DET-- Grant

A holographic will is generally valid if it is ___________ and _________. Some jurisdictions require it to be ___________.

1. Written out completely in the T's handwriting 2. Signed 3. Dated

Afterborn children not referenced in a will are

always pretermitted & regardless of which children are pretermitted, their entitlement to a share is possible but not certain

Patent Ambiguity

an ambiguity apparent on the face of the will, Mistake is on the will itself - "I bequeath the sum of twenty-five dollars ($25,000) to Bob"

there is no legal requirement that an investment professional to whom the investment function of a trust is delegated formally submit to the ________ _________of the trust. It remains the responsibility of the trustee, for example, to ensure that the trust property is invested in accordance with the purposes of the trust.

fiduciary obligations

Identity theory of ademption

identity theory of ademption, property specifically devised under a will that is no longer in the testator's estate at her death is "adeemed by extinction" without further inquiry into the testator's probable intent and the devisee gets nothing

Extrinsic evidence is always admissible in any efforts made by courts to determine a decedent's donative intent. True/False?

False: the words "always admissible" are too broad. There are many types of cases where extrinsic evidence is not admissible in determining a decedent's intent, such as in cases where there is no ambiguity in the first place. A testate decedent's will, not extrinsic evidence, is generally what exclusively determines a testator's donative intent.

Does the presence of survivorship language does call for the admission of extrinsic evidence to determine the testator's intent?

Hell no

Is agreement by beneficiaries for removal sufficient under the UPC?

No-- Agreement is not enough: A trustee can be removed if requested by all the beneficiaries, it best serves the interest of the beneficiaries, and a suitable replacement trustee is available.

Does a trust have to be witnessed?

No-- ther'es no w requiremnt to create an inter vivos trust

Can the settlor be the sole beneficiary of a trusT?

No.

Can a will affect the opearation of a nonprobate device at the death of a decedent owner? Examples?

No: Joint account w/ rt of survivorship Retirement account w/ named beneficiary House in joint tenancy (survivorship)

Can trustees self deal if its fair?

No: A trustee is not permitted to enter into a transaction on behalf of the trust with itself in its individual capacity. This is self-dealing and the no further inquiry rule prevents a trustee from using the fairness of the transaction as justification for its actions

Is delivery to beneficiary required for trust property?

No: Settlor need not deliver trust property to beneficiary to create a trust

Must trust portfolios must include a generous percentage of stocks, as courts have recognized that only stocks achieve sufficient capital growth for remainder beneficiaries?

No: while stocks are generally appropriate investment assets, there is no rule that requires investment in any particular type of asset; instead the focus is on diversification and total return.

Can you sue in tort against a spendthrift trust

many jurisdictions do not allow tort creditors access to the assets of a spendthrift trust, even if they are victims of an intentional tort.

third-party trust will be subject to creditors of the beneficiary

many third-party trusts are such that a creditor can have access to a debtor-beneficiary's beneficial interest.

If the T includes a survivorship requirement in a will will the antilapse statute send shit to the predeceased's heirs?

no: Most jurisdictions have antilapse statutes but those statutes do not apply where the testator included a survivorship requirement in the will. In most jurisdictions, survivorship language in the relevant will clause is sufficient to avoid antilapse.

devises within a class abate ____ _____

pro rata

Traditional law of trusts _____ a trustee from delegating its investment function, modern trust law provides no such prohibition.

prohibited

Under the traditional rule, ________ devises abate first, then _______devises, then ------ and ________devises

residuary general specific demonstrative

UPC Anti-Lapse Statute

survivorship language, standing alone, is insufficient to avoid the antilapse statute.; Antilapse statutes provide that the descendants of the predeceased beneficiary take the lapsed gift, not the predeceased beneficiary's estate.

Does a trustee have to invest in a specific asset class?

there is no requirement that a trustee invest in any particular asset class; the focus is on total return and risk management through diversity of investment

Plain meaning rule in ambiguities

traditionally, many courts that purported to follow the plain meaning rule would not admit extrinsic evidence to resolve patent, as opposed to latent, ambiguities

Do antilapse statutes distribute a predeceased beneficiary's share to her estate?

NO: antilapse statutes don't distribute a predeceased beneficiary's share to her estate.

When a general devisse lapses does the gift fall to the intestacy?

NO: it falls to the residue

T executes a will while his son H is married to W, a devout catholic. T's will devises his estate in equal shares to his 3 adult sons, including H. T's will further provides that "in the event my son, H, is still marreid to a person who is not Jewish at my death, he shall forfeit his share which shall instead be divided between his brothers." At T's death with the will intact, H remains married to W. Will the quoted language in T's will be respected?

No, because the quoted language is intended to or would tend to disrupt a family relationship. Explanation: Although courts have upheld devises in wills conditioned on partial restraints on marriage, the weight of authority is that encouraging divorce by, as here, conditioning a devise on termination of a marriage is void as contrary to public policy.

Ernestine executed a will in 2004 that gave all of her property to her best friends, Betty and Camilla, in equal shares. In 2016, she executed a new will that gave one-half of her property to her new boyfriend, Henry, and divided the rest between Betty and Camilla. She did not destroy the old will. In 2017, she broke up with Henry and tore up her 2016 will intending to revoke it and announced to Betty and Camilla that they would now receive her estate under her 2004 will. She died in 2018 leaving her niece, Shannon, as her only relative. In a majority rule jurisdiction, who will receive Ernestine's probate estate?

No, it will be presumed that X revoked her will. Exp: When a deceased testator is the last person known to have custody of a will, and the will cannot be found at her death, the law presumes that the will was revoked by the testator. This presumption is rebuttable by evidence that the will was lost or destroyed other than by a revocatory act on behalf of the testator. The correct answer is A. Since X was the last known person to have custody of her will, it will be presumed that she destroyed the will with the intention of revoking it.

