Wills, Estates and Trusts

What if a trust says if you marry before 20 you loose your interests in a trust?

If the reason is to go to college it would probably be enforceable

What is an executor?

Name to execute one's will

XXVIII. What if she said I want you to be TE of all my asset

• If you can identify the property

VII. What happens if a column has died out?

• It is completely ignored

X. Can an AIF make or revoke a will?

• No • Majority rule says you cannot • ASK PROF: Difference between AIF and DPOA

What is non probate property? How does it pass?

• Passes according to a particular nonprobate device (not a will or intestacy)

IV. What is a void devise?

• The devise is somehow invalid

III. What do contracts not to revoke a will typically consist of?

• Typically involve married couples that executed a joint will

• Excerpt from Will of T: o I devise to my daughter, X, the sum of one million dollars ($1,000,000). o I devise all the rest and residue of my estate in equal shares to X, Y and Z. o (Assume T had no spouse and three children (X, Y and Z) when the will was executed, but X predeceases him, leaving descendants.) CL? Typica AL?

. C/L? o CHECK THIS ANSWER WITH PROF • Old Common Law • General Devise o 1 million would go to residuary • Residuary o X's share would go to intestacy • Residuary if Majority Modern Common Law o X's Share would go to Y and Z • b. Typical Antilapse? o CHECK WITH PROF o General • 1 Million would go to X's Descendants o Residuary • X's Share would go to Descendants

I. What is the majority rule for wills act formalities?

1. Writing 2. Signature by testator 3. Two witnesses (must attest and sign) 4. Usually the statute will require the witnesses to see the testator sign the will or the testator must affirm to the witnesses that she signed the will. They might have to sign in the presence of the testator and/or of one another.

I. What are the two main way to revoke a will?

By a document executed in compliance with the wills act. o Even if holographic or codicil it can revoke a prior will, even if formalities are not • 2.By a physical act performed on the will coupled with an intent to revoke it in front of the T or by the T. o Ripping up a will

XXIV. What are the 3 best practices regarding prenuptial agreements?

Disclose all assets, including description and value. • 2.Each party should be represented by an attorney. • 3.The agreement should be drafted, negotiated and signed well before the wedding.

II. What is the procedure of an undue influence case?

I. Burden is on the challenger to the will. II. 1.MUST PROVE a "confidential relationship." a. Fiduciary i. A formal legal relationship ii. DPOA where one can act on your behalf for financial issues and there is an agency relationship iii. Lawyer client, TE-Bene b. Reliant; or i. Someone frail relying on someone to do things like groceries, paying bills etc. c. dominant-subservient i. There is one person that is in charge, Caregiver for example III. MUST PROVE one or more "suspicious circumstances." i. Weakened donor, wrongdoer participated in preparation of will, donor didn't see attorney advice, will prepared in secrecy or haste, the will changed abruptly, change in attitude of T due to relationship with wrongdoer, etc. IV. THEN:If the challenger can prove the above then the burden shifts back to the proponent.

I. What is DRR and when does it apply?

I. IF T undertakes to revokes a will due to a mistake about the law or a fact; AND II. T would not have revoked the will and kept 1st will but for his mistake III. THEN the revocation is ineffective and the court will probate the old will IV. This gives them the second best result.

Suppose B, who has debts exceeding his ability to pay, files a petition in bankruptcy. Then, while B's bankruptcy case is proceeding, O dies intestate, leaving B as her only heir. Would you advise B to disclaim his interest in O's estate?

If a bankruptcy petition is filed before the disclaimer, courts invariably hold that the disclaimer is ineffective under federal bankruptcy law.

• I devise all the rest and residue of my estate in equal shares to my friends X, Y and Z (Assume X predeceases T, leaving descendants.) • a. Who gets X's share under the old common law? o • b. Who gets X's share under the "modified" which the majority rule common law? o • c. Who gets X's share if a typical antilapse statute is in place? •

Intestacy It splits between Y and Z since it is a residuary estate. X is not a relative, AL does not apply.

• Suppose Mrs. Sullivan says to lawyer (see Mahoney v. Grainger, p. 328): "I've got about 25 first cousins. Let them share it equally." What if I gave you the facts and asked you how the will provision should be drafted? • a. Will this work? o "I give, bequeath and devise all the rest, residue and remainder of my estate in equal shares to my first cousins" • • B.Suppose a cousin who is alive upon execution of the will predeceases Ms. Sullivan. What will happen to the share she would have received? o

It goes to the class of cousin as this is a class gift. At common law if someone drops out it goes to the other members of the class In a Majority of jurisdictions, they apply to a class gift. Then it goes it descendants.

• Excerpt from Will of T: o "I devise to my daughter, X, the sum of one million dollars ($1,000,000) o (Assume X predeceases T.) o a. Under the common law, who gets the $1 million? • o b. Who gets the $1 million if a typical antilapse statute is in place? •

It is a general devise therefore the common law rule it falls to the residuary If antilapse, it goes to their descendants

"I give my estate in equal shares to my children, by representation". T had two kids A and B, alive when the will was executed. A predeaces T leaving his adopted children, X and Y.

Now the adopted child is an extra level below? Majority Rule today is that we presume children means all children including adoption • B would get half, and each kid would get 1/2. • There is an old rule where if T was a stranger to the adoption meaning since he didn't adopt the kid he wouldn't take. This not the majority of what people would want. • In Most states today a MINOR adopted by T is presumptively included in gifts or inheritances to T's children. • But if wills were executed during the old rule, the old rule would apply. Old Rule Stranger to the Adoption Rule: an adopted child is excluded from the definition of "child," or its equivalent in a dispositive document unless the child had been adopted by the person creating the testamentary instrument

X. Figure 2.7 • See page 84

Same result as above

V. Apply Stephens v Casdorph to the HED and SC doctrine?

See notes

What about the slayers descendants?

There is variation among states Some states allow them to take other may depend it on whether descendant if killer were related to decedent

What if it said you need to get divorced to get an inheritance?

This is stronger public policy because it is in favor of breaking up a marriage

• X as trustee is given blackacre for bene A and B. X contracts to seLL blackacre to Y. RECOURSE? o • If Z has a judgment against X for an injury caused by X;s negligence unrelated to the trusteeship, Z has no recourse against Blackacre or the proceeds from the sale of Blackacre. RECOURSE? o

Y has recourse against the trustee (and trust property) for any breach of the trustee's contract to sell Blackacre to Y. Z has no recourse against trust property for TE's personal debts to

XI. Are attestation clauses required?

no

• T dies on 9/1/14 with a will dated 4/1/14 with the following provision. • "I give all my tangible personal property to the persons named in a written memorandum which I may leave at my death." • T also leaves a memorandum dated 8/1/14 leaving tangible personal property to various persons. • Is the memorandum valid?

o "Slim" majority AND UPC has a statute that allows incorporation by reference of a separate list of tangible personal property only EVEN IF PREPARED AFTER THE EXECUTION OF THE WILL. o UPC says it must be signed and the items must be described by T with reasonable certainty (MA has adopted this)

• H and W visit you. They are about to be married and wish to "do their wills." They are in their late 60's. This is the second marriage for both of them and each has children from a prior marriage. One has a very large estate. The other does not. Each spouse wishes to give his/her estate in equal shares to his/her own children. • What do you advise them?

o ASK PROF: If this is right o Depends on the jurisdiction and if waivers would be valid or marital agreements o You need to advise them that there is a conflict and there will be no secrets o You could do an agreement where they waive the elective shares o They maybe should not trust eachother o Incapacity • They may be need an attorney in fact who may elect against the estate • It may not be up to them • You need to bring up incapacity, attorney in fact, etc. o Can the executor make the elective share? o Make them aware of all the items o

VI. What other cases do we have that deal with ademption that were not assigned?

o Bierstedt • Guardian sold an item and it was an involuntary act as the T lacked capacity • Therefore one they sold the item there was no ability to change the will o Wolf Case • Guy died in a car accident and left his car to a person but he could change the will cause he died • it is involuntary and there is no opportunity to change the will

V. What case do have deals with whether revocation on divorce applies to revocation trust statutes?

o Clara executed a pour over will and revocable trust. D, her husband was designated as the life beneficiary with a remainder to her nieces and nephews. o They divorced and she changed the life insurance bene but not the trust which the bene was her husband. o Will and retirement plan poured into the trust. o MA ROD statute only applied to wills. o SCJ said if the spouse should not take if the trust was entirely funded at death, today MUPC applies ROD to RTs

• X dies survived by two nephews, A and B. X's nephew, C, predeceases him, leaving children. • What result if X's will provides as follows? • I give all the rest and remainder of my estate in equal shares to those of my nephews who survive me

o Class gift with possible application of AL. o Majority would say survive me language alone would defeat the AL. UPC would say you need more than just the survivorship language

• I give, bequeath and devise all the rest, residue and remainder of my estate in equal shares to those of my first cousins who survive me. Would this work?

o Class gift with possible application of AL. o Majority would say survive me language alone would defeat the AL. UPC would say you need more than just the survivorship language.

b. The trustee shall distribute so much of the principal of the trust to A for her health and education as the trustee in its sole discretion deems advisable.

o Discretionary

VI. What case do we have that deals with a holographic codicil?

o Estate of Kuralt • 85: bought 20 acres; 87 bought two ajoining tracts; 89:executed a holographic will: 94: executed a formal will to revoke the holograph; 4/97; sham sale to Shannon of 20 acres; 6/97; letter to Shannon with checks saying that he would would make sure Shannon got the MT property if it came to that. • Was the writing testamentary? • Here he wanted to hide the affair so he didn't execute a will Kuralt was hospitalized on June 18, 1997, on which date he wrote a letter to Shannon enclosing checks for $8,000 and $9,000 and stated that he would have his attorney make sure Shannon inherited the remaining property in Montana, "if it comes to that." • He didn't want it to be a will, but he wanted her to get the property. This case is dangerous because they probated it, although, like in the Maccoul case, he didn't intend the writing to actually be a will. • Adding insult to injury the estate had to pay tax on the disposition to the girl he cheated with.

XIII. What Iowa case do we have that deals with the elective share?

o Estate of Myers • Karen died owning a checking acct, CD and annuity with beneficiary designations to her daughters • Her will bequeathed most of her property to her daughter and stepson • June 30, 2010: Howard filed for elective share • Court had ruled in the Sieh case that revocable trust assets were available for the elective share • Issue: are nonprobate assets included in the elective share? • The statute seemed to include all personal property not necessary for the payment of debts and charges. The court still thought that this was ambiguous and looked at legislatoive history to determine that no non probte stuff should be included.

VI. What case do we have where a pretermitted heir statute was applied taking into account the possibility that a surviving spouse would care for a child?

o Gray vs Gray • In 1981, John, who had two children from a prior marriage, married Mary. • 81 Executed a will saying I want everything to go my current spouse • He had kids at that time and is allowed to disinherit them • 1981 Will: all to Mary (none to children) • 1984: Jack born to John and Mary • 1989: John and Mary divorced • 2004: John died • The statute said if you had a kid after will executed, kid gets an intestate share but here he got the share unless T had a kid at the time and left it to the other parent, and Mary was considered predeceased due to divorce. The court followed it by the letter and he was out.

II. What are guardians and conservators?

o Guardian • The court is more involved, guardian needs certain approval and needs to provide accounting to the court o Conservator • Need to have them declared incapacitated and jump through a few hoops, then you have power over the property similar to a trustee. o conservatorships • Priority of appointment of conservatior is typically chosen by the POA, person's spouse, adult child, or parent in that order

V. In Alburn what would have been the best way to get to what she wanted?

o Harmless error doctrine, always look at this before going to DRR. o But always look at both.

V. What case do we have that relaxed the holographic/pre-printed forms rule?

o In Re Estate of Gonzales • Filled out a form but in a draft, had witnesses sign a blank form and was going to transfer it over but died • Gonzales had a preprinted will that had some of the provisions written and others preprinted. • Here they included the preprinted words, but only if the property disposes the property and names the beneficiaries. • Since the material provisions were in handwriting the court considered the pre-printed forms

IV. What types of trusts are these? a. The trustee shall distribute all of the net income of the trust at least annually to A, during her lifetime

o Mandatory

• You represent a creditor of the insolvent SS, whose wife, DS, has just died with a substantial estate. DS's will give all of her estate to the couple's children. There is no prenuptial agreement. Can you force SS to take the elective share so that your client can collect its debt?

o NO they cannot force someone to take the elective share

III. What is the goal in planning for incapacity?

o Standard part of today's estate planning. We want to: o Take control by naming a fiduciary to act for the client in the event of incapacity: • (1) property management; and • (2) health care decision-making

• What if X does not want any of the descendants of a deceased nephew to take a share? Will this work? • I give the rest and remainder of my estate to those of my nephews who survive me. The descendants of a nephew who predeceases me shall not take by representation.

o The drafter is saying don't apply the antilapse and this will work but Prof likes a different will drafter.

• Settlor, a surgeon, transfers the bulk of her property to Trustee (a third-party) in trust. A clause in the trust instrument provides that Settlor may not transfer her life interest in the trust, and that it may not be reached by Settlor's creditors. • A few years later, Patient brings suit against Settlor, alleging that Settlor negligently operated on Patient, causing permanent damage. Patient wins the lawsuit and is awarded a judgment of $1 million. Can Patient reach the assets in Settlor's trust to satisfy her judgment?

o This is a self settled trust. So general rule is that spendthrift provision in a self settled trust won't work! o When settlor is the beneficiary, under the general rule, the spendthrift provision won't work!

I. What typically happens when one becomes incapacitated?

o We need a court to determine they no longer have capacity and appoint either a guardian or POA

• Decedent (D), who is terminally ill, consults with her lawyer (L) about her estate. She tells L that she wishes to leave her entire estate in trust to her grandson, F. L dutifully drafts a will that provides that all of D's property is to pass to a testamentary trust for F at D's death. D approves of the will and executes it according to the requisite legal formalities. Later that year, D dies. How will her estate be distributed?

o We need to know what happens if the grandson dies o We need to know what NP assets she has and who the beneficiaries are o Tangible personal property is probably the least of the concerns o Would this avid probate? o No, not with a testamentary trsut o How do you set it up? o Step one look at all the assets o Set up a RT o Have all the non probate be paid directly to the trustee o It she is dead then name the successor TE o Checking POD, MM is POD • LI is Bene form • Brokerage is TOD • Retirement Account is a Bene form o Pour over residuary clause o With the accounts you could also retitle them into their trust • Then when she dies they are already in the trust

• T wishes to transfer assets to X in T's will, as trustee, for the benefit of T's adult son, A, as follows: o 1. income to A for A's life; o 2. at A's death, the trust to terminate and the remaining property to be distrbuted to A's descendants, per stirpes. • What unknown possibilities must the lawyer who drafts the language plan for?

o What happens if A dies without descendants o THIS IS HUGE THING THAT SCHENKEL LIKES o Two ways property get probates o Will or intestacy o Here it is a trust and there is no beneficiaries o Who can claim it o It reverts to the settlor o If settlor is dead it goes to the estate o Then if there is no will it goes to intestacy

• Suppose that T has a will as follows: • "I give and devise my real property as follows: • a. Any parcels upon which a blue flag is erected at my death I give to my son, X; • b. Any parcels upon which a red flag is erected at my death I give to my daughter, Y." • Now if he's angry at X, for example, he can remove the blue flag from various parcels and erect a red flag instead. What do you think of this idea?

o When can we do this o When it has an act of independent significance o here the only reason he has it is to show who gets the property o If it was a car or employee people fire employees all the time and people like to get a new car o The only significance here is the changing of the will

What is the traditional rule for complying with wills act formalities? What is the issue with the rule

strict compliance rule • The wills act must be observed with strict compliance • It is meant to prevent a court mistakenly probating a will that is not authentic • Innocuous Defect o But it can lead to false negatives or not probating a will that was meant to be valid.

XII. What purpose does attestation clauses serve?

• It is where the witnesse attest that T signed the will in their presence and that the witnesses sign in the presence of one another. • It also has the witnesses attest that T is in sound mind in their opinion.

I. Client comes into your office and says I want to do a will what do you need to ask them about? They want to set up a situation where there intent is legally binding. • T dies with a will that says "I devise my estate to descendants in equal shares by representation

• • YOU HAVE TO ASK ABOUT NON PROBATE DEVISES because what they mean by do my will is all their assets including non probate

IV. What two documents can the lawyer help prepare that will "plan" for the possibility of incapacity? What do you need to put in those documents? Do the document also serve a purpose for health care?

• 1. Name a fiduciary • 2. Do a durable POA to have them handle your affairs o Agency relationship • Does not take care of health care • 3. Do a RT with a successor TE o You will always name a successor TE o If I don't act as TE due to death or whatever reason Sally is TE, if not sally then someone else • 4. Define incapacity in both documents o You can do whatever including having committee and physicians, etc.

V. What is the equitable deviation doctrine?

• A court will direct or permit the trustee to deviate from a term of the trust if there are CHANGED CIRCUMSTANCES not anticipated by the settlor that WOULD DEFEAT OR SUBSTANTIALLY IMPAIR the accomplishment of the purposes of the trust.

