HEALTH CARE DECISION MAKING

Person has a consttutona rght to make decsons regardng heathcare,

ncudng rght to refuse medca treatment. Cruzan
o If persons wshes are uncear, state may assert nterest n favor of
preservng fe
Basic Point of ADs: heath care generay requres nformed consent
these gve advance consent.
3 TYPES OF ADVANCED DIRECTIVES
Inst!ctiona" Di#cti$#s (aka vng w or medca drectve)
o Speces ether generay or va hypothetcas how one wants to be
treated n end-of-fe stuatons or f ncompetent
o Works ke a w
o Ex. DNR or do not resusctate
Po%& Di#cti$#s (aka Durabe Power of Attorney)
o desgnates an agent to make heath care decsons for the patent
H&'i( Di#cti$#s
o drects treatment preferences & desgnates an agent to make
substtuted decsons
o Ex. DNR otherwse, ask Bob.
o Anaogous to a trust
Citicis)s of ADs (appy to nstructona devces)
o Rarey competed (ony 25%)
o Furnsh tte nfoendess possbtes for T to prepare for; cant
account for a
o Poor understandng of Ts decson
o Preferences change over tme
o Conct wth doctors dutes to prevent harm to ncapactated patents
Do ADs suggest socety vaues persona autonomy over a drs duty to
preserve fe?
AL AD a**"i#s +,#n:
D#fa!"t R!"# s patent has capacty to make decsons. Inca*acit&
)!st '# s,o+n
Ti--#: Attendng physcan determnes decarant no onger
understands, apprecates, & can drect medca treatment AND 2
physcans personay examne & dagnose patent w/ termna ness or
n|ury OR permanent state of unconscousness.
o Doesnt appy f pregnant or mentay
o Must be n wrtng, sgned, dated, & 2+ dsnterested wtnesses at east
19 years od
o Wtnesses cant
Sgn for decarant or be an apponted proxy
Be reated by bood, adopton, or marrage
1
Be entted to nhertance by ntestacy or by w
Be drecty nancay responsbe for decarants medca care
A"t#nati$# to AD. Durabe power of attorney whch takes ahect f non
termna ness
/HAT IF THERE0S NO ADVANCE DIRECTIVE.
Responsbty for an ncompetent patents decsons regardng heath
care usuay fas to the patents spouse or next of kn, sub|ect to the
states nterest n preservng fe
Decson makers are hed to the s!'stit!t#( 1!(-)#nt standard2+,at
*ati#nt +o!"( +ant. Patents autonomy s the prmary concern.
o Aternatvey, coud ask whats n the *ati#nt0s '#st int##st
(ob|ectve)
A"a'a)a0s S!o-at#
Hi#ac,&
guardan
spouse
adut chd
parents
sbng
next coset kn
commttee
B3SH $4 SHIAVO (p.459)- Patent (ncapactated) had no AD
R!"#: Executve authorty to stay a court order voates the separaton of
powers doctrne
H#"(: FL statute authorzng governor to stay remova of nutrton &
hydraton unconsttutona.
o usurps the |udcarys power because guardanshp court found by C&C
evdence patent was n a persstent vegetatve state & woud cease
fe-proongng measures f she were competent
o aw had no standards. ddnt say how ong t shoud reman n ehect
Facts: Theresa n vegetatve state for 8 years. Husband pettoned
guardanshp court to remove fe-proongng measures & parents
opposed.
ALs AD woudve heped ths stuaton b/c t becomes ehectve when
attendng dr decares patent s no onger abe to drect hs medca
treatment.
PHYSICIAN ASSISTED S3ICIDE
Oregon ony state that aows. Must have:
o Incurabe dsease key to produce death n 6 months
o Make mutpe requests
o Notfy next of kn
o Survve two watng perods (15 days; 2 days)
2
DISPOSITION OF THE BODY ASK: what would the decedent want?
COTTINGHAM (handout)
Facts: sons w expressy stated he wanted to be cremated; mom
opposed.
H#"(: The drecton (n the w) s #asona'"#, *actica", & ca*a'"# of
*#fo)anc#. If testator unambguousy expresses n hs w how hs
body s to be dsposed of, the court must honor hs wshes.
Not#: dggng body up 2 years ater to cremate s reasonabe (hgh
degree of deference).
THE PO/ER TO TRANSFER PROPERTY AT DEATH
HODEL $4 IRVING (pg. 3)- Loo5 at "i)its on i-,ts to (#$is# t,o!-,
"#ns of Hodel
R!"#: A tota" a'o-ation of the rghts of descent & devse cannot be
uphed.
o Indvduas have the rght to tans)it property NOT to in,#it
property BUT
Not absoute (.e. estate tax)
Facts: Act deprved Indans of the rght to dspose of ther fractona
nterests n and w/out compensaton.
H#"(: the escheat provson of Act ehected a takng of Ps decedents
property
Not#: 100% estate tax s unconsttutona
R!"# a**"i#s to #a" 6 *#sona" *o*#t&
Amended statute aowng devse to escheatabe fractona nterest to any
other O of undvded fractona nterest was unconsttutona b/c mted
devse to a sma group (N4, p.9)
DEAD HAND CONTROL
When a decedent condtons a gft to a benecary upon the benecary
behavng n a certan way
R#st4 3( 78948 (pg.27)- favors freedom of dsposton
o Donors ntenton s gven ehect to the maxmum extent aowed by aw
In$a"i( if "prohbted or restrcted by an overrdng rue of aw"
can0t consi(# #asona'"#n#ss of donors decson
T#sta)#nta& con(itions a# $a"i( 3NLESS
o $io"at#s *!'"ic *o"ic&
absoute restrants on marrage voate fundamenta rght to marry.
E%c#*tions:
parta restrants on marrage w/ reasonabe restrants are vad
o Factos: age of ntended benecary & tme frame of
ntended condton/restrcton
tempora/regous requrements vad. See Shapra
Regous requrements
3
separaton or dvorce
Controng factor s the decedents domnant ntent. Are they
encouragng separaton/dvorce OR provdng support n the
event of separaton/dvorce?
Promotng famy strfe
Property destructon drectve
o :!(icia" #nfoc#)#nt of t,# con(ition +o!"( constit!t# stat#
action $io"atin- constit!tiona""& *ot#ct#( f!n(a)#nta" i-,ts
SHAPIRA $4 3NION NAT0L BANK (pg.28)- restrcton on nhertance va
marrage ok
H#"(: The court must honor the testators ntenton wthn the mtatons
of aw & pubc pocy.
o enforcng condtons ddnt consttute sumcent state acton
o gfts condtoned on a benecary marryng wthn a partcuar
cass/regon consttutes a parta restrant on marrage, whch s
#asona'"#; $a"i(; 6 not a-ainst *!'"ic *o"ic&
Cf. Rest. cant consder reasonabeness
R!"#: restrctons upon marrage as a condton of in,#itanc# are
consttutona, vad, & enforceabe
Facts: decedents w condtoned hs sons nhertance on marryng a
|ewsh gr whose parents are both |ewsh wthn 7 years or ese the money
woud go to the state of Israe.
S,o!"( T ,a$# a i-,t to (#sto&.
o Po: autonomy; preventng pontess snce T can destroy whe ave
o Con: prevents waste; soceta good
TRANSFER OF DECEDENT0S ESTATE (pg.38)
F!nctions of Po'at# Po*#t&
o provdes evdence of transfer of tte to new owners (cears tte &
makes marketabe)
o protects credtors by provdng procedure for payment of debts
o dstrbutes decedents property to those ntended after credtors pad
o promotes naty (credtors have tme bar to e cam; cuts oh w
contests)
Non*o'at# *o*#t& - passes under an nstrument other than a w.
o |ont tenancy property
o fe nsurance
o contracts w/ POD (payabe on death) provsons
o nterests n nter vvos trusts (cf. testamentary trusts created by w
probate)
PROFESSIONAL RESPONSIBILITY
SCOPE OF DRAFTING ATTORNEY0S RESPONSIBILITY
4
TORT THEORY CONTRACT THEORY
COMMO
N LA/
<AL=
attorney ony owes duty
of reasonabe care to the
c"i#nt (testator) but not
to ntended benecares
3
rd
party benecary contracts
arent recognzed. S##
Ro'inson
o B3T prvty f atty does t
for free
MODER
N
Ma1oit
&
attorneys duty
extended to int#n(#(
'#n#>ciai#s based on
reasonabe
foreseeabty of n|ury to
them. S## Si)*son
nonparty can sue for breach of
contract f they quafy as a 3
rd

party benecary. Once cent
dentes who he wshes
property to go to, benecares
acheve 3
rd
party benecary
status. S## Si)*son
SIMPSON $4 CALIVAS (pg.58)
Facts: "homestead" term used n w ambguous. Son sued hs deceased
fathers attorney who drafted w.
H#"(: An ntended benecary states a COA by peadng sumcent facts to
estabsh that an attorney has neggenty faed to ehectuate the
testators ntent as expressed to the attorney
H#"(: Where a cent has contracted w/ an attorney to draft a w & the
cent has dented to whom he wshes the estate to pass, that ntended
benecary may enforce the terms of the contract as a 3
rd
party
benecary
o But see ROBINSON V4 BENTON (handout)- common aw rue
R!"#: A benecary who snt n prvty cannot assert a cam aganst
the attorney who prepared the w of hs deceased her.
Facts: attorney faed to destroy w before testators death as she
nstructed
E%c#*tion to CL !"#: -at!ito!s !n(#ta5in-s
where a awyer freey draft a w, courts w mpose a duty to
3
rd
party benecares. Encourages experenced awyers to
undertake serous |ob of draftng ws.
A $4 B (pg. 64)- conct of nterest (duty of condentaty v. duty to nform of
matera fact)
R!"#: A awyer may dscose condenta nformaton about 1 cent to
another cent f the matter s an exceptona case wth a compeng
reason for dscosure
H#"(: aw rm can dscose condenta nformaton of one co-cent to
another co-cent gven the wfes need for the nfo & the rms rght to
dscose t
o rm ddnt earn of egt chd n condenta communcaton from hm
o earned about chd through ts representaton of mom n paternty
acton so husbands expectaton of nondscosure may be ess
5
o sprt of "Waver of Conct of Interest" etter supported rms
dscosure
reed on RPC 1.6(c), whch permts awyer to revea condenta nfo to
extent he reasonaby beeves necessary to rectfy cents fraud.
Facts: coupe used aw rm for estate pannng but ast name entered n
computer wrong so when. A paternty acton was ed aganst the
husband but the conct wasnt caught. Husbands egt chd coud take
wfes property under her w so attorney wanted to know f he coud
dscose hs chd to the wfe.
(!t& of con>(#ntia"it& to c"i#nt #%t#n(s '#&on( c"i#nt0s "if#2
INTESTACY
P#sona" Po*#t& ? governed by statute where decedent domced at
tme of death
R#a" Po*#t&2 governed by statute where property s ocated
S3RVIVING SPO3SE@/HO A3ALIFIES.
Vad marrage ceremony requred. Exceptons:
o Co))on "a+ )aia-# -must ve together for a requste amount of
tme & act ke theyre marred (not a |x aow). AL #B!i#)#nts:
capacty;
present mutua agreement to permanenty marry;
pubc recognton of reatonshp as a marrage & pubc assumpton
of marta dutes & cohabtaton
o Sa)#2s#% )aia-#s: Aowed n CT, Iowa, Mass, NH, VT, & D.C.
Some |x may aow ci$i" !nions wth same states rghts as marred
coupes.
D#f#ns# of Maia-# Act- marrage s for heterosexua. States
arent requred to recognze same-sex marrages entered nto n
another states.
o P!tati$# S*o!s#s: exst where the coupe goes through what at east
one party beeves s a vad marrage ceremony, but for some reason
marrage s vod/vodabe.
R!"#: as ong as 1 party reasonaby beeves n good fath the
marrage s vad, they quafy as spouses for purposes of most
ntestate schemes
o L#-a""& S#*aat#( S*o!s#s: st quafy under ntestate dstrbuton
statute
o S*o!sa" A'an(on)#nt: may be dsquaed n some states
S!$i$in- S*o!s# 3PC
(favors SS)
AL
On"& #"ati$#
(no ssue/parent of decedent)
100% 100%
On"& 5i(s fo) t,#i )aia-# 100% $50k +
6
baance
D#c#(#nt ,a( 5i(s o!tsi(#
)aia-#
$150k + ntestate
estate
S*o!s# ,a( 5i(s o!tsi(#
)aia-#
$250k + N/A
S3RVIVAL REA3IREMENT
8= Did the claimant actually survive the decedent?
C= Did the claimant legally survive the decedent?
CL: to quafy as an her, party must prove by a preponderance that he
survved the decedent by a msecond
3SDA: where there s no s!Dci#nt #$i(#nc# as to who survved whom,
the party camng the rght to take s to be treated as havng predeceased
the decedent. Amended USDA to show by C&C survvorshp by 120 hours.
o :AN3S $4 TARASE/ICE (pg. 80)- smutaneous death/nsurance
proceeds
Facts: coupe took cyande aced Tyeno
H#"(: Sumcent proof to show wfe survved husband (apped
USDA)
AL: same thng coud happen here b/c nsurance statute smar to
anguage
S!$i$os,i* must be proven by a preponderance by the party
whose cam depends on survvorshp.
/,#n (o#s (#at, occ!.
CL: rreversbe cessaton of crcuatory & respratory functons
Mo(#n: rreversbe cessaton of tota bran actvty
3PC 8C9 ,o! a**oac,: to quafy as taker, must prove by C6C that he
survved decedent by 5 days & f not, you predecease
o AL: doesnt appy 5 day requrement f property woud escheat to the
state (ony stuaton where n-aws woud take)
SHARES OF DESCENDANTS
G#n#a" R!"#s:
Issue of predeceased chdren take by representaton
If a parent takes, ther ssue do not
Absent adopton, ony bood reatves quafy as hers
son/daughter-n-aws & stepchdren typcay dont quafy
En-"is, P#
Sti*#s
Mo(#n P#
Sti*#s
<AL=
P# Ca*ita at
Eac, G#n#ation
<3PC=
/,## is t,#
#stat# >st
(i$i(#(.
Frst generaton Frst generaton
wth taker ALIVE
Frst generaton
wth taker ALIVE
Ho+ )an&
s,a#s is t,#
1 share each
party ave; one
1 share each
party ave; one
1 share each party
ave; one share
7
#stat#
(i$i(#( into
at t,at
-#n#ation.
share each
party dead but
survved by
ssue
share each party
dead but survved
by ssue
each party dead
but survved by
ssue
Ho+ to t#at
(o**in-
s,a#s.
Drop by
boodne
Drop by boodne Drop by poong
SHARES OF ANCESTORS 6 COLLATERAL RELATIVES
If decedent des ntestate wth no spouse & no ssue, property "ows up"
o Fist2Lin# Co""at#a"s- decedents parents & ther ssue
o S#con(2Lin# Co""at#a"s- decedents grandparents & ther ssue
AL: If no ssue/parent/sbng to each materna & paterna
grandparents f vng or aunt/unce f grandparent deceased.
If no survvng grandparent/aunt or unce pass to reatves on
the other sde n same manner?
/HO A3ALIFIES AS DESCENDANTSFISS3E.
M!st #sta'"is, a *a#nt2c,i"( #"ations,i*
Chd born to a marred coupe s presumed to be chd of that coupe
POSTH3MO3SLY BORN CHILD (p.115): conceved whe dad ave; born
after he ded
o Presumed to be chd of predeceased husband f wfe gves brth wthn
CG9 (a&s of husbands death (3nifo) Pa#nta-# Act = 300 days)
o If chd born 280+ days after husbands death, '!(#n on c,i"( to
estabsh hes the chd of predeceased husband
o AL: f conceved before death & born afternhert as f theyd been
born n decedents fetme
ADOPTION
o GENERAL R3LE <AL=: severs parent-chd reatonshp b/t natura
parents & chd and estabshes parent-chd reatonshp b/t adoptng
parents & chd
STEPPARENT EHCEPTION:
doesnt modfy nhertance rghts b/t adopted chd & natura
parent marred to adoptng stepparent
adopted chd & adoptng parent can nhert both from & through
each other
natura parent cant nhert from & through the chd, BUT chd
can nhert from & through natura parent who waved hs
parenta rghts
HALL $4 VALLANDINGHAM (pg. 97)- adopted by stepparent; no
nhertance
R!"#: Because an adopted chd has no rght to nhert from the
estate of a natura parent who des ntestate, the same chd may
not nhert through the natura parent by way of representaton.
8
H#"(: Dened 4 chdren the rght to nhert through ther nat!a"
*at#na" !nc"# when these chdren were adopted by ther
stepfather after the death of ther natura father & the
remarrage of ther natura mother
o 3PCFAL: woud aow nhertance
ELLIS $4 /EST (handout)- adopted by grandparents; court nvoked
SoP (Schavo)
Facts: kds sought ntestate share of materna great-
grandmother
H#"(: Kds dened nhertance va ntestate successon from
genetc reatves b/c adopted by paterna grandparents, NOT
spouse (strct nterpretaton of statute)
AL R!"#: An adopted person s the chd of an adoptng parent &
not of the natura parents uness adopted by the spouse of a
natura parent for the purposes of ntestate successon. (broader
than Ha statute)
3PC A(o*tion '& R#"ati$# of Pa#nt: chd retans rght to
nhert from & through both natura parents (kds woud take
under ths statute)
o AD3LT ADOPTION
GENERAL R3LE: adopted aduts are treated the same as adopted
chdren for nhertance purposes
MINARY (pg. 103)2 +i"" (queston of decedents ntent, NOT
ntestate rues)
R!"#: Adopton of an adut for the purpose of brngng that
person under the provsons of a preexstng testamentary
nstrument, when he ceary wasnt ntended to be so covered,
shoudnt be permtted
Facts: husband adopted hs wfe & after he ded, she camed to
be a benecary of the trust whch husbands mom had set up n
her w to her "then survvng hers" accordng to aws "then n
force n KY"
/,&. Athough adopton techncay fe w/n statute, adopton
thwarted the remote ancestors ntent.
o AL: adut adopton of over = ncest. Aow f dsabty, etc.
Cant adopt heathy adut uness ts by a husband & wfe.
o Not#: adopton s rrevocabestuck f reatonshp turns sour
o EA3ITABLE ADOPTION ? contact!a" $4 #B!ita'"# t,#o&
D#>nition: natura parents transfer custody of chd to someone
who promses to adopt but who fas to compete paperwork to
compete ega adopton
Doctin#: Equty treats the chd as a chd of adoptve parent for
purposes of dstrbutng ntestate property
G#n#a" R!"#s:
9
Chd can nhert from but NOT through the adoptve parent
adoptve parent has NO nhertance rghts from the chd
doesnt ahect chds nhertance rghts wth natura parents
O0NEAL $4 /ILKES <*-4 89I=- ma|orty foowed strct contractua
approach (AL)
R!"#: A reatonshp ess than that of a ega guardan wont gve
one the authorty to enter nto an adopton contract & any such
contract s thus nvad.
