Casebook connect (second half of semester)

Testator, a widow, died at age 93 leaving a will that devised the bulk of her property to her next-door neighbor (Neighbor). By the time of her death Testator had lived alone in a small house since her husband died seven years before, and her health had been in decline for the last four years. Although Testator left a daughter (Daughter) surviving her with whom she maintained a close relationship, Daughter lived two hundred miles from Testator in another state. Daughter, who visited Testator whenever she could and spoke to her by telephone a few times per week, had been urging Testator to move in with her in recent years. But Testator, who was known to be very independent, had refused, maintaining that she was capable of caring for herself. Daughter is very surprised to learn of Testator's will, which was signed less than one year before Testator's death and revoked Testator's longstanding will, as Testator told her shortly after Testator's husband (Daughter's father) died that Daughter would receive everything when Testator died. Daughter suspects that Testator's neighbor may have unduly pressured Testator to change her will to leave most of her estate to the neighbor. If Daughter brings an action against Neighbor for undue influence, which of the following facts, if proven, would be most likely to shift the burden of proof to Neighbor? (A) Neighbor only knew Testator for one year. (B) Neighbor, who was also quite old, once told Testator that she "loved her like a sister." (C) Neighbor knew and strongly recommended to Testator the attorney who drew up Testator's final will. (D) Neighbor had been named as Testator's attorney-in-fact under a power of attorney signed by Testator.

D - for undue influence you need to prove in most jurisdictions a CONFIDENTIAL RELATIONSHIP and one or more suspicious circumstances, and then the burden of proof shifts to the proponent to prove there was no undue influence

S executes a deed of trust creating the "S Trust," and names T as trustee. The trust instrument contains the following dispositive provisions: "The trustee shall distribute all of the net income of the trust to X for X's lifetime. At X's death, any remaining trust principal shall be distributed to Y, or to Y's estate." S invests the trust in a diverse basket of assets, the majority of which are equities in a variety of different size companies across a number of different industries. Although the trust investments demonstrate a remarkably stable market value in times of economic downturn and substantial capital growth during a strong economy, they do not provide much in the way of rents, dividends, and interest. Does T's investment strategy reveal that T has violated the trustee's duty of impartiality? (A) No; T seems to be investing appropriately for overall risk and return. The trustee has not violated the duty of impartiality if T makes adjustments between income and principal so that X and Y can be treated impartially. (B) No; settlors recognize that current investment strategies favor capital appreciation over income and that income beneficiaries in the current environment generally receive less than in the past. (C) Yes; a diverse portfolio of assets would include enough government bonds, dividend paying stocks, and the like to generate sufficient rents, dividends, and interest. (D) Yes; since X will benefit from the trust's generation of income items like rents, dividends, and interest, X's interests are being sacrificed in favor of Y's interest in capital appreciation.

A: T is investing in a diverse basket of assets and the stability of the trust corpus and its capital appreciation reveals that T seems to be investing for risk management and total return; so long at T makes the appropriate adjustments between principal and income, T can satisfy the trustee's obligation between income and principal beneficiaries

T's will devises his residuary estate to "the trustee of the trust created under this will." T includes language in the will directing the creation and administration of the trust but inadvertently fails to name a trustee. Which of the following is the most accurate statement of the legal effect of the trust provisions in T's will? (A) The trust will be created and the court will appoint a trustee. (B) The trust will not be created, because T's will fails to name a trustee. (C) The trust will not be created, because a trust cannot be created by a will. (D) The trust will be created only if the personal representative of T's estate agrees to serve as trustee.

A: a trust must have a trustee, but a trust will not fail to be created solely for lack of appointment of a trustee

Testator dies with a will that, among other dispositions, devises the sum of $100,000 to "my friend, F" and devises the residue of the estate to his nephew. Although Testator's nephew survives him, F does not, and the will contains no direction as to what should be done about any lapsed devises. What will happen to the $100,000 devise to F? (A) It will go to Testator's nephew. (B) It will go to F's descendants, if any, and if none then by the residuary clause of Testator's will. (C) It will be disposed of through the intestacy statutes. (D) It will go to F's estate.

A: antilapse statutes do not generally apply to non-relatives of the testator, and therefore it will is will go to the residue (Nephew)

H and W are married to one another but each has children from a prior marriage. They go to a lawyer and have mutual wills drawn up. H's will provides that if W survives him, then she will receive all of his estate, but if W does not survive him, then his estate will be distributed in equal shares among the children of H and the children of W. W's will provides that if H survives her, then he will receive all of W's estate, but if H does not survive her, then her estate will be distributed in equal shares among the children of W and the children of H. H dies first with his will intact, then W changes her will to provide that her estate will be distributed only to her own children. After W dies, H's son, S, brings an action against W's estate contending that W breached a contract with H not to revoke her will. Which of the following most accurately describes the legal status of S's claim for breach of contract? (A) S's claim is valid, if he satisfies the evidentiary burden for proving that a contract not to revoke existed. (B) S's claim is valid, unless W's estate can rebut the presumption that a contract not to revoke existed. (C) S's claim is not valid, because contracts not to revoke a will are not generally enforceable. (D) S's claim is valid, because mutual wills automatically create an irrebuttable presumption not to revoke.

A: contracts not to revoke wills are generally valid, but in most jurisdictions the mere fact there is a mutual will does not create an assumption of said contract - the person claiming a contract of this sorts exists has the burden of proving that

T dies with a will devising "all of my estate, including all of my property of every kind and character, all life insurance proceeds and the remaining benefits in any retirement account, to my niece, N." At T's death she owns a number of probate assets, a life insurance policy under which she is the insured, and an individual retirement account (IRA). To what property is N entitled? (A) N is entitled to the probate assets, but the facts are insufficient to determine whether she is entitled to the life insurance proceeds or IRA benefits. (B) N is entitled to the probate assets and the life insurance policy proceeds, but the facts are insufficient to determine whether she is entitled to the IRA benefits. (C) N is entitled to the probate assets and the and the IRA benefits, but the facts are insufficient to determine whether she is entitled to the life insurance policy proceeds. (D) N is entitled to the life insurance proceeds and the IRA benefits, but the facts are insufficient to determine whether she is entitled to the probate assets.

A: general rule a will cannot affect the disposition of non-probate assets...life insurance policy proceeds and IRA benefits are non-probate assets that generally pass according to a beneficiary designation form prepared by the owner, and there is not further facts that indicate the details of these two things.

H and W are married to one another. Sometime after H and W's marriage, H becomes a participant in an employer-sponsored retirement plan governed by federal ERISA laws. H designates his daughter, X, who is not W's daughter, as the primary death beneficiary on his retirement account on a beneficiary designation form supplied by the plan sponsor. W consents, orally, to the designation. After H's subsequent death, W claims a right to the plan. Which of the following is most accurate in describing W's right to the plan benefits? (A) W is entitled to the benefits, because ERISA provides that a participant in an ERISA-governed plan cannot designate someone other than the participant's spouse as the primary death beneficiary of the participant's account in the plan unless the spouse consents in writing. (B) W is not entitled to the benefits, because ERISA provides that a married participant in an ERISA-governed plan can designate a child as the death beneficiary of the plan if the child is not the child of the participant's spouse. (C) W is not entitled to the benefits, because ERISA provides that a participant in an ERISA-governed plan cannot designate someone other than the participant's spouse as the primary death beneficiary of the participant's account in the plan unless the spouse consents, orally or in writing. (D) W is entitled to the benefits, because ERISA provides that a participant in an ERISA-governed plan cannot designate someone other than the participant's spouse as the primary death beneficiary of the plan unless that right is waived in a premarital agreement valid under the law of the participant's jurisdiction of domicile.

A: in ERISA, the spouse is the beneficiary, and in order to designate someone else you need the surviving spouse's consent in writing.

Testator died after a long life leaving behind a large estate and a recently executed codicil to her will that divided her estate between only two of her three adult children. Before its modification by the codicil, Testator's will had divided her estate equally among all of her children. Child 3, who was cut out of Testator's will by the codicil, brought a lawsuit against Testator's estate alleging that Testator suffered from an insane delusion, as she thought that the U.S. Congress was, since an alleged UFO sighting two years before, secretly comprised of malicious extraterrestrial beings masquerading as human congresspeople. Despite numerous efforts by many friends and family members to disabuse Testator of this notion, she continued to believe it was the truth. Which of the following facts, if proven, would be most favorable to Child 3 in his lawsuit? (A) Child 3 was a U.S. Senator. (B) Testator may have been incapable of understanding the nature and extent of her property. (C) Testator had once been a U.S. Senator. (D) Some of the more complex tax provisions in Testator's will were too difficult for her to understand.

A: in order to prevail in an insane delusion case, one must prove that the testator's will or some part of it was motivated by the insane delusion - here, the alleged delusion involved Congress being made up of extraterrestrial beings, so if Child 3 was a U.S. Senator, then testator's decision to cut her out of the will may have been motivated by that insane delusion.