Can creditors go after non probate?

• A creditor can institute a probate to get paid and if there is nothing left they can go after some non probate items o For most credit cards they call family to collect but they don't often set up probate unless it is a significant claim • Some non probate items are exempt

I. What is a descendant?

• A descendant (or "lineal descendant") of a decedent is someone who has "descended" from that decedent. • Descendants include ONLY children of the decedent and those who descend from those children—grandchildren, great-grandchildren, etc.

I. What is an insane delusion?

• A false conception about reality that produced a particular testamentary disposition. • Is the delusion about something that can be factually proven false or can it be something that is just a little-shared opinion or perception? • Also, their needs to be a causal connection.

What is probate? How can it pass?

• A formal process of distributing the decedent's assets • always passes either: o by will; or o through intestacy

I. What is the definition of undue influence

• A good definition: "such influence over the donor that it overcame the donor's free will and caused the donor to make a donative transfer that the donor would not otherwise have made . . ." (Restatement) • We now have a wrongdoer!

II. What are the basic rules governing professional responsibility in WET

• A lawyer may not reveal confidential information acquired in the course of her representation of a client. • A lawyer must communicate to a client all information needed to make an informed decision. • May disclose confidential information to rectify the consequences of a client's criminal, illegal or fraudulent act in furtherance of which the lawyer's services had been used.

IV. Do pretermitted heir statutes apply to wills and non probate?

• A majority of pretermitted child statutes apply to wills only, not nonprobate assets. • Courts have generally held that those statutes do not extend to nonprobate assets.

What is the slayer rule? What does it apply to? What is the result?

• A majority of states has statutes or case law providing that a person who purposefully brings about the death of another cannot inherit from that person. • It applies to intestacy, wills and non probate devises • Who does Take? o Slayer is deemed to predecease victim • Most people don't want the person who killed them to take

• Because T is getting on in age and needs help with her affairs, she puts A's name on her checking account so that A can help her pay her bills and make sure her account is balanced, etc. • A couple of years later, T dies. Her checking account balance is $20,000. Her will divides all of her assets between A and B equally. A supplies the bank with T's death certificate, and the bank transfers the account to A's name alone. B objects!

• A may need to overcome the presumption that this was a gift • We will look to see how they set it up and whether there was someone that came forward and can prove that intent was otherwise

• What is a a posthumous child and how do the courts deal with them for inheritance purposes?

• A posthumous child is a child conceived before, but born after, the father's death. • For inheritance purposes, posthumous children are treated as being alive at the time of conception, so long as the child is born alive. • Many courts follow a rebuttable presumption that the normal period of gestation is up to 280 days.

XX. What is a premarital agreement and can it be used to waive to the elective share?

• A premarital (or prenuptial) agreement is a contract between two persons in contemplation of marriage that alters statutory rights on marriage • Valid in all separate property states and can waive the elective share

What is a residuary clause?

• A residuary clause ensures that the ENTIRE PROBATE ESTATE is disposed of by the will. • "I give all the rest and residue of my estate to my lineal descendants by representation" • A good will ensures nothing goes by intestacy

What case do we have that deals with conflicts?

• A vs B o However, an exception may be made when the lawyer, who is obligated under Rule 1.4(b) to keep a client informed of facts necessary to make informed decisions relating to the representation, needs to disclose confidential information to rectify the consequences of a co-client's fraudulent act, which is broadly defined. A o Here, the husband's failure to disclose the existence of his illegitimate child to his wife knowing this information could impact her estate plan, is a fraud on his wife. o Since his wife is also a client of HW and she needs to know of the existence of the illegitimate child to make informed decisions about her estate plan, HW may disclose this information to her. o The firm missed the conflict because of a misspelling.

XI. What is the doctrine of acts of independent significance? Under what circumstances can T change the benes or property given to benes by subsequent nontestamentary act?

• A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the T's death.

VI. What is incorporation by reference?

• A writing in existence at the time a will is executed can be "incorporated" into the will if the testator so intends and describes the writing sufficiently.

What happens where there are insufficient assets, after the payment of debts, to make all the distributions called for under the will

• Abatement o Some devisees are reduced first • Devises abate according to their classification o Residuary devises abate first o General devises abate next o Specific or demonstrative devises abate last

XVI. What is the general rule of adoption for intestacy?

• Adopted children are considered the children of the intestate and inherit accordingly. • They inherit from their adoptive parents.

XXXI. Does ERISA preempt slayer statutes?

• Ahmed o In one circuit court, they found that under federal common law that a slayer cannot take. it is not clear that this will apply across the board

I. What is alienation of the beneficial interest?

• Alienation of the beneficial interest • Can the beneficiary sell or give away her interest in the trust? • Can a creditor seize a beneficial interest

XVI. What is the duty of impartiality?

• All beneficiaries are owed the same duty of loyalty. The trustee cannot elevate the interests of one beneficiary over another

XX. What are examples of trust distribution language?

• All income to A for life • All income to A for life together with so much of the principal as the TE deems necessary for A's health and education. • So much of the income and principal necessary to A for like for education

XXIII. What is the duty to collect?

• All of the assets of the trust must be identified and kept separate from the trustee's own property (no commingling of assets). • Trust property is held in the name of trustee as trustee for the "name of the trust"

IV. What is the doctrine of integration?

• All papers that are present at the time of execution and are intended to be part of the will are treated as part of the will.

What is a disclaimer? What is its effect? What are the three requirements?

• Allow a person to disclaim an inheritance or devise. • For purposes of distribution of the asset, the disclaimant is treated as having predeceased. o The property is deemed to have passed directly FROM the decedent TO the person who receives it in the event the disclaimant predeceases. • Must be in writing and filed with court. • Real property disclaimers must be recorded with registry of deeds. • Most statutes provide that disclaimer must take place within 9 months of date of death.

XIX. Does a trust fail if not trustee is name?

• Although a trust must have a trustee, a trust will not fail because the settlor did not name a trustee. • you need all the above elements and the court will appoint one

XLVI. Does a trust need a writing? If no writing how do you prove it exists?

• Although you don't need a writing to create a trust (unless the statute of frauds applies), it's always a good idea. It's very hard to prove the terms of an oral trust, and it must generally be done by clear and convincing evidence.

XI. What are some examples of trusts operate and options you may take?

• Always set out what you want the trustee to do • Just A's support? Or all A's benefit, provide allowance, etc. • Typically when lawyers set up trusts they talk about principal or income and who gets what • Are distributions mandatory or discretionary • Is it only distributed when income bene dies etc.

What is a constructive trust?

• An equitable remedy that is applied to both make restitution and prevent unjust enrichment • If a person is "unjustly enriched" through receipt of property of a decedent, that person may be declared a "constructive trustee." • A constructive trustee must convey the property to its rightful claimant. • Constructive trusts are often applied in the trusts and estates area when there is unjust enrichment. Usually, but not always, there will be a wrongdoer who causes the unjust enrichment. • IMPORTANT o These are not typical trusts

What constitutes a signature?

• Any mark made on the will with the intention of authenticating it will suffice. • Cursive font was upheld in one jurisdiction.

What is the first disposition in an intestacy statute?

• Are always structured so the spouse's share is described first. • After the spouse's share, if any, is carved out, then the rest of the decedent's estate goes to the decedent's issue (descendants), if there are any. • Includes gay couples, easy peasy.

IV. As a lawyer, what are the basis questions you ask someone to determine capacity?

• Ask them what they have o Are they capable of articulating • Ask them about their family o Can they identify them • Ask them about the disposition to see if they are capable of that o Who gets what

IX. What presumption is created if the will executed? What case do we have that deals with a T that might have Alzheimer's?

• At a trial in Jasper County Superior Court, the evidence included testimony that Greer was eccentric and feeble, but still of sound mind at the time of executing her will. • The evidence also showed, however, that Greer may have been suffering from Alzheimer's or senile dementia and that a petition for guardianship of Greer was filed by Lane a few months after the will was executed. • TC entered JNOV after jury said there was capacity. • Proof of due execution creates a presumption of testamentary capacity. • The challenger to the will has the burden of proof • Showing that the testator may have been suffering from Alzheimer's, without showing how the disease prevented the testator from having a decided and rational desire regarding the disposition of her property, is insufficient to set aside a will for lack of testamentary capacity

IX. What happened in the ladysmith case?

• At the termination of the life interest, when to charitable • Trust became very valuable • They wanted to pay the "present value" to life bene and then the rest to charities • No evidence they didn't anticipate appreciation • Prof think the court got it right • Court holds: (i) no change in circumstances not anticipated by the settlor; and (ii) requested relief would not further the purposes of the trust

Why do people disclaim?

• Avoid creditors and taxes o Parents might disclaim if close to death and want it to go right to their children o State law creditors of the disclaimant have no claim to the property.

• How about non marital children for inheritance purposes?

• Barring non marital children from inheritance is against Equal protection (Trimble). • Most States permit inheritance if: o 1. Subsequent marriage; o 2.Acknowledgement; • Possibly even if learned later he was not the father o 3.Adjudication; or o 4.Clear and convincing proof after death. • They can take as a child but this was not the law back in the day as they bastards. Trimble case (1977): an Illinois statute that denied nonmarital children inheritance rights from the father was held to violate equal protection clause of 14th amendment. Lalli case (1978): a NY statute allowed a nonmarital child to inherit from father only if (1) father married mother later; or (2) was formally adjudicated to be father during father's lifetime. The Court held that this statute did not violate the equal protection clause

IV. Why is the elective share not available in a community property state?

• Because the surviving spouse owns half, partnership theory that everything earned is split down the middle.

III. By a provision in the XYZ trust, S attempts to prevent the trust beneficiaries from being furnished with a copy of the trust instrument. Can you waive the right to statements?

• Bene would not know if they are in breach • The trust will not work • Kids cannot waive the right to statements

II. How is interest and income drafted in a trust?

• Bene's get an interest in principal and an interest in income separate

XXXIX. Can beneficiaries or TEs be given power of appointment?

• Beneficiaries can but trustees cannot

What is bequeath?

• Bequeath used to be just property aside form land but now it and devise are interchangeable

XIV. What are the advantages of a RT?

• Biggest one by far—avoids probate! • Privacy • Choice of state law? • Property management • Incapacity planning

XII. What MA doe we have where a third party sets up a trust for TE and avoids the elective share?

• Bongaards v. Millen o George took the elective share of Jean's estate. Jean had power of appointment over a trust and was the beneficiary. She could terminate the trust. o Non fiduciary • She could appoint this to herself and take what she wanted • Court said no it is not part of it because it is set up by a 3rd party. • She could take out the money any time she wanted • It is complete ownership of the property • Only difference is that it is in a trust o If you appoint something yourself you typically own it • Here it is not seen as ownership • The law could change o ASK PROF: Why did the court not let the elective share be taken?

VI. What is a mutual will or mirror image will?

• Both wills benefit the survivor and the same bene's upon the survivor's death

III. What case do have that deals with insane delusions and the causal relationship between the delusion and the disposition? What is the majority rule?

• Breedon v Stone o Guy was in a hit and run and then killed himself. He was using coke and booze and had paranoid thoughts about dog and himself. Shortly before committing suicide, Breeden scribbled a brief holographic will giving "everything I have" to Respondent. o Previously in 1991, Breeden had executed a formal will and a holographic codicil. These documents left his estate to various people, not including Stone. o Majority • Even if he was suffering insane delusions, the delusions needs to be the cause of distribution of the estate or the T needs to have lacked sound mind at the time of the disposition. o Here, the delusions didn't have a connection to the will.

XIII. Can a creditor of TE come after trust assets?

• But even though we say the trustee has legal title, a personal creditor of the trustee cannot reach the trust property. A creditor of the trust can reach it, however.

XI. Can AIF create a trust?

• But majority says you can create a trust but typically you need to be given the right in the POA • It is not clear as to what you can get away with in the trust • But they can do the same thing

XVII. DS dies with a multi-million dollar estate and will that disposes of her estate to the exclusion of SS. SS plans to file an election to take her forced share but dies before she can complete the process. Can SS's estate take the elective share on her behalf?

• Can an estate take the elective share on her behalf? • In most jurisications you cannot take it • This is support theory but not economic partnership theort

VIII. What is higher the capacity to make a will or capacity to make a contract with respect to what is harder?

• Capacity to make a will that is required is even less than what is required contract • The person is dead and no risk of impoverishment

II. What is the two grounds for modification and termination without settlor's consent?

• Claflin doctrine: If (i) not contrary to a MATERIAL PURPOSE of the trust; and (ii) all the beneficiaries consent. • Equitable deviation doctrine: If there are CHANGED CIRCUMSTANCES not anticipated by the settlor that would defeat or substantially impair the accomplishment of the purposes of the trust.

XXXVII. What case do we have that deals with the requirement of ascertainable beneficiaries?

• Clark v Campbell o T's will left tangible personal property in trust "to such friends, as they must trustees shall select" o Trusts must have definite beneficiaries. Trust beneficiaries enforce the trust. o The court held that the term "friends" gave the trustees insufficient information for the selection of beneficiaries. "friends are not ascertainable. o Unlike "kin" or "family," which have been construed to mean those who would take under state intestacy statutes, "friends" has no accepted statutory or case law meaning

VIII. What case do we have that deal with incorporation by reference and republication by codicil?

• Clark v Greenhalge o 72: T prepared a memo listing tangible property but not the farm picture; 76: memo modified picture not mentioned; 77:will signed with tpp to Greenhalge except as designated in the memo; 79: notebook notations made nurses see T writing in it; 1/80: Entry to Ginnie to give her farm picture; 5/80: codicil executed #1 11/80: codicil #2 executed 86:dies o o incorporation by reference. • The testator did NOT seem to realize that in order for the doctrine to apply, the incorporated documents must be in existence at the date the will was executed. o But she was saved by the republication • The most recent codicil was after a date that the memorandum was in existence • If you execute a codicil you are giving a blessing to that will on that same date

V. What is a durable power of attorney? What duties does it create? What powers does it create? Can a POA make gifts?

• Client (principal) names a family member of friend or institution (agent) to undertake legal actions for client in the event the client becomes incapacitate. • This creates a principal/agent relationship. The agent is a fiduciary. o Loyalty, care, obedience • The agent has powers as outlined in the document. o If power to make gifts it has to be expressly in the document o Powers are Very broad usually

XIII. What is collateral kindred?

• Collateral kindred are those relatives who are NOT descendants or ancestors. They usually take ONLY if there is no spouse, descendants or parents. • You should look at the Table of Consanguinity o Children, grandkids, great grandkids o Parents o Siblings o Descendsnts of Siblings (Nieces/Nephs,their kids and kids' kids) o Grandparents o Aunts and Uncles o Aunt and Uncles Descendants (Cousins) o Great Grand Parents o Great Aunts and Uncles o Second Cousins

XIX. What case do we have that deals with whether or not one can change their LI beneficiary by will?

• Cook v. Equitable Life Assurance Society o Doris was named as the beneficiary of a life insurance policy under which Douglas was the owner and insured o Douglas and Doris divorced o Douglas executes a holographic will, leaving everything to Margaret and Daniel and referenced the life insurance o The court would not accept the change. This is the majority rule, superwills would be too much of pain for the insurance company to track down.

XXVII. What happened in Sly vs First National Bank?

• Court created an exemption tort victims and the legislature then enacted a statute exempting spendthrift trusts from paying tort creditors.

• Are adult adopted children includes as part of class gifts?

• Courts are split

What if the trust says if you marry of someone of another religion you get nothing?

• Courts have declined to abide by these provisions • The restatement would just ignore the provision because it is an invalid restraint on marriage.

XXI. What was the prior law's view on premarital agreements? What case?

• Courts were quick to find fraud and overreaching in prenuptial agreements. The court in the case of Estate of Martin, 938 • Under the common law, a premarital agreement is presumed to be the product of fraud if it is established that the agreement's provisions for the surviving spouse are clearly or grossly disproportionate to the deceased spouse's wealth

VI. What is a testamentary trust? Is it revocable or irrevocable?

• Created by will • Instead of transferring property directly to A, you transfer it to X in care for A and leave the instructions until the trust terminates. • Or it can be irrevocable. A testamentary trust is always irrevocable upon death.

VIII. What is an inter vivos trust? Is it subject to SOF? Is it revocable, irrevocable or either?

• Created during lifetime of settlor • An inter vivos trust can be revocable by the settlor during his/her lifetime. This is the default in most states • Not Subject to SOF if personal property • Never a good idea to create an oral trust • Set up by various documents which we will go over • Can be revocable by the settlor during his lifetime • Can be irrevocable

What is the typical SOL on nonclaim statutes?

• Creditors need to file in a certain amount of time and or they can't do it and they have no claim, this cuts off their claim

Why is it called a non claim statute

• Creditors need to file in a certain amount of time and or they can't do it and they have no claim, this cuts off their claim

XXI. What happens when the estate is closed? How does it close? Difference between supervised and unsupervised closing?

• Creditors paid, titles clear, tax returns • Supervised administration requires judicial approval to relieve representative from liability. There is fiduciary responsibility until discharge unless an SOL runs. • Unsupervised the estate may be closed filing a sworn statement that he published notice to creditors, administer the estate, paid all claims, and sent the statement accounting to all known distributees.