Trustees are always responsible for (in delegation context): 1) 2)

1) complying with its fiduciary duties and 2) must exercise care in choosing and monitoring those to whom duties with respect to the trust are delegated

H and W, a married couple, enter into divorce proceedings. One month after the contentious proceedings are complete and the divorce becomes final, H executes a will acknowledging his children but devising his entire estate to his girlfriend, G. Shortly thereafter H dies in a tragic accident, survived by G and his minor children. To what portion of H's probate estate will his minor children be entitled?

A) None: G will take H's entire probate estate No U.S. jurisdiction except Louisiana requires a testator to devise any part of his or her estate to the testator's children, even if they are minors.

If the trust grants of "sole and absolute discretion," the will the "reasonable comfort" standard does not justify distributions for luxury items?

a trustee's exercise of discretion depends on context, and the reasonable comfort standard is subject to no blanket restriction on luxury items.

Decedent dies intestate survived by his wife, M, and their two minor children, F and G. At Decedent's death, M was one month pregnant with the couple's third child, H. The intestacy statutes in Decedent's jurisdiction provide that after a share for the surviving spouse, if any, is set aside, Decedent's descendants receive the remainder of the decedent's estate. How will the descendants' portion of Decedent's estate be distributed under the intestacy statute?

(A) H consented, in writing, to the banking of his sperm in anticipation of possible posthumous conception. Exp: Although the question whether posthumously conceived children are heirs of the predeceased parent is largely unsettled, some states have adopted legislation to address this issue. In keeping with the policy of freedom of disposition, one important condition is whether the predeceased parent has consented to the posthumous conception.

In year one, H, who is married to W and has one child, X, executes a will containing only the following dispositive provision: "I devise my entire estate to my wife, W, if she survives me." In year two, W gives birth to twins, Y and Z, who are also the children of H. H makes no changes to his estate plan and in year three, H dies with the year one will intact. Given the varying rules across jurisdictions, which of the following is the most accurate statement of the law applicable to these facts?

(A) Regardless of which of X, Y, and Z are pretermitted children, since W survived H, she will take H's entire probate estate. (B) Only Y and Z are pretermitted children, and each will take an intestate share. (C) All of X, Y, and Z are pretermitted children, and each will take an intestate share. (D) Y and Z are pretermitted children under any pretermitted child statute, and they may be entitled to a share of H's estate.

On July 1, the decedent and her husband are rushed to the hospital after suffering severe injuries in an automobile accident. The decedent dies at the hospital on the day of the accident. Aside from her husband, the decedent is survived by her sister. On July 7, the decedent's husband dies from injuries he suffered in the accident. The decedent's husband is survived only by his brother. If the current version of the Uniform Simultaneous Death Statute has been enacted in the jurisdiction, to whom will the decedent's intestate estate be distributed?

(A) The decedent's husband Exp: Under the current version of the Uniform Simultaneous Death Act (USDA), an heir who fails to survive the decedent by 120 hours (five days) is deemed to have predeceased the decedent. The decedent died on July 1 (the same day as the accident) and the decedent's husband died on July 7, six days later. Since the decedent's husband died more than five days after the decedent's death, he is recognized as surviving the decedent under the USDA and A is the correct answer.

S writes the following on the back of a lottery ticket: "This is my will. I give all of my property to X. [signed and dated] S." S later dies. Can the writing be probated as S's will?

(A) Yes, if S lives in a state where holographic wills are recognized Exp: The most common requirements for a valid will are that it be in writing, that it be signed by the testator, and that it be attested and signed by at least two witnesses. Sometimes the witnesses must sign in the presence of the testator and in the presence of one another. This will was not witnessed so it cannot qualify as a formal will. However, a holographic will is an alternative to a formal witnessed will and is recognized in just over one-half of U.S. jurisdictions. A holographic will is generally valid if it is written out completely in the testator's handwriting and signed. Some jurisdictions require it to be dated. This document, despite being written on the back of a lottery ticket, was written entirely in S's handwriting, was signed and dated, and contains a statement of testamentary intent. Therefore, if S lives in a state where holographic wills are recognized, it is probably valid.

Decedent died intestate with an estate valued at $800,000, leaving his children, X, Y, and Z as his heirs. A few months before his death, Decedent made a gift of $100,000 cash to his child, X. Under applicable law, the $100,000 gift is considered to be an advancement against X's inheritance. Who receives what from Decedent's $800,000 estate?

(B) (B) Each of Y and Z receive $300,000, and X receives $200,000. Exp: If the rule of advancement applies, the amount advanced is brought back into the estate "hotchpot." The total hotchpot, which now includes the advancement, is divided by the number of heirs receiving equal shares; here the children, X, Y, and Z. X is then charged with the advancement, as a reduction in X's share. B is the correct answer. The value of the hotchpot is $900,000 ($800,000 estate plus the advancement of $100,000), meaning that each of X, Y, and Z are entitled to $300,000. Since X is charged with his $100,000 advancement, he receives only $200,000 ($300,000 less $100,000).

Decedent dies intestate, survived by his children, E, F, and G. Subsequently, F, who has two children of his own, disclaims all of his interest in Decedent's estate in accordance with the applicable disclaimer statute. Who will receive Decedent's probate estate? (A) E and G will each receive one-half of Decedent's estate. (B) E and G will each receive one-third of Decedent's estate, and F's descendants will receive the remaining one-third. (C) E, F, and G will each receive one-third of Decedent's estate. (D) E and G will each receive one-third of Decedent's estate; the other one-third will pass to those persons F designates in his disclaimer.