T dies leaving a will that contains only the following dispositive provisions: "I give the sum of $100,000 to my beloved son, S, if S survives me. I give all the rest of my estate to my dear friend, F, if F survives me." S predeceased T but left descendants surviving T. F survived T. Assuming the jurisdiction of T's domicile is a majority rule jurisdiction, who gets the $100,000? (A) Because the devise was to pass to S only "if S survives" T, it passes to F under the residuary clause of T's will. (B) The jurisdiction's antilapse statute will apply to the general devise to S, and it passes to S's descendants. (C) Because the legacy was to pass to S only "if S survives" T, it passes to T's intestate heirs. (D) Because the jurisdiction does not consider the language "if S survives" to be determinative of T's intent, extrinsic evidence is admitted to determine T's intent.

A: most jurisdictions have anti-lapse statutes but those statutes do not apply where the testator included a survivorship requirement in the will - this language is enough in a majority and it thus goes to the residuary the minority UPC approach says that a survivorship clause is not enough by itself to avoid antilapse statutes though

H and W, a married couple, enter into divorce proceedings. One month after the contentious proceedings are complete and the divorce becomes final, H executes a will acknowledging his children but devising his entire estate to his girlfriend, G. Shortly thereafter H dies in a tragic accident, survived by G and his minor children. To what portion of H's probate estate will his minor children be entitled? (A) None; G will take H's entire probate estate. (B) H's minor children will take his entire probate estate in equal shares. (C) Each of H's minor children will take an intestate share of his probate estate. (D) In about one-half of U.S. jurisdictions H's minor children would take an intestate share; in most other jurisdictions G will take H's entire probate estate.

A: no US jurisdiction (except Louisiana) requires a testator to devise any part of his or her estate to their children, even if they are minors

Testator dies leaving a will that contains the following language: "I devise the residue of my estate to my friend F, for the benefit of my surviving children. F shall use this property to pay for my children's education, and shall distribute any remaining property in equal shares to my children at such time as my youngest living child reaches the age of twenty-five years." The will also contains a paragraph naming F as the executor of Testator's estate but contains no language that specifically names a trustee. Which of the following statements most accurately describes the effect of the quoted language in Testator's will? (A) The language creates a trust with F as trustee and Testator's surviving children as beneficiaries. (B) The language legally devises the residue to F, but is precatory and does not create a trust; instead it imposes only a moral obligation on F to use the property for the benefit of Testator's surviving children. (C) The language creates a trust without naming a trustee, but the court will appoint a trustee. (D) The language devises the residue to F, and neither creates a trust nor imposes a moral obligation on F to use the property for the benefit of Testator's surviving children.

A: the intent necessary to create a trust is the intent that the property given be held or managed for the benefit of one or more persons. Here, that intent is portrayed by "for the benefit of" even though the words "trust" and "trustee" are not used. Further, "shall use" is definite language and they must use it for that reason.

awyer is an attorney who meets with client (Client). Client, who is elderly, tells Lawyer that she needs to "do a will." Lawyer, who offers this service to clients, interviews Client regarding her family situation and the general nature and extent of her assets. Client tells Lawyer she is widowed and has no children but does have a niece (Niece) and nephew (Nephew) and is quite close to each of them. She also tells Lawyer that she owns only a small house, a couple of bank accounts and miscellaneous furniture, furnishings, and personal effects. Client further tells Lawyer that she wants this property to be distributed one-half to her niece and one-half to her nephew. Upon further questioning by Lawyer, Client tells Lawyer that if either of her niece or nephew predecease her, she wants the predeceased person's share to go to person's descendants. Lawyer, who has prepared many wills and is quite competent in her drafting abilities, prepares a will for Client that directs that her estate be distributed as Client requests. After being assured by Lawyer that the document will distribute all of Client's property interests as she wishes, Client executes the will and dies a couple of years later, survived by her niece, but predeceased by her nephew, who leaves descendants surviving him. After Client's death, survived by Niece but not by Nephew, her executor discovers that although Client owned her house in fee simple, Client's bank accounts, which were far more valuable than her house, were held in pay-on-death (POD) form. Although Client had, a few years before she executed her will, named both Niece and Nephew as "primary beneficiaries" on the beneficiary designation forms for the accounts, the forms provided, in boilerplate language, that if one primary beneficiary predeceased the account owner, the other primary beneficiary would succeed to the account. Might Nephew's children have a cause of action against Lawyer for failing to prepare an estate plan that distributed Client's estate as she wished? (A) No, because Client told Lawyer only that she needed to "do a will," not that she wanted help with her nonprobate assets. (B) Perhaps, if Lawyer failed to make inquiry into whether the accounts were held in POD form, and Client was unaware of the implications of the beneficiary forms in the event that a named primary beneficiary predeceased her. (C) Perhaps, but only if Lawyer reviewed the beneficiary forms and wrongly concluded that they would distribute the accounts as Client wished. (D) No, because Client's will, which was competently drafted to carry out her dispositive intent, would override the prior beneficiary designations on the accounts.

B: the lawyer has a duty to inquire about whether the accounts she is listing are held in a non-probate form; and since it is not apparent from the facts the lawyer did this, the lawyer could be found liable for negligence or third-party beneficiary to the contract between the lawyer and client. They have a duty to ask about this stuff, especially since the client came in and said she wanted to 'do a will'

Having as one of her goals the avoidance of probate, O executes a declaration of trust creating a revocable trust and also executes a pour-over will and a durable power of attorney. The revocable trust benefits O during her lifetime and at O's death the assets are to be distributed to O's children. The durable power of attorney names O's daughter (D) as O's attorney-in-fact and gives D broad powers to act on behalf of O. The trust instrument names D as the successor trustee in the event of O's incapacity (as defined in the trust instrument) or death. O begins the process of transferring her assets to the trust but only gets some of them transferred before she becomes ill and is forced to stop the process. A few months later O's family determines that she has met the definition of incapacity contained in the trust instrument and D becomes trustee of the trust with O's acquiescence. Which of the following is the best advice to D regarding her desire to manage O's assets for O's benefit while O remains incapacitated and preserve O's goal of avoiding probate at her death? (A) If the durable power of attorney permits it then D should, as O's attorney-in-fact, transfer O's remaining assets to D as trustee of the revocable trust so that D as trustee can manage all of O's assets for O's benefit while she remains incapacitated. (B) If the trust instrument permits it then D should distribute the assets out of the trust and back into O's name so D can manage all of the assets for O's benefit using the durable power of attorney. (C) An attorney-in-fact under a durable power of attorney cannot transfer the assets of an incapacitated principal to a trust, so D must instead use the authority contained in the power of attorney to manage the assets outside the trust for O's benefit while managing the assets inside the trust as trustee. (D) D should seek to have a court declare O to be without legal capacity and name D as O's guardian.

A: this is the best answer because O's goal of avoiding probate can be preserved if all of O's assets are transferred to her revocable trust, and after the transfer D can also achieve her goal of managing O's assets for O's benefit as trustee of the revocable trust

S by will wishes to create the "S Trust." The purpose of the S Trust is to provide a supplementary source of funds for the education of S's grandchildren. Because S's estate, while not insubstantial, is relatively modest, she wishes to avoid the fees of a corporate trustee. Consequently, S wants to name her niece, N, as trustee of the trust. Although N is very responsible and trustworthy, and S is especially confident that N will make good decisions about distributions from the trust, N has no experience in fiduciary matters and has no investment experience. Before S approaches N about becoming trustee, she consults a lawyer for legal advice. Of the following, which is the best advice to S regarding N's legal responsibilities as trustee? (A) Although N will be responsible for complying with all of the fiduciary duties of a trustee, she may delegate the investment function to an investment professional so long as she exercises due care in choosing and monitoring the expert. (B) Absent a grant of discretion by the settlor, a trustee may not delegate decisions involving investment of the trust assets. (C) If S wishes N to serve as trustee, she should choose a co-trustee for investment responsibilities, because a trustee may not delegate power to a non-trustee to make investment decisions regarding the trust. (D) Although N will be responsible for complying with all of the fiduciary duties of a trustee, she may delegate the investment function to an investment professional so long as the investment professional formally submits to the fiduciary obligations of the trust.

A: traditional law prohibited trustees from delegating the investment function, but modern trust law provides no such prohibition. however, a trustee is always responsible for complying w/its fiduciary duties and must exercise care when choosing and monitoring those who duties w/respect to the trust are delegated to

Testator, who has assets worth about $2 million, has two children (Son and Daughter) and wishes to treat them equally and also wishes to make a testamentary gift to his favorite charity. Testator owns a portfolio of securities in a brokerage account, a small apartment building and other miscellaneous assets. Testator signs a will devising $500,000 to Son, the apartment building (worth about $500,000) to Daughter, and the residue of his estate to charity. Testator subsequently becomes ill, has to quit his job, and ends up spending a great deal of his estate on expensive treatments. In the meantime, many of Testator's investments decline in value. At Testator's death his estate consists of about $250,000 in cash and other assets and the apartment building (now worth about $750,000). Given the provisions of Testator's will, who is entitled to what from his estate? (A) Son gets the remaining cash, Daughter gets the apartment building, and charity gets nothing. (B) The apartment building will be sold, and Son and Daughter will split the proceeds and the remaining cash. (C) The apartment building will be sold, and Son, Daughter, and the charity will get equal shares of the estate. (D) The apartment building will be sold, and Son will get $500,000 off the top and Son, Daughter, and the charity will get equal shares of the residue of the estate.