H#"(: chd not entted to nhert from "adoptve" father b/c aunt
who gave her up for adopton ddnt have ega authorty to do
so.
Facts: chd born out of wedock; mom ded & dad never
recognzed her
Diss#nt: <8= chd fuy performs; <C= abandon contract aw
cton & adopt estoppe argument f parents ed chd to beeve
egay adopted
CHILD BORN O3T OF /EDLOCK
o CL: chd of no one. No nhertance rghts.
o Mo(#n: automatcay has parent-chd reatonshp wth nat!a"
)ot,# & can nhert from & through her
T&*ica""& #B!i#s *oof of *at#nit&
subsequent marrage of natura parents
fathers acknowedgment
ad|udcaton of paternty durng dads fetme by preponderance
ad|udcaton of paternty after dads fetme by C&C
o See House for AL rue
HO3SE $4 CAMPBELL (handout)- chd born out of wedock
H#"(: reatonshp of parent & chd estabshed for purposes of ntestate
successon
Facts: chd born out of wedock. Mom sued for wrongfu death of mnor
daughter; dad brought decaratory sut estabshng hs rghts as dad so he
coud get part of settement.
AL Pat#nit& R!"#: Chd born out of wedock s chd of mom. Aso a
chd of the dad f:
o Subsequent marrage
o Paternty s ad|udcated before death of dad OR
o estabshed after hs death by C&C.
o Inehectve uness:
father has openy treated chd as hs AND
hasnt refused to support the chd (faure doesnt = refusa)
DISCLAIMERS (p.152)
10
o R!"#: dscamant treated as *#(#c#asin- (#c#(#nt. Tme mt s 9
months after donee turns 21 or 9 months after nterest s created,
whchever s atest.
Dscamers reate back to decedents tme of death (uness Federa
tax)
o /,& +o!"( *a#nts (isc"ai).
avod taxes
avod credtors (not aowed n AL)
o E%c#*tions:
Inso"$#nt '#n#>ciai#s cannot (isc"ai) to a$oi( c#(itos
<AL=
F#(#a" Ta% Li#ns (p.155)
D&# $4 3S- son, soe her va ntestacy, tred to dscam nterest
b/c he had debt. Court hed dscamer nvad statng he
"exercsed domnon over the property" & determned who woud
receve f he ddnt.
o BL: can0t a$oi( f#(#a" ta%#s
M#(icai( #"i-i'i"it& (p.156)
R!"#: can dscam but shoud notfy govt of nhertance even f
you dont dscam. Medcad coud ask for rembursement & t
coud dsquafy you.
o (p.154, N2)- O has 2 chdrenA & B. B des, eavng one chd, C. O
des ntestate. A has 4 chdren & dscams. Resut?
C takes and As kds take 1/8
th
each.
3PCFAL R!"#: the dscamed nterest passes to descendants of
dscamant
ADVANCEMENTS (p.133)
o CL: defaut s gfts are advancements. C,i"( ,as '!(#n to *o$#
it0s a -ift to '&*ass !"#. Presumpton decedent woud want kds to
nhert equay.
coege tuton doesnt quafy.
What happens f gft s treated as an advancement? Hotc,*ot
accountng (p.134)
If Chd 1 of 3 receves $10k nter vvos & estate s worth $50k,
add to make $60k. Chd 1 takes $10k & other 2 kds take $20k
each.
If Chd 1 gets $40k nter vvos he doesnt partcpate & other 2
spt $50k.
o 3PC 6 AL: defaut s gfts are NOT an advancement. Grantor must
sgn a contemporaneous wrtng (or grantee acknowedges) statng ts
ntended to be an advancement. Not#: wrtng voates w formates.
DISINHERITANCE
o CL: coudnt dsnhert uness you totay get rd of property va w
11
o 3PC: authorzes negatve w; treats reatve whod normay take va
ntestacy as *#(#c#asin- t,# T
POSTH3MO3SLY CONCEIVED CHILD (artca nsemnaton)
o KHABBAE (handout)2 AL woud probaby go ths way
R!"#: posthumousy conceved chd w NOT nhert.
NH int#stac& stat!t#: to "ssue" of the decedent equay; ater
mentons "survvng ssue"
/,&. egsatures |ob & woud sow the admnstraton of estates
AL: 6 month tme mt to e probate cam, so probaby decdes
ths ssue
o /OOD/ARD (p.118)- apped for SS survvors benets
R!"#: A posthumousy conceved chd w be consdered ssue f
theres a
genetc reatonshp between the chd & decedent;
proof decedent consented to the concepton of the chd; AND
consented to support of any resutng chd.
/,&. baance state nterests of (1) best nterests of chd; (2)
ordery admnstraton of estate; (3) reproductve rghts of parent
o 3PC (p.125): Posthumousy conceved chd nherts from deceased
parent f <8= durng fe parent consented to posthumous concepton n
wrtng OR proven by C&C AND <C= chd n utero not ater
than 36 months OR s born not ater than 45 months after parents
death.
o REST4: chd must be born w/n reasonabe tme after decedents death
& crcumstances ndcate decedent woudve approvedcear case f
chd born from decedents frozen sperm.
MINORS RECEIVING PROPERTY (greatest east court supervson
requred)
o G3ARDIANSHIP (p.137)
R!"#: guardan doesnt have tte to property & requres contnua
court supervson. Termnates at 18.
o CONVERSVATOR
ony requres once a year court approva
o C3STODIANSHIP
ony have to go to court when theres a compant.
o TR3STEE
provdes maxmum exbty.
Book suggests ts for arge estates; Vars says most use ths now b/c
t doesnt have to be compcated.
SLAYER STAT3TES
o MAHONEY (p. 145)2 ntestacy; no sayer statute n ths |x
12
R!"#: Lega tte passes to sayer but equty hods sayer to be a
constructve trustee for hers or next of kn of the decedent. On"&
a**"i#s if int#ntiona" )!(#.
H#"(: b/c crmna court ddnt determne whether mansaughter
was vountary or nvountary, remanded
Cf. AL: has sayer statute so probate court coud hear the matter
In |x w/ no sayer statutes, 3 dherent approaches:
"#-a" tit"# *ass#s to sayer n spte of crme
"#-a" tit"# (o#sn0t *ass to sayer b/c equtabe prncpe that
no one shoud be permtted to prot by hs own fraud or take
advantage/prot as a resut of hs own crme.
ega tte passes to sayer but equty hods hm to be a
const!cti$# t!st## for the hers/next of kn of the decedent
|court adopts|
o S"a&# !"# (o#s NOT a**"& +,#n
unntentona murder
Insane (cant form ntent)
If sayer had vested nterest before kng occurs
o Rationa"#s:
Decedents ntent (see Wsconsn)
Deterrng Murder
Mora |udgment
o Ot,# cont#%ts +,## s"a&# !"# a**"i#s:
/i""s
E%c#*tion in /isconsin: uphods provsons n ws aowng
person to take even f they ked the testator
Assist#( s!ici(#s: OR s the ony state to authorze physcan
asssted sucde
Non*o'at# tansf#s (fe nsurance, |ont tenancy)
o Is convcton for ntentona murder concusve?
Ma,on#& convcton snt concusve (ms-2 types); court retred to
see f ntent
AL 6 3PC: yes, but convcton not requred
o AcB!itta" NOT (#cisi$#: b/c burden of proof s hgher n crmna
cases, cv court w determne by a preponderance f murder was
ntentona.
/,o ta5#s if s"a&# (o#sn0t. generay, treat sayer as
predeceasng4
/ILL CONTESTS
P#son ,as stan(in- if t,#&0"" ta5# in t,# a's#nc# of t,#
cont#st#( (oc!)#nt
13
o Cf. Contngent benecary of revocabe nter vvos trust when settor
has capacty, cant sue b/c no dutes to benecares; ony duty to
settor. Can sue f settor acks capacty
SoL fo +i"" cont#st is J )ont,s.
POSSIBLE CHALLENGES:
o Lack of menta capacty
o Undue nuence
o Insane deuson
o Fraud
o Duress
o Faure of Formates
o Tortous Interference wth
Expectancy
TESTAMENTARY CAPACITYneeded for ALL ACTS (revocaton,
amendments, etc.)
To be competent to make a w, at the tme of executon/revocaton the
testator must be 18 &
84 ca*a'"# of 5no+in-K & understandng n a genera way:
C4 the nature & extent of hs property
34 the natura ob|ects of hs bounty (named or potenta benecares)
L4 the dsposton he s makng of that property &
M4 reatng these eements to one another & formng an o(#"& (#si#
regardng the dsposton of the property
*actua knowedge not requred
/HO HAS B3RDEN OF ESTABLISHING CAPACITY.
Ma1oit& (AL): once proponent ohers PFC w duy executed (amdavt
sgned by wtnesses), rebuttabe presumpton the testator had capacty &
burden s on cont#stant to prove a ack thereof (C6C or
*#*on(#anc#). /i"son4
Minoit&: Contestant must show evdence to rebut presumpton of santy,
then burden of proof shfts to the *o*on#nt of the w to prove capacty
by a preponderance. /as,'!n
Pof4 R#s*onsi'i"it&: attorney cant draft w for ncompetent person
but can rey on hs own |udgment n determnng the cents capacty
/ASHB3RN - foows mnorty burden rue (on proponent)
H#"(: testator acked capacty so w nvad.
o agreed testatrx had Azhemers 1 year after executng w & ts
progressve
o anecdota evdence- testators ntent uncear & uctuated
o dherence n ora statements & w provsons
o 2 ws w/n 3 weeks w/ very dherent dspostons
/ILSON- ma|orty burden rue (on contestant)
H#"(: Testator had capacty to make w
R!"#: Eccentrcty or strange beefs dont mean that a person s ncapabe
of makng a w, provded the person can form a ratona desre regardng
the dsposton of hs property.
14
o Dementa & conservatorshps dont automatcay mean you ack
testamentary capacty
o Pp cvy commtted w/ menta ness have capacty unt proven
otherwse?
INSANE DEL3SION
fase beef that testator adheres to aganst a evdence & reason to the
contrary
o must ahect the dsposton Breeden
o Provson specc; strke provson resutng from ID (cf. capacty-entre
w fas)
o Burden s on contestng party
STRITTMATER (p.169)- neurotc femnsm (frnge beef at the tme1947)
H#"(: Struck w. Decedents paranoac condton, especay her nsane
deusons about maes, ed her to eave estate to NWP.
/,at constit!t#s an ID can c,an-# o$# ti)#
BREEDEN (p.171)
Facts: coke head eft everythng to hs drug deaer; former w had eft
some $ to famy not frends. Famy camed ID & ncapacty. Turned out
frend was FBI nformant.
H#"(: Suhered from an nsane deuson but t ddnt materay ahect the
w. Hs nsane deusons werent reated to the benecares.
o had testamentary capacty b/c appeared to have motor functons.
HONIGMAN (p.178)
Facts: T thought wfe cheatng on hm & eft her statutory mnmum to
defeat forced share.
H#"(: T suhered from nsane deuson (ong, happy marrage). Assumed
causaton by puttng burden on proponent to show an unnatura
dsposton wasnt a product of I-D.
Pat& ass#tin- t#stato s!N##( fo) an insan# (#"!sion ,as
'!(#n 6 )!st s,o+:
T#stato s!N##( fo) an insan# (#"!sion
o Ma1oit&: deuson s nsane even if theres some factua bass for t f
a ratona person n testators stuaton coudnt have drawn the
concuson reached by the testator
o Minoit&: f any factua bass for testators deuson, not nsane.
AL: not nsane deuson f some bass (T shoud be aowed to make
bad decsons)
Insan# (#"!sion ca!s#( +i"" *o$isions
o Ma1oit&: But for the nsane deuson, the testator woudnt have
dsposed of hs property as he dd |more protectve of testators
ntent|
15
An nsane deuson nvadates a w ony f the deuson materay
ahected the dsposton of the w. B##(#n
o Minoit&: nvad f dspostve provsons mght have been caused or
ahected by the testators nsane deuson |ow|. Honi-)an
3ND3E INFL3ENCE
E%ists +,#n#$# T0s int#nt is o$#co)#O s!'stit!t#( int#nt4
<8= drect evdence (show Ts w was overcome; rare) or <C= burden-
shftng approach
ALABAMA2 presumpton of U.I. arses
when cont#stant
84 theres a condenta reatonshp
b/t favored benecary & testator;
C4 nuence of the benecary s
domnant & controng n that
reatonshp; &
34 theres undue actvty by the
benecary n procurng the
executon of the w
o A substanta gft by w to a
person who s one of the
wtnesses to the executon of
the w woud tsef be a
s!s*icio!s cic!)stanc#, and
the gft coud be chaenged on
grounds of undue nuence
LAKATOSH B3RDEN SHIFTING
APPROACH:
Proponent proves formates of
executon have been foowed
Cont#stant camng U.I. must
show by C&C to shft burden:
84 condenta reatonshp b/t
nuencer & testator
C4 person en|oyng such
reatonshp receved the buk of
the estate; AND
34 testator was of weakened
nteect
If successfu, '!(#n s,ifts to
*o*on#nt to dsprove UI by C6C
o Grantee of transacton must
show by C&C that he acted n
good fath throughout the
transacton & the grantor
acted freey, ntegenty, &
vountary
R#st.: requres con>(#ntia" #"ations,i* + s!s*icio!s cic!)stanc#s to
shft burden (p.185)
o Extent donor weakened/susceptbe to UI
o Extent to whch aeged wrongdoer partcpated
o Whether donor receved ndependent advce from atty/dsnterested party
o Whether nstrument prepared secrety or qucky
o Whether donors atttude changed toward others b/c reatonshp w/
wrongdoer
o Whether dscrepancy b/t prevous nstruments
o Whether contnuty of purpose w/ former ws setted ntent
o Whether dsposton s such that a RP woud regard t
unnatura/un|ust/unfar
LAKATOSH
H#"(: Roger used PoA for hs own benet; faed to rebut presumpton of
UI.
16
Facts: T befrended by Roger, younger man. He convnced her to gve
hm PoA. He spent $128k of her money on hmsef. She revoked PoA but
ddnt change w.
/,#n is a con>(#ntia" #"ations,i* #sta'"is,#(.
Fi(!cia&: arses from a setted category. Usuay b/t donor & hred
professona (attorney, trustee, etc.)
R#"iant: must estabsh a reatonshp based on speca trust &condence
(nanca advsor/customer or doctor/patent)
Do)inant2S!'s#$i#nt: donor subservent to aeged wrongdoers
nuence. Ex. hred caregver/ donor or adut chd/ patent
GIFTS TO ATTORNEYS
Vas: draftng atty who s benecary shoud aways shft burden b/c atty
s n best poston to create evdence on ssue of UI
Ma1oit&: presumpton of UI when draftng atty receves a s!'stantia"
gft unless atty s reated or marred to the cent
o Most |x requre C&C that gft was truy testators ntent
Minoit&: gfts to draftng attorneys create an i#'!tta'"#
*#s!)*tion of UI. E%c#*tions:
o attorney reated or marred to testator Li**# OR
o w revewed by an ndependent atty who advsed testator about
potenta for UI to make sure gft was free & vountary act of testator.
Mos#s 4
LIPPER- dsnherted grandkds; draftng atty & son takes under w;
NON2B3RDEN SHIFTING APPROACH
Facts: T dsnherted grandkds; son drafted w & s benecary of buk of
estate.
H#"(: Contestants showed a (1) condenta reatonshp; (2) opportunty;
(3) motve; BUT faed to show (4) causaton
R!"#: To nvadate w based on UI, must show contro was exercsed
over Ts mnd to overcome her free agency/w & substtute the w of
another to cause the T to do what she woudnt otherwse have done but
for such contro
/,&. had #cita" expanng dsnhertance. Court doesnt care what Ts
reasons are so ong as ther her own. Probems w/ rectas:
o n same document theyre tryng to support
o testamentary be possbe
MOSES - non-draftng attorney/over creates presumpton of U.I.
Facts: oder woman eft buk of estate to her attorney/over who dd NOT
draft w
H#"(: w nvad b/c T ddnt get ndependent advce about eavng
property to nonreatves
S,ift#( '!(#n so"#"& 'Fc !n!s!a" #"ations,i*4
17
ETHICAL CONSIDERATIONS (p.201)
Attorney sha not prepare nstrument gvng atty or hs reatve any
s!'stantia" gft from a cent except where cent s reated to donee.
Before cent makes gft to atty, get detached advce from ndependent
atty
Disci*"in#? dsbarment, suspenson, or sanctons
o Vas-even as reatve, better oh gettng ndependent counse. If w
gves equa shares to everyone (ncudng you) probaby ok.
o Boo5# (p.201)- found no UI but suspended nonreatve draftng atty
b/c ddnt get ndependent advce for cent. Vas-wrong resut; dont
sancton f no mproprety
NO CONTEST CLA3SES
If benecary under the nstrument sues contestng the nstrument,
benecary oses whatever he s takng under the nstrument
G#n#a" R!"#: vad but narrowy construed & not enforceabe n certan
stuatons. Acton to construe w generay not a w contest.
A# no cont#st c"a!s#s #nfoc#a'"#?
o Ma1oit&F3PC: enforce uness probabe cause to support the w
contest
o Minoit&: unenforceabe regardess of evdence supportng the cam f
cam s forgery, revocaton, or msconduct by one actve n
procurement/executon of w.
Li**# Probem: you have to be a benecary under the w for the no-
contest cause to be n ehect (she eft contestants nothng but ncuded
cause)
FRA3D (see pg. 208)
Testator s deceved by )is#*#s#ntation whch was made wth:
84 int#nt to (#c#i$# the testator AND
o AL Fa!(!"#nt
known to be fase OR
duty n aw of the decarant to know & te the truth as when the
duty arses by reason of condenta reatons (const!cti$#
fa!()
C4 *!*os# of inP!#ncin- t#sta)#nta& dsposton
o msrepresentaton doesnt requre actua words be spoken
34 ca!sation
B!(#n: typcay on contestant; burden shftng extremey rare
AL (Ma|.): In a fraud cause, no presumpton arses from the fact that a
condenta reatonshp exsts & the burden s on the P to pead & prove
the fraud.
o Cf. n other states, presumpton of fraud arses w/ condenta
reatonshp
18
FRA3D IN THE IND3CEMENT (p.208)- msrepresentaton causes the T to
execute or revoke a w, to refran from executng/revokng a w, or to
ncude partcuar provsons n the wrongdoers favor.
o Ex. H persuades O not to execute a devse n favor of A by promsng O
that H w convey property to A. At the tme, H has no ntent to convey
property to A.