VIII. What is the difference between springing and current DPOA? What is the preference?

• Current v Springing POA o Springing come effective when they become incapacitated o How to avoid having a court declare it • You can put a definition in the document to put a procedure • Why do springing or Current? • Prof: Springing gives you a false sense of security. • You need to choose the right person o It may be better to find out while you still have your bearings.

XII. Remedies of breach of loyalty?

• Damages for losses to the trust • Disgorgement of any profits • Trust pursuit rule • Constructive trust/equitable lien • Removal from office • Reduction or denial of compensation

XXIII. What case do we have that deal with whether a lapsed gift should be classified as a class gift or go into the residuary estate?

• Dawson v Yucus o T left some farmland to Stewart and Gene on her husband's side. There was a residuary estate that was going to go to the Ina and Hazel. Steward predeceased T. o It was not a class gift as there was no dynamic share and there was no group label as the property was just left to Stewart and Gene. o Requirements of a class gift had no bee met but the PROF thinks that they should have looked at the intent evidence and determined that the intent was to be a class of 2 regardless if their additional nieces and nephew. I'm confused by this.

IN Sharpira case, what is the basic premise regarding dead hand control?

• Dead people can't own property but they can condition the use of the property • Some people think we have too much deadhead, others don't think so

XVIII. What is difference of being able to take the elective share if the surviving spouse dies or is competent?

• Deceased SS: o If the SS dies after the DS but before she can exercise the elective share, her estate cannot exercise it on her behalf. This is the majority rule. • Incompetent SS: o Whether a guardian can make the elective share for an incompetent spouse depends on all the facts and circumstances under the majority rule. A minority of states would have the guardian make the election if it is to the SS's benefit, mathematically.

What is an administrator?

• Decedent dies intestate and they are selected from a statutory list

II. What if T had a life insurance policy leaving the Ex as a bene?

• Depends on what the jurisdiction is • The newer statute tends to apply to non probate devices, but many don't apply this doctrine to non probate

VI. What if L, T, W1 and W2 all sign the will in front of eacother except while W2 was signing, W1 stepped outside the office to send a a private text message?

• Depends on which test the court uses. • Line of Sight test o T must be capable of seeing the witnesses in the act of signing. T does not actually have to see the witness but must be able to see the witness if he were to look. Blind people are assumed to see. • Conscious Presence Test o Witness is in presence if testator, through sight, hearing or general consciousness of events comprehends that the witness is in the act or signing. • Here, W1 might be consciously of what is going on, therefore he might pass the conscious presence test.

How about if it says ill give you this money until you get married?

• Depends on why it is there o It will be upheld if it is meant to support him until gets married. o But if it is there to discourage marriage, the court may not honor it.

c. The trustee shall distribute so much of the net income and principal of the trust for the health and support of A during her lifetime as the trustee in its sole discretion deems advisable.

• Discretionary and income tied to an ascertainable standard

XVII. Same as above except the trustee shall distribute so much of the net income and principal of the trust to A as the trustee in its sole discretion deems necessary for A's support.

• Discretionary support trusts • A creditor cannot compel a distribution (because it's a discretionary trust) • Goes a step further - Even if a case where the court may second guess the trustee because the trustee has abused his discretion, a creditor cannot compel a distribution • Only Exception (ONLY IF TRUSTEE HAS ABUSED HIS DISCRETION): Child, spouse, or former spouse for support or maintenance, but only to the extent that the trustee has abused its discretion • Example: The trustee fails to make a distribution to the trust beneficiary, and failure arises to the level of an abuse of discretion. Commonly its situations in which education arise.

XI. The trustee shall distribute to the beneficiary so much of the income and principal as the trustee in its sole discretion deems advisable for the support of the beneficiary. Discretionary, Mandatory?

• Discretionary, support standard

XIV. What are dispositive provisions?

• Dispositive Provisions • Income vs Principal o Income from an investment o Dividends, interest, rent, o Does not affect the principal • TE may only pay the income mandatory quarterly • You can tie the discretion of TE to pay principal •

VI. How do disclaimer work with federal tax liens? What case do we have?

• Drye v US o Drye was the sole heir to an estate but he had ran up a 325k tax bill, the estate was worth 233k o USSC said that he has a right to the property because he exercised dominion over the property (he had a choice to receive the property or channel the property). State law created this legal interests and right and the federal acts designated what interests or rights shall be taxed. o It doesn't matter if the state law say creditors can't get at it. If an interest is created and the federal law say it should be taxed, it is taxed.

XV. What happened in Marsman?

• Duty of Prudence case o Here there is a mandatory income and discretionary principal. o Discretion was acsertained to principal and if it say for support or maintenance it means to the lifestyle they are used to be in. • Cappyy had little income and was unable to continue teaching • He contacted TE to let them know the business was failing • TE was favoring the daughter most likely since she would have the cash down the road • There was a remaider and the TE was favoring the daughter • Cap cut a deal with the daughter where she would make a few payments and get the trsut • TE didn't inquire into needs of beneficiary, Cappy and court ordered a contstructive trust

In class example

• EPS o X gets a third, C gets a third and Y and Z each get a 6th • MPS o Since the first row has someone alive it is the same as EPS • UPC o Start fresh at each row o C gets a 1/3 and then you split the 2/3 by 3 which is o 2/3 * 1/3=2/9 by multiplying numerators and denominators

IX. Figure 2.6 on Page 84

• EPS: o B gets a half and that half drops down to D o C's half is split between E and F. o F gets a 1/4 and G and H each get 1/8 • MPS o Start at the first line that has someone alive o D gets 1/3, F gets 1/3, G and H each get 1/6 • Per Capital/UPC o Skip down to where someone is alive o D and F each get a 1/3, now there is 1/3 left, G and H each get a 1/6

IV. Conditional Will v Holographic Will?

• Eaton v Brown o T was going on a journey and said in a holographic will, if I don't return, give it all to my adopted son. He returned from journey but died some time after • Holmes of the USC said that I don't return mean death at the time and granted probate • In most cases the court find the condition is not meant to be a condition but it is meant to be a statement of the inducement of the will. Plus it was never destroyed.

XXX. What case do we have that deals with ERISA and preemption?

• Egelhoff v Egelhoff o WA has ROD that applied to LI and will o David divorced, didn't change bene on employer sponsored account and died. Kids wanted the money instead of ex. o The US S.Ct. holds that by directing the plan to pay someone other than the person listed on the plan documents, the statute implicates an area of core ERISA concern o If employer sponsored it is governed by ERISA and have benefits, you can defer income tax unit you take distributions but it is governed by ERISA

VII. What is a pour over will? Why are pour over wills so popular?

• You have all dispositive provisions in the trust, all non probate goes to the trust. • Its easy to change your estate plan • Avoids probate cost, time, fees, etc

XXII. If preempted by federal law ERISA, does the divorced spouse take under ERISA if named as a bene on a LI contract? Case?

• Egelhoff v. Egelhoff o ERISA requires an administrator's compliance with an employer's benefit plan rules, including the requirement to pay beneficiaries who have been "designated by a participant or the terms of the plan." o Consequently, the Washington ROD statute conflicts with one of the key objectives of the ERISA statute, which is to have uniformity and standard procedures for administering ERISA plans. o By allowing a state law to alter the procedure for paying beneficiaries, the state statute imposes an administrative burden on ERISA plans that will vary from state to state. CHECK GENERAL RULE HERE

XXIV. What are the four ways retirement plans can be classified?

• Employer-sponsored o Erisa applies, • Defined Benefit Plans. o Expensive because employer give employee a benefit denied by employer and they fund it o Many of the plans have been underfunded • Defined Contribution Plans. o You get out what you put in o ASK PROF: Could this also be employer sponsored. I think so as the employer could match. • IRAs. o plans that are opened by a person themselves o You can roll an employer sponsored plan into an IRA

XXV. What types of plans are governed by ERISA?

• Employer-sponsored retirement plans (e.g., 401(k)'s) are governed by the federal Employee Retirement Income Security Act (ERISA). IRAs are not governed by ERISA.

VI. What are the three representation schemes?

• English Per Stirpes o Each column is treated equally • Modern Per Stirpes o Each comlumn is treated equally beginning at the first row with a survivor • Per Capita at Each Generation o Begin at the first row with a survivor but each taker on any row is treated equally with the other takers on that row o Start fresh at each row and recount o After you make all distributions in a row, subtract them from the total amount left and bring it all down to the next row.

"I give the sum of one million dollars ($1,000,000) to my cousin, Louie" has two cousins named Louie.

• Equivocation - _When two or more person or things fit the description exactly. o "my cousin, Tom" (has 2 cousins Tom) • Personal Usage - If a testator habitually used a term in an idiosyncratic manner. o Referring to someone as a random term or nickname. • No Exact Fit - _A description in a will does not exactly fit any person or thing.

V. What assigned case do we have deal with ademption?

• Estate of Anton o 1981: Mary executes a will giving the duplex to Gretchen and Robert; residue to Robert and Nancy o 1986: Mary goes to nursing home; Nancy becomes attorney-in-fact o Up to 03' Nancy sells assets but not duplex to pay for care o 03' Nancy sells duplex for care, later that year she dies leaving 104k in the estate from the sale of the duplex o Nancy was attorney in fact and didn't tell Mary she sold the duplex. o Not only was Mary incompetent but she didn't have the opportunity to revise the will therefore the proceeds from the sale did not adeem.

XLVII. What case do we have that deal with an oral trust?

• Estate of Fournier o Testimony Offered was he delivered the box of cash and said when I die deliver it to Fogarty o There was an intent to give the money to someone for the benefit of someone else o The trust was created while he was alive o Instructions were to continue to hold it and distribute it at his death o TE had neutral testimony and then they gave it Fogarty o Epilogue was that they found that the TE may not have been telling he truth

XIII. What case do we have that we deals with reformation?

• Estate of Gibbs o Decedents left wills to Robert J Krause when it was meant to be left to Robert W Krause. o The court would not reform the will and replace the names, but they : • can take evidence that a mistake has been made in the details of identification and disregard the details when there is a high degree of certainty that a mistake was made o They did the same thing they did in the Arnheiter case.

XIV. What case do we have that used the restatement rules to reform a will due to mistake on an unambiguous donative document?

• Estate of Herceg o L left out residuary clause by accidentally deleting it. o The RST rule allows an unambiguous document to be reformed to • conform the text to the donor's intention if it is established by clear and convincing evidence • (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and • (2) what the donor's intention was. o RST resolves ambiguities with and only needs preponderance of what donor's intent was. o Here it was a mistake but under the traditional rule they have no case. o They reformed the will to fix the mistake

III. What case do we have that is a classic case of undue influence?

• Estate of Lakatosh o Jacobs started meeting with T and got a POA, and then changed the will to get all but $1000 of it to Jacobs. o Undue influence is presumed if the will's proponent enjoyed a confidential relationship with the decedent (POA), o the decedent received the bulk of the estate, and the decedent suffered from a weakened intellect. (Suspicious circumstances) o Burden was shifted to Jacobs

III. What is the constructive trust theory under slayer rule? What case do we have that demonstrates it?

• Estate of Mahoney o Mahoney died intestate survives by wife and parent. Wife was convicted of manslaughter in connection with his death. o Court applied the constructive trust doctrine and made her turn the inheritance over its rightful owner

VIII. What case do we have the deals with a purging statute of disinterested witnesses?

• Estate of Morea o T's will made a disposition to his friend George, one of the witnesses. o T's will was also witnessed by his son, Kevin, who received less under the will than he would have received through intestacy. o A third witness did not receive a devise under the will. o NY had a purging statute providing that an interested witness is competent but must purge his/her gift unless there are at least two other disinterested witnesses o The devise to George was valid because Kevin was disinterested in seeing the will be valid because he would have got more if the T died intestate. Therefore there was two disinterested witnesses.

XXVI. What is special about ERISA governed accounts?

• IMPORTANT: The federal Employee Retirement Income Security Act (ERISA) requires that the employee's spouse be named as the death beneficiary to the employee's retirement plan. The only way the employee can name a person other than the spouse is if the spouse waives the right in writing.

II. What case do we have that deals with the pretermitted spouse statute?

• Estate of Prestie o They got divorced but they stayed in touch o W.R has health probles, Maria moves back in o In 2001 gives maria an equitable life estate in the trust in his condo o Then after he makes that change, they get married again o If you die leaving a spouse and will predated the marriage the will is revoked as to the spouse unless • There is a marriage contract provision for spouse or • Spouse is provided for in the will or • Spouse is mentioned in a way not make a provision o He didn't want to give her more than what was in the trust most likely o Problem with the statute is that it is directed at a situation where there is a will and a will only o Could they treated the will and the trust as being the will but the court just wanted to take the language at its own meaning, she got an intestate share

IV. What undue influence case do we have where a 24 year old and 78 year old had sex?

• Estate of Reid o Culpit the 24 year old was having an intimate relationship and helped her create a holographic will leaving everything to him o Culpit was the POA. He crowded other people out, drove her to the law firm, 50 year age difference and sex. o What this undue influence? • Maybe, maybe not, the jury may looked at he family and thought they got a raw deal. • Maybe it furthered her interest, maybe it didn't.

What case do we have that deals with integration?

• Estate of Rigsby o T died leaving a holographic will and had two pieces of paper folded together but not fastened. o The first page said Inasmuch as do not have a will I would like to make the following arrangements in the event of my death, the page listed the belongings and who everything should be given to , the first page was signed at the bottom. The second page just had a list of people and people's names, it was intitaled and dated at the top but not signed. o Integration: must be "clearly apparent" that the testator intended the pages to be integrated into the will. o It was not clearly apparent here

XXII. What are majority and minority exceptions for spendthrift trusts, which creditors could get at?

• Even the assets of spendthrift trusts may be available to some types of creditors. In most jurisdictions, judgments for child or spousal support can be maintained against a defendant's interest in a spendthrift trust. • Some jurisdictions allow tort creditors to reach the assets, most do not. The trend is not to allow tort creditors to reach. • Other exceptions in a few jurisdictions include furnishers of necessary support (medical and food).

Why do we have probate?

• Evidence of title transfer to new owners • Protection of creditors (see also "nonclaim" statutes, p. 47) • Distribution of property • Probate fills in the gaps when someone doesn't leave all of their property non-probate.

I. What are the elements of fraud?

• False representation • Material fact • Intended to induce; and • did induce action based on reliance

XI. What case do we have where the court is trying to determine whether or not there was a RT or will?

• Farkas v Williams o Farkas declared a trust in his name as trustee for Williams and that Farkas could vote, sell, redeem or exchange the stock o The issue here was whether or not a trust was valid, if valid it was going to go to the remainder beneficiary William, if not valid, it would be part of his estate o The two sub issues were • First, whether Williams "acquired an interest" in the trust property. • Yes Williams has a remainder interest, if Farkas gave away the stock without revoking first it would have been a breach of fiduciary duty. • Second, how much control Farkas retained over the trust property. • To revoke he would need to do a bunch of things, just because he could amend or revoke does not make it testamentary

What is a personal representative?

• Fiduciary that represents the estate o Can be either an executor or administrator

XVI. What did MA say about an example where someone leaves everything to wife, wife predeceases and everything goes to cousins although sisters claim they intended everything to go to them?

• Flannery v. McNamara o MA refused to reform will based on unattested testamentary language because people will come out of the woodwork complaining that T didn't mean for the disposition to happen and groundless contents would soar.

II. What are the two types of fraud?

• Fraud in the execution o Misrepresentation to the document • Fraud in the inducement o Misrepresentation causing T to make or revoke will or a provision in will

X. What happens it Hartman v Hartle

• G died leaving 5 kids and two son in laws as executor. • The executors sold to one of the sons, who was buying it for one executors wife, Dieker, who was buying for daughter of G as a straw man, then they sold it to Contra. • It was self dealing because selling it to your spouse is the same to selling to yourself, we ignore the strawman • Each bene get the profits they would have got if the trust had sold it o We don't want to make the benes have to prove the damages

XXIII. Who can set up a spendthrift trust?

• General Rule - Spendthrift trusts work when you set up the trust for a third party, but not for yourself (a self trust- like state street. If settlor is also the beneficiary, the settlor can't set up a spendthrift trust for himself)

XXIX. Can a person put assets in a trust for the settlor's own benefit, and then prevent creditors from reaching those assets by trust provisions that make the trust discretionary or spendthrift?

• General Rule: a self-settled trust cannot shield assets from the settlor's creditors. • Important: Exceptions now exist in certain jurisdictions. Currently 14 jurisdictions (including New Hampshire and Rhode Island) allow some sort of self-settled asset protection trust.

I. What is the general rule for modification and termination of trusts?

• General Rule: an irrevocable trust can be modified or terminated if the settlor and all the beneficiaries agree

X. What case do we have where there was a patent ambiguity?

• IN Re Cole (2001) o Bequest of two hundred thousand ($25,000) o Clearly a patent ambiguity. TC said why distinguish between latent and patent and allowed extrinsic evidence to cure the patent ambiguity by getting evidence from the attorney.