A: under majority rules of abatement, the residuary abates first, then general divides, then specific and demonstrative. Need to satisfy the specific devises first, then general or demonstrative pro rata to the extent possible.

Testator signs a will that devises $100,000 to A, Testator's extensive coin collection (worth about $100,000) to B, and the residue of her estate to C. A few years later, Testator sells her coin collection and invests the proceeds in a couple of antique collector cars. In the next several years, Testator uses most of her cash for investments in real estate and securities. When Testator dies many years later never having changed her will, her estate consists of the antique collector cars, several parcels of real estate, and about $20,000 in cash. To what, if anything are A, B, and C entitled from Testator's estate? (A) A will get the $20,000 cash, B will get the antique collector cars, and C will get the rest of the estate. (B) A will get $100,000 in cash (assets can be sold by the executor to produce the cash), B will get nothing, and C will get the rest of the estate. (C) A will get $100,000 in cash (assets can be sold by the executor to produce the cash), B will get the antique collector cars, and C will get the rest of the estate. (D) A will get the $20,000 cash, B will get nothing, and C will get the rest of the estate.

B: A's gift is general and must be satisfied out of the residue (selling assets if necessary) if there is not enough cash in the estate; the gift to B is special and has been adeemed by extinction under identity theory of admeption which is a majority rule since it is no longer owned by the testator at death, intentionally. (minority follows the idea of the replacement value if you can prove that's what the testator would have wanted) C, as the residuary, gets what's left.

T executes a declaration of revocable trust and a "pour-over" will. T then dies. Which of the following statements most accurately describes the trust? (A) The trust is a testamentary trust. (B) The trust is an inter vivos trust. (C) The trust is a constructive trust. (D) The trust is a resulting trust.

B: a revocable trust is alway created inter vivos

T has the following property interests at his death: 1) A bank account titled jointly with rights of survivorship with Z. 2) A bank account titled in T's sole name, with Z named as a "payable on death" (POD) beneficiary. 3) A qualified employer-sponsored retirement account with Z named as primary beneficiary. 4) A house titled in the name of T and Z, as joint tenants. And 5) Certain household furniture and furnishings. T's will, executed before the above property interests were established, provides that X, not Z, will receive all of T's property. A codicil to T's will, executed after the above property interests were established, provides only that Z is to receive T's leather sofa. T is neither married nor in a domestic partnership. To which assets are Z and X entitled to at T's death? (A) X will receive all the listed property interests except the leather sofa. (B) Z will receive all the listed property interests except the household furniture and furnishings and will also receive the leather sofa. (C) Z will receive only the retirement benefits, and X will receive the rest of the listed property interests. (D) T's intestate heirs will receive all of his property.

B: everything except the household furniture and furnishings are held in nonprobate devices, and under the general rule a will cannot affect the operation of those nonprobate devices at the death of the owner. Wills may only dispose of probate property here, and therefore X only receives the household furniture and furnishing, besides the sofa that the codicil left to Z

S executes a deed of trust creating the "S Trust," naming T as trustee. The trust instrument contains the following dispositive provisions: "The trustee shall distribute all of the net income of the trust to X for X's lifetime. At X's death, the remaining trust principal shall be distributed to Y, or to Y's estate." The primary asset of the S Trust is commercial real estate that generates substantial net rental income, all of which is distributed to X during X's lifetime. At the end of X's life, the buildings have substantially depreciated in value. Which of the following facts, if true, best bolsters Y's argument that T has breached the trustee's duty of impartiality between beneficiaries? (A) T failed to invest in a diverse range of assets. (B) T failed to maintain the buildings owned by the trust or to retain a reserve for depreciation. (C) A number of tenants in the buildings owned by the trust were also customers of T's banking operations. (D) T charged an exorbitant fee to serve as trustee.

B: failing to maintain buildings (trust principal) owned by the trust or retained a reserve for depreciation, T was neglecting the trust principal in favor of trust income thereby favoring the income beneficiary over the principal beneficiary

O creates an irrevocable trust for the benefit of B, funding the irrevocable trust with a substantial amount of money. The trust instrument provides for mandatory distributions of trust income to the beneficiary (B) in annual or more frequent installments and also provides for distribution of principal to B, but only in amounts that the trustee deems advisable "in the trustee's sole and absolute discretion for B's health and support in reasonable comfort." Although the trustee has regularly made income distributions to B each quarter, and has also made some distributions of principal, B feels that the trustee has been overly parsimonious. B's requests for additional principal distributions have been rejected by the trustee. If B feels that B's principal distributions are falling short of the "support" standard, which of the following best describes B's legal recourse against the trustee? (A) B has no legal recourse because the settlor, in the exercise of his freedom of disposition, has seen fit to give the trustee "sole and absolute discretion" in determining whether the standard for principal distributions has been met. (B) B has a valid case for additional distributions if the trustee has not exercised its discretion in good faith and in accordance with the trust terms and purposes and the interest of B. (C) B has a valid case for additional principal distributions if the trustee has not exercised its discretion in a manner that a "reasonably prudent" trustee would have done. (D) B has a valid case for additional principal only if the trustee has breached its duty of loyalty.

B: just b/c the settlor has given the trustee sole and absolute discretion in making principal distributions, such language is not interpreted literally and does not make the trustee unaccountable to the beneficiaries - needs to be in good faith and in accordance w/the terms and purposes of the trust and the interest of the beneficiaries.

You are approached by X, whose father, T, recently died. It seems that T executed a will one month before his death that devised to X, his only son, about $10,000, and devised the rest of his $500,000 estate to Charity, a public charity. T's will, which named T's sister as executor, was recently admitted to probate. X tells you that his father suffered from dementia, and as many as six months before his death was unable to understand what kind of property he owned and how much of it he owned. X wants to know what is required to win a lawsuit based on lack of capacity to execute a will. Given X's concerns, which of the following is good legal advice to X? (A) X will be required to show that T was unduly influenced by the charity. (B) The will, having been admitted to probate, is prima facie valid; X must produce sufficient evidence to prove lack of capacity to execute a will. (C) Once X files a pleading challenging the will, the estate must produce sufficient evidence to prove legal capacity to execute a will. (D) X must exhaust his other probate remedies first; he will then be able to file a suit based on lack of capacity to execute a will.

B: majority rule states that a will admitted to probate is presumed valid and a person bringing a will contest bears the burden of proof

W, a wealthy woman, marries H in a community property jurisdiction. Ten years after her marriage to H, W dies unexpectedly. W has no nonprobate property, and her will, which predates her marriage to H, devises her entire probate estate in equal shares to her two children. To what property is H entitled? (A) H retains his share of any community property only. (B) H retains his share of any community property and may be entitled to the share of a pretermitted spouse. (C) H retains his share of any community property and may be entitled to the greater of his elective share or the share of a pretermitted spouse. (D) H retains his share of any community property and may be entitled to the lesser of his elective share or the share of a pretermitted spouse.

B: since this is a community property jurisdiction, H retinas his share of community property, and since the will predated the marriage, H would be entitled to pretermitted share (remember, there is NO elective share in community property jurisdictions, only separate)

L, an associate lawyer in a law firm, is asked by a senior partner to supervise the signing of the will of T, a very elderly person. Upon the commencement of a casual conversation with L, T shows considerable confusion as to simple things like the day of the week and current events. As the lawyer in charge of the execution conference, how should L proceed? (A) So long as T seems to know she is signing her will, L should avoid any confusing topics and proceed with the signing. (B) Among other questions, L should ask T to identify her close family members and loved ones. (C) Among other questions, L should ask T who the president is. (D) L should report the senior partner to the state bar.

B: the common elements in majority rule jurisdictions for capacity - (1) generally knowledge of the nature and extent of their property; (2) be capable of identifying loved ones and close relatives; and (3) be capable of coordinating

T is the trustee of a trust that owns commercial real estate that generates substantial rental income. The trust terms require that T distribute all of the income of the trust to A for life, and the remaining principal to B or B's estate at A's death. When A dies, the buildings have substantially depreciated in value, as T failed to maintain them or retain a reserve for depreciation. Which of the following best describes T's exposure to liability for its actions here? (A) T is liable, because T has a conflict of interest. (B) T is liable for breach of its duty of impartiality. (C) T is liable for failing to invest in marketable securities. (D) T is not liable because there have been changed circumstances that were unanticipated by the settlor.

