Wills and Trusts Exam

Trust Property

Trust isn't created until property is delivered to the trust/trustee to hold/manage. What constitutes evidence of delivery depends on (1) whether trustee is settlor or 3rd party, (2) whether the property is personal property or real property. ix. Unthank v. Rippstein—Trust fails after man wrote promise of $200 monthly payments to B but did not declare where this would be paid from.

Exoneration of Liens

Under common law, A takes real property free of liens (such as mortgage), and lien is paid out of residuary estate. Some states, including UPC reverse.

Freedom of Disposition

Property owners have nearly unrestricted right to dispose of property as they please.

Laughing Heirs

a. UPC—they don't inherit b. CA searches for next of kin, however remote

Surviving Spouses Share: CPC

See outline

Duty to Inform and Account

7. UTC 813—Must keep B rznbly informed about trust admin, and of material facts necessary to protect interests; must give B contact info w/in 60 days; annual accounts

Creation of a Trust—Four express trust requirements:

1) Intent to create Trust 2) Trust Property (Res) 3) Ascertainable Beneficiaries 4) Written Instrument

Nonmarital Children

8. Traditionally, illegitimate children could not inherit from either natural parent. 9. UPC—A child has a parent-child relationship w/ both genetic parents regardless of marital status; however paternity test required to inherit from and through father. 10. CPC—relationship exists b/n natural parents and child regardless of marital status.

Existing Writings

1. CPC Writing in existence at time will is created may be incorporated by reference. 2. Clark v. Greenhalge—farm painting case. T executed 1977 will identifying G as principal beneficiary except for items identified in memorandum as left to others. In 1972 G had helped T draft memo listing 49 bequests; amended in '76; neither list mentioned painting. At some point painting was added to list for V. Court held: Notebook was in existence "on dates % executed codicils [thus republishing] and was thereby incorporated.

The Duty to Diversity and Inception Assets

1. Duty unless special circumstances would justify retaining large proportion 2. In re Estate of Janes—T died w/ 3.5 mil estate, 2.5 mil of which Kodak. Over next five years, stock fell 75%. 3. General rule of compensatory damages for imprudent investment. iii. The Terms of the Trust 1. Wood v. US Bank—Trust allowed Trustee to hold stock in its own company; ct held this waives duty of undivided loyalty, still failed duty to diversify.

The Functions of Formalities

1. Evidentiary (main function) 2. Channeling (Secondary) 3. Cautionary or Ritual (Secondary) 4. Protective (Secondary)

Non-Probate Assets

1. Joint Tenancy 2. Life Insurance 3. POD contracts (most checking accounts—but in fact problem 2 p. 14 of Emanuel says checking = probate) 4. Legal Life Estates and remainders 5. Trust Property

Probate Assets

1. Real Property in decedent's name 2. Personal Property (jewelry, furniture, autos) 3. Bank accounts in decedent's name 4. Interest in partnership, corp., or LLC

Testamentary secret trusts

1. Secret Trust—Looks like outright gift to devisee, who promised to do something else; where courts have to admit extrinsic evidence, can be used to impose constructive trust on devisee for B. 2. Semi-secret trust—Something in express language of will indicates/hints that devisee not to take property for own benefit. Courts will not take extrinsic evidence to identify intended B. Courts impose resulting trust and give property back to settlor, usually meaning it falls into residuary clause or intestacy. a. Olliffe v. Wells—T gave residuary estate to pastor to "carry about wishes I have expressed to him." B/c the terms of distribution weren't in will, trust fails and goes intestate.

Deviation and Changed Circumstances

1. Traditional Law—Ct permits deviation if (1) new circumstances unknown/unanticipated by settlor; (2) compliance would defeat settlor's purpose. 2. UTC 412—Modification would "further purposes of trust" a. In re Riddel—Daughter B institutionalized w/ schizophrenic bipolar disorder. See Emmanuel

Nonprobate Transfers and Planning for Incapacity: Revocable Trusts—There is modern presumption of revocability

1. UTC 603—While settlor of revocable trust is alive, rights of the beneficiaries are subject to S's control. 2. Fulp v. Gilliland—Woman settled trust including family farm, w/ herself as lifetime beneficiary and children as remaindermen. Later sold farm to son at discounted price; daughter sued. Court upheld; trust was revocable and settlor can manage for her own benefit. 3. Revoking or Amending a Revocable Trust a. UTC 602—Unless trust is expressly irrevocable, settlor may revoke or amend by terms of the trust or by any method manifesting C&C evidence of intent. b. Patterson v. Patterson—T executed trust providing for her during lifetime

The Problem of Simultaneous Death

1. Uniform Simultaneous Death Act—Where no sufficient evidence as to who survived whom, party claiming a right to take is to be treated as having predeceased decedent. 2. UPC—To take, taker must prove by C&C evidence that survived decedent by 120 hours (5 days). 3. CPC—Must prove survival for 120 hours by C&C. If can't establish, property of each spouse distributed as if had survived.

Advancements and Hotchpot

15. Advancements at Common Law—Where gifts given during lifetime of decedent are presumed an advance on donee's share of intestate estate. In modern law, lifetime gifts presumed not an advancement unless shown to have been intended as such. 16. Hotchpot—When calculating shares, advances are added to hotchpot. Say A received gift of $10K. D dies w/ $50k and leaves sons ABC. Hotchpot of $60k is divided b/n ABC. 17. Advancements in Modern Law a. UPC and CPC presume against advancement unless writing by donor or done says gift = advance.