(B) E and G will each receive one-third of Decedent's estate, and F's descendants will receive the remaining one-third. Disclaimer statutes permit an heir to renounce or "disclaim" all or a portion of the heir's statutory share of the intestate decedent's estate. A person who disclaims a share will be treated for purposes of the disclaimed share to have predeceased the decedent. B is the correct answer because F's disclaimer results in the disclaimed share being distributed as though he predeceased the decedent. If F predeceases Decedent, then F's descendants will take his share by representation. A is not the correct answer because F's descendants receive his share by representation in the event he predeceases the decedent. D is not the correct answer because a disclaimed share passes to those who would take if the disclaiming heir predeceased; the disclaiming heir is not permitted to direct the disposition of the disclaimed property.

S creates a testamentary spendthrift trust for the support of her children and the education of her grandchildren, naming T as the trustee of the trust. Because S thinks it will always be a good investment, she directs in her will that the trustee is never to sell the capital stock in XYZ, Inc. that comprises the bulk of the property she transfers to the trust. Many years after S's death, XYZ, Inc. falls on hard times due to changing technologies, and it becomes clear that the investment in XYZ, Inc. is not a good one for the trust. Which of the following describes T's best option for divesting the trust of the XYZ stock?

(B) T should ask the appropriate court to allow modification of the trust terms and permit sale of the XYZ stock based on the fact that the changing technology was not foreseen by S and that retention of the XYZ stock would impair S's purposes in establishing the trust. due to changing technologies XYZ is now not a good investment for the trust. A failure to divest would impair the trust purpose of supporting S's children and educating her grandchildren.

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

(B) Z will receive all the listed property interests except the household furniture and furnishings and will also receive the leather sofa. Each of the named property interests except the household furniture and furnishings is held as a type of nonprobate device. Under the general rule, a will cannot affect the operation of a nonprobate device at the death of the decedent owner. Although the will states that X is to receive all of T's property, the will may only dispose of probate property. Therefore, X will receive only the household furniture and furnishings, and, of those, will not receive the sofa that was devised by the codicil.

X is the beneficiary of a trust created by his mother. The trust agreement provides that X is to receive only "so much of the income and principal of the trust as the trustee in its sole discretion deems advisable." Y sues X for damages caused by X's negligence and obtains a judgment against him. Under the majority rule, can Y proceed against X's interest in the trust in order to satisfy his judgment?

(C) No, because this is a discretionary trust In most jurisdictions, most voluntary and involuntary creditors cannot reach the assets of a discretionary trust. This trust is discretionary because its distributive provisions give the trustee discretion to distribute the trust assets to X without reference to an ascertainable standard.

O creates a revocable trust by executing a declaration of trust. On the same day, O also executes a "pour-over" will. The trust instrument provides that the trustee is to distribute all of the net income to O during her lifetime, together with so much of the principal as requested by O from time to time. At O's death, any remaining trust property is to be distributed to O's daughter, Q. A provision in the trust instrument states as follows: "The settlor reserves the right to revoke the trust at any time by a writing delivered to the trustee." A few months after creation of the trust, O has a falling out with Q. O tears up the trust instrument and signs a new will giving all of her estate to the local animal shelter. Upon O's death a few months later, Q brings suit against O's estate contending that O did not properly revoke her trust and that all of the property transferred thereto must therefore be distributed to Q. No writing by O purporting to revoke the trust is ever found. Which of the following is the estate's best legal argument against Q's contentions?

(D) A revocable trust can be revoked in any manner that indicates the settlor's intention to do so, unless the trust instrument provides that a method of revocation in the trust instrument is exclusive

O, who owns much valuable real property, has two adult children who are constantly falling in and out of her favor. When O gets angry at one of her children, she often decides to eliminate or reduce the amount of her estate she gives the child under her will. But O is tired of paying a lawyer to draft a new will or codicil each time this happens. She therefore comes up with an idea expressed in the following will provision: "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; and b) Any parcels upon which a red flag is erected at my death I give to my daughter, Y." Now if O is angry at her son, for example, she can remove the blue flag from various parcels and erect a red flag instead. What is the legal effect of this idea?

(D) It will not have legal effect due to the doctrine of "acts of independent significance." Exp: If the identification of property or a beneficiary under a will depends on actions taken outside the will, those actions must have a motive or "significance" apart from their effect on the will. Here, the facts indicate that the only reason O would erect a flag of a particular color on real property owned by her is to indicate which of her children should receive that property. This violates the acts of independent significance doctrine.

The most common requirements for a valid will are that it be ________, that it be _________, and that it be attested and _____________.

1. in writing 2. signed by the testator 3. signed by at least two witnesses

A will can be revoked by physical act, which involves an act ___________, such as destroying, tearing, crossing out, etc., coupled with the ______________.

1. on the paper will itself 2. intent to revoke the will

UPC Reformation to Correct Mistakes

A court may reform a will, even if it is unambiguous, if there is clear and convincing evidence both of the testator's intention at the time the will was executed and that the will was affected by a mistake of fact or law.

Majority rule for terminating a revocable trust

A revocable trust can be revoked in any manner that indicates the settlor's intention to do so, unless the trust instrument provides that a method of revocation in the trust instrument is exclusive.

The XYZ trust contains the following dispositive provisions: "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." Based solely on these provisions, this trust would most accurately be described as

A spendthrift trust

antilapse statute

A statute that prevents a lapse (termination) of a clause in a will that would otherwise occur if the beneficiary who was to receive property under the clause dies before the testator.

What is required to create a trust?

A trust can be created inter vivos. All that is needed is the intent to create a trust, trust property, and one or more trust beneficiaries.

Testamentary Trust

A trust that is created by will and therefore does not take effect until the death of the testator.