B: the duty of impartiality requires that the trustee perform its duties in a way that does not favor one beneficiary over another

Testator signs a will prepared by his lawyer that leaves his entire estate to his wife. Unfortunately, no provision is made in the will for the possibility that Testator's wife might predecease him, an event that occurs a few years later. Testator's death shortly follows that of his wife. After Testator's death, his niece (Niece) files his will with the probate court along with a petition to have the will reformed pursuant to the Uniform Probate Code's provision on reformation of governing instruments to correct mistakes, which has been adopted in Testator's jurisdiction. Niece is prepared to offer evidence that Testator instructed his lawyer to draft the will to provide that if Testator's wife predeceased him his estate would be devised to Niece, but the lawyer left the provision out by mistake. Which of the following statements best describes the law as it is likely to apply to Niece's petition? (A) If Niece's evidence meets the preponderance standard then the will should be reformed to provide that the estate is devised to Niece. (B) If Niece's evidence is clear and convincing then the will should be reformed to provide that the estate is devised to Niece. (C) The ambiguity in the will is patent, so it cannot be reformed despite Niece's evidence. (D) Niece's evidence concerns no ambiguous provision in the will, so the will cannot be reformed.

B: under UPC the court may reform the terms of a will, even if unambiguous, upon clear and convincing evidence of the testator's intention and that the will was affected by a mistake (fact or law)

T, who has three children and an estate in excess of $2 million, executes a will that gives 40% of his estate to his son, X, 40% to his daughter, Y, and 20% to his son, Z. A provision in T's will provides that anyone who contests the will is to receive, in lieu of the foregoing percentage of his estate, the sum of $100. Z thinks that X and Y unduly influenced T and wishes to challenge the will. However, he wants to know the effect of the "$100 clause." Which of the following is the most accurate characterization of the legal effect of the clause in T's will providing that anyone who challenges T's will is to receive only $100? (A) Under the modern rule, these types of boilerplate clauses are not enforceable. (B) The court will probably not enforce it even if Z loses his suit, unless the court finds that Z did not have "probable cause" for the challenge. (C) The court will enforce it according to its terms. (D) It is enforceable unless Z alleges forgery or subsequent revocation.

B: under the most common rule the clauses are not enforced so long as the person bringing the contest had "probable cause" for the challenge

Z convinces his mother-in-law, P, to put a provision in her will giving her house to Z by promising P that Z will pay K, P's son, a sum of money after P's death. Although at the time Z made the promise he fully intended to carry it out, he later changed his mind, and after P's death declined to pay K. Which of the following statements most accurately reflects the law that applies to these facts? (A) K has no probate cause of action against Z, because P's gullibility is not Z's responsibility. (B) K has a probate cause of action against Z for fraud in the inducement. (C) K has no probate cause of action against Z for fraud in the inducement, because Z did not intend to commit fraud at the time of the inducement. (D) K has a probate cause of action against Z for fraud in the execution.

C - look at the intent at the time of the alleged "fraud" (there was no fraud here); Z, from the facts, intended to carry out the action promised at the time the promise was made, and therefore there was no fraud

T dies with a will containing a general devise as follows: "I give the sum of one million dollars ($100,000) to my best friend, F." Which of the following is the best argument for resorting to extrinsic evidence to resolve the ambiguity contained in this devise? (A) The ambiguity in the devise is latent, not patent, and therefore extrinsic evidence should be admissible. (B) The ambiguity in the devise is patent, not latent, and therefore extrinsic evidence should be admissible. (C) Extrinsic evidence should be admissible to resolve any ambiguity, be it patent or latent. (D) Extrinsic evidence is always admissible in any efforts made by courts to determine a decedent's donative intent.

C : patent ambiguity is apparent on the face and a latent ambiguity is apparent only when the language of the will is applied to the facts existing outside the will - courts have been admitting extrinsic evidence to resolve both types of ambiguities, not just patent like in the past.

T, who lived in a jurisdiction that has adopted all the UPC antilapse provisions, dies leaving a will that, among other provisions, contains language that states as follows: "I give and bequeath the sum of $100,000 to X, if X survives me. I give, devise and bequeath all the rest and residue of my estate in equal shares to those of E, F, and G who survive me." X, who was T's son, predeceased T leaving X's children, J and K, surviving. Since X predeceased T, to whom will the $100,000 general devise be distributed? (A) If the will contains no additional indication that T intended X's general devise to lapse in the event he predeceased T, then X's estate will receive the $100,000 general devise. (B) Since X was only to receive the $100,000 devise if he survived T, the devise lapses into the residue and will be distributed equally to E, F, and G. (C) If the will contains no additional indication that T intended X's general devise to lapse in the event he predeceased T, then J and K will receive the $100,000 general devise. (D) Since X was only to receive the $100,000 devise if he survived T, the devise lapses and will be distributed to T's intestate heirs.

C: UPC - standing alone, survivorship language is insufficient to avoid antilapse provisions

S executes a revocable trust and a "pour-over" will. S then transfers most of his property to the trust. When S dies, his probate estate consists of some tangible personal property valued at about $1,000 along with a bank account valued at about $1,000, while the trust contains much cash and valuable property. At his death, S owed a health care provider $10,000 for services rendered in connection with his last illness, which are not covered by his health insurance. Can the health care provider recover against the assets of the trust? (A) The health care provider cannot recover against the trust, because revocable trusts become irrevocable at the death of the settlor. (B) The health care provider can recover against the trust only if the successor trustee agreed to be personally liable. (C) The health care provider can recover against the trust to the extent the assets of the estate are insufficient. (D) The health care provider can recover against the trust unless the trust contains a spendthrift provision.

C: a revocable trust does not provide protection from the claims of a settlor's creditors - the creditor must go after the probate estate first, but once they exhaust that then they can recover agains the trust

Shortly before S's death, he creates the "S Trust," an irrevocable trust for the benefit his adult child, X, naming T as trustee. The instrument directs the trustee to make distributions as it "deems advisable in its discretion for X's health and support, taking into consideration X's other resources." Because S is of the opinion that X freely spends money on unnecessary luxuries and also abuses substances, the instrument creating the S Trust provides that T is "not to furnish the trust beneficiary with any information that might encourage the beneficiary to engage in overindulgence in spending or in the abuse of alcohol or other drugs." Shortly after the creation of the trust and S's subsequent death, X requests that T provide him with an accounting and a copy of the trust instrument. T refuses, taking the position that S explicitly directed that X not be given information that would encourage X's spending of money or abuse of substances. Of the following, what is X's best argument for being provided an accounting and a copy of the trust instrument? (A) Because T would not have had enough time to determine whether X is freely spending money or abusing drugs, T is abusing its duty of prudence by withholding the requested information. (B) Due to the duty of a trustee to inform and account, T would need to show a direct relationship between its refusal to provide the requested information and X's alleged proclivities for spending and substance abuse. (C) The duty of a trustee to inform and account cannot be waived by the settlor, because a beneficiary must have certain information about the trust in order to protect the beneficiary's interest in the trust. (D) A settlor cannot waive a trustee's duty to inform or account except by specific reference to those items that the trustee may withhold in the trust instrument.

C: a trust is enforce as against the trustee by the trust beneficiaries, and b/c a beneficiary must have access to certain information in order to determine whether a trustee is carrying out its legal obligations, a duty to inform CANNOT BE WAIVED.

O signs a document that purports to create the "O Trust" and declares herself to be the trustee of the trust. The document provides that the trustee of the O Trust shall pay the income of the trust to O for her lifetime, and that, at O's death, the trust property shall be distributed to O's daughter, M. O then opens a bank account as "O, as trustee of the O Trust." Which of the following best describes the legal effect of O's actions? (A) O has not created a trust, because she failed to name a successor trustee to serve at O's death. (B) O has not created a trust, because a trustee cannot be the sole beneficiary of a trust. (C) O has not created a trust, because the trust document has not been witnessed. (D) O has created the O Trust.

D: All that is needed is the intent to create a trust, trust property, and one or more trust beneficiaries (O and M)

T is the trustee of a testamentary trust created under the will of S. T is also a real estate developer. The terms of the trust require the income to be distributed to X for a period equal to the shorter of ten years or X's death, with the remainder to be distributed to Y or Y's estate. As trustee of the testamentary trust, T owns a diverse portfolio of assets that includes publicly traded securities as well as Blackacre, an unproductive and undeveloped parcel of land that S had been holding for long-term appreciation. T determines that, given the purpose of the trust and the makeup of its corpus, it would be in the best interest of the beneficiaries to sell Blackacre and invest the proceeds in income-producing securities. T contacts three reputable local real estate appraisers and has each of them prepare an appraisal for Blackacre. As trustee, T then sells Blackacre to himself (in his capacity as a real estate developer) for the value determined by the highest of the three appraisals, plus 10 percent. After learning of the sale, Y objects and files suit against the trustee for self-dealing. Is Y's lawsuit likely to be successful? (A) The answer depends on whether T's determination that Blackacre should be sold was reasonable under the circumstances; if so, the law requires no further inquiry. (B) No. The actions of T do not rise to the level of self-dealing because the evidence regarding its value indicates the transaction was more than fair to the trust beneficiaries. The law requires no further inquiry. (C) Yes. Where the trustee enters into a transaction with itself, self-dealing occurs. The no further inquiry rule prevents the trustee from using the fairness of the transaction as justification for its actions. (D) Probably. Although the facts leave open whether the trustee's decision to sell Blackacre was reasonable, they also state that S was holding the property for long-term appreciation. The no further inquiry rule does not apply.