Descendants

2. (Representation—where the surviving issue of a predeceased child (the T's grandchildren) take, stepping up to represent the relative.) 3. Per Stirpes—Each line of descent receives equal share (vertical equality) 4. Modern Per Stirpes (CPC)—Each line treated equally beginning at first generation w/ living taker 5. UPC—Each taker at each generation treated equally

The Custodial (taking title and custody of trust property and safeguarding) and Administrative Functions (recordkeeping, bringing/defending claims, making accountings, taxes) Duties

2. Duty to Collect and Protect Trust Property 3. Duty to Earmark Trust Property 4. Duty Not to Mingle Trust Funds with Trustee's Own 5. Duty to keep adequate Records 6. Duty to Bring and Defend Claims

Tortious Interference with an Expectancy

27. Tortious Interference with an Expectancy—Requires (1) an expectancy; (2) a reasonable certainty expectancy would've been realized but for the interference; (3) intentional interference w/ expectancy; (4) tortious conduct involved with the interference (fraud, duress, or undue influence); (5) damages. Where probate remedy impossible a. Schilling v. Herrera—Where FL nurse began to care for sister of NJ brother, eventually moving her into garage apartment, gaining power of attny, and creating new will with her as sole beneficiary. Probate court denied standing. Civil court holds 2 frauds: (1) undue influence changing will; (2) delaying disclosure of T's death so as to preclude remedy in probate.

Migrating couples and Multistate Property Holdings

3. Moving from SP to CP—CA recognizes property acquired during marriage while in SP states as quasi-CP. This doesn't include real property, b/c surivovr would have elective share anyway. ½ of quasi-CP belongs to survivor. 4. Moving from CP to SP—CP continues to be CP once moved to SP. However, if after move CP is sold and used to purchase assets, assets will be SP untless title in both names.

Subsequent Writings and Tangible Personal Property

3. UPC and CPC allows T to dispose of tangible personal property "even if prepared after execution of T's will," provided will makes reference to separate writing.

Changes in Property After Execution of Will

30. Ademption by Extinction— Where testator makes "specific" gift, and thereafter the specific item is transferred: a. Tradition "Identity" Approach—Irrebuttably presumes that testator intended to revoke gift. Executor must go through probate estate to see if he or she can "identify" that item. If yes, B gets; if no, gift is adeemed (revoked) and court won't accept extrinsic evidence as to why not found. i. GO BACK TO INCLUDE EXCEPTIONS LISTED IN NOTES ON p. 380 b. Modern "Intent" Approach—Presumes testator DID NOT intend to revoke. B should receive (1) the item purchased by T to replace item; or (2) fmv value of missing item. i. Applied by In re Estate of Anton ii. Adopted by UPC 2-606

Trusts: Characteristics and Creation—Bifurcation and Four Functions

31. Trust in American Law—There is no actual "trust"—it's a shorthand/metaphysical stand-in for the relationship b/n trustee and beneficiary. a. Bifurcation of Ownership—Trustee holds legal title to trust property, but B have equitable or beneficial ownership. b. Four functions of trusteeship i. Custodial—taking custody of the property and safe-keeping it. ii. Administrative—accounting and record-keeping iii. Investment—reviewing assets and implementing prudent investment program iv. Distribution—According to terms of trust.

Acts of Independent Significance

4. UPC permits extrinsic evidence of lifetime-motivated acts, independent of will, to determine the beneficiaries or property passing under a will. 5. CPC permits references to acts and events w/ independent significance apart from will 6. For instance T's will devises "the auto I own at death to N" and "$1k to each person in my employ at death." At time of execution, owns a Toyota, but shortly before dying buys a BMW. Likewise, in year before death fires two long-time EEs and hires 3 new ones. N gets only fmv of Toyota; old employees get $1k each.

Intentional Omission of a Child

5. American Law—Risky and Invites will contests; judges/juries stretch capacity/undue influence/fraud to rewrite T's plan. Louisiana has forced share for children "legitime," but allows disinheritance for "just cause" (striking parent, commission of crime, married w/out consent, failure to communicate 2+ years. 6. Family Maintenance System of the Commonwealth—NZ cts may override decedent's will and distribute to spouse, child. a. Lambeff v. Farmers Co-op—Ct held that daughter from first marriage entitled to only modest (10%) share of estate: financially stable, other sons badly off.

Disinheritance by Negative Will

6. Common law doesn't enforce 7. UPC does enforce and gives to children rather than disinherited heir. But if you devise all property and leave someone out, that someone gets nothing.

Insane Delusion

A false perception of reality that T adheres to against all reason and evidence to the contrary. "Majority" of states holds that if there is "any factual basis to support the belief, the belief is not an insane delusion. "Minority" hold that if a "rational person" could not reach same conclusion under the circumstances, the belief "is" an insane delusion. o. The time-and-place subjectivity of "socially acceptable" beliefs. i. In re Strittmater's Estate—Insane delusion of "man-hating," bequest to Nat'l Women's Party invalidated. ii. Breeden v. Stone—Modern trend more forgiving of strange behavior—Heir to Denver fortune hit and killed Denver columnist, later killed himself with testamentary suicide note. Court upheld: met elements of "capacity" and had motor skills at time; drug-induced insane delusions did not affect will, he'd long disliked his family.

Bars to Succession: The Slayer Rule

A party who is otherwise entitled to take from decedent does not take if they kill the decedent. CPC follows b. In Re Estate of Mahoney—Intent to inflict harm (manslaughter) sufficient to exclude party from benefits (although remanded to determine whether voluntary or involuntary manslaughter). c. The Unworthy Heir—Where conduct bars inheritance. Rare in America, but some ex: spouse who abandoned decedent, parents who didn't support child, heirs that abuse elderly decedents.

Protection Against Unintentional Omission—Pretermission

All about occurrences (such as marriage, childbirth) after execution of will. 7. Spouse Omitted from Premarital Will a. Most jx and UPC give intestate share to survivor. CPC says trust is included in "decedent's testamentary instruments." b. In re Estate of Prestie—NV law presumes revocation of will if T marries after executing and spouse survives. 8. Unintentional Disinheritance of a child a. UPC 2-302—Children born after execution of will get intestate share; some states (not CA) protect children born before. b. Gray v. Gray c. In re Estate of Jackson

Waiver by Premarital or Postnuptial Agreement

All states enforce waiver in premarital, almost all enforce postnuptial. 1. UPMAA s 9—Emmanuel 2. Reece v. Elliott—H&W signed premarital disclaiming right to SP. W represented by counsel at time but didn't inquire into value of stocks. H dies, stocks super valuable. Court upholds waiver: W knew H wealthy, W could've asked, repped by counsel, H never dishonest or misleading.