XVI. What is life insurance? Can the owner and insured be different people?

• Life insurance is a contract whereby the policy owner pays one or more premiums to the insurer in exchange for the insurer's promise to pay an amount to the policy beneficiary in the event of the death of the insured. • The insured and the owner are often the same person but need not be.

VIII. What happened in Riddell

• George and Irene die with trust • trust was held for Ralph and wife Beverly • When they die principal goes to Irene's grandchilden • Nancy the grandchild is unable to support herself • She would get luxury items • Equitable Deviation • Circumstances changed • TC side wtith Stucell o Said the modification would only immunize the costs to family • The changed circumstances would defeat or impair the accomplishment of the purposes • You can't do it just because it is more advantageous • AC: • Lets go to settlor's intent • Given the circumstances not anticipated would this further the purpose of the trust • Freedom of disposition • IS the state acting as a proxy for the settlor to do estate planning beyond the gracw • Policy issues that might claash • IS the state acting as a proxy for the settlor to do estate planning beyond the grave • • Given the circumstances not anticipated by the settlor, would modification or termination further the purposes of the trust? o Important • Policy issues that might clash

XIII. What is a common exam mistake when applying the antilapse statute?

• Giving the lapsed gift, if the statue applies, to the heirs or having it to intestacy instead of the descendants.

XXXIV. Grandpa writes a letter to his grandson telling him that he intends to make a gift to him of his valuable tools. A few months later Grandpa dies, never having delivered the tools to Grandson.

• Grandson is arguing he is the TE • You need intent to transfer the property to someone to hold for someone else or declare your self as TE for someone else • Here he just says I intend to make a gift but he never got around to completing the gift

III. What is the elective share or forced share?

• H dies in a separate property state survived by his wife, W. H's will leaves all of his estate to his children, A and B, to the exclusion of W. • W is entitled to file an election against H's estate to take her elective share

XL. H leaves his estate in trust for his wife, W, and at her death to be distributed to "such of those of my descendants and in such proportions as W may determine by a provision of her valid will. If W shall fail to exercise such power, then the remaining trust assets shall be distributed to those of my descendants who survive W, per stirpes.

• H leave to W for life • Gives her power of appointment among descendants • Then leave the rest to her descendants per stirpes • It is not a fiduciary power, she can exercise how she wants • it gives her the opportunity to defer • It allows her to distribute the property

XIV. What if you are a half blood, meaning half brother, sister, etc, majority rule?

• Half-bloods: the majority rule in the U.S. is that half-bloods are treated the same as whole-bloods.

XVIII. What case deals with who adoptive children can inherit from? Adoptive Parents? Genetic Parents? What are states variation on who adopted children can inherit from?

• Hall v Vallandingham o Earl died leaving 4 children and a spouse. Spouse remarried and new husband adopted the children. Earl's brother died unmarried and intestate. The court would not let the children inherit as their was a new rule saying that adoptive children can only inherit from their adoptive partents as they don't want adoptive children having dual inheritance rights. o What are the three variations among states? • 1.Some state follow this rule, • 2. others allow you inherit from both and • 3. others allow you inherit from adoptive parents and genetic relatives only if the child is adopted by a step parent. • UPC follows #3 • IF the court in Hall followed they would have taken

VIII. What case do we have that deals with the presumption that a will was destroyed with the intent to revoke?

• Harrison v Bird o 89: Speer executed a will; 91; Speer called her attorney and said I want to revoke it; L or secretary destroyed it and said it was validly revoked o When she died all they found was the letter from the attorney saying the will was revoked and the pieces of the will we attached, but they did not find the pieces, o it was assumed that she threw away the pieces with the intent to revoke the will

IX. What happened with the Phillip Seymour Hoffman will?

• He had a son (Cooper) born in 2003, and two daughters (Tallulah and Willa) born in 2006 and 2008. All survived him. • His partner, Marianne O'Donnell, who was the mother of all three of his children, also survived him. • Are Tellulah and Willa entitled to a share under Mr. Hoffman's will? Why or why not? o His will went to his son o • Suppose that Marianne had predeceased Mr. Hoffman. Would Tellulah and Willa have been entitled to a share of Mr. Hoffman's estate? If so, would their share be different than that of Cooper? o Yes since there was a provision for cooper if Maryann disclaims, they would get a share • Had you drafted Mr. Hoffman's will in 2004, how would you have handled the fact that Mr. Hoffman may have additional children after the execution of the will? o Define children

What happened in Janus v Tarasewicz, before the 120 hour was put into place?

• Husband and wife took tylonel laced with cyanide and Stanely died on 9/29/82 and the wife died on 10/1/1982. • Stanely had life insurance which was payable to Aljoza if Theresa predeceased Stanely. Aljoza brought an action stating that she was entitled to this because there was not enough evidence that both Theresa and Stanley had not suffered brain death by the time they arrived at the hospital. • If she survived him then it goes to her estate and her father would get it. • trial court determined that there was sufficient evidence that Theresa survived Stanley. • AC:The trial court's conclusion is not against the weight of the evidence. The ruling of the trial is affirmed. • The statute in this case was only if there is simultaneous death by sufficient evidence that both decedent are treated as if they predeceased the other. • Intent was not carried out,

XI. How does T make a provision in the will contrary to the antilapse statute? In most jurisdictions, any of the following will work, name 3 ways?

• I give a million to X if he survives me. • I give a million to X if he survives me, if not the gift the shall lapse. • I give a million to X if he survives me, if not then to Y charity.

XXXI. ASK PROF: What is the delivery requirement?

• I think it is whether or not you deed the property to the trustee • If you specify a trustee you have to deliver • There can be symbolic or constructive to delivery— • Cases are inconsistent on the delivery requirement but with respect to real property you need a deed to say that you are holding the property as TE. • YOU HAVE TO DEED THAT PROPERTY TO THE TRUSTEE

II. What are the two approaches to ademption by Extinction?

• Identity Theory: o If the testator does not own the specifically devised item at death, the devise is "adeemed by extinction," and the devisee gets nothing. • What is the policy here? • Intent Theory: o The devisee might be entitled to replacement property, or even the value of the item, if the devisee can show that is what the testator would have wanted.

• X's will provides as follows: • "I give my gold Rolex watch to my best friend, Y." • Some time after the execution of the will, X sells her Rolex. What result?

• If T doesn't own the piece of property at the time of death it is adeemed by distinction • There is a presumption that T doesn't want them to get it, otherwise why would they have sold it • When where there be a good argument that this theory might apply

II. What does "by representation" mean?

• If a descendant who would otherwise take, predeceases the intestate decedent, then that descendant's descendants take by representation

V. What happens if this is a void or lapsed specific or general devise? What happens is there is a void or lapsed residuary devise?

• If a specific or general devise, it goes to the residue • If residuary devise is lapsed or void, it goes to intestacy

V. What is the share of the spouse under the UPC 2-102?

• If all the decedents descendants are also descendants of the surviving spouse and the surviving spouse has no other descendants so there are no step kids, the surviving spouse takes the entire estate to the exclusion of the descendants descendants. o This is because you typical want your spouse to take the money to care for the kids. o It also avoids appointing a guardian to care for the property of the minor child • Spouse gets the first $200,000, plus ¾ of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent; o This gives the parents of the decedent a little something

XXV. What about the ERISA rules, how do they factor into waiving before the wedding?

• If employer sponsored and ERISA the surviving spouse must be the death beneficiary unless they waive it in writing • What happens if they do it in the prenuptial agreement • These are rights of a spouse so you cannot have them waive it until marriage and waiver of the elective share has to be done after the marriage • How do you secure this as a lawyer o The spouse can agree to waive in the premarital agreement to execute the form o Then you follow up and have them execute

IX. Does the elective share apply to non probate devises?

• If it does not the spouse can load up on non probate to avoid elective share.

XLII. What are honorary and resulting trusts?

• If the TE chooses to do so, they can carry out the trust (animals for example) • They are on their honor • If the TE fails to accept the trust It is held on resulting trust, it goes back to the settlor and into the residuary trust • RAP o It is a live in being plus 21 years. The dog isn't a live in being. so it needs to vest in 21 years.

XX. What is precatory language and what effect does it have? What do you tell the client if using it?

• If the language is unprofessional, we look to see if we have the element. • If you are using language that is non binding and is a request, a wish, a hope or recommendation, it is precatory and does not create a trust.

V. How do we determine how much the income interest is?

• If the settlor has not defined income and principal in the trust instrument, the trustee must rely on state law. • The term "income," when describing the income of a trust for distribution purposes, is not the same as income for tax purposes. Historically it meant "fiduciary accounting income" which includes interest on investments, dividends, royalties and rents. • Or they can define it on their own.

III. Why is a non probate transfer not a will?

• If the transferor intends that it be something other than a will, then it may qualify as a nonprobate transfer device, so long as that device is recognized in the jurisdiction.

XIII. Today, why isn't a non probate transfer a will?

• If the transferor intends that it be something other than a will, then it may qualify as a nonprobate transfer device, so long as that device is recognized in the jurisdiction.

XI. What is the doctrine of "mere erroneous description does not vitiate (spoil)? What case?

• If there a description of something in a will that is erroneous, we can drop those words and see if it makes sense? • Arnheiter v. Arnheiter o In a will the wrong address on Harrison avenue was listed, when they dropped the number the will simply said my house on Harrison avenue. Since she only owned one house on Harrison avenue, it made sense.

XV. What is an escheat?

• If there are no survivors entitled to take under the intestacy statute, the probate property escheats to the state. • This is rare as people keep tabs on kinfolk of obvious wealth.

III. Where does the estate go if part of the share is not going to the surviving spouse? Go down the chain

• If there is no surviving spouse, the decedents descendants get everything (kids, grandkids) • Then it goes to the parents equally or to the surviving parent • Then it goes to the descendants of parents (sibs) • Descendants of Sibs • Table on consanguinity

V. In Thompson, what would have happened if there was a harmless error doctrine?

• If there was clear and convincing evidence that the writing was intended to be a revocation of the will, which there was, it would have been revoked. • It would have been revoked here under harmless error • The UPC may allow cancellation despite not touching the words of the will if written on the document.

XXXIII. Suppose that O signs a document she calls a "deed of trust" under which she names herself as trustee of "all of her assets." What else, if anything, is necessary to create a trust?

• If this is a declaration there is no formal requirement, just need a writing. • PROF: Need more about the delivery requirement Do you need a beneficiary

XXI. How should an L instruct someone using precatory language in a will?

• If using it, you need to tell the client it is non binding. • If you use precatory language then make it clear that it is precatory: "I prefer, but do not wish to legally require, that my son use a portion of his devise to attend to the care of my sister

V. How do disclaimers work with federal bankruptcy laws vs ordinary creditors?

• If you disclaim, the disclaimer relates back to the date of death and the property directly passes to another bypassing the disclaimant. • Most states hold that ordinary creditors cannot reach the disclaimed property since it relates back. • If a bankruptcy petition is filed before the disclaimer, courts invariably hold that the disclaimer is ineffective under federal bankruptcy law. • The bankruptcy is filed after the disclaimer, federal courts will respect the state law relation back doctrine.

II. Do you need to say you revoke all previous wills in the will? Or does the subsequent will revoke the previous will?

• If you execute a second will that disposes all your property the first will is revoked. • The language is a fail safe and is a good idea.

IV. What if in the Mahoney case, she had not been convicted?

• If you get found not guilty it doesn't necessarily get you off, they will look at it as a civil case and preponderance of the evidence

XIX. Trust owned commercial real estate that generated little rental income. T retained the buildings, as the land was appreciating rapidly

• If your a trustee your it doesn't matter if you intended one to benefit, you are not being fair by not taking income • This is like the Marksman case where they try to preserve the Corpus of the trust • You should be getting a reasonable return on the assets • You always have a duty of impartiality • The trust is only to benefit the benes

X. What are other examples of types of trusts?

• Imcompetant person, discretionary trusts for flexibility, protection from creditors, tax planning, Testamentary marital trusts avoid taxes and come in handy when wife has other babies from other daddys.

IX. What case do we have that deals with a void devise?

• In Re Estate Russell o T died with a holographic will leaving everthing to Chester and a dog named Roxy. o This is a residuary devise. • How do we rectify the fact that Roxy is a dog that you can't leave something to? o You argue that it is a latent ambiguity because since Roxy is a dog she must have meant for Chester to have it. • The court found that it was a void devise and applied the old rule that now says the dog's share goes to intestacy, they should have tried the court to adopt the modern rule so Chester could get it.

IV. What case do we have that deals with revival and DRR? Did they use the minority or majority rule for revival?

• In Re Estate of Alburn o 55' execute Milwaukee will; 59; executed Kankakee will; 60' tore up Kankakee will intending to revoke it o The 59' will was a revocation of the 55 will by subsequent writing o In 60 she revoked the 59' will by physical act o Issue: Was the revocation of the 59' will a revival of the 55' will? • She thought it would revive the 55' will • This was a mistake of law • The court followed the minority rule that you need to re-execute the prior will or refer to it in a subsequent codicil. • The 55 will was her first choice but the 59 will was better than intestacy, therefore we apply DRR • Revocation due to mistake of law, which had she known about, she would not have revoked.

VI. What case applies the harmless error doctrine?

• In Re Estate of Hall o Lawyer told a couple that they could have a will draft signed and notarize that they would be OK. But this did not comply with will act as there was not two Ws. o MT had a harmless error doctrine that said that a will may be probated if the proponent of the will establishes by clear and convincing evidence that the decedent intended that will to be his or her will o Here they knew they revoked the other will and the attorney said this one was valid therefore there was enough evidence to establish C and C that they intended this to be their will. o HED carried out the intent of the decedent. o L should have either done it or referred it someone who could.

VI. What case do we have that deals with a subsequent inconsistent will and the harmless error doctrine?

• In Re Estate of Stoker o T executed a will in 97 leaving two beneficiaries; In 05 he left a handwritted not revoking the revoking the 97 trust and saying that Gularte would get nothing. o At trial they had a witness who saw T execute the 05 document. o Here the court looked the harmless error doctrine to determine that T intended the 05 to be a revocation of a will by C and C evidence. o Not only is there a subsequent inconsistent will, but he burned and pissed on the 1997 will.

XXIV. What are the management duties of TE?

• In addition to the investment function and the duty of collecting, segregating and earmarking trust property, the trustee must safeguard property, insure and maintain it, and pay taxes.

II. Is the contract action and will adjudicated separately or together? Does the will still get probated?

• In cases involving wills contracts, the contract action is separate from the question of the will's validity. • Ex: T enters into a contract not to revoke his will, but does so anyway and draws up a new will. Although T's new will is valid and can be probated at his death, a contract action can be brought against his estate, seeking damages for the breach

XXI. In Cook what if there was a revocation on divorce statute? What if it was an employer funded policy?

• In many states a ROD statute would not apply to life insurance contract. • If ROD did apply, it would have been enforced in this case because it was a privately held contact. • If it was an employer provided benefit, the ROD statute would be preempted by federal law • ASK PROF: o 1. Is it a majority rule to apply ROD statutes to LI?

XIII. From a formality standpoint, what must happen for a will to be probated?

• In most jurisdictions for a will to be probated witnesses must testify that witnessed the or submit an affidavit .

IX. What case do we have that deals with POAs and whether trusts can be created?

• In re Estate of Kurrelmeyer o 1980: Louis Kurrelmeyer executed will o Life estate in "Clearwater" property to Martina, remainder to surviving children o Martina responsible for taxes and upkeep during life o 1996: Executed DPOA naming Martina (w) and Nancy (d) as AIF. o 2001 AIFs executed a trust in LKs name allowing W to pay expenses from the trust, direct TE to sell if Martina directs, proceeds returned to trust and then proceeds to LKs children on death o She created the trust, and they said she had the power to do this o It said in the POA she could execute a trust instrument and this is how you create a trust • There is a fiduciary obligation for no self dealing but if the POA allows self dealing by saying you can make gifts to yourself, you can do it. • Here, they upheld the trust but they remanded to see if there was a breach. It seemed like self dealing because he just wanted her to be supported and then for it to go to the children.

VII. What case rejects the harmless error doctrine and why?

• In re Probate of Will and Codicil of Macool o Decedent came into the office and said here is my will and here is a list of things I want to add to the will. o It was never executed and although she wanted it to become part of the will, it was never memorialized as such. The note was not a document, it was list. Therefore, there was not evidence that she intended the note to be a will, just an intent for it to become part of the will. o Overarching policy is not met. o BUT WAS THIS A HOLOGRAPHIC WILL?