FRA3D IN THE EHEC3TION (p.208)- occurs when a person ntentonay
msrepresents the character or contents of the nstrument sgned by the T
whch doesnt carry out Ts ntent.
o Ex. O w/ poor eyesght asks H to brng her w. H brngs a document
that s NOT Os w & knowng t wasnt & O sgns t beevng t s hs
w.
Estat# of Cason (p.208)
Facts: marred 1 year but hubby aready marred so not egay. Left
estate to her husband
Fa!(.
o "#n-t, of )aia-#
o ti)in- of +i"" #%#c!tion
mmedatey after marrageprobaby based on ega reatonshp
P3CKET (p.209)- fraud & UI
Facts: nurses hred to take care of T convnced her reatves were wastng
$, etc. W favored nurses. T had Azhemers.
H#"(: P#s!)*tion of Fa!( 6 3I:
o condenta reatonshp (nurse/patent & PoA) +
o encouragng decedents fase beef (famy was gong to put n home;
spendng $)
N!s#s (i(n0t #'!t *#s!)*tionO famy won & w nvadated
RELATIONSHIP BFT FRA3D 6 3ND3E INFL3ENCE.
Fa!( can s!**ot 3I '!t t,#&0# not a s!'s#t of #ac, ot,#
D3RESS
Duress f wrongdoer threatened to perform or performed a wrongfu act
that coerced the donor nto makng a donatve transfer that the donor
woudnt otherwse have made
speces of UI; Duress s UI usng a partcuar method (threat or act of
wrongfu conduct)
LATHAM- Restatement foows
Facts: W probated & dstrbuted. Ps aeged T wanted to execute new
w but D prevented ts executon/revocaton new w & murdered her &
sought constructve trust
R!"#: Remedy of constructve trust s avaabe where fraud prevents
testator from revokng an od w & the w has aready been probated
19
TORTIO3S INTERFERENCE /ITH AN EHPECTANCY
Li)it: theory cannot be used when chaenge based on testators menta
ncapacty
coud provde *!niti$# damages
NOT a w contest so doesnt trgger no-contest cause
SoL doesnt begn to run unt party dscovers/shoudve dscovered the
msconduct so "escape route" f probate has been cosed
SCHILLING (p.215)
Facts: caretaker (D) wated unt w probated unt she tod brother hs
sster ded
To 'in- ci$i" action fo TI; P )!st s,o+:
o exstence of an expectancy
o ntentona nterference w/ that expectancy through tortous conduct
o causaton
o damages
can0t '# *!s!#( if a(#B!at# #"i#f a$ai"a'"# in *o'at#4
E%c#*tion: f Ds fraud snt dscovered unt after probate b/c of
tortfeasor
BATCHELOR (handout)- TI not #co-niQ#( in AL; ths s dssent
Facts: Ts 2
nd
husband angry at atty for brngng w to hospta for
executon; ded ntestate
Diss#nt: shoud re-thnk TI b/c ths case (1) brought w/n 15 months; (2)
atty & accountant can testfy; (3) ony mpcates w formates-ts
wrtten but not executed |no SoF concern|
In ths case, decedents ntent woud be advanced by aowng TI cam
Not#: atty abe for mapractce here for faure to get sgnature
EHEC3TION OF /ILLS
F3NCTIONS OF /ILL FORMALITIES
Do they efectuate Ts intent at an acceptable administrative cost?
E$i(#ntia&
o Increases reabty & unformty when presented to court
Rit!a"
o Convnces court transferor deberatey ntended to ehectuate a
transfer
Pot#cti$#
C,ann#"in-
o Courts know whether ts a w or not
Hi#ac,& of /i""s Fo)a"iti#s P#f##nc#: wrtng; sgnature;
attestaton
3PC (p.228)
84 wrtng;
20
C4 sgned by testator OR n Ts name by another n Ts conscous presence
AND by Ts drecton; AND
34 sgned by 2 ndvduas who sgned w/n a reasonabe tme after ndvdua
wtnessed either
a= one of 3 choces; OR
the sgnng of the w OR
Ts acknowedgment of sgnature OR
Ts acknowedgment of w; OR
'= acknowedgment by T before nota& or other authorzed ndvdua
by aw
AL REA3IREMENTS
84 Wrtng
C4 Sgnature (aows proxy by Ts drecton & n hs presence)
34 Attestaton by 2 wtnesses who each wtnessed T ether (1) sgn OR (2)
acknowedge hs sgnature or the w. (AL mpcty aows deayed
attestaton)
o Cf. a($anc# (i#cti$#- must be sgned n the presence of 2+
wtnesses
OR vad where executed or where T domced, had abode, or was a natona
at ether death or executon.
MEANING OF RPRESENCES IN /ILL EHEC3TION (p.233)
Lin# of Si-,t T#st: satsed f the T s capabe of seeng the wtnesses
act of sgnng.
o T doesnt have to actuay see wtnesses sgn but must be abe to f he
were to ook (swve char)
Excepton: bnd person test asks f he was abe to see, woud he be
abe to?
Conscio!s P#s#nc# T#st: wtness n presence of T f T through sght,
hearng, or genera conscousness of events, comprehends that the
wtness s n the act of sgnng.
o N(c) p.234- Bank teer sgnedT was n drve-thru & coud see teer
but coudnt see pen & paper. Court dened vad wtness sgnature b/c
not n conscous presence
STEVENS- when s wtness n presence of T?
Facts: wtnesses ddnt sgn n presence of T & T ddnt sgn n wtnesses
presence. T dsabed & went to bank to have w sgned. Argued for
s!'stantia" co)*"ianc#.
H#"(: w nvad b/c none of the partes sgned n front of each other
R!"#: : A decedents sgnature must be n the presence of 2 competent
wtnesses, both of whom acknowedge the decedents sgnature n the
presence of each other.
21
o /a(# #%c#*tion: If wtness acknowedges hs sgnature on a w n
physca presence of second wtness & T, w propery wtnessed
o Woudve faed n AL too
MEANING OF RSIGNAT3RES IN /ILL EHEC3TION (p.234)
Sgn n any way you ntend to sgn (X); another person can sgn for you
o Computer sgnature n cursve font s vad; what about e-ma
sgnature?
G#n#a" R!"#: T must sgn/acknowedge BEFORE wtnesses sgn uness
a part of a snge transacton
GROFFMAN (p.228)- no doubt Ts ntent reected n w; but struck t
Facts: T ddnt make/acknowedge sgnature n presence of 2 wtnesses
at sa)# ti)#. Each wtness separatey sgned the w n a dherent
room.
R!"#: T must ether <8= acknowedge pror sgnature OR <C= sgn w
'#fo# 'ot, +itn#ss#s at t,# sa)# ti)#
o Resut dherent n AL b/c both wtnesses saw T sgn or acknowedge &
no requrement that wtnesses have to be smutaneousy together n
AL or UPC
MOREA(p.239)2 - nterested wtnesses
Facts: needed 3 dsnterested wtnesses but 2 took under w - son &
frend. Ct. sad son ddnt "benet" from w b/c w not advantageous
snce he stood to take more va ntestacy
H#"(: w uphed
R!"#: Requrement that a wtness have nothng to gan by admsson of
the w to probate s met f the wtness receves ess from the w than he
woud receve f the w werent admtted to probate
o Cf. 3PC 6 AL: no requrement wtness be dsnterested BUT nterested
wtness who gets substanta devse s a suspcous crcumstances for
UI purposes
o CA: f nterested wtness takes under w, rebuttabe presumpton of
UI, fraud, or duress arses
P!-in- stat!t#s:
o CL: voded any gft to nterested wtness but w was vad
o To(a&: wtness forfets ony the extra benet ahorded to the wtness
by the w (.e. cant take more than he woud va ntestacy)
TAKEA/AY: never et an nterested wtness sgn
:ACK $4 DORAN
Suggested substanta compance w/ emancpaton but not for ws act
Needed 3 wtnesses but ony had 2. Court took strct approach.
C3RATIVE DOCTRINES
S/ITCHED /ILLSsgnature probem
22
PAVLINKO0S ESTATE
Facts: spouses accdentay sgned the others w. Both dead & wfes
brother tred to submt Heens w sgned by Vas (no reformaton);
Vass w sgned by Heen acks hs sgnature.
H#"(: w nvad b/c Heens w cant be probated as w of Vas & s a
nuty
R!"#: A w must be sgned by the testator
SNIDE(p.250)
Facts: Harvey & Rose executed substantay dentca ws; accdentay
sgned the others. Rose pettoned to reform Harveys w & admt t to
probate (ohered one he sgned). Resduary cause the same.
R!"#: a w be admtted to probate athough the decedent mstakeny
executed a w ntended for hs spouses sgnature & vce versa
Possi'"# Fi%#s:
Wave sgnature requrement & admt w spouse int#n(#( to si-n
|ceaner remedy|
Admt & reform w act!a""& si-n#( by the decedent |Snde adopts &
Pavnko dssent|
S!--#st#( R!"#: +,## C Ts at 8 c##)on& si-n #ac, ot,#0s +i""s
'& )ista5# *o'at# +i""
NOTE: s ookng at 4 corners of 2 ws consstent w/ no extrnsc
evdence rue?
S3BSTANTIAL COMPLIANCE 6 SELF2PROVED /ILLS ? See aso Stevens
A w may be admtted to probate f proponent shows by C6C t
substantay compes w/ the stat!to& #B!i#)#nts.
o Does the technca noncompance mpcate any of w formates
ratonaes? If so, probaby not substanta compance.
RANNEY- wtnesses sgned 2-step sef-provng amdavt & not w
Facts: ony Russe sgned hs actua w. Wtnesses sgned sef-provng
amdavt on separate page. W notarzed & a pages staped together
H#"(: admtted w b/c substantay comped w/ formates.
/,&. Rgd nsstence on tera compance often frustrates these
purposes (overstate) BUT fundamenta goa of w formates s to
advance Ts ntent
Ho+ co!"( t,is ,a$# '##n a$oi(#(. use attestaton cause OR use 1-
step sef provng
SELF2PROVED AFFIDAVITS
C2STEP: appends a separate amdavt to end of w; wtnesses
(sometmes T) sgn the amdavt n addton to sgnng the w tsef then
amdavt notaiQ#(
82STEP: testator & attestng wtnesses sgn once w/ the amdavt
anguage foded nto the attestaton cause then w s notaiQ#(.
23
o amdavt provdes sworn evdence of due executon (no wtnesses
requred at probate)
B#n#>t: no one can ever chaenge executon
AL aows for both types.
The sgnature s rrebutabe. Other requrements are presumed but
rebuttabe.
A($anta-#s of S#"f2Po$#( /i""
o Sgnature requrement s concusvey presumed
o other requrements of executon are presumed but rebuttabe
o w probated w/out further proof uness theres fraud or forgery
DiN##nc# in Att#station C"a!s# $4 S#"f2Po$in-
o Att#station: prma face evdence T vountary sgned the w n
wtnesses presence
o S#"f2Po$in-: attestaton functons + permts probate w/out requrng
wtnesses appearance
DISPENSING PO/ER <a5a ,a)"#ss #o=
Not a**"ica'"# if no +itin- (estabshes permanence)
Si-nat!# is a")ost n#$# #%c!s#( (naty)
F#B!#nt"& !s#( to fo-i$# +itn#ss #oO usuay adopted by statute
b/c courts see as |udca expanson
Do#sn0t #B!i# T to 5no+ t,# (#>nition of a +i""
o Not#: Adoptng dspensng power s amost equvaent to permttng
hoographc ws.
3PC 7 C2M93@Ha)"#ss Eo
If the *o*on#nt estabshes by C6C that (#c#(#nt int#n(#( (oc!)#nt
to consttute () hs +i"", () parta/compete #$ocation of the w, ()
addton to or an a"t#nation of the w, or (v) parta/compete #$i$a" of
formery revoked w or of a formery revoked porton of the w.
HALL- w uphed; harmess error
Facts: |m & Betty sgned |ont draft w & t was notarzed but NO
WITNESSES
R!"#: Athough a w generay requres 2 attestng wtnesses, a
document may be vadated f *o*on#nt shows w/ C6C evdence that
(#c#(#nt int#n(#( the document to be hs +i""
R3CKER- dssentng AL opnon; AL has NOT adopted dspensng power
Ma1oit&: document s a w & doesnt compy. 1 notary but ddnt have
2 wtnesses
Diss#nt: document can be construed as a deed & compes w/ deed
requrements.
o notary serves same functon as havng 2 wtnesses
o ctes UPC & says AL shoud adopt dspensng power
24
What about substanta compance? See |ack v. Doran (mssng 1 wtness
not ok)
AL ,as NO s!'stantia" co)*"ianc# o (is*#nsin- *o+#
NOTARIEED /ILLS
What f a notary but not wtnesses? Probated under dspensng power.
UPC 2-502(a)(3): sgnature by 2 wtnesses OR a notary
HOLOGRAPHIC /ILLS
AL- not aowed uness vad n another state where executed
R!"#: must be wrtten by the Ts hand (,an(+itt#n) & si-n#( by the T
+ int#nt
o Some |x requre a date
o Si-nat!#: can be sgned anywhere, but f not at end, may doubt
whether T ntended name to be a sgnature. Need assurance
dsposton s na (.e. sgnature at the top w/ resduary cause at
bottom probaby ok).
o E%t#nt of Han(+itin- R#B!i#(:
Ma1oit&: entrey wrtten, sgned, & dated |very strct|
0JI 3PC: "sgnature & matera provsons"
Sti5#s *int#( *otions 6 on"& -i$#s #N#ct to
,an(+itt#n t#%t
Most (is*ositi$# "an-!a-# n##(s to '# ,an(+itt#n
0I9 3PC: "sgnature & matera portons" are n Ts handwrtng.
|Preprnted anguage "gve/devse/bequeath" shoudnt dsquafy
nstrument as hoographc w|
a""o+s #%tinsic #$i(#nc# to #sta'"is, T int#nt <inc"4
*#*int#( t#%t=
"#ss ,an(+itin- #B!i#(
KIMMEL0S ESTATE
Facts: etter stated "f enny thng happens.property goes to..keep ths
etter & ock t up"
H#"(: etter s vad hoographc w
o etter s t#sta)#nta& n character
o The si-nat!#, "Father" sumcent compance w/ Ws Act
o Puttng t n ma suggests naty
CONDITIONAL /ILLS (p.272)- Vars: professonas never use condtona
ws
Ma1oit&: condton s a statement of the nducement for the executon of
the w, whch can be probated upon death from any cause.
o Vas: vad uness condton ceary reated to benecary (.e. f I de n
maara, I want a my $ to go to the Maara research fund)
Minoit&: Condton must be fued for w to be probated
25
o "f partcuar contngency stated n a paper, as condton upon whch t
sha become ehectve, has never occurred, t wont be admtted.
Ki))#"
ESTATE OF GONEALEE- how much must be handwritten? preprnted form
Facts: Decedent made own w by ng n banks on a preprnted form n
hs own handwrtng. SIL saw hm sgn the ed-n form, but no one
wtnessed t |cf swtched ws|. Wtnesses sgned 2
nd
form whch he
ntended to out before he ded.
Iss!#: Can the w form ed n by Gonzaez be admtted to probate?
Ho"(in-: Yes. "Ts handwrtten words may be read n the cont#%t of the
preprnted words." Evdence of testamentary ntent appears n preprnted
porton of the w form. Preprnted words were ntroductory statements .
R!"#: Preprnted anguage n bank w forms may be used to estabsh
the context of handwrtten ws.
ESTATE OF K3RALT
Facts: T dyng n hospta sends etter to hs over. "I have the awyer
vst..to be sure you nhert MT property.if t comes to that."
R!"#: When a document evnces a present testamentary ntent, the court
w honor the Ts ntent.
o Intent that document consttutes the Ts w can be estabshed by
extrnsc evdence
H#"(: 97 etter to Shannon (D) demonstrate a present testamentary
ntent to modfy the terms of the vad forma 94 w. Court admtted
etter as vad codc
REVOCATION OF /ILLS
Can revoke by <8= inst!)#nt or by <C= act
o No ora revocaton
o Codc ony revokes to the extent ts nconsstent wth the orgna
document
AL #$ocation #B!i#)#nts:
o subsequent w (expressy or by nconsstency) OR
o burnng/tearng, canceng, obteratng, or destroyng +F int#nt to
#$o5# by T or another person n her presence & by Ts consent &
drecton.
If act by another person, need at east 2 wtnesses.
3PC R#$ocation AL R#$ocation
Aows parta revocaton by
act
Doesnt aow parta revocaton by
act
o cant cross out 1 gft
o f use whteout & no testmony
as to who takes ntestacy
States that act need not No statement on touchng words
26
touch words (BUT foows UPC)
No wtness requred Act by another needs wtnesses
Nether requre revocaton by act to touch words of the w
S#B!#ntia" /i""s (p.287)
2003 a to A; 2008rng to B & car to C
o 08 construed as codc
2009destroys 08 codc.
o Go back to orgna w. Codc supersedes ony to extent ts
nconsstent.
2009destroys 2003 w. Was codc meant to stand aone?
o G#n#a" !"#: (#sto&in- +i"" (#sto&s a"" co(ici"s too
int#stac&
A +i"" )a& '# #$o5#( '&:
ACTO
o PHYSICAL DESTR3CTION
CLFMa1: destructve act must ahect some part of wrtten porton of
the w
Mo(#nF3PC: destructve act must ahect some part of w
o /RITING AS REVOCATION BY ACT
CL: wrtng ddnt quafy as revocaton by act b/c ddnt touch any
of the wrtten portons of the w as requred by CL THOMPSON
3PCFAL: canceaton not requred to touch any of the words on the
w but must be on the actua w somewhere. Ma%+#""-AL
/RITINGO
o E%*#ss
o Inconsist#nc&: subsequent w dsposes of decedents property n
nconsstent way w/ pror w. Ts ater ntent contros.
PRES3MPTIONO
o HARRISON $4 BIRD2 If a w was ast n Ts possesson & cant be
found at Ts death, rebuttabe presumpton arses that T revoked the
w by act.
HARRISON $4 BIRD(p.287)- dupcate w probem; revocaton by
presumpton
Facts: atty kept orgna & she got copy. Tod atty she wanted to revoke &
he tore t up & maed t to her but attys revocaton was nvad b/c he
ddnt do t n Ts presence. At death, found etter from atty but ddnt nd
peces of w.