Fraud

An intentional misrepresentation, made purposely to influence the testator's testamentary scheme, which causes the testator to dispose of his or her property in a way which he or she otherwise would not have (causation). 26. Fraud in the Inducement and in the Execution—Inducement

Wills: Construction

An unexecuted will can't be probated, but decedent's frustrated intent can be honored in restitution, preventing unjust enrichment, imposing a constructive trust for intended beneficiary.

Death of Beneficiary Before Death of Testator

Anyone taking from decedent must survive decedent. 28. Lapsed and Void Devises—Lapsed gifts fail unless statute a. Lapsed = B dies before T; Void = B dead at execution of will b. In re Estate of Russell c. Class gift: if one member dies and share lapses, surviving members split. 29. Antilapse Statutes a. UPC 2-605—Allows descendants of predeceased B to inherit so long as B was grandparent or lineal descendant (incl. grandchildren) to qualify (spouses do not). b. Policy: Presumed Intent—Presume T would prefer gift passes to descendant of B than not at all. c. Words of Survivorship—Majority hold that "to A if A survives me" in will indicates intent contrary to antilapse; but UPC holds such words DO NOT so establish. i. Ruotolo v. Tietjen—Applied UPC approach, reasoning such words are boilerplate language and have harsh effect.

Devisees

As with trust beneficiaries, must be ascertainable, or else devise voids.

Professional Responsibility—Duties to Intended Beneficiaries

Attorney-client Relationship is construed broadly so intended beneficiaries have standing to sue testator's attny for malpractice. Simpson v. Calivas—Will left all real prop to son except life estate in "our homestead located at..." Probate court ruled will devised life estate in all the real property at address (including 100 acres and buildings in family business). Son won suit, pointing to attny's notes from meeting w/ testator as evidence T intended son to get real property. "The reasonably foreseeable harm to intended B, if reasonable care weren't exercised, justified extending duty of care to include intended B.

Multiple-Party Bank and Brokerage Accounts

Banks often give customers accounts in joint-tenancy form, while intent is really more like trust (can only w/draw for benefit of one account-holder) or POD (one beneficiary receives account on death of other). 4. Varela v. Bernachea—Couple began affair; B added V as joint tenant on Merrill Lynch account, but B argued access to account was restricted; after B had heart attack, V withdrew $280k. Court held joint account creates presumption of gift/donative intent, B didn't rebut by C&C evidence. 5. UPC—Joint accounts belong to Bs during joint lifetimes in proportion to net contributions of each to the sums on deposit

Revocation of Wills

By writing or by act 19. UPC 2-507—Permits revocation of will or any part thereof. 20. CPC—Likewise, but limits act to 5: burned, torn, cancelled, obliterated, or destroyed. Duplicates are revoked if any one is.

"Signature" Requirement

By mark w/ assistance or by another. v. McCabe—Ct admitted will where testator had been in hospital and hands too shaky sign anything but X vi. Godfrey—Ct admitted will typed and "signed" in word processor a week before T's death. vii. Kimmel's Estate—Farm case where testator signed letter with "Father," and indeed all letters to sons.

Foster Parents

CPC—Rel. exists if: began during minority / continued through lifetime AND would've adopted but for legal barrier

Surrogacy and opposite-sex married couples

Courts follow intent of surrogacy contracts, though some states bar such contracts. 12. Assisted Reproduction and Same-Sex Couples—same as surrogacy. CPC Presumption of legal parentage if paretns married at birth, or tried to marry, or parent receives child into home and holds out as natural child. 13. The 2008 Amendments to the UPC—When child receives lifetime gift from decedent parent, gift is rebuttably presumed to be advance on child's intestate share. 14. CPC—(1) Intended parent treated as parent; (2) Sperm donor not treated as parent unless writing.

Discretionary Trusts

Creditors gen have little recourse against B's interest b/c B can't voluntarily alienate. iii. Pure Discretionary Trust—Creditor may obtain "Hamilton order" from ct requiring any distributions made to creditor before B. iv. Support Trust—B can't alienate, creditor can't compel distribution; BUT child/spouse claim for support/alimony (UTC position) OR supplier of necessities (physician, grocer) has recourse to trust property. v. Discretionary Support Trust—"for HCS in trustee's absolute discretion"; ct treats as pure discretionary. vi. UTC muddles these by trying to treat all 3 as single type of trust.

"Dead Hand Control"

Decedent may condition a beneficiary's gift on the beneficiary behaving in a certain manner as long as the condition doesn't violate public policy. a. Shapira v. Union National Bank—Estate required sons to marry Jewish women w/in 7 years of death or else bequest went to Israel. Court upheld: not limit on right to marry, only on right to receive inheritance. b. Validity: "Dead hand" control generally upheld unless the condition falls in exception: constitutes absolute restraint on marriage, requires B to practice a certain religion, encourages divorce or family strife, or directs the destruction of property.

Posthumous Children

Emerging rule: qualify as child of deceased genetic parent if (1) parent authorized use of genetic material while alive AND (2) conceived within reasonable period (2-3 years) of parent's death.

Dependent Relative Revocation

Even if will is validly revoked, still possible to probate if (1) revocation based on mistake of fact or law, and (2) T wouldn't have revoked if had known truth. f. Classic ex: Revocation by Act: T revokes old will believing new will is valid but in fact new will is invalid (mistake of law). g. Revocation by Writing: Typically mistake of fact. Someone cancels will based on news they hear, but news turns out to be false. h. Sprankling's Analysis: (1) Did this happen due to mistake of law or fact? (2) If so, which alternative disposition would the testator presumably prefer. i. Courts apply only if: (1) there is alternative plan of disposition that fails; or (2) mistake is recited in terms of the revoking instrument, or possibly if established by C&C.

Adopted Children

Formal Adoption—Gen. rule: adoption severs relationship b/n adopted child and his/her natural parent of same gender as adopted parent. However, modern: i. UPC—Parent-child relation exists b/n child adopted by spouse of either genetic parent and 1. Genetic parent whose spouse adopted 2. Other genetic parent ONLY for purposes of adoptee to inherit through toher genetic parent ii. CPC 6451—adoption severs relationship b/t adopted child and natural parent unless: 1. Nat. parent and adopted person lived together at any time, or nat. parent cohabited w/ other nat. person at time of child's birth and died b/f child's birth AND 2. Adoption was by spouse of either natural parent.