S by will wishes to create the "S Trust." The purpose of the S Trust is to provide a supplementary source of funds for the education of S's grandchildren. Because S's estate, while not insubstantial, is relatively modest, she wishes to avoid the fees of a corporate trustee. Consequently, S wants to name her niece, N, as trustee of the trust. Although N is very responsible and trustworthy, and S is especially confident that N will make good decisions about distributions from the trust, N has no experience in fiduciary matters and has no investment experience. Before S approaches N about becoming trustee, she consults a lawyer for legal advice. Of the following, which is the best advice to S regarding N's legal responsibilities as trustee?

Although N will be responsible for complying with all of the fiduciary duties of a trustee, she may delegate the investment function to an investment professional so long as she exercises due care in choosing and monitoring the expert.

What happens if you forget to name a valid trustee?

Although a trust must have a trustee, a trust will not fail to be created solely for lack of appointment of a trustee. In such case, the court will appoint a trustee on the application of an interested party.

Can Trustees not use goo faith ever?

Although settlors often include language in a trust instrument purported to grant a trustee unfettered discretion in making distributions, a settlor cannot waive trust law's requirement that discretion must be exercised in good faith and with the trust purpose and beneficiaries' interests in mind

H dies intestate, married to W. Three years after the date of H's death, a child, Y, conceived by H's banked sperm, is born to W. What is likely to be Y's best legal argument for receiving a share of H's intestate estate? (A) H consented, in writing, to the banking of his sperm in anticipation of possible posthumous conception. (B) Much evidence exists that H always wanted to have a child but was unable to conceive one. (C) Y is H's biological child. (D) The Supreme Court has held that Social Security survivor's benefits are available to a posthumously conceived child if the child would be an intestate heir of the predeceased parent.

Although the question whether posthumously conceived children are heirs of the predeceased parent is largely unsettled, some states have adopted legislation to address this issue. In keeping with the policy of freedom of disposition, one important condition is whether the predeceased parent has consented to the posthumous conception. A is the correct answer. B is not the correct answer, as H's desire to have a child during his lifetime has no bearing on whether he would consent to posthumous conception. C is not the correct answer, as all posthumously conceived children are the biological offspring of their predeceased parent. D is not the correct answer, as whether the child is an intestate heir of the predeceased parent is the question here, not the answer.

T dies leaving a will that contains only the following dispositive provisions: "I give the sum of $100,000 to my beloved son, S, if S survives me. I give all the rest of my estate to my dear friend, F, if F survives me." S predeceased T but left descendants surviving T. F survived T. Assuming the jurisdiction of T's domicile is a majority rule jurisdiction, who gets the $100,000?

Because the devise was to pass to S only "if S survives" T, it passes to F under the residuary clause of T's will.

H, who stood to inherit from his wife, W, is accused of killing her. Though W is clearly dead, H contends that her death was not caused by his hand. In support of his position, H points to the fact that he was acquitted of the murder of W in a criminal trial. He is then sued by W's children for wrongful death and is found to have feloniously and intentionally brought about W's death. Can H inherit from W? (A) Yes, because no civil trial could be conducted due to the "double jeopardy" rule (B) Yes, because H was acquitted in the criminal trial (C) No, because he was found liable in the civil trial and is therefore prohibited from inheriting by the slayer rule (D) Yes, unless the burden of proof in the civil trial was clear and convincing

C is the correct answer because the civil trial determined that H's killing was felonious and intentional under the civil standard. The slayer rule prevents a person who has feloniously and intentionally killed the decedent from inheriting any portion of the decedent's estate. B is not the correct answer because although a conviction in a criminal trial is usually conclusive of felonious and intentional killing for purposes of the slayer rule, acquittal in a criminal trial is not dispositive. D is not the correct answer because in a civil trial under the slayer rule, the court will apply the civil standard of preponderance of the evidence to the question of whether the decedent wrongfully killed the decedent. A is not the correct answer because no civil trial is necessary, as the question of H's liability has been determined. C is the correct answer because the civil trial determined that H's killing was felonious and intentional under the civil standard.

Irrevocable trusts _____ be modified without the consent of the settlor persuant to either the _________ ________ _________ OR the _________ doctrine

CAN Equitable Deviation Doctrine Claflin

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

E, F, and X will receive T's residuary estate in equal shares T's residuary devise will be interpreted as a class gift, as it uses a class label ("my nieces") and dynamic shares ("equal shares") that will adjust up or down depending upon the number of class members at T's death. However, in a majority rule jurisdiction, antilapse statutes apply to class gifts. T's niece G predeceased T leaving a descendant, X, surviving T. T's niece H also predeceased T but left no descendants. So T's residuary estate will be distributed in equal shares to E, F, and X G's son X receives a share under the antilapse statute, and Y does not receive a share because antilapse statutes don't distribute a predeceased beneficiary's share to her estate.

S by will creates the "S Trust" and names T as trustee. The trust instrument provides that the trustee shall distribute "so much of the income and principal of the trust to X as the trustee in its sole and absolute discretion shall deem advisable for X's health and support in reasonable comfort. At the death of X any remaining principal of the trust shall be distributed to Y." At its inception, the trust contains a small portfolio of investments and a modest amount of cash. X is the adult child of S, while Y is a charity. T retains the investments largely as received, and distributes to X all of the traditional items of income, as well as generous amounts of principal as requested by X for luxuries such as vacations, golf and country club memberships, and recreational assets such as a fishing boat. After a few years of diminishing trust principal, Y, based on information reported in T's annual accounting to the beneficiaries, objects to the generous distributions made to X. T defends its actions by pointing to the trust language giving it "sole and absolute discretion" to determine distributions to X. Of the following, what is Y's best argument for T's breach of its fiduciary duty?

Despite the granting of "sole and absolute discretion," a trustee's discretion is always subject to a standard of good faith with a view to the purpose of the trust and the interests of the beneficiaries.