H#"(: presumed T had revoked her w.
R!"#: When a persons w snt found among her ehects at death, a
presumpton of revocaton arses. Presumpton s rebuttabe by ether a
preponderance or C&C.
27
o Weak presumpton. To overcome, any evdence there wasnt ntent to
revoke s sumcent.
o Not#: must be evdence w was n Ts possesson
SPLIT RE: /HAT EFFECT DOES REVOCATION OF A D3PLICATE HAVE
ON OTHER COPIES.
Revocaton by act/wrtng revokes a dupcate orgnas
Revocaton by presumpton does NOT revoke a dupcate orgnas uness
none are found
Revocaton by presumpton DOES revoke a dupcate orgnas, even f
some arent n her possesson. Haison
THOMPSON
Facts: Ts atty wrote "vod" on back of w & codc & T sgned.
R!"#: wrtng words of canceaton on the back of a w nsumcent to
revoke w; words of canceaton must actuay touch words of the w.
o 3PC/AL: no requrement words of canceaton touch words of the w
Ma%+#"" (AL) (N2, p.293)- Ts atty wrote canceed on top margn of
the w & T sgned. H#"(: vad revocaton; other courts uphed ths
as vad hoographc revocaton.
o Cant be hoographc w revocaton b/c not n Ts handwrtng
o Cant be revocaton by wrtng b/c no w formates
o Dis*#nsin- *o+# a**"i#s to #$ocationf C&C document
ntended to be revoked the attempted revocaton woud be
ehectve(p.293)
DEPENDENT RELATIVE REVOCATION
Revocaton based on mstake s nehectve f T ntends.
As5: Woud the T have revoked the w f he had known the
truth/subsequent event?
DRR on"& a**"i#s if:
o Aternatve pan of dsposton that fas (.e. another w) OR
o Where mstake appears n the terms of the revokng nstrument OR
o mstake s estabshed by C&C
P4 CIG; NC
T gves $1k to nephew. T crosses out & substtutes $1500, wrtes ntas
& date.
o f hoographc ws aowed -Probaby woud fa. depends on how much
|x requres to be handwrtten (most requre enough to dscern
testamentary ntent).
o AL- hed get $1000 attempted parta canceaton not aowed. Snce
we can see what orgna w was, court w honor t
o |x aows parta revocaton by physca act- $1k canceed; handwrtng
snt sumcent w/codc b/c not wtnessed. UPC-consders context of
wrtng so may be vad hoographc. Hed get $1k under DRR b/c
canceaton premsed on mstake $1500 woud be ehectve.
28
o what f T crossed out & put $500 nstead? Most courts woud gve $1k.
LACROIH $4 SENECAL- mstake= nterested wtness sgned codc
Facts: W (named P as soe her & resdue to nephew, to Seneca).
Codc (revoked resduary cause & cared nephews name but same
dsposton). Senecas husband was wtness to codc
H#"(: athough codc nvad, -a$# #N#ct to oi-ina" +i"". Act of
revokng 1
st
w was due to mstake so revocaton nvad.
o 3PC 6 AL: no requrement wtness be dsnterested, BUT coud create
suspcous crcumstance f they take a substanta porton
/,&? when new w fas, presume T woud prefer orgna w over
ntestacy
ESTATE OF ALB3RN- DRR appes to revvas of ws too; adopts mnorty
rue*
Facts: T revoked w #2 w/ ntent of revvng w #1, but under aw ddnt
revve w #1
H#"(: Apped DRR b/c revocaton based on mstaken assumpton w #1
woud be revved. Probated 2
nd
w b/c foow mnorty revva w.
REVIVAL (p.304)
Sc#naio: w #1; W #2 (revokes 1); then revokes #2. What happens to
#1?
o CL: 1
st
w vad b/c doesnt take ega ehect unt Ts death so 2
nd
never
truy revoked 1
st
o Ma1oit&F3PC: #1 s revved if T so int#n(s
o Minoit&*: #1 not revved uness re-executed OR repubshed by ater
nstrument
AL- combo of ma|orty & mnorty b/c t "i)its +,## &o! can
"oo5 fo #$i(#nc#. You can ook at crcumstances of revocaton of
2
nd
w OR Ts contemporaneous attested & executed wrtng that
he ntended 1
st
w to take ehect. NO ora statements. He gve
statute.
REVOCATION BASED ON CHANGES IN FAMILY CIRC3MSTANCES
AL:
o Maia-#: doesnt revoke a w; new spouse gets ntestate share
Cf. Eic5son- subsequent marrage revokes w, UNLESS w states
otherwse.
o Di$oc#: revokes any w devse n favor of the former spouse
3PC: revokes gfts to spouse & reatves thereof; appes to
nonprobate transfers
SCOPE OF A /ILL
INTEGRATION:
R!"#: pages physcay *#s#nt at ti)# of #%#c!tion that T int#n(s to
be part of w are ntegrated
29
o Not#: number & stape pages; have T nta each page (shows ntent)
o GonQa"#Q: no ntegraton b/c T ddnt ntend both w forms to be hs
w
REP3BLICATION BY CODICIL
Executng a codc "reexecutes" and "repubshes" the underyng w IF T
int#n(s
o Ony appes to pror vady executed w (must have a 3 formates
but coud repubsh a w thats nvad due to an nterested wtness or
purgng statute)
o See p.309, case 1 (purgng statute & dsnterested wtnesses ok b/c
repubshed)
:OHNSON $4 :OHNSON- ncorporaton by reference?
Facts: snge page nstrument ohered for probate - typed,
handwrtten. Typed porton ddnt compy w/ W Formates. Handwrtten
porton vad hoographc w. Handwrtten sad "ths w sha be
compete." shows ntent to ncorporate typed porton.
H#"(: Vad codc ncorporated the nvad w by reference.
R!"#: a vad hoographc codc repubshes the w no matter what
defects may have exsted n the executon of the earer document.
o Can ,o"o-a*,ic +i"" inco*oat# t&*#( inst!)#nt. Probaby no;
maybe f t was separate
INCORPORATION BY REFERENCE
A w can ncorporate by reference a document that wasnt executed w/
formates IF:
o Document n +itin-;
o int#nt in +i"" to ncorporate;
o (#sci'#s the document w/ #asona'"# c#taint& AND
o document beng ncorporated was in #%ist#nc# at tme w executed.
P must show by *#*on(#anc# that document exsted at ws
executon
changes made after w executon nvad unless repubcaton by
codc
3PC: docs made after executon ok f sgned
S## a"so acts of in(#*#n(#nt si-ni>canc# (octin#
SIMON $4 GRAYSON (p.315)- a facts as descrbed the same, except
dherent date
Facts: T eft $4k to be pad as drected by me n a etter found n my
thngs dated 3/25/32. Found etter dstrbutng the $4k but t was dated
7/3/33.
H#"(: even though date dscrepancy t was the document T ntended to
ncorporate. Vad b/c T executed codc on 11/25/33, whch repubshed
the w.
30
R!"#: must be #asona'"& c#tain the document n queston s the one
referred to by the T n the w
CLARK $4 GREENHALGE- does "memo" ncorporate notebook too?
Facts: T dsposed of persona property by a "memo" her named executor
knew about. T made notebook AND memo namng benecares.
Notebook tted "st to be gven T 79." Memo made n 72. D argued w
had ntent to ony ncorporate memo.
H#"(: w broad enough to ncorporate notebook and memo. Notebook n
exstence at tme w executed b/c T executed codcs afterwards.
NOTE: ct confused dspostve & testamentary ntent; good case for
dspensng power
ACTS OF INDEPENDENT SIGNIFICANCE (p.323)- excepton to exstence
requrement
7C2M8C: A w may dspose of property by reference to acts & events that
have si-ni>canc# a*at fo) t,#i #N#ct !*on t,# (is*ositions made
by the w, whether they occur before or after the executon of the w or
before/after the Ts death. The executon or revocaton of another
ndvduas w s such an event.
Locked v. unocked drawer? Safety depost box?
3PC 7 C2M83: S#*aat# /itin- I(#ntif&in- D#$is# of Tan-i'"#
P#sona" Po*#t& (p.316)
Does NOT appy to money; AL has not adopted
Must be +itt#n, si-n#( by the T & descrbe tems wth #asona'"#
c#taint&
CONTRACTS RELATING TO /ILLS
CONTRACTS TO MAKE A /ILL
Most have to be n wrtng (SoF); exceptonquantum merut.
Good fath = mmutabe rue of a contract
3PC 7 C2M8L: Contacts Conc#nin- S!cc#ssion
Contracts to make a w/not to revoke a w or to de ntestate may ony
be estabshed by:
o provsons of a +i"" statng matera provsons of the contract
o an #%*#ss #f##nc# n a w to a contract & extrnsc evdence
provng contracts terms
o +itin- si-n#( '& (#c#(#nt evdencng the contract
3PC 6 AL: executon of |ont or mutua ws does NOT gve rse to a
presumpton of a contract not to revoke
*43CJ:
84 "and my fathfu vaet, Sdney whom I promsed to remember n my w.
H Sdney."
o Sdney doesnt have a cam. "remember n my w" ambguous.
31
C4 T contracts w/ A to gve everythng to A n exchange for As care. A
breaches & T rescnds but doesnt change hs w. Can A take?
o Even though there was a breach, A w take everythng. Onc#
contact in +i""; a**"& t,# "a+ of +i""s <t!)* contacts=4
34 A des. B (roommate) aeges A promsed to eave B estate n exchange
for hs care. B has typed document sgned by A w/ 1 wtness devsng to
B.
o UPC 2-514 (contracts concernng successon) B takes. Consderaton =
substtute for w formates.
L4 W promses her husband, H, she care for hm n consderaton go H
devsng her Backacre.
o f ts a contract to spouse-aready have ega duty to care for spouse
so no consderaton, spouse woudnt take
CONTRACTS NOT TO REVOKE A /ILL
:oint /i"": one nstrument executed by 2 persons as the w of both
(probated when each T des). Uncommon.
M!t!a" /i"": separate ws of 2+ persons that contan smar or
recproca provsons
o Ma1: executon of |ont or mutua w does NOT gve rse to a
presumpton of a contract
B3T w/ |ont ws some courts nd an mped contract
/,at if s!$i$in- s*o!s# #)ai#s.
o Ma1: contract stands & remarred spouse cannot revoke
o Min.: contract vod on pubc pocy grounds
VIA $4 P3TNAM (p.329)- contract not to revoke breached by changes n
famy crcumstances
Facts: husband/wfe made mutua ws n favor of each other, resdue to
kds. Wfe ded; he remarres but doesnt provde for 2
nd
wfe. Wfe sought
pretermtted share but chdren cam theyre 3
rd
party benecares
H#"(: 2
nd
wfe s favored over kds b/c of pubc pocy favorng marrage &
pretermtted spouse statute |statute overrode contractua w|. Mnorty
rue*o"ic& t!)*s contact4
o Cf. Ma1: 3
rd
party benecares preva over omtted spouse (p.333,N2)
P#t#)itt#( S*o!s# a**"i#s +,#n *#son )ai#s aft# )a5in-
+i"" 6 s*o!s# s!$i$#s4 Do#s NOT a**"& +,#n:
o Waved by prenup
o Spouse provded for n w (even f ony gves $1; protect Ts ntent NOT
spouse)
o Intentonay eft spouse out
H3MPHREYS (handout)-mutua ws/kds from pror marrages. Contract not
to revoke
Facts: spouses executed contractua ws n favor to each other w/
resdue to a of ther chdren (both had kds outsde of marrage).
32
Husband ded & wfe gave about $50k of estate to ony her chdren. Wfe
made ots of gfts to her kds ony.
H#"(: wfes gfts to her kds were not n good fath & unreasonaby arge
o T#st s,o!"( '#: were gfts desgned to avod contract?
R!"#: contract to eave ones property by w gves the promsor freedom
to dspose of t nter vvos n -oo( fait,; BUT such gfts must be
#asona'"#, not testamentary n ehect, & not made for the purpose of
defeatng the contract to devse
CONTSTR3CTION OF /ILLS
GOALS: <8= Advance Ts ntent; <C= mnmze transacton costs
What extrnsc evdence can you use to show benecary s
ntended/foreseeabe?
o A"+a&s: surroundng crcumstances (w contests)
o A)'i-!it&: extrnsc evdence not contradctng w (AL-ony atent
ambgutes)
o G#n#a""& n#$#: drect decaratons of Ts ntent
MISTAKEN OR AMBIG3O3S LANG3AGE IN /ILLS (p.335)
Ta(itiona" R!"#s
o No extrnsc evdence (pan meanng rue)
o No reformaton
E%c#*t: can reform to correct tax mstakes
Pat#nt A)'i-!iti#s: appear on the face of a w
o R!"# <AL=: no extrnsc evdence aowed even f w fas & ntestacy
resuts
E%. f you dspose of your entre estate to 2 peopentestacy
Lat#nt A)'i-!iti#s: manfests tsef when the terms of the w are
apped
o R!"#: ora decaratons of ntent to the scrvener are admtted n most
|x
o C T&*#s:
EB!i$ocation: w ceary descrbes the person/thng & 2+
persons/thngs t the descrpton. Extrnsc evdence admtted.
P#sona" 3sa-# E%c#*tion: extrnsc evdence admtted to
show that T meant to refer to someone other than the person w/
the ega name n w (T used a nckname). Li)it#( to t,#
i(#nti>cation of *#o*"#4
o Mrs. Moseey exampe (p.340)
no *#son o t,in- #%act"& >ts t,# (#sci*tion; '!t CT
*#sons *atia""& (o
Ex. p. 341- T devsed to "Mr. & Mrs. Wende Rchard Hess, or
survvor, presenty resdng at 17 Barbara Crce." Then, Wende
& Genda marred; dvorced; he remarred Verna & sod house.
33
Verna argued no ambguty. Court admtted extrnsc evdence &
1
st
wfe took.
Not#: most |x dont adhere to dstnctons n types of ambgutes; AL does
MAHONEY $4 GRAINGER- pan meanng
Facts: w provded for "hers at aw" whch was Ts aunt. Atty tested T
meant for 1
st
cousns to take.
H#"(: no ambguty n w & no reformaton-aunt takes, despte Ts cear
ntent.
FLEMING $4 MORRISON (p.356)- extrnsc evdence case NOT mstake case
Facts: T tes atty to draft w n favor of P so shed seep w/ hm. Ended
up gettng a 3 wtnesses requred, but ddnt te 2
nd
two wtnesses t was
a fake
H#"(: w nvad b/c T acked ntent to make a w
ARNHEITER (p.343)- admtted extrnsc evdence but ddnt reform mstake;
msdescrpton
Facts: T sad to se "304 Harrson Ave." Ddnt & never owned that
property.
H#"(: Court cant correct mstake; however, struck number of the street
so "Harrson Ave." eft. B/c ony owned 1 property on that street
Mis(#sci*tion Doctin#: Where a descrpton of a thng/person conssts
of severa partcuars & a of them dont t any one person/thng, ess
essenta partcuars may be re|ected provded the remander of the
descrpton ceary ts.
ESTATE OF GIBBS (p.344)- mstake; admtted extrnsc
Facts: Robert "|" nstead of Robert "W." Ts ddnt know "|."
H#"(: Detas of dentcaton whch are hghy susceptbe to mstake
shoudnt be accorded such sanctty to frustrate otherwse ceary
demonstrated ntent. Where such detas of dentcaton are nvoved,
courts shoud receve evdence tendng to show that a mstake has been
made & shoud dsregard the detas when the proof estabshes to the
hghest degree of certanty that a mstake was made.
Mista5#s of O)ission (p.354)
tested omsson due to computer error & T ddnt ntend to change
benecares. H#"(: awarded nephew resdue.
Set up dentca trust for kds. No evdence of hostty towards 4
th
chd.
Changed trust.
T gves "estate n trust to A; on As death, t goes to B & C." A
predeceases T. Ct-ntent was to benet B&C n the aternatve to A so
gve t to them athough w doesnt say t.
REFORMATION TO CORRECT MISTAKES 3PC 7 C2G9M (p.351) (2008
verson ncorrect).
34
The court may reform the terms of a governng nstrument, even f
unambguous, to conform to the terms of the transferors ntenton f t s
proved by cear and convncng evdence +,at t,# tansf#o0s
int#ntion +as and that the terms of the governng nstrument were
ahected by a mstake of fact or aw, whether n expresson or nducement.
o Not#: Restatement aows reformaton to acheve a tax ob|ectve
CL: no EE to correct mstakes & no reformaton
ERICKSON V4 ERICKSON (p.345)- marrage revocaton/scrvenors error
(aka ega error)
Iss!# 8: Shoud tra court have admtted extrnsc evdence regardng Ts
ntent that hs w woudnt be revoked automatcay by hs subsequent
marrage? H#"(: No.
Iss!# C: Dd Ts w provde for the contngency of hs marrage?
o H#"(: No, B3T shoud admt evdence of a scrveners mstake.
R!"#: If a scrveners error has msed the T nto executng a w on the
beef t be vad notwthstandng the Ts subsequent marrage, extrnsc
evdence of that error s admssbe to estabsh the ntent of the T.
If scrveners error & ts ehects on the w are estabshed by C&C
evdence, sumcent to estabsh a provson has been made for
contngency.
AL: coudve come out the same way b/c no EE needed
MARTINDALE V4 BRIDGFORTH (handout)- mstake & fraud case
Facts: argued (1) haf-sster reatonshp bass for devse & snt haf-sster
|mstake| & (2) fraud n the nducement |but haf-sster ddnt know of w
so no causaton|
R!"#: A w maybe reformed for mstake n the draftsman fang to
express the rea ntent of the T. But the mere mstaken opnon of the T as
to some outsde fact whch may nduce the bequest s not a recognzed
ground of contest |dcta|.
o A mstaken noton on the part of the wfe, that her husband ntended
to convert to hs own use the property composng her separate estate,
whch nduced her to make a w excudng hm from a partcpaton n
her property, does not avod such w."
R!"#: In AL, cant reform w for a mstake. But, court w possby reform
for a scrveners error when no EE needed.
DEATH OF BENEFICIARY BEFORE DEATH OF TESTATOR
G#n#a" R!"#: anyone takng from decedent must survve the decedent
(testate or ntestate, but w may expressy opt out of survva
requrement)
CL: If benecary des before T, gft fas & passes va ntestacy
SPECIFIC OR GENERAL DEVISE
If gft fas resdue. If no resdue ntestacy.