Unmarried Cohabiting Partners

Gen. don't qualify as spouses, no inheritance rights upon one's death.

Model Execution Ceremony

Generally, (1) law of state where decedent was domiciled at death governs validity of disposition by will; and (2) law of the state where real property is held governs validity of disposition of that property by will. u. Self-Proving Affidavit—one step further than attestation clause: are sworn declaration under oath. v. Safeguarding will—leaving original in lawyer's care ensures no "homemade revisions" attempted by 3rd parties.

Interested Witnesses and Purging Statutes

r. Traditionally law voided any will attested to by interested witness; slim majority US jx have purging statute voiding only bequests to interested witness if bequest > witness's intestate share. s. UPC doesn't require disinterest. t. CA—rebuttable presumption that gift procured by fraud.

Self-Settled Asset Protection Trusts (APTS)

Growing number of jx allow; creditors can't touch so long as trustee has entire control over assets. x. FTC v. Affordable Media—Late-night TV-marketing pyramid scheme placed funds in APT in Cook Islands. Court forced distribution b/c D retained control over assets. Trusts for the State Supported xi. Self-settled Trusts—May not qualify for Medicaid if self-settled or if revocable by settlor. Exceptions: (1) discretionary trust created by will of one spouse for other; (2) if established for disabled person w/ person's property by parent/guardian/ct.

Bars to Succession: Guardianship and Conservatorship of Minors

Guardianships go back to feudal practice; drawback was had to go to court for authorization on every transaction. Modern Trend transforms into conservatorship, under which conservator takes title as trustee for the minor and has all the powers a trustee would have over property; no approval required, just an annual accounting.

Stock Splits and the Problem of Increase

IF 100 shares of specified stock split into 300, most courts say A receives all 300.

Duty of Impartiality

If multiple Bs, trustee must give due regard to both interests. If trust terms say to favor one over other, trustee must comply.

Summary Administration

If value of estate less than certain number ($150k in CA)

Spendthrift Trusts

Imposes restraint on B's ability to transfer/alienate interests; creditors can't attach, even if mandatory distributions. vii. UTC 502, 503—Valid only if restraints voluntary and involuntary transfer of interest; unenforceable against B's child, spouse, or former spouse w/ ct order against B for maintenance/support. viii. Scheffel v. Kruger—Spendthrift found guilty of sexual assault and recording/broadcast therof. Ct nevertheless says tort remedy isn't exception to spendthrift, refused to compel distribution. ix. Most jx have considered/rejected tort exception.

Joint Wills and Mutual Wills

Joint Wills—Single will properly executed by two parties that serves as will for each of the parties. Typically provides that on death of first party all property goes to second, and on death of second all property goes to agreed-on beneficiaries. iv. Mutual Wills (mirror wills)—similar to joint wills except there are two wills, each having the same testamentary distribution scheme. v. Keith v. Lulofs—H & W bring children (K & L) from previous marriage into their marriage. Sign mutual wills promising to leave property in equal parts to K & L. H dies, W executes new will leaving all to L. Court holds: language doesn't clearly show contractual intent (or writing, per UPC) so K needs extrinsic evidence that H intended as contract not to revoke. ("Dead man's statute" says if in decedent's estate all you have is corroborating testimony of claimant, claimant's case fails.

Preprinted Will Forms—

Many jx's have adopted incorporation. f. In re Estate of Gonzalez—"handwritten material implicitly adopted and incorporated the printed text on the form and converted the form into a clear will." g. CPC 6111—a commercially printed will form will be used as statement of testamentary intent.

Adult Adoption

Most intestacy statutes treat adoptions of adults and minors the same. Obergefell led to strange situation where same-sex couples who adopted each other to gain rights are now prevented from marrying as father-son. UPC excludes from class gifts in instruments by someone other than adoptive parent. 2-705(f).

"Trust Decanting"

Most states now recognize "trust decanting" in which trustee w/ discretionary power to distribute trust property does so to a new trust w/ revised terms.

Contracts Relating to Wills

Most states subject Contracts to Make a Will to statute of frauds: in absence of signed writing, K beneficiary may be entitled to restitution of the value of services rendered to decedent (quantum meruit).

Ascertainable Benificiaries

Must be able to identify by name: trust must either expressly list or contain description by which objectively identifiable. x. Clark v. Campbell—Trust listed property to be given away by trustees however they saw fit; trust failed.

Holographic Wills

Need not be witnessed so long as signature and material portions are in T's handwriting. a. UPC—"signature" and "material portions" must be in handwriting b. CA—"signature" and "material provisions" (more demanding: people, property, and testamentary intent).

Professional Responsibility

Often a latent issue on exam questions: if a will wasn't properly executed/revoked/drafted, consider whether party can sue attorney for malpractice.

Trust Requirement: A Written Instrument

Oral Inter Vivos Trusts of Personal Property—No writing required. 1. UTC 407—allowed if C&C evidence of terms and no other statutory provision require writing. 2. In re Estate of Fournier—Man left 2 boxes of $200k w/ friends for sister; friends established oral trust by C&C testimony; court found oral trust. xiv. Oral Inter Vivos Trusts of Land and the Statute of Frauds—UTC arguably permits if C&C evidence, although Statute of Frauds historically has applied.

Bequests to Lawyers and Fiduciary Appointments

Presumption of undue influence unless married or related to client. c. CA—invalidates any donative transfer to lawyer who drafts dispositive instrument unless related by blood. Exception where testator consults ind. Attny who attaches certificate of ind. Review. d. Professional Conduct—"Lawyer shan't solicit any substantial gift from a client, including a testamentary gift, unless related to the client." e. Will of Moses—T starts dating attorney, 15 years younger. T has alcohol issues. T executes will leaving him all property. Court rejects probate: fiduciary and no independent counsel for bequest. f. Warning signals: "Unnatural dispositions" (not to intestate heirs); eccentric/elderly client significantly departing from previous plans; T criticizes family member or imposes harsh penalties. g. Precautions: Witnesses who present well in court; immediately after ask witnesses to sign affidavit of their impressions of T at execution; make multiple wills over period of time with same disposition.