Under the CL _______ ________ ________, administrative and distributive provisions of a trust can be modified if changed circumstances unanticipated by the settlor would defeat or substantially impair the accomplishment of the purposes of the trust.

Equitable deviation doctrine (NYT case)

T dies with a will containing a general devise as follows: "I give the sum of one million dollars ($100,000) to my best friend, F." Which of the following is the best argument for resorting to extrinsic evidence to resolve the ambiguity contained in this devise?

Extrinsic evidence should be admissible to resolve any ambiguity, be it patent or latent. courts have been receding from plain meaning position and many are now admitting extrinsic evidence to resolve both types of ambiguities

T, who lived in a jurisdiction that has adopted all the UPC antilapse provisions, dies leaving a will that, among other provisions, contains language that states as follows: "I give and bequeath the sum of $100,000 to X, if X survives me. I give, devise and bequeath all the rest and residue of my estate in equal shares to those of E, F, and G who survive me." X, who was T's son, predeceased T leaving X's children, J and K, surviving. Since X predeceased T, to whom will the $100,000 general devise be distributed?

If the will contains no additional indication that T intended X's general devise to lapse in the event he predeceased T, then J and K will receive the $100,000 general devise. (anti-lapse) . Contrary to the rule in the majority of states, under the UPC's antilapse provisions, survivorship language, standing alone, is insufficient to avoid the antilapse statute. Since X predeceased T, the antilapse statute would provide that X's lapsed gift would be distributed to his descendants, J and K

Decedent dies intestate survived by his wife, M, and their two minor children, F and G. At Decedent's death, M was one month pregnant with the couple's third child, H. The intestacy statutes in Decedent's jurisdiction provide that after a share for the surviving spouse, if any, is set aside, Decedent's descendants receive the remainder of the decedent's estate. How will the descendants' portion of Decedent's estate be distributed under the intestacy statute? (A) F and G will each receive one-half. (B) F and G will receive an equal share, and H, if born alive, will also receive an equal share. (C) F and G will receive an equal share, and H, if born alive before the final distribution of the estate is commenced, will also receive a share equal to that of H's siblings. (D) F and G will each receive 40%, and H will receive 20%.

In all jurisdictions, children conceived before, but born after, the date of the father's death are treated as children for purposes of the intestacy statute. The correct answer is B, as H must be born alive in order to be treated equally as a posthumous child. C is not the correct answer, as the timing of estate distributions has no bearing on who is an heir of the decedent.

Majority rules for determinig if an account is probate asset

In most jurisdictions, whether a joint bank account has survivorship rights depends on the account owner's intention at the time she adds the second party to the account. While the account paperwork may have relevance in this inquiry, it is not necessarily dispositive. although the account paperwork might be evidence of T's intention at the time F's name was added, it is not necessarily conclusive.

Elements of a Spendthrift Trust:

In order for a trust to be spendthrift, a provision in the trust instrument must prevent the trust beneficiaries from 1) transferring their interest in the trust (voluntary alienation) and 2) must prohibit trust beneficiaries' creditors from reaching the trust assets (involuntary alienation).

Can an irrevocable trust be modified by an agreemetn among the T's and the T beneficiaries?

NO: an irrevocable trust cannot be modified by mere agreement among the trustee and the trust beneficiaries.

H and W are married to one another in a first marriage for both and have two children of the marriage. Neither has other children. They go to see a lawyer, L, for estate planning. L's initial conversation with H and W reveals that each of H and W wants the other to receive the decedent's entire estate, if the other spouse survives. Each wants the children to have the entire estate of the decedent, in equal shares, if there is no surviving spouse. Although L is concerned about potential conflicts of interest, she believes she is capable of ethically representing both clients at the same time. L then explains to H and W the potential conflicts of interest that might arise, and each client gives informed consent to the representation, in writing. L then sets about preparing wills for each of H and W that are intended to accomplish the goals outlined above. H subsequently calls L and tells her that he wishes L to arrange for some of his estate to be left to "a friend," but that W should not be informed of this. Which of the following best describes L's ethical considerations upon receiving H's request?

L must withdraw from representation and must also reveal the substance of H's request to W, but only if both clients consented to L informing the other client of all information that comes to L's attention that might affect the other client's decisions regarding the representation. Explanation: Although the facts indicate that the clients waived the potential conflict of interest (ABA Model Rule 1.7), L is also governed by one ethical rule (ABA Model Rule 1.6) that requires her to keep all information received from a client confidential, as well as another ethical rule that requires her to communicate to a client all information reasonably necessary to permit the client to make informed decisions regarding the representation (ABA Model Rule 1.4). L can only reveal the substance of H's request to W if the clients agreed to waive these two rules with regard to the representation

IS beneficiary agreement a basis for modifying any provision in an irrevocable trust?

NO

Can the B of a spendthrift trust transfer voluntarily her interest in teh trust?

NO: a beneficiary of a spendthrift trust cannot voluntarily transfer her interest in the trust.

Does a failure to invest in a diverse range of assets does not necessarily favor one beneficiary over the other?

NO: a failure to invest in a diverse range of assets does not necessarily favor one beneficiary over the other

S executes a deed of trust creating the "S Trust," and names T as trustee. The trust instrument contains the following dispositive provisions: "The trustee shall distribute all of the net income of the trust to X for X's lifetime. At X's death, any remaining trust principal shall be distributed to Y, or to Y's estate." S invests the trust in a diverse basket of assets, the majority of which are equities in a variety of different size companies across a number of different industries. Although the trust investments demonstrate a remarkably stable market value in times of economic downturn and substantial capital growth during a strong economy, they do not provide much in the way of rents, dividends, and interest. Does T's investment strategy reveal that T has violated the trustee's duty of impartiality?