C: a trustee is not permitted to enter into a transaction on behalf of the trust w/itself in its individual capacity, the self-dealing and no further inquiry rule prevents a trustee from using fairness and good faith as a justification for its actions

H and W, who live in a separate property jurisdiction, are married. It is a second marriage for both. Although H has a large estate and W does not, the couple does not have a premarital agreement. H visits Lawyer for estate planning and tells Lawyer that he wants all of his estate except the personal residence (valued at about ten percent of H's estate) to go to his children from his prior marriage. He wants W to have the house if she survives H. Lawyer informs H that W will have elective share rights, and H expresses a strong desire to avoid the elective share if at all possible. If H lives in a jurisdiction that follows the rules of a majority of states, which of the following is the best advice to H regarding H's desire to avoid having W benefit from the elective share in H's estate? (A) H should execute a trust instrument creating a revocable trust that distributes his assets as he wishes at his death and then transfer all of his assets to the trust. (B) H should execute a will that devises the residence to W if she survives him and creates one or more testamentary irrevocable spendthrift trusts for his children. (C) H should enter into a postnuptial agreement with W wherein each of the spouses waive their rights to the elective share in each other's estate. (D) H should transfer all of his assets except the residence into asset-specific nonprobate forms of ownership naming his children as the death beneficiaries.

C: almost all jurisdictions will enforce a waiver of elective share rights in a postnuptial agreement entered into by both spouses

S, who is getting up in years, executes a deed of trust creating the "S Revocable Trust" under which T is the trustee. S then transfers most of his property to T as trustee of the trust, including Blackacre, a parcel of rental real estate managed by S and his oldest child A. The trust instrument provides that all of the trust's property is held for the benefit of S during his lifetime and that at S's death all remaining trust property is to be distributed in equal shares to S's two children, A and B. Approximately one year after the transfer of Blackacre to the trust, S decides to sell Blackacre to his oldest child, A. A transfers cash and a promissory note directly to S, and S directs T to deed Blackacre to A, free and clear of the trust. T complies with S's request. S's child B, upset that S sold Blackacre to A for what she considers a bargain price, brings suit against T, as trustee of the trust, alleging breach of her fiduciary duty. If the jurisdiction follows the rules set out in the Uniform Trust Code, will B's suit be successful? (A) Yes, if the price A paid for Blackacre was clearly below the property's fair market value, in which case T breached his fiduciary obligation to treat the trust beneficiaries impartially. (B) Yes, unless S contributes the proceeds from the sale to trust, as Blackacre belonged to the trust, not to S. (C) No, if S still had the right to revoke the trust during the time period when the sale was made. (D) No, but B does have recourse against T for not requiring that S withdraw Blackacre from the trust before he sold it to A.

C: although the general rule is that the trustee must treat the beneficiaries impartially, under the UTC while a trust is recovable the rights of the beneficiaries are subject to the control of the settlor and the trustee owe duties ONLY to the settlor.

Client wishes to transfer his principal residence to his girlfriend at his death outside of probate. He is not interested in obtaining advice as to the transfer of any other assets. He consults with Lawyer as to the simplest and easiest way to make this transfer. Of the following, which is the best advice given to Client by Lawyer? (A) Client should sign and record a deed for the residence under which he retains a life estate but transfers a remainder interest to his girlfriend. (B) Client should sign and record a deed under which he transfers the residence to himself and his girlfriend and joint tenants with a right of survivorship. (C) Client should sign and record a deed under which he transfers the property to himself, with a "transfer on death" to his girlfriend. (D) Client's only good option is to transfer the residence to the trustee of a revocable trust under which the trustee is required to distribute the deed to Client's girlfriend at Client's death.

C: an ideal nonprobate transfer of property at death does not make a transfer of ANY interest in the property until the moment of death and is completely revocable up until the moment of death

H, who is married to W, executes a declaration of revocable trust and transfers most of his assets to the trust. On the same date, H executes a will that names the trustee of H's revocable trust as the beneficiary of H's residuary estate. The revocable trust provides that if W survives H, then she will benefit from the trust assets after H's death. A couple of years later, H and W divorce. Shortly thereafter, H dies unexpectedly, not having made any changes to his revocable trust instrument. Which of the following most accurately describes W's interest in H's revocable trust upon H's death? (A) Despite the divorce, in all jurisdictions the provisions of the revocable trust will be respected, and W will benefit from the trust property. (B) Due to the divorce, in all jurisdictions W will be deemed to have predeceased H for purposes of determining her benefit from the revocable trust. (C) Due to the divorce, in many jurisdictions W will be deemed to have predeceased H for purposes of determining her benefit from the revocable trust. (D) Due to the divorce, W will be deemed to have predeceased H in all jurisdictions, but only for purposes of determining whether she will benefit from assets "poured over" to the revocable trust by H's will.

C: the revocation on divorce rule provides that for the purposes of interpreting a will executed before a testator's divorce from a spouse, the spouse will have been deemed to predecease the testator, and in many (but not all) jurisdictions the rule also applies to trusts made before a divorce.

O signs a declaration of trust creating the "O Revocable Trust," under which O will serve as trustee. The trust instrument provides that only O will benefit from the trust during her lifetime and at O's death any remaining trust property will be distributed in equal shares to O's children. O retains the right to revoke and amend the trust. On the same day O signs a will whose residuary clause devises the residue of O's estate to "the trustee of the O Revocable Trust." O then signs and records a deed transferring her primary residence to "O, as trustee of the O Revocable Trust." When O dies a few months later her property consists of the residence she transferred to the trust, a checking and savings account, and some miscellaneous tangible personal property. Will O's estate avoid probate? (A) Yes, the primary residence will avoid probate because it was transferred to her revocable trust and the other assets will avoid probate because they will be transferred to the revocable trust by O's pour-over will. (B) Although the primary residence will avoid probate, the other assets will avoid probate only if she also transferred them to the trust. (C) Although the primary residence will avoid probate, the other assets will avoid probate only if she transferred them to the trust or held them in some other nonprobate form at her death. (D) The primary residence will not avoid probate because O transferred it to herself, but the other assets will avoid probate if they were transferred to the trust.

C: assets that are transferred to a revocable trust avoid probate at the settlor's death; assets can also avoid probate if they are subject to another nonprobate form of ownership and it is not clear from the facts that other than the residence was transferred to O's trust or if they were subject to any form of nonprobate ownership.

T, who was very wealthy, died at a very advanced age. T's will left all of her considerable estate to her gardener, G. X, T's nephew and sole intestate heir, challenged T's will on the basis that T suffered from an insane delusion. X brought forth witnesses who testified that T was convinced that X was a regular participant in televised poker tournaments. In fact, X merely bore a resemblance to a certain famous poker player. X's witnesses further testified that T persisted in this belief despite being presented with overwhelming evidence that X did not play poker. X offered further evidence that T was of the opinion that gamblers were reprehensible. Among the following, what is the most valuable testimony offered by the proponent of the will in defense of X's lawsuit? (A) Testimony of T's friends that T was capable of identifying the natural objects of her bounty (B) Testimony of T's friends that T knew the nature and extent of her property (C) Testimony of T's friends that indicated T thought X was undeserving of T's wealth because X stood to inherit a great deal of money from his elderly aunt (D) Testimony of T's friends that T was stable and strong-willed

C: in most jurisdictions, the will or provision must have been a product of that delusion (causation factor) in order to be set aside/revoked. if they have this evidence that T indicated this, then this is a good defense to show that he knew what he was doing and had a reason for doing it

At T's death his will leaves his residuary estate "in equal shares to my nieces." T's only sibling had four daughters: E and F, who are still alive; G, who died after T executed his will but before T's death, leaving a son, X, but whose will left all of her estate to the American Red Cross; and H, who died childless before T's death, with a will leaving all of her property to her husband, Y. In a majority rule jurisdiction, how will T's estate be distributed? (A) E and F will receive T's residuary estate in equal shares. (B) E, F, the American Red Cross, and Y will receive T's residuary estate in equal shares. (C) E, F, and X will receive T's residuary estate in equal shares. (D) E, F, and Y will receive T's residuary estate in equal shares.

C: majority of jurisdictions allow anti-lapse statutes to apply to class gifts, and therefore since G had a son X then his share of the class gift will go to his descendant X, and since H died childless before T, the class gift is split between E, F, and X.

Testator dies with a will that distributes the residue of her estate "in equal shares to my grandchildren." Although at the time of the execution of the will Testator had four grandchildren, (A, B, C, and D), Testator's granddaughter A predeceased Testator leaving descendants surviving Testator. B, C, and D all survived Testator. How will the residue of Testator's estate be distributed? (A) One equal share will be distributed to each of B, C, and D, and one equal share will be distributed to Testator's intestate heirs. (B) One equal share will be distributed to each of B, C, and D. (C) One equal share will be distributed to each of B, C, and D, and one equal share will be distributed to A's descendants. (D) One equal share will be distributed to B, C, and D, and one equal share will be distributed to A's estate.

