time, the beneficiary has the right to demand immediate distribution.
 Pursuant to UTC §506, if the testator has not made a distribution to the beneficiary within a
reasonable time, the creditor as assignee may reach mandatory distribution.

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Asset Protection Trusts

Introduction
A settlor may create a self-settled APT to avoid creditors. Typically these are overseas, where US courts lack
personal jurisdiction, where offshore jurisdictions recognize the role of the trust “protector” to control trustees, many
APT’s have duress clauses under which trustee must ignore directions of a settlor under duress, and manyb include a
“flight” clause under which a trustee is authorized to change the status of a trust.
 [Elements] In a self-settled spendthrift trust, must have (1) settled in angi-creditor jurisdiction, (2) a
trustee, (c) a protector/trust director to exert some control, (4) a duress clause, and (5) *sometimes* a flight
provision.
o [duress clause issue: do not name yourself trust director]
 In FTC v. Affordable Media, the court held that where the beneficiaries were also the
trust directors, thus having control over the trustees, anti-duress provisions were subject
to their protection powers and therefore they can force the foreign trustee to repatriate the
trust assets.
 In In re Lawrence, the court held that, similar to Affortable Media, where Lawrence had
the power to appoint trustees, he was in contempt and can force trustees to repatriate. The
duress provision will not work.

Trust Directors
 If the trust protector is a US person, the trust instrument typically gives the protector no affirmative powers,
but only veto powers, so that courts cannot compel the protector to administer the trust in a certain way. (by
reason of the two cases above)

Domestic APTs
 A few states, such as Alaska, have removed the limit to not enforceing self-settled trusts with spendthrift
provisions.
o In In re Huber, the court held that a trust was invalid due to conflict of laws analysis. Thus, where
the court found Alaska had only minimal relation to the trust, and Washington had substantial
relationship to trust and a strong public policy against this type of trust, the trust was invalid.
o In Toni 1 Trust v. Wacker, the court
 Trusts are fraudulent/voidable if a debtor made the transfer with actual intent to hinder, delay, or defraud
any creditor.

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Trust Termination & Modification

Introduction:
 [non-charitable irrevocable] Pursuant to UTC §411 and the Restatement, a noncharitable irrevocable trust may
be terminated or modified upon consent of all the beneficiaries if the court concludes that continuance of the
trust is not necessary to achieve any material purpose of the trust.
 [if not all consent] Under §411(e), if not all beneficiaries consent to termination or modification,
such may be approved by the court if the court is satisfied that (1) if all of the beneficiaries had
consented, the trust could have been modified or terminated, nad the interests of a beneficiary who
does not consent will be adequately protected.
o [MATERIAL PURPOSE] Under traditional law, material purpose trusts are (1) postponement of
enjoyment trusts, (2) spendthrift trusts, ad (3) support and discretionary trusts.
 [spendthrift] A spendthrift provision alone is not enough to constitute a material purpose.
 [postponement of enjoyment trusts]
 In Claflin, the court recognized that if a trust has a material purpose that would be
frustrated by early termination, even if the beneficiaries consent, the trust cannot be
terminated early. As such, the court held that a postponement of enjoyment trust had a
material purpose as such and cannot be terminated.
 Conversely, in the UK, on similar facts, the court in Saunders v. Vautier held that if a
legatee has an absolutely indefeasible interest in the legacy, does not have to wait for the
expiration of the period and may require payment the moment he is competent.
 [Exceptions]
 [however] it is widely held that even if there is a material purpose, beneficiaries can compel
termination if they obtain settlors consent pursuant to UTC §411(a).
 Pursuant to UTC §414(a), a trustee, upon notice to beneficiaries, can terminate a rust whose
value is less than $50,000.

Modification or termination because of unanticipated circumstances:

 [general] Pursunt to UTC §412 , the court may modify the terms of a trust because of unanticipated
circumstances. Such must be made in accordance with the settlor’s probable intention.
o [Equitable Deviation Doctrine] Under the Equitable deviation doctrine, a trustee may deviate from the
trust terms without prior court approval is the trustee reasonably believes that there is an emergency and
if the trustee has no opportunity to apply for court approval before deviating.
o [Example] In Wolcott, the court looked to settlor’s intent and held that a trust may be modified where a
testators main purpose was to furnish reasonable support for his wife, and the modification was to
increase said wife;s trust income as a result of her unanticipated medical needs in advanced age and
illness
 [perhaps to help distinguish on test] In Wolcott, all issue who would receive the remainder interest
were undetermined at the time the trust was created.