Separate Property Defined

Property acquired before marriage; inheritances and gifts to one spouse during marriage; rents, profits, other income from SP; property bought with SP.

Justifying Freedom of Disposition

Public Policy Debate—Some argue power to transfer wealth is natural and encourages one to save and promotes family values, while others argue the power perpetuates economic disparity and unfairly rewards those lucky enough to have been born to rich parents. Right v. Privilege—Traditionally presumed power to pass property at death isn't const. right (Irving Trust Co. v. Day) but Hodel v. Irving reversed course, saying there is right. Alternative Regimes? i. Mandated Succession (to children) ii. Robinhood (Divide among everyone) iii. Gov't Gets iv. Destroy it all v. First to grab (treat as abandoned property) vi. Bury vii. Lottery

Satisfaction of General Pecuniary Bequests

Rebuttable presumption that lifetime gifts satisfy a bequest. UPC and CA say presumption NOT satisfied unless there is a writing expressing intent.

Republication by Codicil

iv. Executed codicil republishes and automatically redates the underlying will. v. UPC 2-510—Where preexisting will was invalid, republication doesn't make valid; but it may give effect to its wishes through incorporation by reference so long as: (1) will expresses intent to incorporate; (2) will describes document w/ rznbl certainty; (3) doc being incorporated was in existence when the will was executed (strictly applied; first two loosely).

Surviving Spouse's Share: UPC

See outline chart

Posthumously Created Property Rights

Shaw Family Archives v. CMG—Marilyn Monroe publicity rights part of estate? H: 1) A will can devise only property owned by testator at time of death; 2) state laws dictate whether will of deceased celebrities could devise newly created rights. (CA responded w/ law that yes publicity rights devisable at death.) UPC 2-602—a will disposes of not only any property the decedent owns at time of death but also "all property acquired by the estate after the testator's death."

Honorary or Pet Trusts

Technically fail for lack of beneficiary, but UTC 408 and increasing number of states specifically recognize/permit a trust for benefit of a pet as distinct from honorary trust. 1. Details vary but most states permit the court to reduce the trust corpus if deemed excessive. Reduced amount goes to intestate heir. 2. In re Searight's Estate—allows trust, even tho to dog, b/c person who accepted dog also accepted responsibility of care, and money will lost only 4 years, less than RAP. 3. CPC—"Trust for care of animal is a trust for a lawful noncharitable purpose." But allows court to reduce excessive amount.

Community Property and Creditors

Wide variation, but two approaches a. Managerial System—Creditor has recourse against all CP subject to debtor spouse's control. b. Comm. Debt system—Creditor's claim is characterized as sep. or comm. and creditor's rights flow accordingly.

Contracts Not to Revoke a Will

ii. UPC 2-514 requires signed writing by decendent, and provides that executing a joint will or mutual wills doesn't create even a presumption of a contract not to revoke. iii. CPC 21700—(1) provisions of will must mention terms of contract; (2) writing signed by decedent evidencing contract; (3) C&C of agreement. Plus: Joint/mutual wills don't create presumption of contract not to revoke

The Duty of Prudence

Trustee shall administer as a prudent person would, considering the purposes/terms of trust, exercising reasonable care, skill, and caution. j. Distribution Function i. Discretionary Distributions—Prudence requires trustee inquire into needs of B. 1. Marsman v. Nasca—Horse trainer widower left trust fund for comfort, support, maintenance. In spite of this, attny refused to disburse, widower eventually had to sell house. Ct found violation. ii. Sole Absolute or Uncontrolled Discretion—Trustee still required to exercise discretion in "good faith." iii. Exculpation Clauses iv. Mandatory Arbitration k. The Investment Function i. From Legal Lists to the Prudent Investor Rule ii. Recurring

HE Rule

UPC 2-503—If proponent shows by C&C evidence decedent intended it to be (1) will; (2) revocation; (3) addition/alteration; (4) revival of formerly revoked will aa. CA—HE rule doesn't apply to signatures. bb. In re Stoker: Man at dinner w/ friends dictated to friends express revocation of earlier will. Failed as attested will b/c no witnesses, as holographic b/c not in T's handwriting, but CA applied HE b/c C&C evidence of clear intent. cc. In re Probate of Will and Codicil of Macool—Woman went to attny after husband's death w/ note that niece should receive "the same as" stepchildren. Woman left office and died while attorney drafted. Because draft didn't comply with notes, it was work in progress, and not valid will.

Nonprobate Transfer of Real Property

iii. Joint Tenancy—(1) Transferor can't revoke or cancel the given interest; (2) B/c interest extinguishes at death, can't devise it iv. TOD Deed for Real Property—Majority of jx and UPC allow transfer by TOD deed.

Duress

Where a wrongdoer performs, or threatens to perform, a wrongful act that coerces the donor into making a donative transfer he or she would not have otherwise made. 24. Latham v. Father Divine—Court held that Father Divine's interference with T's intent to revoke will and make new one, if proved, entitled P to "restitution" by way of *constructive trust.* 25. Interference with Inheritance, Restitution and Unjust Enrichment, and Constructive Trust

Undue Influence

Where another substitutes their intent for T's, and P can prove (1) T was susceptible, (2) D had opportunity, (3) D had motive, and (4) causation. 21. Presumption of Undue Influence arises and shifts burden to D if (1) confidential relationship b/n D and T (3 kinds: fiduciary relationship, reliant relationship [special trust and confidence], and dominant-subservient [caretaker]) (2) suspicious circumstances present. 22. A minority of jx's allow recovery of punitive damages where actual malice proved by C&C. 23. Undue Influence in the Cases a. In re Estate of Sharis—Grandson moved in w/ GM and GP until GP's death, executed will favoring him over children and opened checking account of $71k which he largely spent. b. In re Estate of Reid—shows that like "insane delusion" undue influence is "socially sensitive"—24 year-old law student endears himself to 78 year-old Reid, eventually sells himself land for $10 and has will drawn up to his benefit. Ct finds confidential relationship.