No; T seems to be investing appropriately for overall risk and return. The trustee has not violated the duty of impartiality if T makes adjustments between income and principal so that X and Y can be treated impartially. T is investing in a "diverse basket of assets" and the stability of the trust corpus and its capital appreciation reveals that T seems to be investing for risk management and total return. So long as T makes the appropriate adjustments between principal and income, T can satisfy the trustee's obligation between income and principal beneficiaries.

O signs a document that purports to create the "O Trust" and declares herself to be the trustee of the trust. The document provides that the trustee of the O Trust shall pay the income of the trust to O for her lifetime, and that, at O's death, the trust property shall be distributed to O's daughter, M. O then opens a bank account as "O, as trustee of the O Trust." Which of the following best describes the legal effect of O's actions?

O has created a trust.

What type of ambiguity is: "one million dollars ($100,000)"

PATENT: as it is unclear on the face of the will whether the testator wishes to give F one million or one hundred thousand dollars.

X is convicted of assault and battery for fighting in a local bar and sentenced to time in the state prison. Y, a bar patron who was blinded when X struck him with a beer bottle for "looking at X in a funny way," sues X and obtains a judgment for several million dollars. As it happens, X is the beneficiary of a trust created by his mother, M, containing the following distributive provisions: "The trustee shall distribute so much of the net income and principal of this trust to X as the trustee in its sole discretion shall deem advisable for X's health and support in reasonable comfort. At X's death, the trustee shall distribute the remaining principal and accumulated income of the trust to those persons X appoints by will and, in the absence of appointment, to X's estate." The trust also contains a spendthrift provision. Can Y pursue the trust assets to satisfy his judgment?

Possibly not; many jurisdictions do not permit tort creditors access to the assets of a spendthrift trust, even if they are victims of an intentional tort.

S creates the "S Trust," names T as trustee, and provides in the trust instrument that the net income of the trust is to be distributed to X for X's lifetime, with the remainder being distributed to Y or Y's estate. With a view toward generating sufficient income for distribution to X and preserving the capital for Y, T generally shuns purchasing equities on the trust's behalf, and instead invests the trust assets mostly in government bonds and in a few other reliable and conservative income-producing assets, such as cash deposits and mortgages. Over the next few years the stock market indices achieve strong highs, while the corpus of the S Trust remains stable with slight growth at just under the rate of inflation. X is satisfied with T's investments, but Y objects and takes the position that T should be investing in assets such as stocks that have more growth potential. Does Y have a case against T for violation of T's duty of prudence?

Probably; the prudent investor rule requires that investment be diverse with a view to overall risk and return, and here T's investments seem to favor income over capital appreciation. Under the modern prudent investor rule the focus is on achieving risk management by diversification and investment for overall risk and return. Here, T is sacrificing the opportunity for capital appreciation by investing solely in government bonds and other conservative income-producing assets.

UTC procedure for Trustee removal:

Removal is not inconsistent with a material purpose of the trust, a trustee can be removed if requested by all the beneficiaries, it best serves the interest of the beneficiaries, and a suitable replacement trustee is available. Removal would likely serve the best interest of the beneficiaries because T's fees are high, its approach to distributions is very conservative, and its returns on investment are low.

In year one, S creates the "S Trust," an irrevocable spendthrift trust for the benefit of her daughter, X, and her grandson, Y. The trust terms give the trustee, T, discretion to make distributions to or for the benefit of X as the trustee deems advisable for X's support and education during her lifetime, taking into account X's other resources. At the death of X, the trustee has discretion to make distributions to or for the benefit of Y as the trustee deems advisable for Y's support and education during her lifetime, taking into consideration Y's other resources. At Y's death, the trust is to terminate and any remaining trust property is to be distributed to Y's estate. For the next few years T makes a number of distributions to X from the trust. But by year ten, S has died and T has not made any distributions to or for X's benefit in three years, because X has become a successful products liability lawyer and more than adequately provides for herself. Consequently, X approaches T with a request to begin making distributions from the trust to Y (who is now 25 years old) for Y's support and education. T takes the position that so long as X is alive, he can only make distributions to X and then only if needed for her support and education. X and Y decide to seek legal advice on the matter. Of the following, which is the best advice to X and Y on the question of whether distributions from the S Trust could be made to Y before the death of X?

Since X no longer needs the trust for support or education, and both X and Y agree, T should seek to have the trust modified by attempting to convince a court that making distributions to Y would not be contrary to the material purpose of supporting and educating X: Consistent w/ the Claflin Doctrine

A will executed in year one by T contains the following dispositive provisions: "I hereby give the sum of $100,000 to my best friend, X. I give the remainder of my estate to the American Red Cross." When T dies in October of year two, her original will is found among her possessions, but the line giving X $100,000 has been crossed out and initialed by T, beside which a date is written as "March 1, [year two]." The will is not further disturbed or modified. Which of the following best describes the legal effect of the crossed-out line on the will?

Some jurisdictions permit partial revocation by physical act; in any such jurisdiction X would not receive the $100,000 devise if T crossed out the provision with an intent to revoke the devise to X. Exp: A will can be revoked by physical act, which involves an act on the paper will itself, such as destroying, tearing, crossing out, etc., coupled with the intent to revoke the will. Ernestine clearly revoked her 2016 will by physical act. In a majority rule jurisdiction, if a testator revokes a will with the intention of reviving the prior will, the prior will is revived. Here, Ernestine wished to revive her 2004 will by revoking her 2016 will, as she announced as much to her friends. Therefore, the 2004 will controls the disposition of her estate

S executes a deed of trust creating the "S Trust," naming T as trustee. The trust instrument contains the following dispositive provisions: "The trustee shall distribute all of the net income of the trust to X for X's lifetime. At X's death, the remaining trust principal shall be distributed to Y, or to Y's estate." The primary asset of the S Trust is commercial real estate that generates substantial net rental income, all of which is distributed to X during X's lifetime. At the end of X's life, the buildings have substantially depreciated in value. Which of the following facts, if true, best bolsters Y's argument that T has breached the trustee's duty of impartiality between beneficiaries?