II. What case do we have that deals with insane delusion?

• In re Strittmater's Estate o Only survivors were cousins who had little contact. Will went to the National Woman's Party o The alleged delusion was that their was a pathological hatred of men and she was a staunch feminist. o There was some strange things like paranoia, destroying a clock and killing a kitten. o It was 1947 and the court found that her hatred was an insane delusion and set aside the will. o In 1947, we would have thought this was insane, today probably not o there is an inherent danger of what is delusional as a matter of thought and is subjective • Problem is what is normal depends on the time and varies o If there is a delusion you set aside the provision of the will that is the consequence of the delusion

IV. If a contract to make will is valid but the will probated anyway, what is the remedy?

• In some states the remedy takes the form of damages • IN other states • courts form a contructive trust in favor of the contract beneficiary beneficiary to prevent unjust enrichment • IN other states • There is specific performance but the remedy more closely resembles a constructive trust than specific performance

VIII. I give the residue of my estate in equal shares to my best friends, X, Y and Z. X predeceases.

• In this example, under the old "no residue of a residue" rule, if X predeceases, then his one-third share of the residue goes to intestacy. • Under the modern rule, if X predeceases, then Y and Z share the entire residuary estate

XXI. What is the traditional rule for income and principal?

• Income: interest, dividends, rents • Principal: capital and its appreciation and gains • This was the old rule and it was restrictive to TEs

What is informal vs formal probate?

• Informal o Without giving notice to anyone the personal representative petitions for appointment and then swears that to the best of her knowledge the will was validly executed o Within 30 days the personal representative must mail formal notice to every interested party including heirs and anyone disinherited o Any of the above parties going then file a petition for formal probate • Formal o Judicial determination after notice given to interested parties

XIII. What are the three health care advance directives?

• Instructional Directives o Specifies treatment in end-of-life situation or in the event of incompetence. o Living will which gives instructions as to what they want to do if at the end of life o Finish me or not • Proxy Directives o Designates an agent to make health care decisions for the patient. o Permit the person who has the power to make decisions for the purpose when the sick person cannot communicate • Hybrid or Combined Directives o Incorporates both of the first two approaches, that is, directs treatment preferences and designates an agent to make substituted decisions.

XX. What is interpleader?

• Insurance company knows they owe money but don't know who, they deposit it with the court and ask the court to figure it out

XVIII. What is required to create a trust?

• Intent • Beneficiary • Trust property • (sometimes) a writing o Land for example is subject to SOF

X. What is death for purposes of USDA (uniform simultaneous death act statutes?

• Irreversible cessation of all functions of circulatory and respiratory functions; or • irreversible cessation of all functions of the entire brain, including the brain stem

VIII. What is a demonstrative devise? Is it a specific devise for the purposes of ademption?

• Is a hybrid, and it is not a specific devise for the purpose of ademption • General devise payable from a specific source • For example 100k to B, to be paid from proceeds of Apple Stock • If there is not 100k in AAPL the devise is not adeemed • Other property must be sold to raise the full 100k

XVI. How do we know something is a class gift?

• It is a gift to people who are members of a class. o Cousins, sisters, nephews, etc. • Group label o For example cousins • Dynamic Shares o The amount of the gift can change depending on how many people are in the class.

XII. Is the Farkas analysis used today? How do we legitimize a trust?

• It is a trust because we intend it to be a trust and because we allow RTs • We don't care if the other person didn't get anythinig • Farkas reasoning is foolish • RTs are now the functional equivalent of a will • It is fine if it looks like a will

III. What happens if the second will doesn't dispose of all your property?

• It is an amendment or codicil to the first will, and property not disposed of in the second will is looked to the first will for to the disposition

XXX. What if someone creates a trust for themselves as TE with no beneficiary?

• It is not a trust because there are not beneficiaries, this is straight ownership.

VII. Can you write the will and be the trustee? Is being a TE the practice of law? What compensation can you receive as TE?

• It is not necessarily unethical for a L to be the trustee and write the will • But being a trustee isn't a practice of law • You insurance would not cover what you do as trustee • For a smaller trust it could be an individual but trustees are permitted to receive reasonable compensation

VII. Does the elective share perfectly "convert" marriage under a separate property regime into an economic partnership at death?

• It is typically 1/3 therefore it does not convert exactly

XXXVIII. What is a power of appointment?

• It is when you transfer something to transferee who will hold it in a non fiduciary capacity. • They hold the property for an indefinite class of persons, such as the T's friends and transferee has the discretionary power to convey the property as he selects. • The court cannot hold her to any standard. But if it is reasonably described so that one person would fit the description, the power is valid. • If transferee fails to exercise such power the property passes to the default takers described in the appointment or T's heirs.

VII. What is ademption by satisfaction? What type of bequests does it apply to? What is common law and modern law on this?

• It only applies to general bequests. • The issue arises when : o X's will gives $100,000 to each of his children, A, B and C. Some time after execution of the will, X gives B $50,000 for law school. • There is a presumption that the gift was in partial satisfaction of the legacy so that B will only take at 50k. • ASK PROF: o WHAT IS THE COMMON LAW VS MODERN LAW RULE

VI. How much does the spouse get if decedant dies intestate?

• It varies by state, but in most states it is at least half.

XXIV. What case do we have where a trust was set up based him holding fund for his daughter's education?

• Jiminez v. Lee o Money was to Lee to hold for his daughter education. o Was it a trust • Need intent to transfer property to someone for the benefit of someone else • Need a transfer Here he transferred to the trustee • Need a beneficiary • Here, since there is no dispute that the donors of the E-bond and $500 gift intended that their gifts be used for Elizabeth's education, both are held in trust by Jason. o He breached his fiduciary duty by taking the money out o He was not a custodian because he was holding it for a purpose. o He couldn't account and was liable for breach of fiduciary duty

VII. What is a joint and mutual will?

• Joint will where testators make reciprocal provisions though the term is confusingly used to describe a joint will with a legal agreement not to revoke

IX. What case do we have that deals with a mirror image will?

• Keith v Lulfos o They sign mirror image mutual wills o They have terms drafted in consideration of both wills o Got married in 72 o Signed wills in 87 o Life insurance was bought o Husband dies in 96 o Wife goes and changes to will to provide for her own child o Just because there is mutual mirror will, doesn't mean there is a contract not revoke, you need a separate contract not to revoke o They should have entered into a contract if they wanted the provisions to be enforceable o L should have got something memorializing the fact that they didn't care that it wasn't enforceable

X. Elective share case Kerwin v Donaghy

• Kerwin transferred property to Gladys and retained right to revoke and he was the bene and then it went to Glady • Wife files for elective share • But these are non probate assets and not the estate • Court said she was out of luck • Court said assets of a RT is not part of the estate for purposes of the elective share as this is not probate.

II. What case do we have that discusses, "If anything happens to me"?

• Kimmel's Estate o T wrote a letter to his son discussing the inclimate weather, various personal thing and said that if "enny thing happens to me" the property would go to George and Irvin and to keep the letter locked up. He signed the letter. o The court found a holographic will as he intended it to be testamentary as he said to keep the letter locked up, the signature was intended to be his and therefore it was a holographic will.

XXV. What happened in Scheffel v Kruger?

• Kyle Krueger was convicted of unspeakably horrible acts molester which were also the basis of tort claims. He was ordered by a court to pay over $500,000 in damages. • He was the beneficiary of a trust known as the "Kyle Krueger Irrevocable Trust." • TE had sole di • The trust specifically provided that the trust principle and income could not be reached by creditors "prior to its receipt by the beneficiary • This was a discretionary support trust for maintenance/education (the principle of the trust). • This was a mandatory trust for the income (trustee must pay the income to the beneficiary). No discretion with respect to the income. • This was also a spendthrift clause • Unless the beneficiary of a trust containing a spendthrift provision is also the settlor or the assets were fraudulently transferred to the trust, creditors may not reach the beneficiary's interest in the trust. • Therefore, since the language RSA 564:23 does not provide an exception for tort creditors, an exception will not be presumed. Although an exception to spendthrift provisions for tort creditors has been presumed on public policy grounds in other jurisdictions applying judicially created spendthrift law, this state has an express statute that cannot be overruled by public policy.

II. What case do we have deals with DRR?

• LaCriox v Senecal o Dupre executed a will: • One-half to my nephew, Nelson Lamoth; • the other one-half to Aurea Senecal. o A couple weeks later there was a codicil changing the will to Marcisse Lamouth also known as Nelson Lamoth o The codicil was executed with a husband of a taker and this includes the wife as an interested witness thus voiding one of the takers. o She had a will and changed a provision, this was a revocation of the first will. o But If T was told of this, mistake of law she would have taken the first will because the way it was written in the first will would have worked anyway o Slam dunk for DRR

IX. What case do have that was an example of a latent ambiguity?

• LaCroix Case o Where she did a codicil to correct a will that referred to a wrong name but the court applied DRR and then resolved who the actual name was by admitting extrinsic evidence to resolve a latent ambiguity.

III. What case do we have on Duress?

• Latham v Father Devine o They alleged that the decedent was prevented from executing a will. o This was not a good case as the only alleged duress and there wasn't enough to state a claim

III. What must a lawyer do to avoid a conflict of interest in WET services? Specifically representing multiple clients?

• Lawyers if a trust or estate lawyer representing multiple clients should use an engagement letter and in it advise on the advantages and disadvantages on joint representattion • says that lawyer can't withhold info from either of them, represent them individually, • If lawyers are going to represent a facility there needs to be a waiver of confidentiality and a waiver of conflict of interest o "Each of you is authorizing me to disclose to the other any matters related to the representation that: 1. One of you might discuss with me; and 2. That I might acquire from any other source. • They need to consent to the compromised representation

What are legatees?

• Legatees receive bequests that people bequeath to them

What are letter testamentary vs Letters of administration?

• Letters Testamentary o Letters that give the executor the authority, the executor takes the letters to the bank they then have the authority to withdraw the money • Letter of Administration o Same as above except for someone that dies intestate

XVIII. Why is LI nonprobate? Does the will affect the beneficiary of a LI policy?

• Life insurance is a nonprobate asset because the policy proceeds or "face amount" of the policy pass to the beneficiary at the death of the insured outside of probate • The beneficiary of life insurance is not typically affected by the will of the owner of the policy. The beneficiary designation form governs.

IV. What nonprobate assets are protected from creditors?

• Life insurance is protected. • Joint accounts with survivorship are protected • Retirement accounts are protected if spouse or child. • POD may be exempt

• H, age 40, and W, age 30, are engaged to be married. H is quite wealthy, having inherited about $30 million. W has an estate of about $100,000. A couple of weeks before the wedding, H tells W that after receiving some legal advice, he cannot marry W unless she is willing to sign a premarital contract that waives her right to an elective share of his estate upon his death. Would such an agreement be valid?

• Look at elements for premarital

XVII. What are the trustee's fiduciary duties to the trust beneficiary?

• Loyalty o - no self-dealing • Can only administer for sole benefit of benes o - no conflicts of interest • Prudence o - impartiality between beneficiaries o - no commingling • Must keep the purport separate from their own property o - duty to inform and account • Fees, taxes and the transactions • The bene needs to determine if the trust is being carried out right • They need to be informed to do this

IV. What are the main duties of a trustee?

• Loyalty o Self dealing • Prudence o TE has duty to figure out the needs of beneficiary and be diligent • Impartiality o Can't elevate interests of one beneficiary over the other (Marsman) o Impartiality of treating all beneficiaries equal • Collection of Property o TE has to bet • Management of Property • Communication o Beneficiaries must be kept reasonably informed of the activities of the trust. • Distribution o TE must make distributions

IV. What case do we have that demonstrates the plain meaning rule?

• Mahoney v Grainger o T hired a lawyer to draft a will to divide the residue of the estate equally to closest relatives including cousins. Attorney did the will as heirs at law but the aunt was the only heir at law. o The court said there was no ambiguity and therefore we look to the four corners and it goes to the heirs.

XI. Do joint or mutual wills create a presumption of a contract?

• Majority o Joint or mutual wills do not cause presumption of contract.

XII. Can an AIF make gifts?

• Majority o You can only make gifts if given the explicit right in the DPOA • In many states and under UPC the principal must initial giving away this power • In Re Marriot • Our required strict compliance and an X instead of an initial to give away the right was not enough

III. Does revoking a subsequent will revive a prior will? What is the majority and minority rule?

• Majority Rule o If T revokes a subsequent will o with the Intention of reviving a prior will o then the prior will is revived • Minority Rule o If T revokes a subsequent will the prior will is not revived unless it is re-executed or referred to in a subsequent codicil

VIII. If a will is joint or mutual, is there a legal consequence?

• Majority Rule o There are no legal consequences to joint or mutual wills unless it is subject to a contract

XII. Does survivorship language defeat the antilapse statute?

• Majority Rule o Yes, the antilapse would not apply o An express requirement of survivorship, such as "if he survives me," evidences an intention that B's descendants should not be substituted for B. • UPC Minority Rule o You need more than just "if he survives me". As a drafter you need to make the intent clear, or say the antilapse statute does not apply, otherwise it may be ignored. 7 states

XLV. What is a purpose trust and who enforces them?

• Majority Rule o almost every state has enacted statutes permitting trusts for animals and other "purpose trusts." • So, despite the result under traditional law, trusts for animals can now be created if the statutory requirements are followed • Typically these trusts are enforced by: o (a) someone named in the trust instrument; or if none, then: o (b) a person appointed by the court. • Some jurisdictions, and the UTC, now allow "purpose" trusts for a specific noncharitable purpose other than the care of an animal. • The most common example of a trust for a specific noncharitable purpose is a trust for the care of a cemetery plot.

III. What happens if two people have thieir own wills, and they subsequently get married?

• Majority rule: will is valid, but spouse gets the minimum of an intestate share unless it appears from the will that the omission contemplated the subsequent marriage. o You have to say that you want the will to survive the marriage despite the fact you gave less than the intestate share • Minority rule: will revoked by marriage.

XXIV. Aside from remembering to apply the antilapse to descendants, what is another big think to watch out for?

• Make sure the person is a relative of T otherwise AL will not apply.

d. The trustee shall distribute all of the net income to A during her lifetime. Upon the death of A, the trust shall terminate and the remaining principal of the trust shall be distributed to A's descendants, by representation

• Mandatory

VIII. "TE shall distribute all the net income to the beneficiary in annual or more frequent installment". Mandatory? Or Discretionary?

• Mandatory provision

VII. What are two different ways of determining whether an heir was intentionally omitted?

• Missouri Type o Only look to the will • MA Type o Permit extrinsic evidence

XXIV. Why do we have spendthrift trusts?

• One reason we have spendthrift trusts/ How this would probably pay out with creditors- Its so difficult for creditors to get the money with spendthrift trusts. So the creditors will probably be willing to settle for far less $$$ than the original amount owed. Benefit of asset protection. Allows the beneficiary to settle for pennies on the dollar.

XIV. What case do we have that deals with beneficiaries' standing in a revocable trust?

• Moon v Lesikar o T created a trust with 10k of airport stock. He revoked the first and sold the the stock to Woody for 2k. Then he modified the trust for a new trust agreement and died. o Carolyn objected the sale of the airport stock to Woody for $2,000. She claimed that the price of $2,000 was inadequate, thereby diminishing the value of the family trust. o Question: does a contingent beneficiary of a revocable trust have standing to object to an action of the settlor prior to the trust becoming irrevocable on the settlor's death? • The continent beneficiary is contingent on their being a remainder interest. • Carolyn had no interest in the trust until Mr. Lesikar's deathShe therefore has no standing to challenge the sale of the Airport Stock.

XXVI. Can involuntary creditors get at spendthrift trusts?

• Most states have considered an exception for tort victims and rejected them

IV. Legally what are will substitutes or third party beneficiary contracts?

• Most will substitutes are third-party beneficiary contracts: o POD bank accounts o Insurance policies o Retirement accounts o Joint bank accounts

VIII. How do you avoid a pretermitted child statute?

• My Children. My "children" means my children, Child A, and Child B, and any other children of mine who may hereafter be born or adopted.

• I give my residuary estate in equal shares to my children When T signed his will, he had three children, X, Y and Z. X predeceased T. What result at common law?

• NEED ANSWER TO THIS I'M NOT SURE IF THIS IS A CLASS GIFT BECAUSE IT DOESN'T SAY ALIVE AT MY DEATH. I THINK IT STILL WOULD BE AS CHILDREN IS A GROUP LABEL AND IT SEEMS AS IF THE NUMBER COULD CHANGE BASED ON HOW MANY CHILDREN.

II. What if there is no ambiguity in a will, can extrinsic evidence be admitted?

• No extrinsic evidence is permitted where no ambiguity exists. • There is a TREND but only a trend towards allowing extrinsic evidence more liberally.

IX. T, as trustee, appropriately decides to sell Blackacre, trust property. T obtains a certified appraisal of Blackacre, and then sells the property to himself, individually, for the appraisal price, plus ten percent. What law applies?

• No further inquiry rule • any act of self dealing can be undone by beneficiary even if the terms are fair • This is more than a conflict, this is self dealing

VII. What would be the consequences if a trustee uses her services a real estate broker and uses the trust to get a commission?

• No further inquiry rule\ • any act of self dealing can be undone by beneficiary even if the terms are fair • This is more than a conflict, this is self dealing • • T is the trustee of a trust that owns Blackacre. T appropriately decides to sell Blackacre in order to replace it with another investment. T is also a real estate broker. T cannot use her services as a real estate broker and pay herself a commission from the trust to sell Blackacre.

XIII. Does a revocable trust need trust property (other than the "expectancy" of the probate estate) in order to be valid?