RESID3ARY DEVISE
35
If gft of soe resduary benecary fas ntestacy
CL RNo R#si(!# of t,# R#si(!#S: If gft of 1/2 resduary benecary
fas ntestacy, NOT other taker
Mo(#n <AL=: when gft fas, remanng resduary taker(s) spt t
CLASS GIFT
If 1 member of cass des survvng cass takes.
o AL ant-apse statute appes
VOID GIFT
Gfts to a dog (negbe taker) OR someone aready dead when w
executed vod
o AL ant-apse appes to a person dead at executon
ANTI2LAPSE STAT3TES
G#n#a" R!"#: For statute to appy, must:
o Lapse (must actuay (i# or be t#at#( as *#(#c#asin- T)
Dscamer, smutaneous death, sayer statute, dsnhertance
o Predeceased benecary meets the statutory degree of #"ations,i*
to t,# T
3PCFAL must be grandparent or nea descendent of grandparent
of T.
Do#sn0t a**"& to s*o!s#s
o Predeceased benecary ,as iss!# who s!$i$# the T they take
3PCFAL: 5 day survvorshp requrement
o Unless the w expressed a contrary ntent. T woud prefer gft to go to
devsees ssue than fa. Presumpton ony rebuttabe by express
contrary ntent n the w.
/o(s of S!$i$os,i*
Ma14: overrde statutes appcaton
3PC: words of survvorshp are not, n the absence of addtona
evdence, a sumcent ndcaton of an ntent contrary to the
appcaton of ant-apse statute.
ESTATE OF R3SSELL (p.359)- vod gft to dog; no ROR
Facts: T eft vady w, whch ncuded dsposton to her dog. P a-!#s
gft to dog vod so she takes by ntestacy (no resdue of resdue rue).
H#"(: gft to dog s vod & t apses. Apped no ROR rue, P (her) takes
va ntestacy.
o Cf. coud nd ts an unambguous dsposton - 50% to Chester, 50%
to dog. No EE.
E%a)*"#s (pg. 364, N4): T devsed her entre resduary estate to son A
& to daughter B. B predeceases T, eavng a chd C. At Ts death, what
happens to Bs share?
o CL-Bs apses & goes to ntestacy. A- (1/2 + V) , C V
No ROR !"#: A woud get from w; other apses & passes by
ntestacy so s spt between A & C.
36
ROR a'o-at#(, A takes 100%.
o Antapse- A- , C-
R3OTOLO $4 TIET:EN (p.367)- does contngency precude antapses
appcaton?
Facts: w had provson statng "to Haze.f she survves me." Haze
ded 17 days before T. Haze, step-daughter, covered by ant-apse
statute.
H#"(: Words of survvorshp aone do NOT negate operaton of antapse
statute (adopted UPC approach/mnorty rue).
/,&. Antapse shoud be apped beray; ws use boerpate anguage
& no express gft-over
o B!(#n is on t,os# cont#stin- A2L a**"ication
Cas# I (p.366) - T devses Backacre "to my son Sdney f he survves
me" & resdue to hs wfe, Wma. Sdney des n hs fathers fetme,
eavng a daughter Debby. Issue: do words of survvorshp evdence an
ntenton that Debby shoudnt be substtuted for Sdney?
o Ma1oit&: express survvorshp requrement states an ntent that
antapse shoud NOT appy & that Debby NOT be substtuted for her
father
o 3PC: words of survvorshp not a sumcent expresson of contrary
ntent & antapse statute appes substtutng Debby for her father.
/,## not c"#a +,#t,# T int#n(#( c"ass -ift; "oo5 to:
D#sci*tion of B#n#>ciai#s:
o f referred to coectvey cass gft.
o If referred to by name not cass gft.
D#sci*tion of Gift:
o If gft descrbed n aggregate cass.
o If referred to n dstnct shares not cass
Co))on C,aact#istics:
o If benecares a share a common characterstc cass
Even f share a common characterstc, f others not ncuded n the
cass share the same one, no cass. See Dawson
o If no common characterstc no cass
O$#a"" t#sta)#nta& sc,#)#:
o If theres a gft to mutpe ndvduas w/ an express survvorshp
requrement, faure to ncude t n another gft to mutpe ndvduas
ndcates T ddnt ntend atter to be a cass
Counterargument: T thought t was so obvous t was a cass gft no
express survvorshp requrement needed
o Determne who takes faed gft f not a cass. Anayze s T woudnt
want that person to take property based on entre testamentary
scheme.
R#stat#)#nt foc!s#s on ,o+ t,# '#n#>ciai#s a# (#sci'#(:
37
o M!st '#:
Descrbed by group abe, and
Intended to take as a group.
Ony by a group, rebuttabe presumpton a gft s a cass gft
Ony by name, not a cass gft
Both group abe & ndvdua names rebuttabe presumpton not
a cass gft
DA/SON $4 Y3C3S (p.376)- cass gfts
/i"": Devsed nterest n farm to her nephew, Stewart & other to her
nephew Gene. Gene predeceased T. Resduary cause went to 2 frends or
the survvor of them. Antapse statute ddnt appy b/c t requred the
predeceased to be a descendant of the T.
C"ass -ift. NO4
o Descrbed two nephews by names
o Gft made n separate shares
o Other neces/nephews on hubbys sde not ncuded
o Resduary cause had express survvorshp requrement
Facts: T sad she thought the farm shoud go back to her husbands sde
of the famy
R!"#: The anguage of a devse that names 2 ndvduas does not
desgnate a cass.
H#"(: despte express ntent to gve farm to hubbys sde, not a cass gft
so Genes share apsed & fe to resduary cause.
o Not#: f t were a cass, saved gft goes to other members of the cass
CHANGES IN TESTATOR0S PROPERTY AFTER EHEC3TION OF
/ILL
ADEMPTION BY EHTINCTION
Ony appes to s*#ci>c devses. La+ fa$os -#n#a" (#$is#s.
ASK: <8= what type of devse s t? <C= f specc, s t adeemed?
o S*#ci>c: ")& car"
AL D#f4: "a bequest of a partcuar artce or specc part of the
testators estate whch s so descrbed and dstngushed from a
other artces or parts of the same as to be capabe of beng
dented
o D#)onstati$#: "$50 from my savngs account"
o G#n#a": "$50"
o R#si(!a&: whats eft over
T/O THEORIES OF ADEMPTION BY EHTINCTION
1. IDENTITY <CL=: f a speccay devsed tem snt n Ts estate as hs
death, gft s extngushed
o Mo(i>#( I(#ntit& a**oac,: exempts property that was transferred
nvountary &/or transfer made w/out Ts knowedge and consent OR
destroyed contemporaneousy w/ Ts death. Anton
38
2. INTENT <3PC=: f a speccay devsed tem snt n Ts estate as hs
death, benecary may be entted to the repacement for, or cash vaue
of, the orgna tem, IF benecary can s,o+ T int#n(#(4
o Not#: ths aways takes $ away from other benecares
3. AL: foows dentty theory uness ts a securty (ntent)
IN RE ESTATE OF ANTON (p.381)- sod dupex to pay for T adempton?
No.
Facts: T devsed of her nterest n her dupex to her deceased
husbands daughter (Gretchen) & the remanng to her boogca son.
Got n bad wreck & had to se property to pay for her care. Step-
daughter argues she cant se the dupex & wants the proceeds of the
sae.
Mo(i>#( Int#ntion a**oac,: dentty rue wont be apped to cases
where speccay devsed property s removed from the estate through an
nvountary act as to the T.
o R!"#: Must have (1) knowedge of transacton nvovng specc devse;
(2) reaze ts ehects; (3) opportunty to change w
o Not#: f tme to change w adempton; dherent resut under UPC
o Not#: f adeemed, Nancy woud take proceeds b/c she s the resduary
benecary
H#"(: The sae of dupex by an attorney n fact dd NOT resut n
adempton of the bequest.
Da)a-#s: Gretchen shoud receve of the proceeds not used to
support the T ($52k) |NOT of saes prce as she requested|.
o 3PC: shed get of saes prce- 7 C2J9J<'=
3PC 7 C2J9J Nona(#)*tion of S*#ci>c D#$is#s (p.387)
<a=<J= A specc devsee has a rght to .a *#c!nia& (#$is# equa to
the vaue |of an absent specc devse| to the extent ts estabshed that
o adempton woud be nconsstent w/ Ts pan OR
o T ddnt ntend devse to adeem.
OTHER ADEMPTION EHCEPTIONS (p.386-87)
C,an-# in fo); NOT s!'stanc#
o Ex. rea estate cash. Property s st there, so take cash.
o Ex. "my 100 shares of Tgerta stock." Merges w/ Lon Corp. H#"(:
corporate merger/ reorganzaton s ony a change n form, not
substance
o Pa5# <AL=: Hed that 1 CD ddnt adeem when spt nto 2 dherent
CDs. Change n form. Aowed EE to show T dd ths to ncrease gft to
benecary (unke AL).
If T devses Backacre to A & ses t & buys Whteacre w/ the proceeds s A
entted to Whteacre? (p. 388, N1)
39
o 3PC: A takes |206(a)(5)- rea/persona property owned by T at death
whch T acqured as a #*"ac#)#nt for speccay devsed
rea/tangbe persona property|
o AL ( statute): A wont take b/c AL foows dentty theory.
AL <Pa5# =: change n form? Possbe argument.
T eft A a "Ford car." Sod & bought a Ros-Royce. Does A take the Ros-
Royce? (p.388, N1)
o 3PC: s ths a repacement?
Matt,#+s: does former wife get value of 150 shares?
o Facts: T gave former wfe 150 shares of stock. T owned 150 shares at
tme of w executon, but Ltton (arge, pubcy-hed co.) redeemed
shares before death (co. bought shares back). Is gft adeemed or does
she take cash vaue?
A(#)*tion No A(#)*tion
S*#ci>c (#$is#
List +F s*#ci>c
(#$is#s
O+n#( #%act"& 8M9
s,a#s
S#ction CCJ
G#n#a" o
(#)onstati$#
(#$is#
C,an-# in fo)
Co*4 c,an-#( it
Not R)&S stoc5
La+ fa$os -#n#a"
STOCK SPLITS (p. 390)
If T devses 100 shares of stock & they spt 3-to-1 so he has 300 at death,
does devsee take 100 or 300?
o CL:
S*#ci>c - 300
G#n#a"- 100
ALF3PC: No dstncton b/t specc & genera devsesdevsee
takes 300 uness contrary to Ts ntent.
N2, pg. 388. Mssng snuh bottes.
o CLFAL: adempton; takes nothng.
o 3PC 206(a)(6) have to show T ddnt ntend for devse to adeem.
P#s!)*tion is sti"" a(#)*tion.
SATISFACTION OF GENERAL DEVISES (p.390)
Generay appes to pecunary bequests.
Not#: f specc bequest s gven nter vvos adempton by
extncton NOT satsfacton
CL: ony apped b/t parent & chd; presumpton of satsfacton f
monetary gfts gven AFTER ws executon
Mo(#n: ook at Ts ntent-was fetme gft ntended to reduce gft?
40
o 3PCFAL: assume NO satsfacton unless contemporaneous wrtng (cf.
advancement)
EHONERATION OF LIENS (p.391)
What happens f w makes a specc devse of and thats sub|ect to
mortgage that T was personay abe for?
o CL E%on#ation of Li#ns: property passes free & cear of mortgage
presumed T wanted debt pad out of the resduary
o 3PC: property passes encumbered by mortgage
ABATEMENT
Appes when estate acks enough to cover a devses made n the w.
O(# in +,ic, #stat# is #(!c#(: <8= resduary <C= genera <3=
specc/demonstratve
o 3PC: f testamentary pan defeated by usua order of abatement,
shares of dstrbutees abate as may be necessary to gve ehect to Ts
ntent
By w, T gves a car to A, $100 from savngs account to B, $100 each to C
& D, and the resdue to E. T des w/ $150. Who takes what?
o A gets car (specc)
o $100 from savngs account (demonstratve) - not abated. B takes
$100
o $100 to C & D (genera). Both get $25
each
o E gets nothng
NONPROBATE TRANSFERS (p.393)
CL /i"" S!'stit!t#s: fe nsurance, |T, possessory estates/future
nterests, & nter vvos trusts (never substtuted ws-reated doctrnes)
Lke w b/c #$oca'"# !nti" (#at, 6 a)'!"ato& (ony take ahect
when you de)
Is fe nsurance functona equvaent of a w? Dherent than a w b/c
pocy hoder has no contro over assets & pay premums. Aternatve
purposes for fe nsurance than w.
INTER VIVOS TR3STS2 ducary dutes unwavabe
C#ation of R#$oca'"# T!st:
o DEED OF TR3ST w/ 3
rd
party trustee
What f 3
rd
party trustee oots trust whe settor ave & competent.
N.2, p.407
Wams can sue trustee rrespectve of settors competence
o DECLARATION OF TR3ST: settor=trustee
I#$oca'"#
TESTAMENTARY TR3STS- aways rrevocabe; created by wmust meet
formates!
41
FARKAS $4 /ILLIAMS (p.398)- decaraton of trust; present nterest
Facts: decedent ded ntestate. Purchased stock 4x n hs name as
trustee for D. Aso sgned 4 separate decaratons of trust. In each trust,
he reserved fetme benets & power to revoke trust. P argued trust
nvad b/c testamentary & no ws act formates
H#"(: nter vvos trust vad b/c some nterest passed nter vvos to D
even though trusts were revocabe. Aternatvey, process decedent went
through adequatey served Ws Act formates
o Contngent benecares coud sue f trust mshanded
Cf. w benecares coudnt sue
R!"#: retenton of the power by the trustee to se/redeem stock does
NOT render the trust testamentary. It s vad.
LINTHIC3M $4 R3DI (p.403)- trust contests; no present nterest
Facts: Settor executed w & revocabe trust. 2 years ater, new w &
amended trust. P camed amended trust product of ncapacty or UI.
H#"(: P had no standng to sue over trust amendments. Court sad ony
"nterested persons" can petton & they had no present nterest n the
trust, so no standng.
R!"#: benecares under revocabe trust have no standng to contest
amendments to the trust b/c a benecares nterest s contngent &
unenforceabe durng settors fetme. BUT may chaenge settors
capacty through guardanshp statutes.
/ILL S3BSTIT3TES 6 S3BSIDIARY LA/ OF /ILLS
IN RE ESTATE OF ATKINSON (p.407)- POD certcates nvad
Facts: decedents certcates of deposts where n hs name, POD to hs 3
daughters from prevous marrage. Wdow excuded from w who eected
to take her spousa share. Ds argued deposts werent part of estate
snce passed automatcay at death.
H#"(: snce POD documents had no w formates & shoudve been
ncuded n estate b/c they were testamentary
o CL: POD provson nvad w/out Ws Act formates uness ts a fe
nsurance pocy
o Mo(#n: POD provsons vad w/out W Formates
o AL: tte to POD certcate of depost determned by contract aw, NOT
ws
ESTATE OF HILLO/ITE (p.409)- POD partnershp agreement vad
Facts: deceased husband partner n nvestment cub. Terms of
partnershp agreement ncuded express POD cause payabe to hs wfe.
Executors chaenged POD cause
H#"(: vad contact w/ POD cause. Wfe takes (apped modern trend)
REVOCATION OF A TR3ST
G#n#a" R!"#: where trust sets out an express, partcuar method, ony
that method of revocaton s vad.
42
IN RE ESTATE 6 TR3ST OF PILAFAS (p.414)- revocabe trust; subsdary
ws aw nappcabe
Facts: decedent executed nter vvos trust & w. Trust revocabe by
nstrument n wrtng devered to the trustee. Decedent expressed ntent
to revse documents. At death, coudnt nd w/trust. Omtted famy
members argued for revocaton by presumpton.
H#"(: presumpton of revocaton does NOT appy to revocabe trust b/c
coudnt be revoked by physca act.
o Cf. R#st4: trusts may be revoked absent any contrary provson n
trusts terms f C&C settor ntended to do so
Ths case: no C&C & f terms of trust are excusve revocaton
method, cant appy
STATE ST4 BANK 6 TR3ST CO4 $4 RESIER (p.416)- credtors can reach
revocabe trust assets
Facts: decedent created revocabe mandatory nter vvos trust w/ power
to receve fetme benets. Conveyed stock of 4 corporatons to trust; w
eft resdue to trust. Got $75k unsecured oan by representng stock
ownershp but ded 4 months ater & nsumcent assets to pay bank.
Iss!#: Can assets of trust be used to pay debt owed by the settors
estate?
H#"(: yes. Credtors may reach assets owned by trust over whch settor
had contro over at the tme of hs death, but must exhaust probate estate
rst.
/,&. Vio"at#s *!'"ic *o"ic& fo in(i$i(!a" to ,a$# #stat# to "i$# on
'!t not an #stat# to *a& ,is (#'ts
/,o"# "if# ins!anc# Pocy- can cash t out
T#) "if# ins!anc#- cant cash t out. If you de, pays xed amount to
desgnated benecary (cheaper).
COOK $4 EA3ITABLE LIFE INS3RANCE SOCIETY (p.420)- dvorce doesnt
revoke nonprobate
Facts: purchased fe nsurance & named wfe as benecary. Dvorced,
remarred & had son. Ded 14 years ater w/out changng fe nsurance
benecary. Made hoographc w eavng wordy possessons to "my
wfe & sons" (ncuded fe nsurance)
Iss!#: Can he change benecary desgnaton by w when nsurance co.
requres a change by wrtten notce?
H#"(: No. Ex-wfe takes due to pubc pocyequty heps the vgant,
not the azy.
Do#s (i$oc# #$o5# "if# ins!anc# (#si-nation in fa$o of #%
s*o!s#.
o 3PC <Min4=: Yes. (N2, p.422)
o AL <Ma1=: No-ony appes to w desgnatons
POD *o$ision cannot '# a"t##( '& +i""
43
S3PER/ILLS (p.422)
a w that permts the changng of w substtutes terms.
o Vas: not a good dea; the advantage of nonprobate s avodng
probate & here you must go through probate
ENGELFHOFF $4 ENGELHOFF (p.426)- ERISA preempts dvorce revocaton-
ex-wfe takes.
Facts: decedents benets ncuded fe nsurance & penson pan. He
named wfe as benecary but they dvorced & 4 months ater he ded.
Both covered by ERISA. WA statute sad dvorce automatcay revokes
nonprobate benecary desgnaton n favor of ex-spouse. ERISA preempts
f they reate to EE benet pan.
H#"(: ERISA preempted WA statute b/c t (1) controed benecares and
(2) nterfered w/ natonay uned pan of admnstraton. Ex-wfe takes.