C: my granchildren is a class, and antilapse majority allows As share to be distributed to their descendants The correct answer is C. This is a class gift because it uses a class label ("my grandchildren") and dynamic shares ("equal shares") the value of which will vary depending upon the number of persons in the class. Most jurisdictions have antilapse statutes and under the majority rule antilapse statutes apply to class gifts. Therefore, since A predeceased Testator, A's share will be distributed to her descendants under the antilapse statute. A is not the correct answer because most states have antilapse statutes that override the common law lapse rules. B is not the correct answer because most states have antilapse statutes that override the common law lapse rules. D is not the correct answer because lapsed devises never go to the estate of the predeceased beneficiary.

O dies with a will that devises his residuary estate to his friend T as trustee of a testamentary trust for O's children. The trust includes a residence that O's family had used as a vacation home for a couple of generations. O's children have no interest in using the residence any longer and T has concluded that selling the property is in the best interest of the trust as its condition is declining and despite efforts to rent it out it does not bring in enough rental income to make it a good investment. T obtains appraisals from two independent appraisers and lists the residence for sale but after several months receives only a couple of offers that are below the appraisal prices. As it happens, T is interested in buying the property for his personal interest and is willing to pay more than any of the offers received after the property has been on the market for six months. If T decides, as trustee of the trust, to sell the property to himself as an individual, under which of the following are T's actions NOT a defense to T's exposure to the "no further inquiry rule?" (A) T attained judicial approval before entering into the contract of sale. (B) Before entering into the contract of sale, T fully disclosed the circumstances and his intentions to all of the beneficiaries of the trust, each of whom consented to the sale and its terms. (C) T's agreement is to pay at least 15% more than the highest offer received from any third party and 10% more than the highest appraisal. (D) O inserted a provision in the trust terms that permitted T to purchase assets from the trust at their fair market values after disclosure to the trust beneficiaries, which T undertook in this instance.

C: t's duty of loyalty to the trust beneficiaries strictly prohibits self-dealing (involving a conflict btwn the trust's interests and the trustee's personal interests); this - selling property to oneself - is a classic example of self-dealing; the no further inquiry rule kicks in and the trustee's good faith and the fact the transaction was fair to the trust are irrelevant

T Bank & Trust Co., Inc. (TBT) is a bank and trust company recently named as trustee of the "S Trust," a testamentary trust created under the will of S. Advantage Properties, LLC (AP), a development company, is a long-time customer of TBT. Over the preceding eight or ten years, AP has procured several loans from TBT for development projects, and AP also maintains a variety of business accounts with TBT. As trustee of the S Trust, TBT has determined that trust property Blackacre should be sold and the proceeds reinvested in other property. Trust officers at TBT are aware that AP would be a possible buyer for Blackacre. Which of the following is the best advice to TBT on the question whether selling Blackacre to AP will violate TBT's fiduciary obligations as trustee of the S Trust? (A) Because TBT and AP are completely separate entities, TBT may, as trustee of the S Trust, freely engage in transactions with AP. (B) Although TBT and AP are separate entities, TBT has a conflict of interest in that the companies have profited from engaging in business transactions with one another in the past and may do so in the future. Therefore, any such transaction would be prohibited. (C) Although TBT has a conflict of interest, the transaction is permissible if the sale is appropriate, the price is fair, and the transaction is entered into in good faith. (D) TBT has no conflict of interest, because while AP is a customer of TBT, it has no interest in the S Trust.

C: the trustee has a conflict of interest in engaging w/transactions with AP. The conflict arises bc AP is a current and potential future customer of the trustee, and the trustee stands to gain from further dealings with AP - this isn't self-dealing though because the trustee and AP are separate entities, with no common ownership. These types of transactions in this case are permissible only if (1) the sale is appropriate; (2) the price is fair; and (3) the transaction is entered into in good faith

T is elderly, unmarried, and has no children. She has very few assets other than her home, which she wants to leave to her niece, N, at her death. T also wants to avoid probate, maintain exclusive control over her estate during her lifetime, and be able to sell the house in the future if she no longer wishes to live there. One of her friends advised her to sign a deed transferring a remainder interest in her home to N, and retaining a life estate. Another friend told her to sign a deed transferring the home to herself and N as joint tenants. A third friend told her to execute a beneficiary deed naming N as the beneficiary of the home. A fourth friend told T to execute a will that devises the home to N. In light of T's goals, what action should T take? (A) She should retain a life estate and deed only the remainder interest to N. (B) She should deed the property to herself and N as joint tenants. (C) She should execute a beneficiary deed naming N as the beneficiary. (D) She should simply execute a will that devises the home to N.

C: this is the only one that meets all of T objectives, avoiding probate, allowing the property owner to maintain exclusive control over the asset during the lifetime, and it's fully revocable up until the date of the owner's death

T is the trustee of the "O Trust," an irrevocable trust created by O and funded with several million dollars. T has mismanaged his personal funds (property owned by T outside of the O Trust), and one of T's personal creditors obtains a judgment against him. If T's personal assets are insufficient to satisfy the judgment against him, can T's judgment creditor seek satisfaction of the judgment against the assets of the O Trust? (A) Yes, because as trustee of the O Trust T has legal title to the trust property. (B) Yes, because as trustee of the O Trust T has beneficial title to the trust property. (C) No, because T has legal title to the trust property only in his capacity as trustee. (D) No, because T has beneficial title to the trust property only in his capacity as trustee.

C: trustees have legal title and therefore creditors of the trustee cannot reach the assets

M recently died, leaving a valid will, executed a few years before her death, that devised her substantial estate in equal shares to her two children, F and G. At the time that M executed her will, she also executed a durable power of attorney naming her child G as her attorney-in-fact and giving her very broad powers. A few months after signing these documents, M began to suffer cognitive impairment. Later, G, as M's attorney-in-fact under the durable power of attorney, made several cash gifts to various persons from M's accounts. Before M died, G, as M's attorney-in-fact, also settled an inter vivos trust on M's behalf and transferred several valuable assets to the trust. Did G have the authority to make the gifts and settle the trust? (A) If the durable power of attorney contained broad general powers, G may have been granted the power to make the gifts, but the creation of the trust was authorized only if the document contained a specific power to do so. (B) If the durable power of attorney contained broad general powers, G may have been granted the power to create the trust, but the making of the gifts was authorized only if the document contained a specific power to do so. (C) If the durable power of attorney did not contain specific authorization to make the gifts and create the trusts, then neither of those actions was permitted. (D) The durable power of attorney could not have authorized the power to make gifts or settle a trust.

C: while durable powers of attorney can contain broad general powers that authorize many actions, most jurisdictions state that a power to make gifts and create trusts must be specifically authorized

H dies in a separate property jurisdiction survived by his son, S, and his wife of forty years, W. H's estate consists of a personal residence titled in H's name, a checking account titled in H's name, a large brokerage account with a transfer on death (TOD) provision designating S as the death beneficiary, and assorted items of tangible personal property. H's will contains only the following dispositive provision: "I give all of my estate to my son, S." If W makes the election to take the elective share in H's estate, out of what property will her elective share be determined? (A) The personal residence, checking account, brokerage account, and tangible personal property (B) The checking account, brokerage account, and tangible personal property, but not the personal residence (C) The personal residence, checking account, and tangible personal property, but not the brokerage account (D) The personal residence, checking account, and tangible personal property, and in some jurisdictions the brokerage account

C: you can pull the elective share from all probate assets in every jurisdiction, and in some jurisdiction you can pull the elective share from all or a portion of non-probate assets too.

W executes a will that gives her entire estate to her husband, H, if he survives her, and if not, then to her child, X. W also designates H as the primary death beneficiary of her employer-sponsored qualified pension plan, and X as the contingent beneficiary in case H predeceases W. Subsequently W divorces H. W fails to change her will or the beneficiary designation on her pension plan. W does not remarry and subsequently dies. Who is entitled to the death benefits from W's pension plan? (A) X, because most states have statutes in place that revoke will provisions to an ex-spouse upon divorce (B) X, because federal law revokes provisions in nonprobate devices for an ex-spouse upon divorce (C) H, unless W's state of domicile is one of the few that revoke provisions in nonprobate devices for an ex-spouse upon divorce (D) H, unless the pension plan documentation provides for a different disposition upon divorce

D: ERISA preempts state law that provide that the designation of a spouse as the beneficiary of such a plan (in this case, a pension plan) is revoked upon divorce - ERISA says that you must look at the plan documents, and whoever is on those gets it.

In year one, H, who is married to W and has one child, X, executes a will containing only the following dispositive provision: "I devise my entire estate to my wife, W, if she survives me." In year two, W gives birth to twins, Y and Z, who are also the children of H. H makes no changes to his estate plan and in year three, H dies with the year one will intact. Given the varying rules across jurisdictions, which of the following is the most accurate statement of the law applicable to these facts? (A) Regardless of which of X, Y, and Z are pretermitted children, since W survived H, she will take H's entire probate estate. (B) Only Y and Z are pretermitted children, and each will take an intestate share. (C) All of X, Y, and Z are pretermitted children, and each will take an intestate share. (D) Y and Z are pretermitted children under any pretermitted child statute, and they may be entitled to a share of H's estate.