• No, not under current law

V. Does the elective share carry out the intent of decedent

• No, put there is a competing policy that marriage is an obligation to support your spouse

XII. Will courts reform a will due to mistake? (majority/minority)

• No, they will not re-write the will but there is minority trend to reform the wills. • UPC allows this but their needs to be clear and convincing evidence of what the transferor's intention was.

XIV. How do you avoid the antilapse statute in UPC land?

• Not Sufficient o "I give one million dollars ($1,000,000) to my cousin, Elmo, if he survives me • Sufficient o I give one million dollars ($1,000,000) to my cousin, Elmo, if he survives me, and if not then such gift shall lapse XV.

XX. I give the rest of my estate as follows: one-third to X, one-third to Y, and one-third to Z, X Y and Z are T's first cousins. Class Gift?

• Not a class give because there a specific amount given to each person in the class

VII. If you disclaim, who the property go to? Does the disclaimant have the ability to determine who the property goes to?

• Note that this did not mean that Drye had any control to determine who got the property. The property went to the person who would receive it in the event he predeceased.

What are heirs?

• Now heirs and next of kin means people designated by applicable statute

XXVIII. What case do have that deals with whether you can change an IRA beneficiary by will? What is the majority rule?

• Nunneman v. Estate of Grubbs, p. 479 o He executes a a will to Servena in 2005 with no mention of IRA o Can IRA Bene form be changed by Will o There was an exception if • You specifically identify the IRA or policy • The court thought the note was fraudelant • Show an intent to change the bene • Here there was no language in the will specificall identifying the account o Majority Rule • Bene designation on a non probate device cannot be changed by will • Some jurisdiction hold otherwise

• What case do we have that deals with Equitable adoption? Is this the majority rule

• O'Neal v Wilkes o P was raised solely by her mom and her mom died, dad was never in the picture. Her dad's sister arranged for an adoption with Cook, who took care of her until she got married. Cook died. o The court would not recognize a virtual adoption because they said the sister had no legal right to arrange the adoption. o THIS NOT THE MAJORITY RULE, MOST COURTS WOULD SAY THIS IS A VITUAL ADOPTION AND THAT SHE WOULD GET A PIECE OF THE INTESTATE SHARE.

V. What is a joint will?

• One instrument executed by two persons as the will of both • When one person dies the instrument is probated, as the decedents will. When the other dies the instrument is probated again as the will of the 2nd decedent

IX. What is the most common use of a trust?

• One of the most common uses of trusts: to hold and manage property for a minor beneficiary, or a beneficiary who has not reach a certain age. • Set up a contingent trust in the will so if spouse does not survive it goes to a person as TE and they hold it and manage it for the benefit of the children • its common to distribute it in stages to prevent having it blown • you could have co-trustees and they need to agree on discretionary moves but you can change that in a will

XV. What is the difference between one and two step affidavits? What do states allow for contesting if you have one of these?

• One step is where you sign the will once as T and for the purpose of the self proving affidavit and attestation clause. • Two step is separate self proving affidavit. • Some states give a rebuttable presumption of due execution, others say it cannot be contested unless fraud or forgery affecting the affidavit.

II. What are dispositive sections? What are the four sections?

• Ones that transfer property to the possession of another • Specific Devise o Gives away a specific type of property o I give a car to X upon my death • General Devise o A devise of a sum of money, "I give 1 million dollars to X if she survives me" • As aside (Tangible Personal Property) o When you look at a will you see a separate clause for tangible property o For example leaving all personal property to all my children divieded equally as practical taking into account preferences. If one survives it goes to the other, if none survive it goes to residuary. • Residuary Clause o All the property that was not specifically provided for in the will goes to kids and if they predecease give the share to to their lineal descendants by representation. o Always need one of these

VI. What is the difference between the partnership and support theory of marriage?

• Partnership Theory of Marriage: under this theory, marriage is seen as an economic partnership, with each partner being entitled to an equal share of the earnings and acquisitions. • Support Theory: under this alternative to the partnership theory, one spouse is entitled to the support of the other spouse

VI. "I give the sum of one million dollars ($1.00) to my best friend, Tina"

• Patent o Appears on the face of the document

III. What is the difference between a latent and patent ambiguity applied to the plain meaning rule?

• Patent o Appears on the face of the document. • Latent o Ambiguity is only apparent if we apply it to the facts. • Plain meaning rule and many courts will only look outside the will to resolve a latent ambiguity.

XV. What is the problem with the UPC and RST changing the will even if no ambiguity?

• People might have little evidence and try to force a settlement.

I. What is majority rule in construing wills?

• Plain meaning rule-Majority Rule o The rule holds that words are given their plain meaning and extrinsic evidence is only admitted to resolve certain (usually latent) ambiguities. o You stay within the four corners of the will, no extrinsic

XXVII. Can beneficiaries waive ERISA rights by premaritial agreements? How do you waive?

• Prenuptial agreements cannot serve as a waiver because they are executed before the marriage. • Most spousal waivers take place directly on the beneficiary designation form provided by the plan sponsor.

VIII. How does O a pour over will?

• Prepare and sign a trust instrument that names the trust and set out the provisions. "The O Revocable Trust" • Complete a will with a residuary clause to trustee of the trust. • Prepare and sign deeds if you have real property from O to the O as trustee of the O revocable trust. • Retitle bank accounts as owned by O as trustee for of the O revocable trust. • repeat 3 and 4 above for other transfers] • Prepare new beneficiary designation forms (for life insurance, for example) that name

I. What happens if you had a will, and then get married to a new wife but don't update it to include her?

• Pretermitted Spouse Statutes o Formerly provided that a premarital will was revoked; now provide that the spouse receives an intestate share o The thinking is a person getting married who's will was done before they were married and they spouse was not provided for, that they should get a share.

XXI. What is an example of a spendthrift trust?

• Prevents voluntarily alienation and prevents involuntary alienation (the seizing of the trust interest by a third party) • To the full extent allowed by applicable law, the interest of any beneficiary in the income and principal of this trust shall be free from the control or interference of any creditor of the beneficiary or of any spouse of a married beneficiary. Such interest shall not be subject to attachment or susceptible to anticipation or alienation.

What is the difference between Primary and Ancillary jurisdiction?

• Primary o Will always be the domicile of the decedant • Ancillary o If you live in ME but have real property in MA o There would need to be an ancillary proceeding in MA for where the real property is • This helps the recording system and creditors in the state where the real propert is • Can be costly and better to hold out of state property in a trust

VI. What is the principal of a trust?

• Principal includes the assets themselves (for example, securities or land) and any increase in their value (capital appreciation). • Note the tension this creates between income beneficiaries and principal beneficiaries. Remember the fiduciary duty of impartiality?

Which creditors get paid first?

• Priority Creditors get paid first and they get paid pro-rata if in is not enough

What is summary administration?

• Probate can be avoided if the amount of properties small in which case the administrator can provide a summary administration which is an affidavit

XI. How can residuary devisee get screwed by abatement?

• Problem arises if you leave 200k to two charities and the residuary to son. If only 400k left son takes nothing SEE BOOk • Lawyers should draft good and instead leave the whole residuary estate to son and charities and they would abate equally • Also make sure when you are preparing make sure the charity is the residuary or give a percentage to the charities

IX. The trustee shall distribute so much of the income and principal to the beneficiary as the trustee in its sole discretion deems advisable from time to time. Discretionary? Manadatory?

• Pure discretionary with no support standard.

IX. What is a purging statute and why do we have it? Do all state have this rule?

• Purging statutes require "interested witnesses" to "purge" their interest under a will. This is the majority rule. • Policy: interested witnesses might give false testimony to protect their interest • Minority rule (and UPC): witnesses don't have to be disinterested. • MA used to automatically purge interested witnesses devise. But now they allow it to be a rebuttable presumption

VI. What does the restatement say and the UTC say about the equitable deviation doctrine?

• RST o o The court will not permit the trustee or beneficiary to deviate from the terms of the trust merely because such deviation would be more advantageous to the beneficiaries than a compliance with such direction. • UTC o The court may modify the administrative or dispositive terms of the trust or terminate due to circumstances not anticipated by settlor if the modification or termination will further the purposes of the trust. To extent practicable the modification must be made with within the settlor's intent.

What is the difference between devise, devises and devisees?

• Refers to property under a will • You devise blackackre to your devisees • The provision itself is the devise • The person who gets it is the devisee

XII. What is the basic first three steps when someone dies intestate?

• Remember that after the share for the spouse (if any) is determined: o If an intestate is survived by descendants, then the descendants take the entire estate. o If there are no descendants, then the parents, if any, take the remaining amount.

XXXVI. What is the best non probate way to transfer real property? Life estate, JTS, TOD Deed?

• Remember, joint tenancy is not ideal for nonprobate transfer of real property. Why not? o You want to live in your home during life and then transfer it over • What about the life estate? o What if you reserve yourself a life estate and leave a remainder to the kid? o A joint tenancy and life estate cannot be revoked o Once you transfer it, you can't revoke it. • Some states now have TOD deeds for real property. o This is a new thing o It is a way to have a beneficiary designation on a piece of real property o It should say upon my death this goes to A o You can revoke it o About 17 states have this but prof thinks this will be a majority rule

XVIII. Trust owned commercial real estate that generated substantial rental income. At the end of the income beneficiary's term, the buildings had substantially depreciated in value, as T failed to maintain them or retain a reserve for depreciation. Is there a breach of duty?

• Rent was going to be the income • Here it is generating a lot of income • The income bene is being favored because we are holding the income, letting the building suffer and not depreciation

IV. What case do we have for tortious interference with expectancy?

• Schilling v Herrera o D waited cared for decedent and got her to change the will, then after she died, she waited until the probate period ended to tell her brother, the P that she died. Edward sued for fraud, undue influence and tortious conduct. o Trial court: Schilling failed to allege that Herrera had a legal duty to him. (Note that Herrera was not required, under FL law, to give Schilling notice of the probate.) o Appellate court: Since the tort is against the decedent and not the beneficiary, breach of a duty to beneficiary is not required o Fraud claim was properly stated for preventing Schilling from contesting the will o Here because the fraud wasn't discovered until after probate he couldn't pursue probate remedies. o Remanded to determine if there was tortious interference

XLIV. What case do we have that deals with the requirement of a valid beneficiary and honorary trust?

• Searight's Estate o Here the testator attempted to create a trust with one beneficiary—his dog. The problem: a dog is not a valid beneficiary under traditional trust law. o Dogs cannot enforce trusts and they don't have property rights

XIV. How can you prevent having to track down the witness and having them testify under oath after the T dies? What else is required if you are going to do this?

• Self Proving Affidavit o In most jurisdictions for a will to be probated witnesses must testify that witnessed the or submit an affidavit • You can satisfy this requirement at the time the will is executed • By using a self proving affidavit • Notary o They are authorized to talk oaths under state law which make the affidavit real • Affidavit • Always have to be notarized because a notary can take oath • You need to sign the will and the affidavit

VI. What is self dealing and the no further inquiry rule?

• Self-dealing: where a trustee, in its fiduciary capacity, enters into a transaction with itself, individually. • No further inquiry rule: any act of self-dealing can be undone by any beneficiary, regardless of whether its terms are fair.

II. What are the differences amongst states when it comes to the elective share?

• Separate Property o Property is owned by spouse who has title o Just because people are married, property rights do not change o Elective share protects surviving spouse from disinheritance o Protects surviving spouse • Community Property o Property earned or acquired during marriage is owned equally by both spouses o No elective share o You can only dispose of one half o Gifts to one spouse can be separate property o Forces you into a partnership

II. By a provision in the XYZ trust, the settlor, S, permits the trustee, a lawyer, to serve as a lawyer for the trust, and to pay herself reasonable legal fees from the trust. Valid?

• Settlor can excuse self dealing if they make that clear • Lawyer is still contained by model rules • bank will have the trust typically say that they can charge their fees

XXVI. Can a settlor be TE and beneficiary?

• Settlor can himself be TE as long as he is not the only bene • Settlor can be a bene, but cannot be the only bene because legal and equitable title merge

IX. What can the settlor do in RT during his life?

• Settlor can withdraw property from trust at any time. • Settlor can amend trust instrument at any time. • Settlor can revoke trust at any time.

VII. What happened in the Stuchell Case?

• Settlor creates a trust for Edna for life then to her descendants per stirpes, • Edna's son john was disabled and receiving government benefits, the trust would cause the son to be DQed since need based, could they modify to special needs trust which be in addition to govt benefits? • Court o Said the modification would only immunize the costs to family o The changed circumstances would defeat or impair the accomplishment of the purposes o You can't do it just because it is more advantageous

X. What happens in an RT after the settlor dies?

• Settlor is only trust beneficiary (make sure you understand why this does not violate rule that trustee cannot be only beneficiary of trust). • Settlor can withdraw property from trust at any time. • Settlor can amend trust instrument at any time. • Settlor can revoke trust at any time.

VIII. Is it ok to have yourself as the only primary beneficiary in a revocable trust? When does the transfer take place?

• Settlor is the only beneficiary during his lifetime • There is a contingent beneficiary for when you die so it doesn't violate the no beneficiary rule • When die it goes to the beneficiaries • The transfer doesn't take effect until you die

I. What are the trust characteristics?

• Settlor or grantor transfer property to trustee for the benefit of or more beneficiaries. • Trustee manages the property for the sole benefit of the trust beneficiaries. • Beneficiaries get all the benefit of the property

XVII. What case do we have that deals with whether a settlor could amend the trust without complying with the specific procedure set forth in the trust?

• Settlor wanted to remove her son as a bene since she provided for him during his life. She didn't read the procedure for amending the trust within the trust. Which said the remainder interest would continue unless revoked or terminated. • UUTC o While a trust is revocable [and the settlor has capacity to revoke the trust], rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor o You don't need to strictly comply with trust provisions unless it explicitly says so. • Banks Case o Banks followed traditional trust law in holding that once the settlor creates a trust and transfers property to it the settlor no longer "owns" it; and the trust instrument must be strictly followed • The court favored the UUTC rule and allowed her to amend the trust because she amended it although she didn't strictly comply with the procedure. •

VIII. If an elective share, what happens if the poor spouse dies first for example H has 500k and W has 100k?

• She can only dispose her amount and then he gets an elective share in that

XV. What argument did Carolyn make in Moon?

• She was arguing that since Settlor needed to revoke first it was a breach of fiduciary duty. • The court could have ruled that she was right and their was a breach of fiduciary durty • Here they said it was his anyway • Therefore she gets nothing o The majority rule is the Trustee can do what he wants because he can revoke the trust

XV. How would the previous example be applied if X was a corporate office who sold blackacree owned by the corporation?

• Similarly, if X was a corporate officer who caused the corporation to enter into the contract to sell Blackacre to Y: • Y has recourse against the corporation (and corporate property) for any breach of the corporation's contract to sell Blackacre to Y. • Z has no recourse against the corporation for the corporate officer's personal debt to Z.

I. Can a lawyer be held responsibe to estate beneficiaries? What case?

• Simpson v Calivas o Majority Rule • Contract • An attorney who drafts a will owes a duty to intended beneficiaries of the will, and the intended beneficiaries are third party beneficiaries of the contract between the attorney and the testator. • The argument was that the lawyer was only in privity with the estate but since there a 3rd party beneficiary then the lawyer is held liability as the purpose is that 3rd party gets the benefit • Client wanted the wife to have a life estate in the house and the son to have the surrounding land outright and a remainder in the house • The lawyer wrote it as a homestead life estate for the wife and the wife kept it • There is the overarching policy that the intent of the decendant is carried out • Son sued the lawyer and their were notes that said the decedent intended to just give her a life estate in the home only and give the son the surrounding property and give him a remainder • Tort • We hold have to hold that the lawyer owed the beneficiary a fiduciary responsibility , Lawyers can get sued years later for a will Minority Rule: Privity of Contract defense

V. Can we look outside the will to determine malpractice of L?

• Simpson v Calivas o evidence from the lawyer's notes was introduced to hold the lawyer liable for malpractice.

XVI. Compare legal fiction of trust and corporation, but how is a trust technically different from a corporation?

• So the title split is a legal fiction just like corporate personhood is a legal fiction. Because the fiction governing the trust is the title-split (rather than separate legal personhood as in the corporation), the trust is not technically an entity like the corporation is. • But it functions like a separate entity. •

IV. What is the minority rule for causation on insane delusions?

• Some courts have used a lower standard for causation that the delusion "might have caused or affected T's will. This is odd.

III. What is an omitted heir statute and what is the majority rule? Who they apply to?

• Someone executes a will, then has a kid, and the will does not provide for a child • On limited occasions, they will apply the statutes to descendants. • In most jurisdictions they get an intestate share • In a minority of jurisdictions you need to say something to disinherit the children • ASK PROF: IF CHILD IS alive do you need to intentionally omit them if you execute your will after the child you want to disinherit is born

I. What types of devises does ademption by extinction apply to? What does it not apply to?

• Specific devises only • Demonstrative Devise o Is a hybrid, o General devise payable from a specific source o For example 100k to B, to be paid from proceeds of Apple Stock o If there is not 100k in AAPL the devise is not adeemed o Other property must be sold to raise the full 100k

XIX. What is a protective trust?

• Starts off as a mandatory trust, but in the event that the beneficiary attempts to alienate or assign her interest in the trust, or any creditor of the beneficiary attempts to attach the interest, then it changes to a discretionary interest, usually with no ascertainable support standard. • Since England doesn't recognize spendthrift trusts, these types of provisions are popular there.