M3LTIPLE2PARTY BANK 6 BROKERAGE ACCO3NTS (p.423) 3 types:
:oint 6 S!$i$o acco!nt- both have power to draw; survvor takes at
death
P4O4D. acco!nt- benecary has no power to access account durng
depostors fe, but takes money at death (|ust ke a w)
A-#nc& acco!nt-agent has power to draw durng depostors fe but no
rght at death
VARELA (mstress/D) $4 BARNACHEA (cheater/P) (p.423)
Facts: P (atty) moved n w/ D, pad a expenses, & sted her on account
as |T. D wrote hersef $280k check & deposted n her own account. P
sued to sette ownershp of account
H#"(: P & D hed as |T. P faed to rebut the presumpton he ntended to
gve D an equa nterest n ther |ont bank account
R!"#: when a |ont bank account s estabshed wth the funds of one
person, a gft of the funds s presumed. Presumpton rebuttabe w/ C&C
evdence.
o Not#: credtors have rghts to 100% of the funds snce |T has rghts to
use a the money
R,o(# Is"an( (p.435, N1) - ony state that doesnt aow EE to rebut
presumpton of |T acct
3PC N#t Conti'!tion R!"#: ownershp of |T s n proporton to net
contrbutons, uness C&C evdence of dherent ntent (p.435, N2)
o Credtor of 1 spouse can attach up to amount of hs/her contrbuton
PO3R2OVER /ILLS (p.443)
W w/ express cause sendng assets nto a trust (w references trust)
3 ways to vadate a trust as part of a w:
44
o Inco*oation '& #f##nc#: any document n exstence sumcenty
dented n the w, so subsequenty executed or amended trusts NOT
ncorporated nto w
Trust doesnt have to be funded at the executon
o Acts of In(#*#n(#nt Si-ni>canc#: trust nstrument doesnt have to
be n exstence when the w s executed, but trust must have assets n
t before Ts death
Trust must be funded; fundng = rea word sgncance
Amendments are vad
o 3PC (p.445): ony requrement s to sumcenty dentfy document n
w
Why change ncorporaton requrement for trusts but NOT ws?
Fath n trusts-athough no w formates, st condent t
promotes Ts ntent
Makng a trust very forma; usuay attorneys draft
o 0J9 3TATAFAL (p.444-45): (1) trust must be n exstence at ws
executon & (2) reasonaby dentfy trust n w. Amendments to trust
after ws executon are vad.
Trusts can be moded oray
CLYMER $4 MAYO (p.445)- trust revoked by dvorce
Facts: decedents unfunded trust named husband. Dvorced & 3 years
ater ded w/out changng trust. Trust was to be funded by penson pan? P
chaenged trust b/c (1) unfunded & (2) revoked by dvorce
H#"(:
o unfunded trust vad b/c pour-over w executed before Ts death.
Aternatvey, trust dd have property n t (rght to receve nsurance
& penson pan proceeds).
o Ex-husbands nterest revoked by dvorce even though statute ony
apped to ws snce the w & trust were ntegray reated
components of a snge testamentary scheme; trust had no
sgncance unt Ts death.
:OINT TENANCIES IN REALTY (p.447)
Each |T has equa nterest; cant devse nterest by w (can sever by nter
vvos conveyance)
Rght of survvorshp
Credtor of a |T must seze nterest durng |Ts fe. Lose abty to attach
after tenant des (ther nterest n the property extngushed at death)
PLANNING FOR INCAPACITY
IN RE ESTATE OF K3RRELMEYER (p.449)
Facts: husband named 2 durabe power of attys; whe he was
ncompetent, wfe created trust & transferred Cearwater property
(nconsstent w/ ws terms). Son chaenged trust argung power to make
trust nondeegabe
45
o "I authorze my attorney to execute & dever trust nstruments"
H#"(: durabe power of atty authorzed wfe to create trustpower to
create trusts are deegabe. On remand, found wfe ddnt breach
ducary dutes.
Not#: wfe coudnt have rewrtten w b/c cant deegate executng a w
(ws powers nondeegabe; trust powers are deegabe)
D3RABLE PO/ER OF ATTORNEY (p.448-49)
Power contnues unt prncpa des; even through ncompetency
o Cf. trust powers contnue after settors death
Trustee hods tte to property; durabe power of atty doesnt
Trusteeshp generay preferred
Here (pannng for ncapacty=concern over nanca ahars, not medca
decson)
o Cf. attorney-n-fact termnates when ndvdua ncapactated
RIGHTS OF THE S3RVIVING SPO3SE
COMM3NITY PROPERTY- husband & wfe own a acqustons from
earnngs durng marrage n equa, undvded shares. Spouses = economc
*atn#s. Upon death, decedent can transfer & survvng spouse
aready owns the other . Excudes a gfts & nhertances durng the
marrage.
SEPARATE PROPERTY (CL/AL)- husband & wfe own separatey a
property each acqures. Stress ndvduas autonomy over her earnngs.
Survvng spouse takes eectve sharencudes premarta property.
o ELECTIVE SHARE- spouse can take under w OR renounce w & take
a fractona share of decedents estate (typcay ony appes to
probate estate; GA doesnt have).
Iss!#: shoud nonprobate property be consdered as part of the
"estate?"
AL: NO. You coud ehectvey dsnhert spouse w/ nonprobate
transfers. Excepton for usory trusts.
3PC: yes
Po"ic&: (1) survvng spouse contrbuted to the decedents
acquston of weath & deserves to have a porton of t
(*atn#s,i* theory; ); (2) provde survvor adequate s!**ot2
typcay 1/3
rd
.
IN RE ESTATE OF CROSS (p.484)- spouse/Medcad recpent shoud take
eectve share
Facts: husband ded testate eavng 100% to hs son. Survvng spouse
80 years od, ncompetent, & vng n home pad for by Medcad. Court
apponted commssoner to see about eectve share.
H#"(: Athough Medcad payng, ncompetent survvng spouse shoud
take an eectve share b/c Medcad rues state the non-utzaton of
avaabe ncome renders recpent negbe.
46
TEST: what woudve survvng spouse had done for her nanca benet
had she been competent to make decson hersef?
o Stat!t# sai( co!t )a& #"#ct fo s!$i$in- s*o!s# on"& if
n#c#ssa& fo s!**ot consi(#in- t,# tota"it& of cic!)stanc#s
TESTS RE: /HICH NONPROBATE TRANSFERS ARE S3B:ECT TO
ELECTIVE SHARE.
ILL3SORY TRANSFER TEST: focuses on the a)o!nt of int##st the
deceased spouse #tain#( n the property.
o ask whether nter vvos property arrangement that permts the
property to avod probate s reay an nter vvos transfer OR whether
deceased spouse retaned such an nterest n the arrangement that the
transfer s more testamentary
o If property transfer s deemed "usory" st vad but s ncuded n
cacuatng eectve share
AL: f settor reserves substanta nterest or unbrded contro over
trusts management that snt for benet of benecary, trust may
be found to be usory
Fa5as- non-usory b/c there was an mpedment to revocaton
I""!so&: ora revocaton or havent gven up any contro
CONTROL TEST: See Suvan
S3LLIVAN $4 B3RKIN (p. 488)-survvor wants trust assets ncuded n
probate estate
Facts: Wdow sought to ncude husbands nter vvos trust assets nto
estate determnng her eectve share. Coupe separated @ hubbys
death. P camed trust nvad as testamentary.
o Husband sgned (##( of t!st, transferrng rea estate to hmsef w/
ncome & power to revoke. At death, trustee drected whom to gve
property to. Sgned by notary.
o /i"": dsnherted wfe & eft resdue to trust.
H#"(: deed of trust vad & wfe had no nterests n trust BUT created new
rue:
N#+ R!"#: assets of nter vvos trust are now "estate of deceased" IF
created durng the marrage & spouse aone had contro over assets.
Ob|ectve test (ntent doesnt matter).
o Mini)!) n#c#ssa& conto" is on"& o$# +,## *o*#t& -o#s
<(#si-natin- '#n#>cia&=
Vas2coudve been rrevocabe trust & decson woudve been the
same
BONGAARDS $4 MILLEN (p.492)- trust created by 3
rd
party
Facts: deceased was fe tenant of trust her mother created w/ mted
power of appontment over the remander. 10 days before death, gave
47
sster the remander. Dsnherted husband camed hs eectve share &
wanted to ncude apt n the estate.
H#"(: trust created by 3
rd
party whch decedent spouse had a genera
power of appontment over s NOT part of the "estate" when cacuatng
eectve share.
CALC3LATING ELECTIVE SHARE (p.497)
UJI 3PC a!-)#nt#( Estat#: probate estate + nonprobate/gratutous
nter vvos transfers made (!in- t,# )aia-#
o Any transfers where deceased spouse retaned the rght to
possesson/ncome from property
o Any transfers where deceased spouse retaned power to
revoke/appont
o Any |T w/ anyone other than survvng spouse
o Gfts to 3
rd
partes w/n 2 years of the deceased spouses death over
$3k per donee/year
o Property gven to survvng spouse ether nter vvos OR nonprobate
0I9 3PC: 1/3 of augmented estate (outned n statute) x V 'as#( on
"#n-t, of )aia-#
o After 15 years, spouse gets 50%
o Goa: brng n ne communty property
AL: Eectve share gets "#ss# of <8= probate estate mnus survvng
spouses own estate OR <C= 1/3 of decedents probate estate
o If decedents estate s $100k & survvng spouses separate estate s
$100k she gets $0
o If D has $100k & separate estate $50,000 $33,333
o Survvng spouse has $0. $33,333
o Is AL support or partnershp theory? Knda both. More support snce
ony takes esser amount.
AL s mted to PROBATE assets w/ excepton of usory transfers
"|I|f the settor reserves a substanta nterest or unbrded
contro over management of the operatons that s not for the
benet of the purported benecary, the trust may be found to
be usory."
REECE $4 ELLIOTT (p.503) - waver of eectve share va prenup
Facts: P wants antenupta agreement nvad. Husband ded ntestate.
H#"(: husbands faure to dscose vaue of stock does NOT render
agreement unenforceabe.
o Both had ndependent counse (some |x requre) & created a st of
ther assets
o Wasnt msed
o Had opportunty to ask questons but faed to do so
R!"#: prenupta agreement enforceabe so ong as partes entered t
$o"!ntai"& & 5no+"#(-#a'"&
48
o Kno+"#(-#W *o*on#nt of agreement must prove that a f!"" 6 fai
(isc"os!# of the nat!#; #%t#nt; 6 $a"!# of the partys hodng was
provded OR dscosure unnecessary b/c spouse aready knew
Opportunty to ask = knowedge
o 3PC: cont#stant ,as '!(#n; presumes agreement s vad
o AL *#n!*: +itt#n (oc!)#nt after fai (isc"os!#. Presumptvey
nvad. Po*on#nt ,as '!(#n to show:
adequate consderaton, far, |ust, & equtabe OR
free, vountary, & competent ndependent advce & fu knowedge
of nterest and ts approxmate vaue
SPO3SE OMMITTED FROM PREMARITAL /ILL
S*o!s# O)itt#( fo) P#)aita" /i"" (p.515)
o CL: premarta w revoked upon marrage or marrage + brth of chd
o To(a&: omtted survvng spouse takes ntestate share
IN RE ESTATE OF PRESTIE (p.516) - communty property state; sought
spousa share
Facts: marred; dvorced; made w & trust; ex-wfe cared for hm;
amended trust to provde for Mara; remarred; wfe sought her ntestate
share on grounds hs w revoked b/c marrage. Son argues trust
amendment rebutted presumpton of ws revocaton
H#"(: Amendment to a trust whch provdes for the spouse s nadmssbe
to rebut the presumpton of a ws revocaton b/c ddnt strcty fa nto
statutes provsons
/,&. Statute sad w s revoked uness:
o provson made for spouse n marrage contract OR
o spouse provded for n w OR
o dsnhertance cear. No other evdence to rebut presumpton of
revocaton aowed.
3PC: aows EE to show ntent to dsnhert
CL: ntent must be n document tsef
E"#cti$# s,a# sometmes ncudes nonprobate assets (based *!'"ic
*o"ic&; 2 ratonaes)
P#t#)itt#( s*o!s# never ncudes nonprobate assets (presumed
int#nt T wanted to provde for spouse)
OMMITTED CHILD
No forced share for a chd n any state except LA (but you can dsnhert
for |ust cause)
GRAY $4 GRAY (p.528)- AL case
Facts: 81 executed w whe marred to Mary (had kds outsde
marrage); 3 years ater had son, |ack; dvorced but ddnt change w.
Dvorce agreement set up trust for |ack (wfe treated as predeceasng due
to dvorce & takes nothng).
49
H#"(: |ack not an omtted chd.
Stat!t#: f T fas to provde for c,i"( in +i"" t,at +as 'onFa(o*t#(
AFTER +i"", omtted chd gets ntestate share UNLESS:
o Appears from the face of the w t was ntentonaO
o when w executed T had 1+ chdren AND devsed substantay a
estate to other parent of omtted chd |NO TS INTENT|; OR
o T provded for chd by transfer outsde the w & ntent the transfer be
n eu of testamentary provson s proven
Ca"$in Coo"i(-# (p.527)
Facts: "not unmndfu of my son.I gve my estate to my wfe"
H#"(: ehectvey dsnherted chd
Not#: not needed n AL b/c statute ony appes to chd born after w
executedmght need smar anguage to dsnhert chd ave at ws
executon f statute protected.
KID/ELL $4 RHE/ (p.536)- does chd omtted n trust get share? no
Facts: settor created revocabe nter vvos trust namng daughter as
successor trustee. Conveyed and to trust. Ded ntestate. P
(admnstrator) argued that pretermtted her statute shoud appy to w
substtute
H#"(: pretermtted her statute does NOT appy to revocabe nter vvos
trust; statute ony mentons ws.
S## Heath Ledger Hypo
TR3STS (revew p.393-98)
Trust s a >(!cia& #"ations,i* w/ respect to i(#nti>a'"# *o*#t&
arsng as a resut of a manfestaton of an int#ntion to create
reatonshp & sub|ectng trustee to (!ti#s to hod t for benet of
benecares
o S#tt"o creates trust t!st## hods ega tte & s a >(!cia& for
one or more '#n#>ciai#s who hod equtabe tte
T!st## )!st ,a$# acti$# (!ti#s to *#fo): "o&a"t& 6
*!(#nc#
T!st##0s Ro"#s: (1) nvestment; (2) admnstraton; (3) dstrbuton
REA3IREMENTS FOR A TR3ST (p.541-55)
84 P#s#nt int#nt to create a trust
o Focus s on functon rather than formdid settlor transfer property to
another to hold or manage for the benet of another?
AL Cas#: transfer to trust "whch w be set up" does NOT create
trust. Faed for ack of present ntent. BUT you can have empty
trust f you have pour-over w (ony excepton to property
requrement)
No )a-ic +o(s but watch for *#cato& "an-!a-# (wsh, hope,
recommend)
50
No +o(s #B!i#( to )a5# t!st to c,ait& in AL: f you make
a gft to a chartabe corporaton, they automatcay hod t n trust
(even f bequest s made n a w).
C4 Trust must be funded wth dentabe property (res)
o EXCEPT: nter vvos trust + pour-over w
34 Identabe benecary
o EXCEPT: chartabe trust (AG can enforce) or unborn benecary
o Note: vod trust for pet coud be unenforceabe honorary trust
L4 Wrtng generay f res s and or trust s testamentary
o Ora trusts requre C&C evdence; generay ony persona property
(AL)
o Excepton to Land: agreement to gve back and f condenta
reatonshp
o Excepton to Testamentary: secret ora trust
AL adopted UTC.
Pi$at# T!sts (p.543): **
o R#$oca'"# T!sts: "perfect w substtutes"; avods deays, costs, &
pubcty of probate
o T#sta)#nta& Maita" T!sts: federa tax aw aows deducton for
marta property; no estate taxes payabe at death.
o T!sts fo Inco)*#t#nt P#sons
o T!sts fo Minos: avods guardanshps, etc.
o Disc#tiona& T!sts: exbty & sheds assets from credtors
S#"#ction of T!st##: professona (hgher fees) or persona
L3H $4 L3H (p.557)
Facts: w eft rea estate n resdue for grandchdrens benet & sad not
to se unt theyre 21
H#"(: W manfested ntent to create trust hed for the benet of her
grandchdren
o Rs,a"" '# )aintain#(S 6 Rs,a"" not '# so"(S
Not#: ddnt name trustee, but thats not essenta trust eement. Court
named executor as trustee.
TR3STEE0S D3TIES (p.550)
LOYALTY: must admnster trust soey n the nterest of the benecares;
sef-deang s sharpy mted
PR3DENCE: trustee hed to ob|ectve standard of care n managng trust
property. Must be mparta b/t casses of benecares, cant co-mnge
trustees own assets w/ trust; duty to nform & account to the
benecares.
:IMINEE (daughter/P) $4 LEE (father/D) (p.558)-
Facts: P sued to compe accountng for assets she aeges D hed n trust for
her
51
P c"ai)s trust arose when 2 dherent gfts made for her benet
o Grandmother purchased 3S Sa$in-s Bon( n ther names or Ps
moms for her educaton
D cashed savngs bond & nvested proceeds n Bank stock.
Regstered as D, Custodan under Laws of Oregon for P
o XM99 for her educaton deposted nto savngs account
|ont savngs account cosed & proceeds nvested n Bank stock;
took as custodan
P c"ai)s gfts created trusts whch survved Ds nvestment nto stock
D a-!#s purchase as custodan expanded hs powers (coud use money
for thngs outsde of educaton; ct re|ected)
D a-!#s amount he dsbursed to P for educaton shoud be credted
aganst constructve trust (ct. agrees)
H#"(: gfts to P created a trust whch survved the transfer nto Bank stock.
P entted to constructve trust or equtabe en on the stock. Aso entted to
dvdends. D s personay abe but can deduct mones spent for purposes of
Ps educaton.
3NTHANK (p.569)- necessty of trust property
Facts: 3 days before death, wrote etter sayng hed make payments for
as ong as he ves; struck survvorshp & wrote n the margn: "I bnd my
#stat# to make the $200 monthy payments." P camed notes n margn
were a decaraton of trust.
H#"(: No ntent to make trust AND "estate" snt property b/c ts too
ambguous.
Not#: Vars thnks f he used "property" nstead of "estate" the trust coud
stand
o Courts are more wng to reform trusts coud say "my probate
estate"
IDENTIFIABLE BENEFICARIES (p.578)
R!"#: a trust must have one or more ascertanabe benecares.
o There must be someone to whom the trustee owes ducary dutes.
o Prvate trust benecares may be unborn OR unascertaned when trust
s created.
E%c#*tion to R#B!i#)#nt:
chartabe trusts . State Attorney Genera can enforce trust so ts
vad absent an dentabe benecary.