Disclaimer

Where heir/devisee refuses to take the property, most commonly to reduce taxes or keep from creditors. e. Avoiding Taxes—must be disclaimed w/in 9 months of decedent's death f. Avoiding Creditors—most cases hold that disclaimer relates back to decedent's death and creditors can't disclaim property

Equitable Adoption

Where parent transfers custody of child to someone who promises to adopt but fails to complete paperwork. iv O'Neal v. Wilkes—Dissent argued doctrine (1) is equitable and should apply liberally, (2) should apply any time the child is led to believe he or she is adopted. v. In CA, claimant must demonstrate intent to adopt the claimant. (Estate of Ford)

Revocation by Writing

a. Express: "I hereby revoke" b. Implied: Through inconsistency with prior will. c. Thompson v. Royall—"null and void" written across manuscript cover. Not revocatory act because not written across face of document (cancellation); not revocatory writing b/c not attested to by witness or in T's handwriting

CA CP law

a. Family Code s 760—Presumption that all property acquired during marriage is CP. b. Family Code s 2581—Presumption property acquired during marriage in tenancy in common or joint-tenancy form is CP c. Quasi-CP—property acquired while domiciled in SP state that'd otherwise be CP d. SP—(1) Property owned by spouse before marriage; (2) acquired by spouse during marriage by gift, devise, or inheritance; (3) rents, income, profits obtained during marriage. e. Waiver of Rights: 3 ways to modify i. Probate Code—Writing must be signed by suriving spouse; enforceable unless "fair and reasonable disclosure" not provided OR surviving spouse repped by counsel at time of waiver ii. Family Code—Not enforceable if: (1) party didn't execute voluntarily; (2) agreement was unconscionable when executed, and party wasn't given full and fair disclosure of financial situation of other party. iii. Transmutation—Family code allows parties to change nature of property by express written declaration.

Mistaken or Ambiguous Language in Wills

a. Traditional Rule—Plain Meaning and No Reformation— i. If patent ambiguity, gift fails and B gets nada. ii. If latent ambiguity, extrinsic evidence of drafting mistake if (1) evidence goes to validity of will, or (2) ambiguity in will. b. Modern Rule—Ad Hoc Relief for Mistaken Terms—Modern trend focuses on intent: if C&C of mistake and its effect on intent, extrinsic evidence is admissible. i. UPC 2-085 allows open reformation of wills, not merely ad hoc, if intent proven by C&C. ii. CA follows—"extrinsic evidence is admissible to determine whether a document constitutes a will or the meaning of a will if the meaning is clear. iii. In re Estate of Duke-

Posthumously Conceived Children

a. Woodward v. Comm'r SS—Children enjoy intestacy rights of issue where surviving parent or child shows: (1) genetic relationship b/n child and decedent; and (2) decedent affirmatively consented to posthumous conception and the support of any resulting child. b. CPC—Requires decedent's written consent i. Signed and dated by decedent ii. May be revoked/amended only by writing signed by decedent iii. Person must be designated to control use of material c. UPC—does not require notice; child must have been in utero 36 months after father's death or born 45 months after.

Abatement

c. If insufficient funds to pay devisees: i. Residuary devises reduced first ii. General devises reduced second iii. Specific and demonstrative reduced last, and pro rata. d. CA approach: i. Residue ii. General devises to non-relatives iii. General devises to relatives iv. Specific devises to non-relatives v. Specific devises to relatives.

Discerning Testamentary Intent

c. In re Kimmel's Estate—farm case; "if anything happens" strong evidence of intent; mention of not sure survive winter. CPC admits extrinsic evidence to show document is will, or to determine meaning if meaning is unclear. UPC admits extrinsic evidence regardless of whether there is ambiguity e. Courts reluctant to observe conditions in will BUT CPC: "if it's true condition, it will be observed."

Presumption of Physical Act Revocation

d. Harrison v. Bird—Duplicate = a second signed and valid original. If you revoke one the other still valid and may be probated. Copy = record not probatable. e. Lost Wills are presumed revoked—You can orally prove contents of lost will by C&C evidence.

Miscellaneous Additional Rights of Spouses

d. Social Security—Benefits paid to worker AND worker's spouse. Surviving spouse may elect to take own earned benefits or full amount of deceased spouse's. e. Pension and Retirement Accounts—ERISA requires spouse of EE have survivorship rights if EE predeceases. In Boggs this ERISA req was held to preempt CP laws where W gave H life estate in her share of H's pension then to sons. When H remarried, Ct held ERISA required share go to second wife, not sons. f. Homestead—Most states have "homestead law" secures the family home to surviving spouse and minor children, free of creditors claims. Rules vary: as little as $22,500, up to full value of home. g. Personal Property Set-Aside—UPC allows survivor to receive decedent's personal property up to certain amount. h. Family Allowance—Every jx allows ct to award amount for maintenance/support of survivor and children, separate and apart from probate estate. UPC provides "reasonable allowance" only for one year if estate too small to satisfy creditors. i. Dower and Curtesy

Trust: Fiduciary Administration—From Limited Powers to Fiduciary Administration

d. Trustees' Powers—UTC provides "all powers over trust property which an unmarried competent owner has over property" plus "any other powers appropriate to achieve the proper investment, management, and distribution of trust property." e. Fiduciary Governance—"Many forms of conduct permissible in a workday world for those acting at arm's length are forbidden to those bound by fiduciary ties. Trustee is held to something stricter than the morals of the marketplace."