III. What case do we have that deals with whether a creditor can come after RT assets after settlor's death?

• State St v Reiser o 1971: Wilfred Dunnebier: • Creates revocable trust • Conveys stock to the trust; and • Signs a will that leaves his residuary estate to the trust o 72 State loan Wilfred 75k o 73 Wilfred dies and his estate has insufficient money for the loan • Bank knew he has assets in the RT. • Once he died, only the benes have an interest. It would be against public policy not to let the bank go after it because everyone would squeeze the creditors before they die.

V. What case do we have that demonstrates the proper signing requirements?

• Stevens v Casdoroh o T is brought to the bank to execute his will o He signed, then one witness signed, then another witness signed. o T needs to sign in front of the witnesses or acknowledge his signature to the witnesses. o Also, the witnesses are supposed to sign in each other's presence. o TC said there was substantial compliance and the AC said there are two bases that you failed on, therefore no strict compliance. Intent not carried out.

XI. What MA case having dealt with the elective share where the husband transferred it to a TE for himself?

• Sullivan v. Burkin o Happened after kerwin o Sullivan retained the right to so much of the net income and principal of the trust as he might request during his lifetime. o He transferred it over to a TE he got then income and principal and then went to bene after death o The court said if you transfer it to yourself in trust it applies

XX. Supervised vs Unsupervised administration

• Supervised o Representative is supervised by the court in can become time-consuming and costly as the court must supervise inventory, appraisal, payments etc. o No distribution without approval • Unsupervised o After appointment the personal representative administers the estate without going back to court o It's mostly family members and the court does not want to waste time

XXXIII. What are the different types of multiparty bank accounts?

• Survivorship accounts o JTWROS • Convenience accounts o You are not making a gift, it is only for your benfit o Then you can have POD or pass it directly on to a bene • POD accounts o Pay directly to bene on death o Almost every state now permits, by legislation, bank accounts to carry a pay-on-death (POD) designation. • TOD Accounts o Note that the term "transfer-on-death" (TOD) is used in the context of securities, as opposed to bank accounts, which typically use "pay-on-death" (POD). o Most securities are now held in "street name" in brokerage accounts rather than by individual certificates. These accounts can be made TOD by beneficiary designation in most jurisdictions

XXVI. What language should you always look for when applying AL?

• Survivorship language

XII. Book example for acts of independent significance?

• T can leave their car to their nephew and upgrade their car because the act has an independent significance as they would want to drive a new car. Same with if you left 1k for all employees and then fired one before death.

I. What is the classic ROD pattern and the majority rule?

• T executes a will leaving everything to husband if he survives her, if not it goes to the kids. T divorces, T dies without changing the will. • Majority Rule: a divorce revokes any provision in a will for the former spouse. The former spouse is treated as if he or she predeceased the testator.

XXIII. What is the difference between term whole and universal life?

• Term: You are paying for pure insurance • The only money in the policy is to compensate risk for early ddemise • Whole or UNiversal o Has an investment element o You can use the investment for various things o Whole life is worth 100k o You can borrow against it, cash in the policy

III. Is there an intelligence level test for testamentary capacity?

• Test for testamentary Capacity o It is one of capability, not knowledge • You don't need to be average intelligence • It wouldn't make sense to DQ from someone from capacity because they were not clear on the value of their land

I. What are the elements of testamentary capacity?

• Testator "must be capable of knowing and understanding in a general way: o [1] the nature and extent of his or her property, o [2] the natural objects of his or her bounty, and • Knowing who will benefit from the disposition o [3] the disposition that he or she is making of that property; and must be capable of o [4] relating these elements to one another and forming an orderly desire regarding the disposition of the property

IX. What was enacted in response to the Janus case?

• The 120 Hour Rule or Uniform Simultaneous Death Act o an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other individual." This is to short-circuit the close-case scenarios. o You must survive the other by 120 hours by clear and convincing evidence o Even if there are two separate disasters the 120 hour rule applies

I. What is the majority rule and minority rules when it comes to applying wills act formalities?

• The Majority rule is as in Stevens v Casdorph strict compliance • Some jurisdictions have substantial compliance • Some have the Harmless Error doctrine or "dispensing power"

VII. Can the TE adjust between income and principal? Why do we have this standard?

• The Revised Uniform Principal and Income Act which is the law in most states, permits the trustee to adjust between income and principal. • This frees up the trustee to invest for "total return" as opposed to balancing between income and principal. • Alternatively, the settlor may choose (or the trust may allow a trustee to) choose a percentage of the total trust value each year to be deemed "income" (say 4%) to be payable to the income beneficiary each year.

XVIII. Are "discretionary support trusts" discretionary trusts or support trusts for purposes of the creditor rule?

• The Uniform Trust Code (the law in half of the jurisdictions) and Restatement (Third) of Trusts now treat them as discretionary trusts. • The UTC is very beneficiary-friendly and is NOT creditor-friendly. Under the UTC: • A creditor cannot compel a distribution in a discretionary trust, even if the trust is subject to a standard (e.g., health, support, education) and even if the trustee has abused its discretion. • Only exception: child, spouse or former spouse for support or maintenance, but only to the extent that the trustee has abused its discretion.

XXII. What was the prior law's view based on?

• The common law view that men necessarily have disproportionate influence over their prospective wives is an anachronism. A gender-based presumption regarding spousal influence is contrary to the law's current embrace of gender equality. Reasoned judgments about an individual's susceptibility to undue influence should no longer be based on a stereotype that has no basis in fact

VI. What does durable mean for a DPOA?

• The term "durable" means that the agency relationship is not terminated upon the incapacity of the principal.

VII. What is the lucid interval rule for testamentary capacity?

• The crucial time of meeting the capacity test is when the will is executed • A testator must meet the capacity requirements only at the time the will is executed. Thus a testator can be generally incapable of passing the test for testamentary capacity but experience a "lucid interval" under which the test can be passed. A will executed in that interval is valid. • Even if they are crazy at other times

What happens if there is no residuary clause? What might happen?

• The decedant might die partially intestate becuase they only accounted for assets named in the will and not whatever was left.

III. What must there be for the harmless error doctrine to apply? Is it a majority rule?

• The doctrine will only apply if there is a statute that permits it. No statute, don't apply. • Not currently the majority rule, but it is a trend and it may become a majority rule in the future.

xIV. What is the harmless error doctrine?

• The document or writing is treated as if it had been executed in compliance, if the proponent of the document or writing can establish by clear and convincing evidence that the decedent intended the document or writing to constitute: o the decedent's will, o a partial or complete revocation of the will, o an addition to or an alteration of the will, or o a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will. • Important point: You must establish by C and C that decedent intended the document to be a will.

V. What is the duty of loyalty and an example of conflict of loyalty?

• The duty of loyalty requires absolute allegiance to the beneficiary. All actions must be taken with the beneficiary's interest utmost in mind. • A trustee who engages in a transaction involving trust property for the trustee's own personal account or which is otherwise affected by a conflict between the trustee's fiduciary and personal interests has breached its duty of loyalty. • Self dealing

I. What types of contracts relating to wills are enforceable? Do they need to be in writing?

• The following contracts regarding wills are valid: o Contracts to make a will o Contracts not to revoke a will • In some jurisdictions such contracts must be in writing. • Contract law applies

XVII. What is the general rule of class gifts under the common law?

• The general rule is that at common law if a class gift is intended then the remaining class members take a predeceased members share.

XXV. If a trustee cannot properly account what happens? What happens if liable for breach of fiduciary duty?

• The issue is construed against him, and TE is personally liable for lost funds due to breach of fiduciary duty.

V. How do trusts further our overarching policy?

• The law should carry out the intent of the decedent • People should be free to dispose of their property as they see fit • • "the trust implements the principle of freedom of disposition by projecting the donor's will across time." • Freedom of disposition is the freedom to dispose of one's property. But what is the meaning of "dispose of"? Is it: • (a) to transfer to the control of another? • (b) to get rid of? • In a trust there is continuing allegiance to the settlor

XXXIV. When does a joint account have survivorship rights?

• The majority rule is that when the owner of an account adds someone else's name to the account, whether the account is thereby a survivorship account or convenience account depends on the intent of the original owner • Some states conclusively presume survivorship if the paperwork so states

XIV. What is the majority rule in applying elective shares to non probate?

• The old statutes only allowed an election against the probate estate • Some states have extended this RTs and other non probate • New elective share statutes o Are broader and tend to apply to non probate • ASK PROF: WHICH ONE IS MAJORITY?

L, a lawyer, drafted a will for X, under which X devised all of her assets to her granddaughter, G. After X signed the will in L's office, L offered to keep X's will in his "fire-proof safe" but X declined and opted to take the original document with her. L never heard from X again. After X died, G could find among X's possessions only a photocopy of the will. G talked with everyone who knew X, and none of them recalled X ever discussing her will with them. What result? What if a neighbor recalled X saying she had misplaced her will?

• The presumption applies that she destroyed it with the intent to revoke it. • If a neighbor testifies that T told her she misplaced it may be enough.

What if T has a will and crosses out a line saying that she is going to give 100k to a best friend.

• The presumption applies that she destroyed it with the intent to revoke it. • If a neighbor testifies that T told her she misplaced it may be enough.

VII. What is presumption if T was the last person to have access to the will, and it cannot be found? What happens after the presumption is made?

• The presumption is that they destroyed it with the intent to revoke it • Evidence will shift it back to the proponent rebut that presumption • For example if there was a fire, this would overcome the presumption

IX. IN Harrison what if they found the pieces of the will?

• The presumption would have applied but we have evidence to rebut, that the lawyer ripped it up. if a lawyer rips it up it has to be in your presence. Over the phone was not good enough

V. Why is the revocable trust the will substitute of choice?

• The revocable trust is the will substitute of choice because it can apply to most types of property interests. • Note that most other will substitutes are property interest-specific

IV. What is the share of the spouse if someone dies intestate?

• The spouses share is always described first. • In Most states, the spouse takes at least half of the decedent's estate.

VII. Why do you need the DPOA in addition to the successor TE?

• The successor comes in and starts managing the trust • If you have transferred all you assets you are good but if not you are in trouble • BUT A DURABLE POA WOULD WORK SINCE It creates an agency relationship to undertake legal actions for a principal • It is durable because it does not terminate upon incapacity • The POA can put the assets into the trust • The TE is the legal owner and can mange the successor TE

IV. What happened in the estate of Brown case?

• The trust first was to provide education which was already provided and the second purpose was to maintenance and the second was to support Woolson and his wife, Rosemary (plaintiff), "in the style and manner to which they are accustomed, for and during the remainder of their natural lives • All the benes consented to termination • Here it was not a support trust because it was not just distributions necessary for suppor and it was not spedthrift, the court took a hard line and said no because the second purpose had not been covered yet.

III. Who has title to trusts?

• The trustee has legal title and the beneficiaries have equitable title or beneficial title. • Trustee has the burden and the beneficiary has all the benefits of the property. A professional trustee gets a fee for service only.

IV. How can a trust operate with the TE not benefiting from the trust?

• The trustee has the responsibility of managing the trust property and has a fiduciary obligation to the beneficiary. • The trustee does not benefit from the trust property, (the fee that the trustee may get is simply a fee for service). • The beneficiary gets ALL of the benefits of the trust property.

XII. What is the title-split fiction of trusts? Can creditor of a TE go after trust assets?

• The trustee is said to have legal title. o This is like a corporation that is a separate person from shareholders, directors and managers are different. Corporate officers have to act on behalf of the shareholder like a TE has to act in the best interest of the beneficiaries • The beneficiary is said to have equitable title. o What we call "legal title" in the trustee permits the trustee to deal with trust property as though it is the trustee's own. The trustee can sell or encumber trust property. • The property needs to be invested to benefit the benes and this could involve selling et. • The TE is acting as an artificial person on behalf on the beneficiaries

V. What is republication by codicil?

• The will is republished each time a codicil is executed, therefore if you have multiple wills and republish the first will, it could revoke the secondary will if it carries out the T's intent.

XLI. In Clark could the term have been interpreted a power of appointment?

• The writer of the book does not think so because the power was given to trustees whose powers are held in fiduciary capacity and there is a requirement of an ascertainable beneficiary. • ASK PROF: If this correct

II. What is the policy behind testamentary capacity

• There Could be a wrongdoer • People would do something they wouldn't otherwise do • They don't have the capability of effecting their intent

XV. Are there tax benefits to a RT?

• There are no tax benefits to a revocable trust that cannot be gained through another device. • A revocable trust is ignored for income tax purposes during the lifetime of the settlor.

X. In Keith, what would have happens if there was a contract?

• There would be a breach of contract claim and he would get money damages for what he would have got

What is descend to heirs or next of kin under statutes of descent and distribution?

• These are intestacy statutes or statutes of descent that goven intestacy

X. What is an Antilapse statute, are they the majority rule? What are the elements?

• These statutes are the majority rule, although they vary somewhat in scope. • They generally provide that, if the B predeceases the testator, a substitute gift is created in B's descendants (NOT intestate heirs) if ALL of the following are present: o 1.T did not make specific provision for such a contingency in the will; o 2.B was related to T as described by the statute; AND o 3.B has descendants who survived T

X. Why do people use notaries as a good practice?

• They are authorized to talk oaths under state law which make the affidavit real

o SS is in a nursing home, which is being paid for by Medicaid. Medicaid is a federal welfare program, administered by the states, that requires an "income test" and an "asset test" in order to qualify. SS's spouse, DS, has just died, leaving all of his estate to the couple's children. Should SS elect against the will?

• They count the assets against the medicaid asset valuation

XI. Can a court change a trust if it says never to sell a stock, but the stock is plummeting?

• They want to keep a stock forever and tell the TE never to sell it • Trust are for the benefit of the beficiaries so at some point we have another • If we enforce these provisions will it not benefit the benes • At some point the trust is to benefit the beneficiaries and if conditions have materially worsened, the and the court may preclude unreasonable restrictions. •

XIII. Can a third party buyer be enforced against a breach a fiduciary duty?

• Third party buyer may be enforced against unless he is a bonafide purchaser for value and no notice of the breach

XVII. Where does the duty of impartiality often arise?

• This duty often arises in the context of the differing interests of income and remainder beneficiaries • "TE shall distribute all income of the trust to A for A's life" • "At A's death, the remaining trust principal shall be distributed to B"

XIV. A is bene of the following provision The trustee shall distribute so much of the net income and principal of the trust to A as the trustee in its sole discretion deems advisable. Analyse two alienation issues?

• This is a pure discretionary trust - The terms of the trust instrument give the trustee unfettered discretion. • In a discretionary trust a beneficiary cannot alienate his beneficial interest and A creditor of the beneficiary cannot compel A trustee to make a distribution • In some jurisdictions it is possible for a creditor to get an order from a court directing the trustee to pay a creditor before paying the beneficiary. This is sometimes referred to as an Hamilton Order • In such a case, the creditor may not be able to compel a distribution, but if the distribution is made, the creditor must be paid in lieu of the beneficiary. The UTC permits this absent a spendthrift provision •

XV. Same question above: TE shall distribute so much of the net income and principal necessary for A's support

• This is a support trust. The distributions are explicitly tied to support the beneficiary • Traditional Rule: The beneficiary cannot alienate her interest in a support trust and her creditors cannot reach her interest.

XX. What is a spendthrift trust?

• This is a type of trust in which almost any trust can be a spendthrift trust • The settlor inserts a provision into the trust instrument that prohibits two things: • The beneficiary from voluntarily alienating her interest in the trust • A beneficiary of a spendthrift trust cannot transfer his interest in the trust • Prohibits creditors from reaching the beneficiary's interest in the trust • A creditor cannot compel a distribution, even if the trust is a mandatory trust • A provision is inserted into the trust agreement which prohibits the beneficiary from voluntarily alienating her interest in the trust and prohibits creditors from reaching the beneficiary's interest in the trust. A beneficiary of a spendthrift trust cannot transfer his interest in the trust and a creditor cannot compel a distribution, even if the trust is a mandatory trust. • All US jurisdictions now recognize some form of the spendthrift trust. •

XI. I give, devise and bequeath all the rest, residue and remainder of my estate to my wife, _________, if she survives me; and if not, then in equal shares to those of my children [as defined], who survive me, by representation.

• This shows representation

IV. What case do have that deals with a failed revocation?

• Thompson v Royall o Kroll's Judge Coulling advised her to retain a will she was revoking as a memorandum, but to make a note on the back page stating that the will was null and void. o Court held that the attempted revocation of will invalid because if your going to revoke by physical act you need to touch the words of the will o It didn't meet the holographic will because the attorney made the notation and not the T. o Didn't meet the wills act because there was no two witnesses. o Failed to carry out intent of the decedent.