Unborn benecares (as ong as someone has standng to enforce
the trust).
CLARK $4 CAMPBELL (p. 579)- dentabe benecares
Facts:
/i"" created trust under whch a of hs persona property was to be
dstrbuted to hs "fi#n(s" that hs trustees, n ther soe dscreton,
chose. A remanng property shoud be sod & added to resdue of estate.
52
Argued t created gft (precatory statement); court sad cear ntent to
make a trust
Argued t created a power of appontment; No-trustees cant gve away
the property
o Po+# of a**oint)#nttrust w/ no dutes; power of appontment
has mtess dscreton/power. Its bascay desgnatng someone to
make a decson. Vars thnks thats what the T ntended.
An&on# can ,a$# a *o+# of a**oint)#nt4 Co!"( '# s#tt"o;
'#n#>cia&; #tc4
Ho"(in-: "Frends" doesnt quafy as ascertanabe group. Athough w
ceary attempted to create a prvate trust, t fas. Benecares may be
desgnated as a cass but "frends" has no accepted meanng. Trust fas.
R!"#: A bequest to an ndente person or group s nvad.
Mai"&n Mono# Cas# (N2, p.582)
"t beng my (#si# that he dstrbute these, n hs so"# (isc#tion,
among my frends, coeagues & those to whom Im devoted"
/,& not a t!st: doesnt say trust; frends/coeagues too ndente;
precatory
IN RE SEARIGHT0S ESTATE (p. 582)- honorary trust for dog
Facts: Searght ded & eft $1k to Forence Hand at rate of $.75 cents/day
to take care of hs dog. If money remaned at dogs death, t shoud be
pad to person on st he provded
Ho"(in-: Trust n favor of dog created an honorary trust whch s
enforceabe where trustee appes trust corpus to purpose of trust and
trust
o Cf. 3TCFAL: you can set up egay enforceabe trust for your pet
Honoa& t!st NOT "#-a""& 'in(in- (p.587)- transferee snt under a
ega obgaton to carry out settors stated purpose, but f transferee
decnes, she hods the property upon a #s!"tin- t!st & the property
reverts to the settor or the settors successors
o Li)its: f t voates pubc pocy (waste/destructon/encouragng
crme); RAP
o T#st: s t reasonabe, caprcous, or does t voate pubc pocy?
o To c#at# sti"" n##( )an(ato& "an-!a-#
ORAL TR3STS (p.595)
Inter vvos ora decaraton of trust w/ *#sona" *o*#t& must have
C&C evdence of ora trust (n AL)
nter vvos trusts of #a" *o*#t& must have a wrtng b/c Statute of
Frauds
o Excepton H#i'"# $4 H#i'"# - (p.596) Mother thnks shes gong to de
so she makes son |T. She recovers from cancer & wants to dspose of
property on her own. Asks son to convey hs nterest & he refuses. The
court w force hm to convey back hs nterest.
53
o AL cas#: nvoved 2 bros (1 ved n AL; other n N|). Famy property
estate n AL. Bro n A had heath probems & was about to go to war
(knew hed potentay de soon). Made w gvng estate n AL to frend
w/ ora nstructons to convey property to brother n N|. Reason-
property hed my someone n unon state woud escheat to state
(coudnt gve drecty to hs brother b/c war tme rues). Frend ddnt
transfer property; brother n N| sued & got the property.
t#sta)#nta& t!stmust meet Ws Act formates
SECRET $4 SEMI2SECRET TR3STS (p. 595)
S#c#t T!st: bequest s made to a benecary thats absoute on ts
face, but the decedent & benecary have prevousy oray agreed that
the property be hed n trust for a desgnated, but secret, purpose
S#)i2S#c#t T!st: where a bequest s made n a w that appears to
create a trust w/ the benecary as trustee but the purpose of the trust or
ts benecares arent dented
IN RE ESTATE OF FO3RNIER (p. 589)- ora/secret trust
Facts: deceased asked coupe to hod $400k for hm & to gve t to one of
hs ssters when he ded. Sster asked for decaratory |udgment an ora
trust was created
H#"(: ora trust was created & the sster shoud take a. Coupes
ncentve to e=C&C.
o D gave sster $100k satsfacton? No.
Sbng to sbng, not parent to chd
Bndng on ws NOT trusts
Not n wrtng
R!"#: An ora trust may be estabshed by C6C evdence that the
condtons for creaton of a trust are met (sa)# as AL).
E*i"o-!# (N1, pg. 592) - Fangan pettoned probate court for a new tra
after ndng document (unsgned note) that was dated 1 year after
Fourner gave hs frends the money. It sad the money shoud go to
Fangan, Fourner, & Kng. (Kngs named crossed out but Vars guesses
they dont aow parta revocaton by act).
OLLIFFE $4 /ELLS(p. 593)- sem-secret trust
Facts:
Mrs. Donovan ded eavng a w n whch she gave resduary estate to
Reverend Wes (D) to "dstrbute the same n such manner as s hs
dscreton sha appear best cacuated to carry out the wshes whch I
have expressed to hm"
o Benecares ndente
o Court wont aow extrnsc evdence
o If shed sad "I gve t a to Bob" but shed tod Bob to gve t to X.
thats be a secret trust & td be vad.
54
D camed Donovan oray expressed wshes to use resdue for chartabe
purposes
H#"(: Sem-secret trust nvadno extrnsc evdence aowed.
RIGHTS TO DISTRIB3TIONS FROM THE TR3ST F3ND
MANDATORY TR3ST: Trustee has no dscreton to make trust
dstrbuton; credtors can reach trust assets
DISCRETIONARY TR3ST: trustee has dscreton to make trust
dstrbutons
o P3RE:
Ex. devse to T as trustee to dstrbute ncome & prncpa to A as
determned by Ts absoute dscreton.
Benecary has no rght to receve payments
Credtor cannot compe dstrbuton but may be abe to cut oh
dstrbutons (f you make payment you have to pay drecty to
credtors; but trustee usuay stops payng).
o SPRINKLE:
o SPRAY: trustee must dstrbute a the ncome currenty but has
dscreton as to who gets t & n what amounts.
o S3PPORT: purpose s speced; make dstrbutons as s necessary for
benecarys support & mantenance
CL: credtors cant force dstrbuton except credtors for necessary
support (food, cothng, sheter)
S## UTC chart beow for modern rue
SPENDTHRIFT (p.614):
o Ex. the nterest of benecares n prncpa or ncome sha not be
sub|ect to cams of credtors & )a& not '# $o"!ntai"& OR
in$o"!ntai"& antcpated, aenated, or encumbered or |ust use words
"spendthrft trust"
o Probaby mapractce not to ncude spendthrft provsons
MARSMAN $4 NASCA (p.598)- dscretonary support trust
Facts: Trust provded mandatory ncome + dscretonary support prncpa
for Cappy. Cappy remarres & deeds house to new wfe. Needed money &
trustee asked hm to expan why n wrtng he ddnt respond & trustee
ddnt foow up. Cappy ddnt have enough $ to pay for house so Say
pad expenses n exchange for house.
H#"(: ducary dutes mped even where trust says theyre dscretonary
o Trustee had a duty to nqure nto the needs of the benecary &
dstrbute funds when needed. Askng for nanca needs not enough
shoudve foowed up.
o Hs dscretonary powers NOT absoute "prudence & reasonabeness
furnsh the standard of conduct"
o Snce nnocent purchaser for vaue had the house, mposed
constructve trust on amounts whch shoudve been gven to Cappy
55
Shoud trustee ook at other ncome when makng dstrbutons? (N2,
P.605)
o Mas)an- trusts terms drected trustee to consder "varous sources
for support"
o Rest. 2d- no;
o Rest. 3d- yes.
EHC3LPATORY CLA3SES: generay uphed but construed narrowy (p.607)
Mas)an: presumed vad uness breach of trust made
o In bad fath; or
o Intentonay/reckess ndherence to the benecarys nterests
Burden on Margaret, NOT attorney
3TCFAL: cause drafted by the trustee in$a"i( as abuse of ducary or
condenta reatonshp !n"#ss the trustee proves the excupatory term
s fai under the crcumstances & ts contents were adequatey
co))!nicat#( to t,# s#tt"o.
o burden on draftng attorney to show adequate dscosure & farness.
o 3PC: f ndependent counse advce, sumcent to show no abuse
SCHEFFEL $4 KR3EGER (p.616)- tort/spendthrft trust
Facts: B had mandatory nterest n ncome; dscretonary n prncpa.
H#"(: A |udgment tort credtor may NOT attach a |udgment debtors
nterest n a spendthrft trust |apped states statute|
o 3TC: same outcome
R!"#: Spendthrfts enforceabe uness benecary s aso the settor OR
assets were frauduenty transferred nto the trust.
SHELLEY $4 SHELLEY (p.618)- chd support/amony & spendthrft trusts
Facts: Son (owed amony & chd support) had mandatory &
dscretonary nterest n prncpa.
H#"(: Persons nterest n the spendthrft trust ncome was sub|ect to the
cams of hs chdren & former wves. Chdren can reach trust prncpa
because trustee had dscreton to provde for them.
3TC@/HO CAN COLLECT TR3ST F3NDS.
Disc#tiona& T!sts (p.612)
No dstncton b/t support & dscretonary
S*#n(t,ift T!sts (p.620)
If court order
Spouse, former spouse, or chd
Can get amount UP TO amount that
trustee abused hs dscreton
o Credtors prefer b/c you can cut
dstrbutons oh & force
benecary to sette
Chd, spouse, former spouse
w/ court order; OR
|udgment credtor provded
servces to protect
benecarys nterest n trust
(atty)
government
P4 J83
56
T devses property to X n trust to pay ncome & prncpa to A as X
determnes s "necessary for As comfortabe support & mantenance." A s
nsovent. X refuses to make dstrbutons to A. B (genera credtor of A)
sues X argung t abuses hs dscreton not to make dstrbutons to A.
o CL: B oses, uness B provdes "necessares" aka food & housng
o 3TC 7 M9L: oses uness credtor s a chd, spouse (former), & ony to
the extent that the trustee abused hs dscreton
MODIFICATION 6 TERMINATION OF TR3STS (p.641)
En-"is, !"#: trust can be termnated at any tme f a benecares are
aduts & consent. After settors death, trust s regarded as benecares
property, not as the settors. Can change trust regardess of ts terms.
3S G#n#a" R!"#: f settor & a benecares consent, an rrevocabe
trust may be moded or termnated.
o B#t+##n s#tt"o 6 '#n#>ciai#s; +,o is in c,a-# in t,# 3S?
Settor
C"a>n (octin# (defaut rue; you can opt out): If settor s dead & a""
'#n#>ciai#s cons#nt, cant termnate or modfy trust f td be contrary
to a )at#ia" *!*os# of the settor.
o S!**ot: cant be termnated f contnuay supportng
o Dscretonary
o Trusts mandatng the benecary doesnt receve an nterest unt X age
o S*#n(t,ift: cant be termnated b/c youre protectng the benecary
from hmsef
3TC: modes & says thats not the presumed matera purpose
EB!ita'"# D#$iation Doctin#: permt trustee to devate from
admnstratve terms of a trust when compance woud defeat or
substantay mpar the accompshment of the purposes of the trust on
accounts of unantcpated changed crcumstances.
o Devaton must be necessary to accompsh the purpose of the trust.
o Admnstratve=anythng other than dstrbuton
o P!"itQ# stoc5 (p.644) - court aowed admnstratve changes where
the trust estate was n |eopardy. Trust prohbted seng the stock but
the osses were substanta to the court aowed t.
3TC 7 L8C FAL (p.645): The court may modfy/termnate because of
cic!)stanc#s not antici*at#( '& t,# s#tt"o
modcaton/termnaton w f!t,# *!*os#s of t,# t!st4 To the
extent practcabe, modcaton must be made n accordance w/ the
s#tt"o0s *o'a'"# int#ntion4
o Sma uneconomc fees can be termnated? UTC- mght not need
unanmty f court decdes ts n everyones best nterests.
A"a Co(# 7 8I23B2L88<'=4 A non-chartabe rrevocabe trust may, upon
consent of ALL the benecares, be: (C"a>n standard)
o t#)inat#( f the court concudes that the trust snt necessary to
acheve any matera purpose of the trust; OR
57
o )o(i>#( f the court concudes that modcaton snt nconsstent w/
a matera purpose of the trust.
Cons#nt: f not unanmous, non-consentng benecares woud be
adequatey protected & otherwse compes wth the statute (p.657)
IN RE TR3ST OF ST3CHELL (p.643)- Rest. 2d.
Facts: asked to modfy trust to avod dsabed chd becomng dsquaed
for pubc assstance when he receved trust funds
H#"(: No modcaton because the ony purpose was to make trust more
advantageous to the benecares. No statute; apped Restatement 2d.
But snt makng a change to benet a benecary a fundamenta purpose
of every trust?
IN RE RIDDELL (p.645)-modcaton/ speca needs trust; Rest. 3d
Facts: Chdren, Donad & Nancy, both 35+. Nancy had psychoogca
dsorders & coud never ve ndependenty. Raph (trustee) moved to
modfy trust. Wanted to consodate trust nto "speca needs" trust for
Nancy b/c trust proceeds woud ether be (1) sezed by the state to pay
Nancys medca bs or (2) Nancy woud msmanage
H#"(: Aowed modcaton. Found (1) Nancys speca
need=unantcpated crcumstance; (2) modcaton woud further
purposes of trust; (3) modcaton not aganst pubc pocy
R!"#:
equtabe devaton aows the court to modfy admnstratve or
dstrbutve terms f:
o crcumstances unantcpated by the settor arse AND
satsed f crcumstances have changed snce trusts creaton OR f
settor unaware of crcumstances when trust estabshed
o f the devaton w further the purposes of the trust.
Sub|ectve process of attemptng to nfer reevant purpose of a
trust. Devaton aowed f necessary to ehectuate the trusts
prmary purpose
S*#cia" N##(s T!st Act: Congress permtted creaton of speca needs
trust to aow dsabed persons to contnue to receve govt assstance for
ther medca care
(p.649, N2)- T devsed fund worth $120k n trust to X to pay A & B
$100/month for ther ves, remander to charty, C. Trust corpus grew to
$3.5 mon. A, B, & C asked to termnate trust, pay $150k each to A & B,
remander to C. does baoonng vaue n trust assets |ustfy trust
modcaton as change n crcumstances?
o CL- no.
o New aw-probaby yes b/c settor probaby woudve wanted to gve
more.
o Dherent facts- Putzer/admnstratve change. What f t were
foreseen? What f he wanted stocks not be sod regardess so no
58
unforeseen crcumstances. Shoud we aow change? CL: no. UTC: Yes
or ese waste.
o spendthrft trust, dscretonary & support trust purposes are but n.
f you termnate, wont satsfy ther purposes. Deayed en|oyment trust
(no $ unt 21).
IN RE ESTATE OF BRO/N (p.653)- Rest. 2d.
Facts:
S#tt"o0s t!st t#)s: provde coege educaton for chdren of hs
nephew. Trust termnates when ast chd receved hs educaton &
trustee, n hs dscreton, determnes purpose of trust has been
accompshed. Income from trust & prncpa as necessary used to pay for
nephews wefare & hs wfes. Upon ther death, remander to hs then
vng chdren equay.
Trustee pad for the nephews kds coege, determned educaton
compete, & began dstrbutng ncome to fetme benecares
Lfetme benecares pettoned for trusts termnaton argung that the
soe remanng purpose was to mantan ther festye & remanderman
agreed to termnate.
Iss!#: does the matera purpose of the trust reman to be accompshed?
Ho"(in-: Yes. Termnaton cannot be accompshed b/c matera purpose of
the settor remans unaccompshed. Trust had 2 purposes:
o Provde educaton for nephews chdren (ths done; Vars dsagrees)
o Assure fetme ncome for benecares through the mgt & dscreton of
the trustee.
REMOVAL OF A TR3STEE (p.659)
CL: ony for cause. Court may remove trustee who s (is,on#st or who
has engaged n a s#io!s '#ac, of t!st. Trustees chosen by the
settor are ess easy removed.
3TC 7 Y9J: Court may remove trustee f: (p.660)
o serous breach of trust;
o ack of cooperaton among co-trustees;
o untness, unwngness, or persstent faure of the trustee;
o substanta change of crcumstances or unanmous benecary request
+ best nterests of a benecares & not nconsstent w/ matera
purpose of the trust.
Gves settor of rrevocabe trust standng to remove
D!ti#s of S!cc#sso T!st##s: not personay abe to benecary for a
breach of pror trustee uness successor unreasonaby fas to dscover &
rectfy pror breach
DAVIS $4 34S4 BANK NAT0L ASS0N (p.660)
Iss!#: Was P entted to have trustee removed?
Ho"(in-: Yes. Change n trustee aowed even f no wrongdong.
o Reduce fees amost 24%; DE has more tax benets
59
o New trustee coser to benecares & s famar w/ ther stuaton
T!st## R#)o$a" Stat!t# <7 Y9J<L==: f requested by a quaed
benecares &
o serves best nterest of a benecares;
o not nconsstent w/ matera purpose of the trust;
o sutabe co-trustee/successor trustee s avaabe & wng to serve
A!a"i>#( '#n#>cia&: one who woud be a permssbe dstrubutee on
the date of the petton OR f the trust ended on that date
Vit!a" R#*#s#ntation: dad & kds have s!'stantia""& i(#ntica"
int##sts that a#n0t in conPict
o Aternatve to guardan ad tem
o UTC: aows for representaton n tgaton & transactons; aows parent
representaton even f nterest not smar as ong as theres no conct
TR3ST ADMINISTRATION: THE FID3CIARY OBLIGATION
Fducary aw rests on:
o the care norm (duty of prudent admnstraton) and
o the oyaty norm (duty to admnster the trust for the benet of the
benecary) &
o subsdary rues to appy these two:
duty to keep & dscose records;
to coect, segregate, earmark, & protect trust propery;
enforce & defend cams;
to be mparta among mutpe benecares
Sef-deang totay barred, even f economcay advantageous
P. 671- Rea estate agent workng w/ 5% commsson w fa to spend
extra $10 ehort to ncrease sae by $100. Why? Agent woud ose $5.
UTC 815-16 dene trustees powers
A)#ica: settor as the prmary prncpa.
o Cf. Engand - benecares are prmary prncpas.
N3, p.674 - Trust gves trustee power to se Backacre f necessary to
support A. Trustee ses to B who has notce of the trust & beeves sae s
necessary to support, but t snt. Does B take Backacre free of the trust?
o Mo(#nF3TC: B gets t free & cear as good fath purchaser (pad vaue
for t).
o What f B ddnt know trust exsted?