****PROBLEM ON PRIVATE TRUSTS*****

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Charitable Trusts

Pursuant to UPC §405 and Restatement §28, a charitable trust may be created for the relief of poverty, the
advancement of education or religion, the promotion of health, governmental or municipal purposes, or other
purposes that benefit the community.
 [policy pros] Charitable trusts enjoy many legal privileges. Rules that restrict private trusts don’t always apply
to charitable trusts. Further, charitable trusts do not require beneficiaries nor do they require compliance with
the rule against perpetuities. Furthermore, they enjoy certain tax benefits such as (a) tax exemption from the
federal income tac and, for donors, gift deductions.
 [requirements] Charitable trusts require (a) fiduciary responsibility, (b) trust res, (c) intent to create, and (d)
compliance with the statute of frauds and the statute of wills. Moreover, trusts require a CHARITABLE
PURPOSE.
o [No charitable purpose]
 In Shenandoah Valley v. Taylor, the court ruled that the dominant intent of the trust must be
charitable and not merely benevolent. Such dominant intent is not assessed by specific intent
declared, but by the effect of the trust in application. Further, a charitable purpose is not valid if it
makes a financial distribution to beneficiaries who are not necessarily poor or in necessitous
circumstances.
 Thus, in Shenandoah v. Taylor, the court held that a trust giving schoolchildren income
the last day before Christmas and Easter was an honorary trust, rather than a charitable
trust. The court reasoned that the trust’s dominant intent was not charitable, but rather to
bestow happiness upon school children on the two holidays.
o Perhaps the trust may have been upheld as one designed to relieve poverty;
however, the disbursements were not made to children who were poor or in
necessitous circumstances. Furthermore, this may have been more
appropriate as a scholarship given at the beginning of the year.

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Cy Pres

Pursuant to UTC §413 and Restatement Trusts §67, if a particular charitable purpose becomes unlawful,
impractical, impossible to achieve, or wasteful, then the court may apply cy pres to modify or terminate the trust by
directing that the trust property be applied or distributed in a manner consistent with the settlor’s charitable
purposes. (court will reasonably approximate the purpose?) Thus, we must look to general charitable intent.
 [NO cy pres] In Estate of Buck, the court held that cy pres was not applicable where a settlor left a trust to
the needy in Marin County. Although the use of the $30M/year resources may have been inefficient, the
court reasoned that cy pres was inapplicable because it is not impracticable or impossible to achieve the
settlor’s goals.
o *remember* look to the intent of THAT settlor not a similar settlor. Courts don’t like to impute
and judges don’t wanna determine who is needier.
 [Discriminatory trusts]
o [YES cy pres] In Home for Incurables v. UMD, the court held that a racial condition of a trust is
illegal; thus, where money is given for the acquisition of a building “to house which patients who
need physical rehabilitation” the devise is not acceptable. Even though the settlor gave an
alternative beneficiary.
o In Vans v. Newton, the court held that a trust for a part for white people, the court found that cy
pres was inapplicable because the restriction was the purpose and termination was preferred by the
settlor because he was the worst.
 [conversely] In Trammell v. Elliot, a court applied cy pres to modify a scholarship in
favor of poor white people by deleting the racial restriction on the ground that there was
no evidence that the testators charitable intent was limited to the discriminatory term.

 [Doctrine of Deviation] In Barnes, the court held modification could be made through the doctrine of
deviation. Thus, where a charitable trust was enacted to advance education and appreciation of the fine arts,
but its strict administrative provisions kept a fine art exhibit in a location that prevented it from drawing in
sufficient income to protect the art, the doctrine of deviation applied.
o [DOCTRINE OF DEVIATION] Under the doctrine, he explained, a court will direct or permit the
trustee of a charitable trust to deviate from a term of that trust if it appears to the court that
compliance is impossible or illegal, or that owing to circumstances not known to the settlor and
not anticipated by him compliance would defeat or substantially impair the accomplishment of the
purposes of the trust”
 Deviation, however, is said to apply to administrative provisions of charitable trusts,
while cy pres is applicable to their substantive purposes.