D: after born children not referenced in the will are always pretermitted, their entitlement to a share is possible but not certain under these facts since the will devises the estate to W and W survived

Decedent dies with a will that purports to devise $10,000 in trust for the benefit of her dog, Fido, who survives her. Decedent's will names a trustee of the trust and gives specific directions regarding the use of the trust property for Fido's benefit and the trust is to continue until Fido's death. Which of the following best describes the legal effect of these provisions in Decedent's will? (A) The attempt to create a trust for Fido is invalid and void, as trusts can be created only for human beneficiaries and charities. (B) Although the attempt to create a trust for Fido is invalid, the devise can be held by the named trustee as an "honorary trust" if the trustee so chooses. (C) The attempt to create a trust for Fido is likely to be invalid, as it violates the rule against perpetuities. (D) The attempt to create a trust for Fido is likely valid as a type of "purpose trust."

D: all states now allow trusts for animals and are valid if they terminate at the latest upon the death of the animal

S by will creates the "S Trust" and names T as trustee. The trust instrument provides that the trustee shall distribute "so much of the income and principal of the trust to X as the trustee in its sole and absolute discretion shall deem advisable for X's health and support in reasonable comfort. At the death of X any remaining principal of the trust shall be distributed to Y." At its inception, the trust contains a small portfolio of investments and a modest amount of cash. X is the adult child of S, while Y is a charity. T retains the investments largely as received, and distributes to X all of the traditional items of income, as well as generous amounts of principal as requested by X for luxuries such as vacations, golf and country club memberships, and recreational assets such as a fishing boat. After a few years of diminishing trust principal, Y, based on information reported in T's annual accounting to the beneficiaries, objects to the generous distributions made to X. T defends its actions by pointing to the trust language giving it "sole and absolute discretion" to determine distributions to X. Of the following, what is Y's best argument for T's breach of its fiduciary duty? (A) Although the trustee was given the right to distribute both income and principal, under the traditional rule a life beneficiary is only entitled to income distributions. (B) Despite the granting of "sole and absolute discretion," the "reasonable comfort" standard does not justify distributions for luxury items. (C) Despite the granting of "sole and absolute discretion," a standard tied to "health and support" will not justify distributions for luxury items. (D) Despite the granting of "sole and absolute discretion," a trustee's discretion is always subject to a standard of good faith with a view to the purpose of the trust and the interests of the beneficiaries.

D: although settlors often include sole discretion language, a settlor cannot waive trust law's requirement that the discretion must be exercised in good faith and w/the trust purposes and beneficiaries' interest in mind

At Testator's death after a long illness a formal attested will that he executed a few days before is filed with the probate court in testator's jurisdiction. The will is properly executed in all respects and also contains a properly notarized self-proving affidavit. Despite that Testator, a widower, left three adult children surviving him, his will devises all of his property to his caretaker. Child, one of testator's children, challenges the will on the basis that Testator lacked testamentary capacity. Child is prepared to present credible written evidence and expert testimony regarding two points. First, in addition to Testator's many physical ailments that rendered him bound to a wheelchair, Testator was diagnosed with Alzheimer's disease (a neurological disorder that causes dementia) approximately six months before his death. Second, although Testator had been an active investor most of his life, at his will signing ceremony he was unable to recall all of the various companies in which he owned stock. Which of the following is the most accurate statement regarding Testator's legal capacity to execute the will? (A) Testator's diagnosis of Alzheimer's disease is dispositive on the issue of whether Testator had the capacity to make a will and so the will should be set aside due to his lack of testamentary capacity. (B) The will, having devised all of Testator's property to his caretaker, is conclusive proof that Testator was unaware of the natural objects of his bounty, and should therefore be set aside due to his lack of testamentary capacity. (C) Testator's failure to recall all of the companies in which he owned stock is dispositive on the issue of whether Testator had the capacity to make a will and so the will should be set aside due to his lack of testamentary capacity. (D) Under the facts presented, it is unclear whether Testator had the requisite legal capacity to make a will.

D: for capacity generally, the testators must be capable of knowing and generally understanding the nature and extent of their property, the natural objects of their bounty, and the disposition that they are making in the will; we don't have enough facts here to conclusively indicate if the testator was capable of making a will

T executed a will containing only the following dispositive provision: "I give all of my estate to my dear wife, W." A few years later T's wife W died, survived by T. T did not thereafter change his will and died with it intact. T's nephew, N, who would inherit T's estate under the state's intestacy statutes, was named T's personal representative. T's best friend, F, filed a petition in the probate proceedings claiming entitlement to T's estate. F was prepared to offer evidence that, on more than one occasion, T told him and others that T wished F to have T's entire estate. In a jurisdiction that follows the Uniform Probate Code provisions regarding reformation to correct mistakes, what is N's best argument against F's case? (A) T's will contains no latent ambiguity. (B) T's will contains no patent ambiguity. (C) T's will is unambiguous. (D) T only formed the intent to distribute his estate to F sometime after the death of T's wife.

D: under UPC, the court may reform a will, even if it is unambiguous if there is clear and convincing evidence both of the testator's intention at the TIME OF THE WILL's execution and that the will was affected by a mistake of fact or law

T has two adult children, F and G. T has a very good relationship with both of her children, but F lives near T while G lives several hundred miles away. Because T is getting on in age and needs help with her affairs, she decides to add F's name to her checking account so that F can help her pay her bills and make sure her account is balanced on an ongoing basis. T goes to the bank with F, and a bank employee has F sign a "signature card" for the account. F then takes over the task of paying T's bills from the account. T dies a couple of years later when the checking account balance is $20,000. T's will divides all of her assets between F and G equally. F maintains that the account is a nonprobate asset and should be paid solely to her, while G maintains that the account is a probate asset that should be distributed in equal shares according to T's will. If the jurisdiction follows majority rules, who will succeed to the ownership of the account? (A) The account is a nonprobate asset. If F supplies the bank with T's death certificate, the bank must transfer the account to F's name alone. (B) The account is a probate asset that must be distributed in accordance with T's will. (C) Whether the account is a probate asset depends on the account paperwork. If the signature card and any other bank paperwork describe the account as having survivorship rights, then it is a nonprobate asset and must be paid to F. (D) Whether the account is a probate asset depends on whether T intended that F have survivorship rights at the time she added F's name to the account.

D: in most jurisdictions, whether a joint bank account has survivorship rights depends on the account owner's intention at the time they added the second party to the account

W and H, who lived in a separate property jurisdiction that follows all majority rules, married one another when both were in their middle sixties. Both W and H had adult children from a prior marriage, but there were no children of their marriage to one another. At the time of her marriage to H, W was quite wealthy, but H did not have much money of his own. Nonetheless, the couple did not enter into a premarital agreement waiving the elective share in one another's estates. Shortly after the marriage, W deeded her home (in which the couple now lived together) to W and H as tenants by the entirety. After twenty years of marriage to H, W dies with a will that leaves her large probate estate to her own children, to the exclusion of H. H succeeds to the ownership of the home. H had never expressed an interest in W's potentially substantial estate, but he is in cognitive decline and lacks legal capacity at the time of W's death. Which of the following best describes the legal rights of H to the estate of W? (A) Since H is incompetent and has the smaller estate, his guardian must file the petition on his behalf to take the elective share. (B) Since W chose not to enter into a premarital agreement, H's guardian has the duty to file a petition on his behalf to take the elective share if it is in H's best interest, computed mathematically. (C) Since H is incompetent and received a substantial nonprobate asset (the home), he cannot take the elective share. (D) Since H is incompetent, whether he can take the elective share may depend at least in part on whether his guardian determines that H would have wanted to preserve his wife's estate plan.

D: majority rule - whether a surviving spouse who is incompetent can take the elective share depends on all the facts and circumstances; and whether H would have wanted to preserve W's estate plan would be a factor in determination.

O creates a revocable trust by executing a declaration of trust. On the same day, O also executes a "pour-over" will. The trust instrument provides that the trustee is to distribute all of the net income to O during her lifetime, together with so much of the principal as requested by O from time to time. At O's death, any remaining trust property is to be distributed to O's daughter, Q. A provision in the trust instrument states as follows: "The settlor reserves the right to revoke the trust at any time by a writing delivered to the trustee." A few months after creation of the trust, O has a falling out with Q. O tears up the trust instrument and signs a new will giving all of her estate to the local animal shelter. Upon O's death a few months later, Q brings suit against O's estate contending that O did not properly revoke her trust and that all of the property transferred thereto must therefore be distributed to Q. No writing by O purporting to revoke the trust is ever found. Which of the following is the estate's best legal argument against Q's contentions? (A) Expressions of intent in a subsequently enacted will always prevail over conflicting expressions in a trust. (B) A revocable trust can always be revoked by physical act, which is expressed by destructive actions taken on the trust instrument coupled with the intent to revoke the trust. (C) A pour-over will always incorporates the revocable trust by reference so that a revocation of the will necessarily revokes the trust. (D) A revocable trust can be revoked in any manner that indicates the settlor's intention to do so, unless the trust instrument provides that a method of revocation in the trust instrument is exclusive.