Mo(#nF3TC: st takes free & cear of trust f n good fath?
CL: 3
rd
party deang w/ trustee was requred to nqure whether the
trustee had the power to engage n transacton
D3TY OF LOYALTY
trustee must act SOLELY for benet of benecary.
Sef-deang strcty prohbted. Sef-deang no further nqury but
wavabe
Duty to avod concts of nterests.
60
W executor has same ducary dutes as trustee
HARTMAN $4 HARTLE (p.675)- wfe of co-executor bought house; sef-
deang
Facts: Daughter (P) brought sut camng the sae of the farm was
frauduent & that Ds voated ther ducary dutes by seng farm to the
wfe of one of the executors. Farm sod at aucton to wfe of one of co-
executors.
Iss!#: Does seng trust property to executors wfe voate hs ducary
duty?
Ho"(in-: Yes. A trustee may not purchase trust property for hmsef (or
spouse) w/out authorzaton from the court so trustee must dsgorge of
any benets.
o R#)#(&: Snce nnocent purchasers now own property, must take
prots from resae & dvde them amongst 5 chdren.
IN RE GLEESON0S /ILL (p.676)- no further nqury rue
Facts: executor hed over on ease after andowner ded & apponted hm.
Gave estate more money + share of crops.
H#"(: Trustee cannot dea n hs ndvdua capacty w/ the trust property.
Cobrook must account for a mones receved by hm personay by vrtue
of hs hodover tenancy.
R!"#: trustee voates duty of oyaty by hodng over
NO F3RTHER INA3IRY R3LE FOR SELF2DEALING (N1, p. 677)
If trustee engages n a transacton nvovng sef-deang, trustee s abe.
o Good fath, benets, & farness are rreevant
o Da)a-#s: dsgorgement of benets
Benecares can hod trustee accountabe for any prot made on
the transacton
can compe trustee to restore property to trust or
repay the purchase prce.
T!st##0s D#f#ns#s:
o settor authorzed t;
o benecares consented after fu & far dscosure &
trustee acted n good fath &
transacton far to a benecares
IN RE ROTHKO (p.679)- conct of nterest/ breach of duty of oyaty
Facts: Settor eft 3 frends as co-executors. 2 sef-deaed (sod pantngs
to a gaery n whch they had an nterest n) whe 3
rd
stood by & et t
happen.
H#"(: To -#t "ia'i"it&; &o! ,a$# to s,o+ conPict of int##st T not
fai OR not in t,# '#st int##st of t,# #stat#
o Chaengers have burden to show conct of nterest & unfar
61
o A($ic# fo) co!ns#" is NOT a saf# ,a'o4 Law rm dented
conct but sad court woudnt rue n advance (probaby mapractce).
o Aso '#ac, of (!t& of *!(#nc# (must be ob|ectvey reasonabe) -
terms of contract so unfavorabe a RP woudnt have agreed to them.
Dd t n 3 weeks, ddnt get ndependent apprasa, mons of doars
at stake, etc.
A**#ciation Da)a-#s: typcay awarded when duty to retan property
so reward current vaue.
o Here, no duty to retan property but awards apprecaton b/c the
pantngs cannot be returned & they had egregous concts of nterest
CO2TR3STEES
Ta(itiona" "a+: trustees must act unanmousy uness trust nstrument
provdes otherwse
o Snce co-trustees must act |onty, co-trustee s 1oint"& "ia'"# for
wrongfu acts of co-trustee to whch she consented to or by her
neggence through nactvty or wrongfu deegaton, she has enabed
the co-trustee to commt
R#st4 3(4: )a1oit& can act f 3+ trustees. Even f unanmty snt
requred, a co-trustee st has a duty to take reasonabe steps to prevent
a breach of trust by her co-trustees.
D3TY OF PR3DENCE (p.688)
Trustee has a duty to admnster trust w/ such sk & care as a person of
ordnary prudence woud use n deang w/ hs own property.
o O'1#cti$# stan(a( of ca#what woud a reasonabe person do?
o Functon of trust changed from preservng property managng
property.
Histoica""&: |udca st of "safe" or permtted nvestments. Any
nvestment not on the st per se not prudent.
o Constraned prudent man rue: prncpa preservaton; ducary hodng
funds for nvestment may nvest the same n such securtes as woud
be acqured by prudent persons of dscreton & ntegence n such
matters who are seekng a reasonabe ncome & the preservaton of
ther capta. Bars specuatve ntestments
o CL: each nvestment s vewed separatey. If 1/100 nvestments s
napproprate, trustee s abe for oss n that one nvestment.
Mo(#n *otfo"io t,#o& <3nifo) P!(#nt In$#sto Act=: trustee
must:
o Baance rsk & return,
o dversfy,
o deegate
o focus s on tota return
3 t&*#s of is5s (p.697) 2
nd
& 3
rd
s what dverscaton s geared towards
mnmzng.
62
o Ma5#t Ris5- ahects a nvestments. Reects genera economc &
potca condtons. Unavodabe.
o In(!st& Ris5s: specc to rms n partcuar ndustry/ndustry
groupng
o Fi) Ris5: easest to avod. Factors that touch fortunes of the
ndvdua rm. Ex. n book of Exxon & BP.
IN RE ESTATE OF :ANES (p. 702 )- adequate dverscaton
Facts: 71% of the $2.5 mon n stock was n Kodak; stock steady
decned.
Iss!#: Does a trustees faure to dversfy the stock hed n trust
consttute a breach of ducary duty?
Ho"(in-: Yes. Kodak stock not good for od wdow w/ heath probems
because t had sma dvdends.
o Proper measure of damages was "the vaue of the capta that was
ost"the dherence b/t the vaue of the stock at the tme t shoudve
been sod & ts vaue when utmatey sod + nterest.
o Market Index-
B#n#>cia& Cons#nt Aa Code 19-3B-1009
Trustee s NOT abe to a benecary for breach of trust f the benecary
cons#nt#( to the conduct, reeased the trustee, or rated the
transacton 3NLESS:
o Benecary was nduced by mproper conduct of the trustee; OR
o Benecary ddnt know of the matera facts & the trustee had actua
knowedge of the facts
Not#: not specc to dverscaton; genera provson appcabe across
the board.
FIRST AL BANK $4 SPRAGINS (handout)- duty to dversfy
Facts: 70% of trust assets hed n bank stock. Trust authorzed
nvestment "#-a("#ss of an& "ac5 of (i$#si>cation." Trust aso
sad: "none of these powers sha be exercsabe f to exercse the power
woud (#f#at )& int#ntion regardng my Trust Estate"
H#"(: trustee acted mprudenty by mantanng a portfoo that
contaned an nordnate amount of the Banks stock n voaton of sound
mgt practces, despte authorzaton n the trust for the trustee to manage
trust portfoo regardess of any ack of dverscaton.
o Duty of prudence may be atered by terms of the trust
o Trust can speccay overrde the duty to dversfy BUT
o Terms of a trust preva over any provson of ths chapter #%c#*t
Duty of trustee to act n good fath & n accordance w/ the terms &
purposes of the trust & the nterest of the benecares (very smar
to Spragns anguage)
The requrement that at rust & ts terms be for the benet of ts
benecares.
63
Vars doesnt reay know f duty to dversfy s defaut/mandatory. He
sad to overrde t, you need to say "I want to keep 70% n Kodak
stock"
Not#: dverscaton snt an absoute requrement; consder a
crcumstances
P. 1 p.720- 1990, T conveys 1500 shares of Enron stock n trust to X. Trust
may be revoked by wrtten nstrument devered to X. T nstructs X n
wrtng to retan Enron stock. 2001, Enron es for bankruptcy & stock
prce drops to $0. 2002, T sues X for breach of duty of prudence argung
that X shoudve dversed or at east warned T of danger.
o Instructons to trustee mmunze hm from abty. If addtona
benecares, theyd have standng.
o Sinc# it0s a #$oca'"# t!st; (!ti#s on"& to s#tt"o. If there was
fu & far dscosure to benecares, they coudnt sue.
DELEGATION (p.721)
CL: trustee NOT permtted to deegate matters that the trustee coud
reasonaby be requred to personay perform.
o Cant deegate to co-trustee
N#+ R!"#: permts deegaton sub|ect to a duty oh care, sk & cauton n
seectng, nstructng, & montorng the agent.
o Lmted to nvestment & management functons; cannot deegate
dstrbuton
3TCFAL: trustee may deegate to a co2t!st## any functon uness terms
requre them to perform t |onty. Trustee may revoke prevous deegaton
uness rrevocabe. (19-3B-703(e))
o Uncear f st have duty to seect/montor/nstruct.
(N1, p.723)- 1999, T devses fund n trust to X for the benet of A. At As
suggeston, X deegates responsbty for managng nvestment portfoo
to Y, reputabe advsor. Y, at As suggeston, nvests excusvey n
technoogy stocks. 2000, technoogy bubbe bursts & vaue of fund
coapses. A sues X for mproper deegaton to Y. X says he doesnt
second guess someone he puts n charge of somethng at tra.
o Breach b/c fai"#( to )onito. Instructng not cear but probaby so.
Seectng ok b/c t was a reputabe rm. If fu & far dscosure to A, ts
bndng.
o If trustee fas to sue the agent, benecares can sue the trustee.
Some precedent aowng a drect sut of benecares aganst agent.
o Deegaton may be requred f you ack expertse (breach of prudence f
you dont)
D3TY OF IMPARTIALITY: mpcated when 2+ benecares
R!"#: In nvestng, managng, & dstrbutng the trust property, the
trustee must strke a baance b/t the benecares, gvng due regard to
ther respectve nterests.
64
o Doesnt mean equatymust treat a benecares equtaby. .e. f 2
benecares of a support trust & one s dsabed, trustee can gve
dsabed person more $$.
o Snce ts hard to determne, some courts aow breach ony f
substanta dsadvantage for one of the benecares.
HO/ARD $4 HO/ARD (p. 726)- duty of mpartaty wavabe
Facts: Trust sad support of survvng spouse shoud be preferred over
rghts of remanderman. Waves duty of mpartaty. Son (remanderman)
a-!#s court erred n fang to consder Marcenes other assets n
admnsterng & makng nvestment decsons for the trust b/c she coud
use funds for settors stepchdren whch he eft out.
Ho"(in-: A trustee owes a duty to remander benecares & ncome
benecary, but those dutes must be carred out n ght of any preference
expressed n the trust nstrument. Court ddnt err n fang to consder
her other sources of ncome.
N2, p.729- commony trust ncome snt enough to support survvng
spouse. Courts deny request to nvade prncpa uness trust s construed
to contan an express/mped power to nvade t OR a remander
benecares consent (dmcut f mnors, etc).
Trustee cannot pck sdes durng tgaton b/t benecares
Trustee can defend hs decson to nvade prncpa on the grounds ts
what settor woud want; cant get court approva n advance on ths ssue.
EA3ITABLE AD:3STMENT
St dstngush b/t ncome & prncpa but trustee can abe t dherenty
Trustee can reaocate recepts to ncome/prncpa f the trustee concudes
that wse nvestng woud otherwse ead to unfar resuts
AL: adopted equtabe ad|ustment but you have to opt n; ot,# 1% ts the
defaut
CAN0T 3SE IF TR3STEE IS A BENEFICIARY
3NITR3ST
ncome benecary s entted to % of tota vaue of trust assets each year.
Modern portfoo theory to the extreme.
IN RE MATTER OF HELLER (p.731)- untrust; trustee aso benecary
Iss!#: Can untrust appy retroactvey; may nterested trustees eect
under t?
Ho"(in-: Yes. A untrust eecton by an nterested trustee w be
sc!tiniQ#( +it, #%ta ca# but theres no prohbton aganst t. Trustee
owes duty of oyaty to benecares & snt reeved of duty b/c hs
nterests agn w/ nterests of other benecares.
o Even f there werent other remanderman st woudnt be a breach b/c
settor antcpated structura conct by namng same person as
trustee & benecary.
65
o So no sef-deang, thus no appcaton of no further nqury rue
D3TY TO COLLECT 6 PROTECT TR3ST PROPERTY (p. 736)
R!"#: trustee has duty to protect & coect trust property wthout
unnecessary deay.
o Defaut rue but not mandatory
o T#sta)#nta& t!st: coect assets from executor as prompty as
crcumstances permt. Duty to benecares to examne property
tendered by executor to ensure ts what trustee ought to receve.
D3TY TO EARMARK TR3ST PROPERTY (p.737)
To earmark property s to desgnate t as trust property rather than the
trustees own
Ma1FAL: trustee SL for any oss even f the oss wasnt caused by faure to
earmark
N#+ Vi#+: trustee abe ony f oss resuts from the faure to earmark &
snt abe f the oss resuts from genera economc condtons.
o E% Pat# La+&#s S!4 Co*4- trustee wrongfuy purchases property
n hs own name rather than trusts name then successor trustee ses
property at a oss. Is 1
st
trustee SL for whoe oss? AL- no even though
strct appcaton of rue woud hod hm abe.
o s there a good reason to put stock n your name nstead of |ohn smth
as trustee? Buyers mght wak away from the atter. Ma|orty rue
makes no nqury nto reasonng for faure to earmark.
If trustee deposts $ n a persona account & the bank fas s trustee
responsbe for ost of trust assets? Ma|orty: yes
o What f he knew bank woud fa? Trustee abe b/c breach of duty of
prudence
D3TY NOT TO MINGLE TR3ST F3NDS /ITH THE TR3STEE0S O/N
(p.737)
Trustee guty of breach of trust f trustee commnges the trust funds w/
hs own, even f trustee doesnt use the trust funds for hs own purposes.
/,&. Assets become more dmcut to trace & sub|ect to rsk that
persona credtors of trustee can reach them.
O"( $i#+: Trustee SL even though oss woudve occurred w/out
commngng
N#+ Vi#+: abe ony to extent the commngng caused the oss
D3TY TO INFORM (p.738)
Trustee has duty to nform benecares of the exstence of the trust &
sgncant deveopments pertanng to the admnstraton of the trust & to
respond prompty to a request by a benecary for nformaton reasonaby
reated to the benecarys nterests n the trust
FLETCHER $4 FLETCHER (p.739)
66
Facts: Settor created 3 separate trustsone for son & hs 3 kds. Son
wants fu copy of trust. Trustee argues settor wanted terms kept
condenta.
H#"(: Benecary has a rght to a copy of the entre trust to ensure trust
s beng admnstered propery & to ehectvey protect hs nterests.
R!"#: n absence of a drecton to the contrary, a trustee must dscose
trust nformaton about the trust to benecares. Benecary s aways
entted to such nformaton as s reasonaby necessary to enabe hm to
enforce hs rghts under the trust or to prevent/redress breach of trust.
Not#: drecton that terms be secret coud NOT overrde ths rue (mped)
AL: |T|o enabe the benecares to take acton to protect ther nterests,
the trustee may be requred to provde advance notce of transactons
nvovng rea estate, cosey-hed busness nterests, and other assets that
are dmcut to vaue or to repace.
Are benecares entted to nfo thats attorney-cent prveged? Courts
are spt.
o Rggs-yes because the benecary, not the trustee, s techncay the
attys cent
Facts: memo wrtten BEFORE tgaton began was prepared for
benet of trust benecares
:ACOB $4 BARTON (handout)
Facts: |ames camed Een msmanaged trust by pacng her persona
nterests above her ducary dutes & '& )a5in- i)*o*# *a&)#nts
to t!st##s0 atton#&s4 :a)#s so!-,t (isco$#& of att&s #co( of
t,#i 'i""in-s
Iss!#: s benecary entted to nfo thats protected by atty-cent
prvege or work product doctrne?
Ho"(in-: generay no. Here, to extent awyers work concerns ths
dspute, ther cent s the trustee NOT the benecary. If entres n bng
records revea protected nfo, ther producton cannot be compeed.
RILEY $4 BRADLEY (handout)
Benecary s equtabe owner
Corporatons property- treated n equty as owned by stockhoders BUT
no prvty b/t them & attorneys empoyed by corporaton
R!"#: no prvty b/t benecary & attorney empoyed by trustee
Not#: must have prvty to sue so no prvty ks argument benecary
can be a cent; but Vars st thnks ts an open queston & mapractce
prvty may be dherent from condentaty prvty.
ALA CODE 7 8C2C828J8
Attorney cant testfy about prveged matters
D3TY TO ACCO3NT
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If benecares sgn oh on actons after trustee propery dscoses, the
trustees are mmune from abty unless (1) they commt constructve
fraud whch was (2) reasonaby dscoverabe
Imped:
o Benecary has a duty to revew accountngs
o Trustee duty to undertake reasonabe ehorts to ensure accuracy of
accountngs
NAT0L ACADEMY OF SCIENCES $4 CAMBRIDGE TR3ST CO4 (p.745)-duty
to account
Facts: Income benecary receved $106k from trust after remarrage
dsquaed her. Remander benecary ddnt ob|ect to annua
accountngs.
Not#: remander benecares coud probaby drecty sue her estate for $
too
Iss!#: Is a trustee abe for msrepresentatons made n accounts of the
trust?
Ho"(in-: Yes. By payng Forence, Bank represented to Academy that she
remaned unmarred. Representatons techncay frauduent & Bank
made no ehort to see f she remaned unmarred.
R!"#: A trustee has a duty to make reasonabe ehorts to ensure that
accurate representatons are made n any accountng under a trust
Const!cti$# Fa!( R!"#: when a person makes a representaton as f
from hs own knowedge & such representaton snt true, a party who
rees on the representaton & s damaged by ts reance s entted to
seek redress for fraud.
BL: f theres a way to gure t out, youre abe. Not dscoverng or teng
the truth when youre requred to do so. Ex. attorney doesnt te you
somethng about the purchase of rea estate.
ABOLISHING THE ATTESTATION REA3IREMENT FOR /ILLS
T,#o&: Abosh attestaton requrement for ws but keep as requrement
for sef-provng ws
As5: Does the formaty promote the prmary goa of our system of
testatonehectuatng the ntent of the Tat an acceptabe
admnstratve cost.
A-!)#nts:
84 W substtutes common & dont requre attestaton
C4 W substtutes aow courts to reform & correct mstakes but dont reform
ws
34 Hoographc ws ncreasngy aowed & dont requre
L4 Attestaton not protectve anymorefraud commtters foow rues
M4 Physca revocaton doesnt requre attestaton
J4 Substanta compance/harmess error
Y4 Aow nterested wtnesses now
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G4 W contest grounds do a better |ob of dstngushng b/t good & bad ws
Po'"#):
Smth v. Neson-refused probate of a w b/c ony had 1 wtness nstead of
2.
o Even more common for ws that are party handwrtten/party prnted
to be dened.
69