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

T executed a will containing only the following dispositive provision: "I give all of my estate to my dear wife, W." A few years later T's wife W died, survived by T. T did not thereafter change his will and died with it intact. T's nephew, N, who would inherit T's estate under the state's intestacy statutes, was named T's personal representative. T's best friend, F, filed a petition in the probate proceedings claiming entitlement to T's estate. F was prepared to offer evidence that, on more than one occasion, T told him and others that T wished F to have T's entire estate. In a jurisdiction that follows the Uniform Probate Code provisions regarding reformation to correct mistakes, what is N's best argument against F's case?

T only formed the intent to distribute his estate to F sometime after the death of T's wife. Under the UPC's provision on reformation to correct mistakes, the court may reform a will, even if it is unambiguous, if there is clear and convincing evidence both of the testator's intention at the time the will was executed and that the will was affected by a mistake of fact or law.

What kind of investing is this? With a view toward generating sufficient income for distribution to X and preserving the capital for Y, T generally shuns purchasing equities on the trust's behalf, and instead invests the trust assets mostly in government bonds and in a few other reliable and conservative income-producing assets, such as cash deposits and mortgages.

T should be investing for total return but instead T has been investing for generation of income and preservation of capital.

On April 1, 2015, F, who owns a valuable painting entitled "Seymour Dreams," writes an email to his son, S, that reads in its entirety: "Dear S: I hereby give you the 'Seymour Dreams' painting currently hanging in my study. From this date forward, I want you to own this fine work of art. Love, Dad." F does not deliver the painting to S, who lives several hundred miles away. Although S received and read the email, neither F nor S makes any further mention of the painting. F dies intestate a few months later with the painting still hanging in his study. After F's death, the personal representative of F's estate claims the painting for the estate, maintaining that it was not gifted to S during F's lifetime because the delivery requirement for making gifts was not satisfied. S argues that from the time of the April 1, 2015, email, F held the painting in trust for S. Which of the following is the most accurate legal characterization of S's argument?

The argument is invalid as the facts show no intent on the part of F to create a trust. Here, F wrote that he intended to "give" S the painting, and that he wanted S to "own" the property. This is not the same as the intent to transfer the painting to a trustee for S's benefit; it is not the intent to create a trust.

S creates an irrevocable trust naming T, a corporate trust company, as trustee. The trust terms require the trustee to distribute so much of the net income and principal of the trust to and between X and Y (or the survivor of them) as the trustee in its discretion deems advisable for their health and support. After the death of the last of X and Y to die, any remaining trust property is to be distributed to Z, if living, or to Z's estate. A few years after S's death, X, Y, and Z become frustrated with T's "exorbitant fees" and "mediocre returns" in its investment of the trust assets. X and Y also maintain that T is too "stingy" in making distributions. After consulting with a lawyer, X and Y are given to understand that T's fees are the high upper range of what corporate trustees generally charge, T is taking a very cautious (but probably legally permissible) approach to making distributions, and that T's returns on investment are at the low end of what would be a reasonable range for the purposes of the trust. X, Y, and Z are all in agreement that T should be removed and replaced with T2, another corporate trustee who is ready and able to take over the trustee duties, charges lower fees, and generally has a good track record of investment. Assuming that removal and replacement of the trustee is not inconsistent with a material purpose of the trust, if the jurisdiction follows the UTC approach to trustee removal, which of the following best describes the beneficiaries' prospects of forcing removal of T as trustee?

The beneficiaries would likely be successful, because the facts show that all beneficiaries are in agreement, removal best serves the interest of the beneficiaries, and T2 seems to be a suitable successor trustee.

T, who has three children and an estate in excess of $2 million, executes a will that gives 40% of his estate to his son, X, 40% to his daughter, Y, and 20% to his son, Z. A provision in T's will provides that anyone who contests the will is to receive, in lieu of the foregoing percentage of his estate, the sum of $100. Z thinks that X and Y unduly influenced T and wishes to challenge the will. However, he wants to know the effect of the "$100 clause." Which of the following is the most accurate characterization of the legal effect of the clause in T's will providing that anyone who challenges T's will is to receive only $100?

The court will probably not enforce it even if Z loses his suit, unless the court finds that Z did not have "probable cause" for the challenge. Although enforcement of "no-contest" or "in terrorem" clauses varies across jurisdictions, under the most common rule the clauses are not enforced so long as the person bringing the contest had "probable cause" for the challenge.

What is intent to create a trust?

The intent to create a trust is an intent to transfer property to a trustee for, or hold property as a trustee for, the benefit of one or more beneficiaries.

T's will provided as follows: "I give $100,000 to each of my siblings, X and Y, and $800,000 to Z." T left the residue of his estate to X. T's probate estate, after the payment of debts and expenses, contained assets totaling $800,000 in value. Who gets what from T's estate?

The residuary devise abates first, and then the general devises abate pro rata. Thus X and Y will each receive $80,000, and Z will receive $640,000. X will not receive a residuary devise. since there are insufficient assets to satisfy the general devises, the residuary devise will abate first in its entirety. Each of the general devisees will receive a pro rata portion of their general devise. The devises add up to $1 million, but the estate only contains $800,000. So each general devisee will receive 80% (800,000/1,000,000) of his or her devise.

T's will devises his residuary estate to "the trustee of the trust created under this will." T includes language in the will directing the creation and administration of the trust but inadvertently fails to name a trustee. Which of the following is the most accurate statement of the legal effect of the trust provisions in T's will?