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Enforcing Charitable Trust Obligations

Sometimes there is a lack of incentive/ enforcement for charitable trust.

o For instance, in Bishop, there was a $6B trust with only one beneficiary (the Kamehameha
Schools) a 3,200 student school for native children. Scandal arose when trustees invested trust
assets in investments the trustees had an interest in with less than 1% return rate on the
investments. New trustees were selected, but no one went to prison, and former trustees didn’t
pay back their compensation from the trust.

Standing to Enforce
 Pursuant to UTC §405, the settlor of a charitable trust, among others, may maintain a proceeding to enforce the
trust. *see page 100 if you seriously need policy shit on this*
o [example] In Smithers, the court held that an estate/an estate administatrix had the standing to bring
action on behalf of her late husband to enforce his rights under an agreement with a hospital through
specific performance.
 In Smithers, the court reasoned that where the administatrix did not bring on behalf of
herself or beneficiaries, she was appointed as special administatrix for the specific purpose
there is standing. Further the court recognized that a donor of a charitable gift is in a better
position that the AG to be vigilant and enforce intent.
o In Hershey trust, the court held that the attorney general has the authority to inquire whether an
exercise of trustee power, even if authorized under the trust instrument, is inimical to the public
interest.

POLICY: Non-Profit Accountability

 There are 3 basic strains that govern the share of concerns addressed to the nonprofit sector: (1) financial
accountability, (2) mission accountability, and (3) organizational accountability.

REMEMBER: donative intent is ALWAYS a good answer, charitable trusts is a good place to bring policy
arguments, and DBR muthafucking loves a policy.

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Sample Chunks: *NOTE SHE TELLS YOU THINGS THAT ARE NOT ISSUE* **DIVIDE BY DOCUMENT OR
CHRONOLOGICALLY**
If you see a promise to a child think equitable adoption.
OPENING:

Elective Share
First, the augmented estate has to be determined. The augmented estate consists of decedents net probate
estate, non-probate transfers to others, non-probate transfers to spouse and the surviving spouses property and non-
probate transfers to others.
[ANALYSIS]
Next, have to determine the marital property portion of the augmented estate. The marital property portion
is determined by the percentages in rule 2-203(b). Here, [NAME] and [NAME] were married for [YEARS]. Thus,
the marital property portion is [%%%%%%]. Consequently, the marital property is [$$$$$$$$].
The elective share amount is 50% of the marital property portion of the augmented estate. The elective
share amount that [NAME] is entitled to is thus [ELECTIVE SHARE CALCULATION.]
To determine how to pay this amount, first you subtract the probate transfers to the surviving spouse. Here,
the probate transfers are [$$$$$$$]. Next, we must subtract non-probate transfers. The nonprobate transfers here are
[$$$$$$]. Then reduce by surviving spouses marital property portion (surviving spouse property x %%%%%%) =
X. After these deductions, [XXXX] is still owed $$$$$$. This remainder will be paid by reducing the amount owed
to others in order to pay off the elective share amount.
Intestacy
It should be noted that there is a good chance that [NAME] died intestate if a court finds that there is no
valid will. Pursuant to the UPC, there is a requirement of survivorship to inherit. [WILL EVERYONE TAKE]

Wills
One issue is whether the will is valid. Under UPC §2-502, wills must be in writing, signed by a testator, and
either attested by 2 witnesses or notarized to be valid.
ANALYSIS

Trust:
One issue is whether there is a valid trust.

Dependent Relative Revocation

Here, there may be a DRR argument that the first will should be revived under DRR because it may be
revoked on condition of a subsequent valid will being made. ANALYSIS
DRR applies if the testator revokes a will but is unable to get valid replacement will made before death.
DRR can only be used if the first will was revoked based on the condition that a second would be made. Doctrine
says that testator, when revoking, acted on condition that new will was going to be valid. We look to evidence of
intent.
HERE, [ANALYSIS]

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