I. What is the typical structure of a will?

• Title o "Will and Testament of Tommy Testator" • Intro statement of testamentary intent. o "I, Tommy Testator, hereby make this my will, and revoke all other wills and codicils heretofore made by me." • Definitional Section, description of family • Dispositive Sections

XIII. What are the two issues that arise from the doctrine of alienation?

• To what extent can the beneficiary of a trust alienate his or her beneficial interest in the trust? • To what extent can creditors of a trust beneficiary have access to the beneficiary's beneficial interest in the trust?

III. What is Tortious Interference with Expectancy?

• Tort brought by intended beneficiary vs Decedent • Elements o Probate remedies must be exhausted o Expectancy • Expected inheritance or gift o Intentional interference through tortious conduct • Typically fraud, undue influence, duress. o Causation • Tortious conduct must cause the interference o Damages o Duty is not owed by D, since it is against decedent

XXV. What is the majority and minority rule for delegation of duties?

• Traditional (old) Rule: non-discretionary duties could not be delegated. • Modern Rule: duties can be delegated to the extent a prudent person would delegate them. A trustee can be liable for negligent delegation in a failure to use due care in choosing the agent and in a failure to monitor.

XVI. What are traditional exceptions to support trusts for creditors?

• Traditional Exceptions: o spouse or child can reach such an interest in a claim for support alimony o A supplier of support necessities can also reach, physicians or grocers

III. What are the three rules regarding holographic wills and pre-printed forms?

• Traditional Rule o It is not holographic as all the writing must be by hand. • Relaxed Rule o Parts of the will can be printed but the will must work with only the handwritten parts being read. • Most Relaxed Rule: o a preprinted form can be used but any words identifying the property and the beneficiaries must be handwritten.

I. What is a holographic will? Is it a majority rule?

• Traditional Rule o The entire will must be in the T's handwriting and it must be signed. • Permitted in about half of the jurisdictions • The T must intend the writing to be testamentary. o Did the T intend the writing to be a posthumous transfer? • Did T intend the writing to be a will?

VIII. Do disclaimer of Medicaid need to be reported? If disclaimed, can the person who actually received the money be subject to reimbursement for expenses? Case?

• Troy v Hart MD case o A Medicaid recipient disclaimed to keep getting benefits. The court found the disclaimer valid but that he was required to report the inheritance to the state. The court found the state could go after the sisters for reimbursement of expenses.

II. Do trusts go through probate? How about residuary estate paid to a trust?

• Trust does not go through probate etc. • What about the Residuary Estate o It goes through probate and then ends up in the trust so it can ultimately control the property

X. What is the difference between reformation and what case do we have?

• Trust does not read as settlor intended • Lawyer screwed up, they can ask the court to reform the trust • Walker v Walker o Court reformed trust because the lawyer's made a tax error • • Trust terms and drafting attorney's affidavit, showed that settlor's intent was to eliminate adverse estate tax consequences. Court reformed trust so as to include provisions keeping trust out of wife's taxable estate. • If it is a tax thing the court will allow reformation of the trust • Prof Case o Where the L screwed up the tax case, you can get them to change the trust.

VIII. What are the exceptions to self-dealing?

• Trust instrument specifically allows it o Settlor has permitted • Court approves after notice to beneficiaries • All beneficiaries consent

II. What benefit does the trust provide?

• Trust is essentially a gift, projected on a plane of time and so subjected to a management regime • It is a way of holding a gift and doling out a benefit • It separates the benefits of ownership of property from the burdens of ownership of property

I. How does duties work between trustee and beneficiaries?

• Trustee has legal title to the trust assets. This gives the trustee certain POWERS with respect to those assets. • The trust instrument can expand or diminish the trustee's powers and duties to a point. • Much of trust law is default law that can be modified by the settlor. Some trust law is mandatory and cannot be modified. • Some laws cannot be changed because it will not longer be a trust • Beneficiaries enforce the trust.

XI. What happened in Gleeson' Will case?

• Trustee leased a portion of the property held in trust to him • He was dealing with himself and leased it out • No further inquiry rule • It doesn't matter if it is a good deal or not, it was self dealing • He should have gone to the bene and got approval • He could have declined the position as trustee

• What is Equitable Adoption/Adoption by Estoppel?

• Under the "equitable adoption" doctrine, an oral agreement between a married couple (or presumably one person) and a child's genetic parent(s) is presumed if the couple takes the child into their home and raises him or her. • The child can inherit even the people raised them never went through with the adoption.

VII. What happens if there are multiple beneficiaries in a residuary estate and one them predeceases?

• Under the modern rule followed by the majority of states today it goes to the other residuary beneficiaries • If only a portion of the residue lapses, then under the old rule of "no residue of a residue" the lapsed share went to intestacy.

II. What is Substantial Compliance?

• Under this analysis a failure to strictly comply with the formalities is only a rebuttable presumption that the will is invalid. • Then the court looks to: o Whether there is strong evidence that the writing carries out the testamentary intent; and o Satisfaction of the purposes of the formalities

XVI. What is the majority rule as far as being able to revoke a trust?

• Under traditional law you couldn't revoke an intervivos trust unless there was a provision saying you could • Modern law it is the opposite • A trust is revocable unless otherwise stated in the trust • Majority Rule o A revocable trust can be amended or revoked in any manner that clearly manifests the settlors intent to do so unless the trust a particular method and makes that method exclusive. o ASK PROF: Verify this and have him explain.

XXIII. What is the majority rule today for premarital agreements? What must a SS prove in order to prevent a prenuptial agreement from being enforced under the?

• Uniform Premarital Agreement Act o The SS must prove, The agreement was either • 1. Not voluntary Or • 2. Was Both • Unconscionable AND or OR? • Party did not have fair and reasonable disclosure of the other party's finances. • This is a big swing, there is another act that the casebook author was pushing

XXII. What is the majority rule with discretion to distributing income and principal?

• Uniform Principal and Income Act • Now in effect in almost all jurisdictions. Gives the trustee discretion to adjust between principal and income. • This gives the trustee freedom to invest without concern for strict traditional categories of income. • TE has discretion to adjust between principal and income • TE can distribute principal to income bene to make up for it if it is better overall for the trust. • TE can then invest without concern for strict categories • Unittrust o You have one instrument • BUT YOU ALWAYS NEED TO TREAT THEM IMPARTIALLY

XXIII. What is the difference between a uniform transfer to minor and trust?

• Uniform Transfer to minors where the minor can use it however they want. With a custodian and they hit either 18 or 21, they give the property to the child and it terminates. • A trust is set up for a particular purpose

XXXV. What case do we have that deals with the requirement of specific trust property?

• Unthank v. Rippstein o T wrote a letter stating that he decided to send Rippstein $200 for 5 years provided he lived that long intending to bind his estate to make the $200 payment. o There needs to be specific trust property o She countered that the trust property is the whole estate • Prof thinks this is a good argument o The court said that he didn't set aside specific property to hold in trust to pay her the monthly fee o If they let him create a trust out of all his estate then he holds all his property as trustee and he wasn't trying to do that o Then she said that his whole estate is not needed and the portion that is not needed would revert back to the estate o She wanted them to set aside just what was necessary and the court did not buy it o If we are going to have a trust we need to determine what property is being transferred to the trust

XI. What if T has a will and crosses out a line saying that she is going to give 100k to a best friend.

• Valid so long as jurisdiction admits partial revocation by physical act • Majority Rule o Revocation by Physical Act is permitted • Might be an exam question

XXXV. What did we have that dealt with a joint account being a gift or not?

• Varela v. Bernachea o Carlos Alberta Bernachea, a married man with children, commenced a relationship with Cristina Varela, a fellow Argentinean citizen. Approximately a year into their relationship Bernachea asked Varela to stop working and move into his condominium to live with him. o His kids booted Varela out of the apartmet and then she wrote a check out the join account for 280k. o A joint bank account created with the funds of one person is presumed to constitute a gift of those funds to the other person. That presumption may only be rebutted by clear and convincing evidence that a gift of the funds was not intended. Here, the evidence is inadequate to show that Bernachea did not intend to make a gift of the funds. o ASK PROF: Is the gift presumption part of the majority rule?

What is the effect of non-claim statutes on probate?

• We can't make distributions to beneficiaries until creditors paid • creditor must have has notice of death by notice or newspaper ad

IX. For a pour over will, what assets avoid probate and don't avoid probate?

• What assets avoid probate? o assets O transfers to the trust (trustee) during his lifetime o nonprobate devices that are paid to the trust by beneficiary designation • What assets do not avoid probate? o Assets transferred to the trust at O's death by O's will

What if you said I want to hold it in trust on my own until death and then have it transfer on my death to bene?

• You can put these provisions in the will • But what about an intervivos trust • The general rule is that you have to transfer asset to the TE and give them control. This is required a general rule

VI. What is a trust agreement for a revocable trust? What are titles for it?

• You execute a trust agreement • It is a declaration of trust if you are the trustee • it's not important what you call it, deed of trust, trust agreement trust instrument

• What is the case we had that deal with adult adoptions?

• What happened in Minary v Citizens Fidelity Bank? o Amelia, the decedent died leaving income to her husband and the rest paid to her sons and then her surviving heirs. o One of the sons adopted Myra to get her into the ests o Is an adult adopted for the purpose of making that person an heir under a preexisting testamentary instrument entitled to inherit as though a natural heir? o No. Where there is a preexisting testamentary instrument and an adultis adopted merely for the purpose of making that person an heir capable of inheriting under that instrument, the adoption statutes will not be strictly construed if the result conflicts with the testator's intent. o The court, based on PP decided that this was manipulation of the statute. This will was not good because it relied on the statute. They could have added a provision saying it excluded an adult being adopted. • Prof: The court could have been 100 percent sure that she would not have wanted this.

What is the main theme of wills?

• What was the INTENT of the decedent? • If we can discern that intent, then we will ask whether the law facilitated its being carried out. • If we cannot discern that intent, then we will ask whether the law should "presume" an intent and effectuate this presumptive intent

IV. Under what circumstances would a beneficiary have a good argument that the intent theory should apply?

• When the T did or didn't have the chance to change the will. • The agency of the act a

What are the different uses of itestacy from a terminology standpoint?

• When the decedent leaves no will the probate estate passes by intestacy. • The decedent is said to die intestate. • The decedent who dies intestate is sometimes referred to as an intestate, or an intestate decedent.

XXIX. ASK PROF What is a declaration of trust? How can you set one up?

• When the settlor declares himself to be trustee of certain property. • Trustee/settlor must owe a fiduciary duty to someone other than • Settlor needs to manifest intent in writing to hold some of its property in trust for another ascertainable beneficiary. • Smith Case o Putting on an envelope with bonds that say "held for nephew" is enough to create a declaration of trust.

VIII. What could have the lawyer done in the Janus case to avoid the problem?

• Who got the benefit of the life insurance policy here • Her father in law, he wanted his family to get it • What could he could have done is say in his will that if his spouse dies within 30 days of his death then his family gets it not her father

II. What is the difference between a will and a non probate transfer?

• Will: o 1)Donative transfer taking effect at death o 2)Revocable until the moment of death • Nonprobate Transfer: o 1)Donative transfer taking effect at death o 2)Revocable until moment of death CHECK THIS

Shapira v Union Bank

• Will: You can only receive if married to a jew at the time of death or marry in 7 years • The court found that a reasonable restriction of marriage is not against public policy • Loving con case said you cannot restrict marriage but he wasn't restricting marriage, they were restricting his father's disposition of the will • There is no bright line as to how much dead hand control there is • Courts and legal scholars are not in agreement as to what level of dead hand control is acceptable with respect to provisions partially restricting marriage.

III. In regards to the Claflin doctrine, what are examples that are against the material purpose and thwart the intention of a settlor?

• With respect to the Claflin doctrine, if a trust is: o spendthrift; o postpones distribution until a certain age; o a support trust; or • discretionary trust • then to allow termination will generally be seen to thwart an intention of the settlor—thus these types of trusts are rarely allowed to be modified.

V. What case do we have where a guy did wacky things and there was a question as to testamentary capacity?

• Wright's Estate o People were testifying that T was not of sound mind and o highlighted instances of abnormal behavior, including that he ran out of his house only partially clothed on several occasions, he picked out silverware from garbage, and he would fake his death to scare his neighbors o Although he acted abnormally none of these acts went to the testamentary capacity elements.

I. What is duress and an example of duress?

• Wrongful act of coercion that prevents T from making a will or from making a provision in a will or prevents T from revoking a will. • You tell someone you will kill their cat unless you make a will leaving something to me.

VI. "I give my diamond ring to my best friend, X. I give the rest of my estate in equal shares to my cousin, A" What happen if X predeceases T, what happens if A predeceases T?

• X predeceases—it goes to residuary • A predeceased-it goes to intestacy

IX. What is exoneration of liens? What happens under the common law and modern statutes?

• X's Will: I leave my residence to son A and the rest and residue to my daughter B. The value of the home is 400k but is subject to a mortgsge of 100k, the value of the rest of the estate is 500k. • Common Law: o If it applies: Debt gets paid out of the residuary and son gets 400k and daughter gets 400k • Majority today o There is no exoneration unless it is indicated that exoneration is intended this has because so much real property has liens on it.

XII. Can the trust instrument be created after the execution of the will?

• Yes

XXV. Does the AL statute apply to class gifts?

• Yes in the majority of jurisdictions, the AL is applies to class gifts.

V. Can you disinherit a minor child?

• Yes you can disinherit your children, even if a minor. This is a majority rule • A minor child may have limited rights while you administer the statute

XVIII. "I give the rest of my estate in equal shares to those of my first cousins alive at my death". Class Gift?

• Yes, class gift as you have a group label and dynamic shares.

X. Does a pour-over will "incorporate" the trust instrument?

• You are not incorporating the will be reference • The trust stands on its own • You just name TE as bene

XLIX. Under traditional law, which is "easier" to create, a trust or a will?

• You can have an oral trust but it isn't a good idea • It is easier to set up a trust than a will because there are no formalities

III. What is a discretionary support trust?

• You have discretion, but it is for support • Ascertainable standards o Can be determined by a court as to whether the standard has been met o ASK PROF: Can you have a pure discretionary support trust or are all support trusts tied to an ascertainable standard (which the support? • For example you didn't look into if Cappy needed the support and you didn't make the distributions • Happiness of Bene o This is not an ascertainable standard

VII. What is the typical arrangement in a revocable trust?

• You hold it as trustee, you are the primary beneficiary during your life • You name other beneficiaries after your death • When die it goes to the beneficiaries • The transfer doesn't take effect until you die

VIII. What do you do if there is descendant who's parent is alive?

• You ignore them as descendants only take by representation of their deceased ancestors.

II. How does someone have standing to sue against an estate?

• You must be someone who will benefit.

VI. What could the L have done if he was concerned the capacity would be contested?

• You need to create a record as to why you think they have capacity, maybe even video tape it

Suppose that O signs a document she calls a "deed of trust" under which she names her daughter, D, as trustee of all of O's assets. What else, if anything, is necessary to create a trust?

• You need to name beneficiaries, and direction as to how the beneficiaries are going to benefit, need to SOF if the underlying property is subject to SOF, • You need trust property

XXIX. What is the lawyer's responsibility with respect to nonprobate assets when the client requests that a will be drawn?

• You should at least have a letter to the client that it does not includes non probate assets • Another way is to make sure that change their beneficiary form. • We need a better system, but until then it is incumbent on the L to make sure they know that the will is not effective to non probate devices

VI. In Clymer there were no assets in the trust until she died, is this ok?

• a will with a residuary clause that names the trustees of the testator's revocable trust as the residuary beneficiaries of the probate estate • this is an exception to the rule that you need trust assets to have a trust • Under current law you can have no assets other than what comes in at death

• I devise to my daughter, X, the sum of one million dollars ($1,000,000). • I devise all the rest and residue of my estate in equal shares to my children. • (Assume T had no spouse and three children (X, Y and Z) when the will was executed, but X predeceases him, leaving descendants.) • a. C/L? AL?

• a. C/L? o General • Residuary o Residuary • Old Common Law Or New Common Law • Goes to the remaining members of the class • b. Typical antilapse? • General and Residuary goes to X's descendants

• I devise to my daughter, X, the sum of one million dollars ($1,000,000), if she survives me. • (Assume X predeceases T, leaving descendants.) • a. C/L? AL?

• a. C/L? o Goes to residuary • b. Typical antilapse? o If a typical statute survivorship language will beat the Anntilapse o But if UPC is involved it is not enough

I. What are examples of susbsidiary wills law?

• creditors' rights to payment of claims on death • revocation on divorce • elective share • ademption • abatement • antilapse

IV. What happens if you don't disclaim within 9 months?

• if you disclaim a year after O's death you are treated as accepting the property and making a gift

I give the residue of my estate to my son, X and it is my wish that he use a portion of this property to ensure my sister, S is adequately provided for."

• it is the language that says "it is my wish" this gives him the opportunity not to use it for her and gives a hint that it will not be legally biding • This is precatory language because it does not create a binding obligation

What law in what jurisdiction is applied for intestacy?

• personal property: domicile of decedent • real property: location of property

III. What is a lapsed devise?

• the devisee predeceases the beneficiary

• What is a power of appointment and what is a common example of it?

• • Enables the holder of the power to designate who will take the property subject to the power. • It is common to give a life tenant the power of appointment over the remainder of the other life tenant