The trust will be created and the court will appoint a trustee.

You are approached by X, whose father, T, recently died. It seems that T executed a will one month before his death that devised to X, his only son, about $10,000, and devised the rest of his $500,000 estate to Charity, a public charity. T's will, which named T's sister as executor, was recently admitted to probate. X tells you that his father suffered from dementia, and as many as six months before his death was unable to understand what kind of property he owned and how much of it he owned. X wants to know what is required to win a lawsuit based on lack of capacity to execute a will. Given X's concerns, which of the following is good legal advice to X?

The will, having been admitted to probate, is prima facie valid; X must produce sufficient evidence to prove lack of capacity to execute a will.

what is the requirement for naming a successor trustee?

There is no requirment that a successor trustee be named in the trust instrument

What are pretermitted heir statutes?

These Pretermitted statutes protect children and sometimes other descendants who are deemed to have been unintentionally omitted from a will. Some statutes protect all children or descendants not referenced in the will, while others only apply to those born or adopted after execution of the will. In some states and under the Uniform Probate Code, pretermitted children do not receive a share if the will devises all of the estate to the other parent of all the surviving children (and such other parent survives).

What is the Claflin doctrine?

Under the Claflin doctrine, an irrevocable trust can be modified or terminated if such is not contrary to a material purpose of the trust and all the beneficiaries consent.

Can a trustee be removed without a serious breach of trust or a persistent failure to administer the trust effectively?

Under the UPC: Yes-- neither of these has to be shown if the others are satisfied

Common Law Lapse Rules

Under the common law, if a general devise lapses, the gift falls to the residue.

On July 1, the decedent and her husband are rushed to the hospital after suffering severe injuries in an automobile accident. The decedent dies at the hospital on the day of the accident. Aside from her husband, the decedent is survived by her sister. On July 7, the decedent's husband dies from injuries he suffered in the accident. The decedent's husband is survived only by his brother. If the current version of the Uniform Simultaneous Death Statute has been enacted in the jurisdiction, to whom will the decedent's intestate estate be distributed? A (A) The decedent's husband (B) The decedent's sister (C) The decedent's husband's brother (D) It will escheat to the state in which the decedent was domiciled at death

Under the current version of the Uniform Simultaneous Death Act (USDA), an heir who fails to survive the decedent by 120 hours (five days) is deemed to have predeceased the decedent. The decedent died on July 1 (the same day as the accident) and the decedent's husband died on July 7, six days later. Since the decedent's husband died more than five days after the decedent's death, he is recognized as surviving the decedent under the USDA and A is the correct answer.

T executes a will that devises her automobile to her best friend, F. T is then involved in an automobile accident that results in her death and the destruction of the automobile. The automobile is covered by insurance. What is the best argument that T's estate should distribute the insurance proceeds to F pursuant to T's will?

Under the facts at hand, the jurisdiction should follow the intent theory of ademption. Under the intent theory of ademption, if property specifically devised under a will is no longer in the testator's estate at her death, the devisee may be entitled to replacement property if he can show that is what the testator would have wanted. Here, because the automobile was destroyed in the very accident that resulted in T's death, T would not have had a chance to provide for a substitute gift to F

Theory of Ademption

Under the intent theory of ademption, if property specifically devised under a will is no longer in the testator's estate at her death, the devisee may be entitled to replacement property if he can show that is what the testator would have wanted.

T has two adult children, F and G. T has a very good relationship with both of her children, but F lives near T while G lives several hundred miles away. Because T is getting on in age and needs help with her affairs, she decides to add F's name to her checking account so that F can help her pay her bills and make sure her account is balanced on an ongoing basis. T goes to the bank with F, and a bank employee has F sign a "signature card" for the account. F then takes over the task of paying T's bills from the account. T dies a couple of years later when the checking account balance is $20,000. T's will divides all of her assets between F and G equally. F maintains that the account is a nonprobate asset and should be paid solely to her, while G maintains that the account is a probate asset that should be distributed in equal shares according to T's will. If the jurisdiction follows majority rules, who will succeed to the ownership of the account?

Whether the account is a probate asset depends on whether T intended that F have survivorship rights at the time she added F's name to the account.+ although the account paperwork might be evidence of T's intention at the time F's name was added, it is not necessarily conclusive.

Does the UPC allow a will w/o an ambiguity to be corrected for mistake?

YES: a will affected by a mistake can be reformed under the UPC even if the document contains no ambiguity.

In a majority rule jurisdiction, do antilapse statutes apply to class gifts?

Yes

T is the trustee of a testamentary trust created under the will of S. T is also a real estate developer. The terms of the trust require the income to be distributed to X for a period equal to the shorter of ten years or X's death, with the remainder to be distributed to Y or Y's estate. As trustee of the testamentary trust, T owns a diverse portfolio of assets that includes publicly traded securities as well as Blackacre, an unproductive and undeveloped parcel of land that S had been holding for long-term appreciation. T determines that, given the purpose of the trust and the makeup of its corpus, it would be in the best interest of the beneficiaries to sell Blackacre and invest the proceeds in income-producing securities. T contacts three reputable local real estate appraisers and has each of them prepare an appraisal for Blackacre. As trustee, T then sells Blackacre to himself (in his capacity as a real estate developer) for the value determined by the highest of the three appraisals, plus 10 percent. After learning of the sale, Y objects and files suit against the trustee for self-dealing. Is Y's lawsuit likely to be successful?

Yes. Where the trustee enters into a transaction with itself, self-dealing occurs. The no further inquiry rule prevents the trustee from using the fairness of the transaction as justification for its actions.

Can the Settlor be the Trustee?

Yes: as a general rule, a settlor of a trust may also serve as a trustee of the trust.