Other Will Substitutes—Life Insurance—Term- and Whole-life policies

e. Cook v. Equitable Life—T made will leaving insurance policy to second wife, but policy form named first wife as B. Ct holds: T didn't do everything could, first wife gets policy. f. UPC—Insurance Policy designation revoked upon divorce

Duty of Loyalty—Absolutely no self-dealing.

f. "No further Inquiry" Rule—when trustee engages in self-dealing, his good faith and fairness of transaction are irrelevant. Only defenses: consent by settlor or all Bs. g. Hartman v. Hartle—Executor sold property to one of T's sons, who actually bought it for sister, Executor's wife. Cannot sell to self. h. In re Gleeson's Will—T died w/ farmland, executor/trustee leased land to partner of his and received share of profits. Ct: should have found another lessee or ceased as trustee i. In re Rothko—Executors hastily dealt 798 paintings, many conflicts of interests in sales. Ct says relying on counsel no defense, awarded appreciation damages

Other Will Substitutes¬—Pension and Retirement Plans

g. Nunnenman v. Estate of Grubbs—Check Emmanuel

Planning for Incapacity—Property Management

h. Conservatorship—Default in most jx. Requires ct determination by C&C beneficiary can't manage property due to impairment. DP deprivation so elaborate court procedures, plus emotionally messy. i. Revocable Trust—Must include mechanism for determining whether settlor has capacity. "Det. Of my inability shall be made by [X] and my physician, whose written notice trustee shall rely upon." j. Durable Power of Attorney—Remains effective during incapacity until principal dies; governed by fiduciary duties loyalty and care; applies to property acquired after execution of power, whereas revocable trust only includes property at funding. Modern approach—Give very broad powers, check with fiduciary duties. i. In re Estate of Kurrelmeyer

Signature and Handwriting

h. Signature—almost all states permit signature anywhere on face of doc; but if not at end, intention as signature may be questioned. i. UPC—"material portions" and extrinsic evidence allowed to show testamentary intent. j. Extent of T's Handwriting

Exculpatory Clause

i. Contract provision that relieves trustee of liability if damages are caused during execution of duties ii. Modern view: Clauses drafted by trustee are invalid unless trustee proves: (1) it is fair, and (2) its contents were adequately communicated to the settlor.

Writings Documents and Electronic or Digital Wills

i. In re Estate of Castro—Samsung Galaxy Tablet: discussed every provision together, later signed in brothers' presence.

Meaning of "Presence"

i. Line of Sight Rule—Needn't see, but must be able to see (England and some US jx's) ii. Conscious Presence—Test of mental apprehension of T's signing (whether through sight, hearing, or gen. consciousness of events) iii. UPC: doesn't require testator presence during witness signature. Where testator directs another person to sign on his behalf, requires "conscious presence." iv. Delayed attestation: UPC allows witnesses to attest "w/in reasonable time" after signature occurs.

Revival of Revoked Wills

i. Minority of states hold revoked will can't be revived w/out re-execution or republication by later codicil. ii. UPC—To revive Will #1, a testator must simply intend to revive Will #1. Key to showing intention is "how" testator revoked Will #2. k. Divorce—Most states and CPC presume a divorce revokes any provision in T's will for T's spouse. UPC adopts presumption and prescribes one for non-probate transfers as well.

Protection of the Surviving Spouse: The Elective Share of a Separate Property Surviving Spouse

i. Policy Question: Does share reflect Economic Partnership or Support Obligation? ii. 40 of 41 sep. prop. States give survivor elective share iii. Elective share = 1/3 of decedent's probate property plus certain non-probate transfers. iv. Unmarried Cohabiting Partners—No right to elective share v. Variation Across the States 1. Must surviving spouse accept a life estate? Majority of states follow partnership theory and don't require 2. Subsequently deceased surviving spouse—Majority of jx and UPC hold that survivor and reps can only exercise elective share during life of survivor. "Support" theory: need for support dies w/ survivor. 3. Incompetent survivor—Majority jx allow guardian/conservator to elect, but UPC only allows to degree decedent provided for survivor. 4. Abandonment—Minority jx deny elective share to surviving spouse who abandons or refuses to support deceased spouse. vi. Nonprobate Property—Modern trend: not allowing parties to deny surviving spouse elective share by nonprobate property. 1. Judicial Responses—See Emmanuel 2. Statutory Reform vii. Uniform Probate Code—Elective share is augmented estate of both probate property and some non-probate transfers, BUT takes into account: lifetime gifts made to spouse and spouse's wealth, and the length of marriage.

"Must be for charitable purposes..." (case)

i. Shenandoah Valley National Bank v. Taylor—Trust left payout to schoolchildren every year for "their education." Ct held no way of ensuring went to education, purpose was to flatter S's vanity, not charity.

An Estate Plan by Default—Order of Taking

i. Surviving Spouse ii. Issue iii. Parents iv. Issue of parents v. Grandparents/issue of grandparents vi. (CA here permits issue of predeceased spouse to take here) vii. Next of kin viii. Escheats to state

Other Will Substitutes—POD and TOD contracts

i. UPC 6-101—Authorizes PoD designations in all contracts but provides that they are non-testamentary. ii. Three Kinds 1. Convenience Accounts—Allows signatory B to access account for benefit of person A 2. Pure POD account—B has no right of access to account until A dies 3. Joint Tenancy Account—B has lifetime access and right of survivor after A dies.

Professional Responsibility—Conflicts of Interest and Duty to Disclose

ii. A v. B—Law firm didn't do conflicts check of client couple to learn it'd previously represented husband against mistress's illegitimate child suit. It withdrew from repping wife and told her about child. Husband sued, citing duty of confidentiality. Court ruled for firm b/c PR rules permitted disclosure of fraud, which the illeg. child was.

Probate Terminology

ii. Devise—gift of real property under will. iii. Bequest—gift of personal property under will. iv. Executor—Personal rep. when named by will. v. Administrator—Personal rep. when intestate or unnamed by will.

"B/c exempt from Rule Against Perpetuities... more easily modifiable under Cy Pres"

ii. Illegal, Impossible, or Impracticable 1. In re Neher's Will—Widow left house to Village of Redhook for hospital in memorial for husband. Nearby hospital served villages needs; ct allowed modification for city to use house as city hall memorial. iii. Wasteful—Many cts today recognize. Where trust property is so great as to exceed language's charitable purpose. 1. San Francisco Chronicle: The Buck Trust— iv. Deviation 1. Philadelphia Story: The Barnes Foundation—Chemist turned eccentric art collector; ct gradually allowed opening up of museum so it could earn money. v. Discriminatory Trusts—Bacon trust in GA, which gave park to city so long as only welcomed white visitors.