D: majority rule for revocable trusts, it can be revoked in any many that indicates the settlor's intention to do so so long as the trust instrument does not provide a method of revocation in the trust instrument exclusively. A mere mention of a way that it can be revoked is not conclusion enough to infer that it is exclusive.

S creates the "S Trust," names T as trustee, and provides in the trust instrument that the net income of the trust is to be distributed to X for X's lifetime, with the remainder being distributed to Y or Y's estate. With a view toward generating sufficient income for distribution to X and preserving the capital for Y, T generally shuns purchasing equities on the trust's behalf, and instead invests the trust assets mostly in government bonds and in a few other reliable and conservative income-producing assets, such as cash deposits and mortgages. Over the next few years the stock market indices achieve strong highs, while the corpus of the S Trust remains stable with slight growth at just under the rate of inflation. X is satisfied with T's investments, but Y objects and takes the position that T should be investing in assets such as stocks that have more growth potential. Does Y have a case against T for violation of T's duty of prudence? (A) Probably not; while trustees are not limited to an enumerated list of assets appropriate for investment, trust assets must be invested conservatively under the prudent investor rule, and here T has done so to preserve capital and produce income. (B) Probably not; here T seems to be investing for total return as required under the prudent investor rule, including generation of sufficient income and preservation of capital. (C) Probably; trust portfolios must include a generous percentage of stocks, as courts have recognized that only stocks achieve sufficient capital growth for remainder beneficiaries. (D) Probably; the prudent investor rule requires that investment be diverse with a view to overall risk and return, and here T's investments seem to favor income over capital appreciation.

D: modern prudent investor rule focuses on achieving risk management by diversification and investment for overall risk and return, and here the T is sacrificing the opportunity for capital appreciation by investing solely in gov't bonds and being conservative w/income producing assets.

In year one, T, who is very wealthy, executes a will with only the following dispositive provisions: "I give the sum of $100,000 to my boyfriend, X. I give all the rest of my estate to my daughter, Z." No other references to X are made in the will, nor is the possibility of T getting married. In year two, T and X get married. Despite advice to the contrary from her lawyer, T does not enter into a premarital agreement with X. In year three, T dies, survived by both X and Z with the year one will intact. T's probate estate is valued at several million dollars. To what portion of T's probate estate are X and Z entitled in most jurisdictions? (A) Since X was mentioned in the will, the pretermitted spouse rule would not apply, and X would be entitled only to the $100,000 general devise. Z would receive the residue. (B) Although X was mentioned in the will, the possibility of marriage was not, therefore the pretermitted spouse rule would apply and X would be entitled to elect to receive an intestate share of T's probate estate. Z would receive the residue. (C) Although X was mentioned in the will, the possibility of marriage was not, therefore the pretermitted spouse rule would apply and the will would be deemed revoked. X would therefore be entitled to receive an intestate share of T's estate, as would Z. (D) Although X was mentioned in the will, the possibility of marriage was not, therefore the pretermitted spouse rule would apply and the will would be deemed revoked as to X's share of the estate. X would therefore be entitled to receive an intestate share of T's estate, and Z would receive the residue.

D: most states have statutes providing that a pretermitted surviving spouse is entitled to the minimum of an intestate share; this rule does not apply though if the testator contemplated marriage; the now spouses share is the ONLY thing revoked under this, NOT the ENTIRE will

T, who was very elderly and frail, died leaving a will that gave all of her vast estate to X, her caretaker, who was of no relation to T. T left a number of close relatives surviving her. Of the following factors that can be proven by the challenger to T's will, which is least relevant in determining whether X unduly influenced T? (A) X spent a lot of time alone with T in the months before T signed her will. (B) T's prior will would have given all of her property to her niece. (C) T was in a mentally weakened state when she signed her will. (D) T drove a $100,000 automobile.

D: not a suspicious circumstance b/c it is not suspicious that a testator with a vast estate might drive an expensive car

In year 1, T executes a will devising "$1,000,000 to each of my children, X and Y" and devising the remainder of his estate to his wife, W. At the time T's will is executed he has only two children, X and Y. In year 2, T and W have another child, Z. Later in year 2, T dies unexpectedly, not having changed his will. Which of the following most accurately describes the interest that Z has in T's estate? (A) Z has no interest in T's estate because on the date T's will was executed his only children were X and Y. (B) The law prevents T from disinheriting a minor child, so Z will receive an intestate share of T's estate. (C) Z has a right to make an election to receive an "elective share" interest in T's estate. (D) Z is a pretermitted child and has the right to a statutory share of T's estate.

D: pretermitted child statutes protect the child against unintentional disinheritance - applies to born or adopted children after the execution of the testator's will

T executes a will that devises her automobile to her best friend, F. T is then involved in an automobile accident that results in her death and the destruction of the automobile. The automobile is covered by insurance. What is the best argument that T's estate should distribute the insurance proceeds to F pursuant to T's will? (A) Under the facts at hand, the jurisdiction should follow the identity theory of ademption. (B) The will provision regarding the automobile is a latent ambiguity and extrinsic evidence as to T's intent and should be admitted. (C) Because T would not have had the opportunity before her death to revise her will, abatement is appropriate. (D) Under the facts at hand, the jurisdiction should follow the intent theory of ademption.

D: the intent theory of ademption, if the property specifically devised under the will is no longer in the testator's estate at death, the devisee may be entitled to the replacement property if they can show that it was what the testator wanted. T did not have a chance to substitute the gift because they died while the car got wrecked.

On April 1, 2015, F, who owns a valuable painting entitled "Seymour Dreams," writes an email to his son, S, that reads in its entirety: "Dear S: I hereby give you the 'Seymour Dreams' painting currently hanging in my study. From this date forward, I want you to own this fine work of art. Love, Dad." F does not deliver the painting to S, who lives several hundred miles away. Although S received and read the email, neither F nor S makes any further mention of the painting. F dies intestate a few months later with the painting still hanging in his study. After F's death, the personal representative of F's estate claims the painting for the estate, maintaining that it was not gifted to S during F's lifetime because the delivery requirement for making gifts was not satisfied. S argues that from the time of the April 1, 2015, email, F held the painting in trust for S. Which of the following is the most accurate legal characterization of S's argument? (A) The argument is a valid representation of the law as applied to the facts. (B) The argument is invalid as a settlor of a trust cannot be the trustee of that trust. (C) The argument is invalid as F did not deliver the trust property to S. (D) The argument is invalid as the facts show no intent on the part of F to create a trust.

D: the words "to give" and "to own" the property are not enough to show the intent to create a trust

T's will provided as follows: "I give $100,000 to each of my siblings, X and Y, and $800,000 to Z." T left the residue of his estate to X. T's probate estate, after the payment of debts and expenses, contained assets totaling $800,000 in value. Who gets what from T's estate? (A) Since the general devises cannot be satisfied in full, only the residuary devise is paid and X gets the entire estate. (B) The residuary devise abates. The general devisees are paid in the order of largest devise first. Thus, Z receives the $800,000. (C) The residuary devise abates first, and then the general devisees abate pro rata. Thus, X and Y will each receive $100,000, and Z will receive $600,000. X will not receive a residuary devise. (D) The residuary devise abates first, and then the general devises abate pro rata. Thus X and Y will each receive $80,000, and Z will receive $640,000. X will not receive a residuary devise.

D: traditional rule - residuary abates first (sucks to be you), then general devises, then specific and demonstrative devises. Bc there are insufficient asserts to satisfy the general devises, the residuary abates and they get nothing, sucks. Then pro rata for the general devises.

O creates an irrevocable trust for the benefit of her grandchildren X and Y but is concerned that the wealth in the trust might create a disincentive for the grandchildren to work towards their own success. Consequently, she inserts a provision in the trust instrument providing that the trustee is not to inform the trust beneficiaries of the existence of the trust and is not to provide them with trust accounting or reports until such time as they have reached the age of twenty-five. When they are 21 and 19 years of age respectively, X and Y learn of the trust's existence from a family member. After the trustee rejects their request for information, they file an action in court that seeks to compel the trustee to provide them with both an accounting and a copy of the document that created the trust. If the jurisdiction has adopted the provisions of the Uniform Trust Code (UTC), and assuming only the UTC rules apply, which of the following best describes the legal rights of the grandchildren to the requested information regarding the trust? (A) They are entitled to the information because under the UTC a trustee has a mandatory duty to keep the trust beneficiaries informed of the trust administration and this duty cannot be waived by the settlor. (B) They are not entitled to the information because the trustee's duty to keep the beneficiaries informed of the trust administration can always be waived by the settlor under the UTC. (C) They are entitled to the information because under the UTC a settlor can waive the trustee's duty to keep the trust beneficiaries informed of the trust administration only up until the time that the beneficiaries reach the age of eighteen. (D) They are not entitled to the information because under the UTC a settlor can waive the trustee's duty to keep the trust beneficiaries informed of the trust administration, at least up until the time that the beneficiaries reach the age of twenty-five.

D: under the UTC, certain administration rules cannot be waived, but the UTC does permit the settlor to waive its provision requiring the trustee to inform the trust beneficiaries of the existence of an irrevocable trust and to provide them w/trust accountings or reports at least until the beneficiaries have attained the age of 25.