Planning for Incapacity—Health Care

k. Default Law for decision-making: (1) spouse; (2) adult children; (3) parent; (4) adult sibling. Agent held to "substituted judgment" standard, acting in best interests of patient. l. Advance Directives i. Instructional directives—specifying generally or by way of hypo how to treat end of life situation ii. Proxy directives—designating an agent to make health care decisions for patient iii. Hybrid or combined directives—directing treatment preferences and designating agent to make substituted decisions. Uniform Healthcare Decisions Act takes this approach. m. Physician Aid in Dying—CA, CO, VT, WA, OR have legislated to authorize, USSC upheld in Gonzales v. Oregon (2006). 4. Disposition of the Body a. Post-Mortem Remains—Majority jx give cts discretion to carry out decedent's wishes. b. Organ Donation¬—Uniform Anatomical Gift Act permits donation of body to any qualified institution for research or transplant.

Extrinsic Evidence

k. In re Estate of Kuralt—Newsman whose decades-long affair cited as extrinsic evidence of testamentary intent. l. CA admits extrinsic evidence to show testamentary intent, clarify meaning.

Modification and Termination

l. Consent of the Beneficiaries—Traditionally required consent by all Bs, so long as mod wasn't contrary to "material purposes" of settlor (Claflin doctrine). i. The Claflin Doctrine: 4 ex of material purposes where trust can't be terminated: 1. Spendthrift trust 2. B isn't to receive principal until specified age 3. Discretionary trust 4. Trust for support of B ii. The UTC and Restatement—If settlor and Bs consent to modification, court shall even if inconsistent w/ terms. If only Bs consent, ct shall modify where not inconsistent w/ terms/purpose.

Components of a Will

l. Integration—The will is constituted by all papers (1) present at time of execution, and (2) intended as part of the will. i. In re Estate of Rigsby—Following T's death, 2 hw pages dated same date were found folded together. First page clearly expressed testamentary intent; second was list of property with names after items (some of which conflicted with gifts on p. 1). ii. UPC 2-513—"a will may refer to a written statement or list to dispose of items of tangible personal propery not otherwise disposed of by will ... it may be altered by the T after its preparation." iii. CPC 21105—"a will passes all property the testator owns at death, including property acquired after execution of a will.

To be valid, will must:

l. Show testamentary intent, m. in writing, n. signed, and o. witnessed (attestation) (all states require 2, except Louisiana, which requires 3) (UPC treats notary = two attesting witnesses).

Charitable Trusts

m. Must be for charitable purposes rather than ascertainable beneficiaries n. B/c exempt from Rule Against Perpetuities and may exist forever, more easily modifiable under Cy Pres o. B/c no B, diff. scheme of enforcement: combo of state attorneys general, donors, and fed tax authorities.

Capacity to Make a Will

n. Mental Capacity—18 years old and of sound mind, meaning not actual knowledge but the ability to know (1) the nature and extent of his or her property, (2) the natural objects of his or her bounty, (3) the nature of the testamentary act he or she is performing, and (4) how all of these relate to constitute an orderly plan disposing of his or her property. i. In re Wright's Estate—After witnesses at time had found capacity, court would not allow them to then later recount a lack of capacity. ii. Wilson v. Lane—Mere eccentricity not enough to find incapacity.

Strict Compliance Rule

p. Groffman—Invalidated b/c T showed signed will to two witnesses but one after another; statute required "such signature shall be made or acknowledged by T in presence of two or more witnesses present at same time. q. Stevens v. Casdorph—Bank-teller had T sign but then took to another room for EEs to attest; invalid.

Intent to Create a Trust—No particular words necessary, only intent to pass property to 2nd party to hold for benefit of 3rd party.

v. Mere precatory language ("hope" or "wish") does not impose a legal obligation and no trust is created. vi. Testamentary Trust—Must satisfy Wills Act vii. Deed of Trust—Intervivos trusts of land must satisfy Statute of Frauds; but no particular formalities necessary to create intervivos trust of personal property. 1. Jiminez v. Lee—Father held money for daughter's educational expenses; court holds it obviously in trust even though not expressly stated. viii. Declaration of Trust—settlor declares self to be trustee of certain property to be passed elsewhere at death. 1. Hebrew University v. Nye—Declaration of trust was not found after widow expressed intent to gift husband's library to the university, but then never delivered. Court interpreted this as failed gift, reasoning Ethel never referred to herself as trustee or acted like one with respect to the property.

Functions of Probate

vi. Provides orderly transfer of title for decedent's property vii. Ensures creditors receive notice, an opportunity to present their claims, and payment viii. Extinguishes claims of creditors who do not present their claims to probate court ix. Ensures decedent's property is properly distributed to those who are entitled to receive it.

Community Property

viii. If SP and CP commingled, or property acquired from SP and CP sources, tracing determines portion that is CP. Couples may avoid tracing by making agreement controlling character of property ix. Two approaches to management 1. Most states—each spouse generally has power to manage CP, but some excpetions including Real Property 2. TX and WI give each spouse exclusive management over his/her earnings and property acquired by those earnings, if held in earning spouse's name.

Ad Hoc Relief from Strict Compliance

w. In re Pavlinko's Estate—Will invalidated after Immigrant couple w/ no English signed each other's will by mistake (dissent passionately fought to uphold based on clear intent and clients' disadvantage) x. In re Snide—Similar to Pavlinko but different result.

Substantial Compliance Doctrine

y. Jxs are split over compliance. Most require strict compliance, but modern trend favors either substantial compliance or harmless error

The Subsidiary Law of Wills

—(Restatement) B/c a will substitute is in reality a nonprobate will, it is subject to substantive restrictions and rules of construction applicable to testamentary dispositions. c. State Street Bank v. Reiser—T put assets in intervivos trust, including stock to 5 closely held corp's. Took out loan w/ bank then died. Bank sought to attach trust funds. Court allowed b/c trust revocable, T retained access. i. Most jxs today allow creditors to attack property in revocable trust before and after death d. Clymer v. Mayo—W, BU professor, created testamentary revocable trust with H as lifetime beneficiary. W & H divorced, but W didn't revise trust. Court held b/c will & trust were integrated into single scheme, H's interest revoked upon divorce,