I.

Freedom of Disposition
a. Power to transmit property at death
i. Primary goal: Enable posthumous enforcement of the actual intent of the decedent, or, failing
this, give effect to the decedent’s probable intent.
1. The law attempts to facilitate, not regulate.
ii. Law of succession: What happens to prop when person dies.
1. Three main ways of passing prop at death:
a. Intestacy: No planning at all (no will or trust). State law steps in.
b. Will
c. Will substitute, e.g., trust.
iii. Property owners are free to impose w/e conditions they want, and their plans can often be
imposed for as long as they want, even in perpetuity. Nearly unlimited.
1. Limits on this power: decedent’s creditors and surviving spouse are protected, and
policy limitations, e.g., Rule against perpetuities.
a. Policy limits:
i. E.g., Shapira v. United National Bank (OH 1974): Dad’s will said son
gets money only if he marries a Jewish woman w/in 7 yrs of Dad’s
death. If he doesn’t marry in that time or marries a non-Jew, the
money will be donated to Israel.
1. Holding: This condition is neither unconst’nal nor void as
contrary to public policy.
2. Rule:
a. A total restraint on marriage (at least 1st marriage)
would be contrary to public policy.
b. A partial restraint on marriage that imposes
reasonable restrictions is valid.
i. Unreasonable restriction: if a marriage
permitted by the restraint is unlikely to
occur.
ii. Breaking the law: A trust to pay criminal fines isn’t ok bc it encourages
the beneficiary to break the law.
iii. Waste: Asking person to destroy prop at death violates the policy of
avoiding waste.
b. Common restrictions that ppl impose on gifts in wills/trusts
i. Education trust: Pay out the trust once kid graduates from college
ii. Moral trust: Req’s clean drug test for a # of times
iii. Productive career: Pay out the trust based on success. But usually has
a safety net for maternity leave, disability, etc.

b. Mechanics and Terminology of succession

i. Probate property: prop that passes either through intestate succession or a will.
1. Process of how decedent’s prop is distributed
2. Choice of law:
a. Real property: where it is located
b. Personal property: where decedent was domiciled at death.
3. Probate administration fills the gap if decedent didn’t arrange his affairs during life
so that his prop passes by nonprobate transfer.
4. If dispute or other difficulty arises during nonprobate transfer, probate system
resolves it.
5. Prop in a testamentary trust created through will passes through probate.
a. Executor will probate the will and as part of the probate, process, she will
create the trust.
6. Personal representative: A person in charge & has probate prop, a must be
appointed to oversee the winding up of the decedent’s affairs (collects then
distributes the prop, pays taxes, etc.).
a. The personal representative is a fiduciary.
 b. Executor: When the will names the person who is to administer the estate.
c. Administrator: If the will doesn’t name a person, or no will (intestate)
i. The person is selected from a statutory list of persons given
preference: surviving spouse, kids, parents, siblings, and creditors.
ii. Nonprobate property: prop that passes outside of probate by a will substitute. It’s already
designated to someone, so a will has no effect. (most prop). Passes under an instrument
other than a will that became effective before T died.
1. Life insurance,
2. Contracts that provide for payment of benefits upon death to designated persons:
bank, brokerage, pension, and retirement accounts (money passes pursuant to the K,
not probate).
3. joint tenancy w/ right of survivorship.
4. Prop placed in an inter vivos trust during decedent’s life passes in accordance w/ the
terms of the trust, no probate (preferred type of trust).

Probate Property Nonprobate Property

Tangible personal property
Prop in a testamentary trust (trust
created when T dies)
Real property (unless jointly owned)
Life insurance
Prop in an inter vivos trust (T created
the trust during her life)
Ks that say to pay X upon death of T:
bank accounts, pension funds,
retirement account
Joint tenancy or ownership w/ right of
survivorship

II. Intestacy: An Estate Plan by Default

a. States can change intestacy law at any time. There’s no const’nal right to intestacy.
i. You get w/e share the statute says. It doesn’t matter if you’re rich, poor, etc.
b. Basic terms
i. Intestate: Dying w/out a will.
ii. Partial intestacy: If the will only disposes of some of the probate estate. Probate prop not
disposed of by will passes by intestacy.
1. Always include a residuary clause.
iii. Intestate succession; intestacy; descent and distribution: Passage of prop when the
decedent dies w/out a valid will. The default rules of the law of intestacy govern.
1. Primary objective: carry out the probable intent of the typical intestate decedent.
iv. Heir: A person entitled to take under intestate succession laws.
1. Presumptive heir/heir apparent: person who would be decedent’s heir if she were to
die intestate.
2. Ancestor: People related to decedent in an ascending lineal line, e.g., parents and
grandparents.
3. Descendant: People related to the decedent in a descending lineal line, e.g., children
and grandchildren.
4. Collateral relative: People related to the decedent but not in a lineal line, e.g.,
siblings, nieces, aunts, and cousins.
a. First line collateral: descendant of the decedent’s parents (siblings, nieces)
b. Second line collateral: descendant of the decedent’s g-parents, (aunts, cousins)
v. Consanguineous relationship: a biological or blood relationship.
vi. Affinity relationship: a relationship by marriage, i.e., in-laws.

c. Applicable law and the Uniform Probate Code (UPC) [P. 67]
i. After spouse’s share, descendants take the rest.
1. If there are no lineal descendants (i.e., kids or g-kids), parents take everything after
surviving spouse gets her share.
2. If there are lineal descendants, parents get nothing.
 ii. Intestacy favors only spouses and blood relations.
1. If divorced, surviving ex-spouse gets nothing.
iii. UPC § 2-102 (surviving spouse’s share)
1. The decedent’s surviving spouse is entitled to:
a. The entire estate if:
i. Decedent has no surviving parents or descendants
ii. All of decedent’s descendants are also the spouse’s & the spouse
doesn’t have any descendants of her own (all their kids are shared).
b. The first $300K + ¾ of what’s left if:
Difference btwn c & d: In c, all kids
i. Decedent has a surviving parent, but no descendants.
are biologically related to spouse, so c. The first $225K + ½ of what’s left if:
she will likely treat them equally. In d, i. Decedent and spouse share kids, but spouse also has a kid of her own.
she might cut out the spouse’s kid in d. The first $150K + ½ of what’s left if:
favor of hers. i. Decedent has a kid who isn’t the spouse’s biological kid.
iv. UPC § 2-103 (distribution after surviving spouse’s share)
1. Any part of the estate not passing to the surviving spouse under § 2-102 passes in
the following order to the individuals who survive the decedent:
a. Kids and grandkids by representation
b. Parents (if no kids/g-kids)
c. Kids of parents, i.e., siblings (if no parents)
d. Grandparents or descendants of grandparents, i.e., aunts, uncles, cousins
i. If these ppl on both mom & dad’s side survive: split equally btwn both
sides (specific distribution, check p. 68).
ii. If these ppl on only one side survive, they take (specific distribution,
same as on p. 68).
e. Step kids if none of the above ppl have survived, but decedent has a step kid
by a predeceased spouse. Doesn’t apply if they got divorced before the spouse
died (marriage must have ended in spouse’s death).
f. If no one is a taker, it goes to the state.
v. The problem of simultaneous death:
1. E.g., Janus v. Taraseqicz (Ill 1985): Spouses were poisoned by Tylenol. Both were
very sick & taken to hospital together. Husband was pronounced dead when he got
there, wife was pronounced dead a couple days later. She had been in a coma since
coming to the hospital, some evidence of brain activity.
a. Husband had an insurance policy. Wife was primary beneficiary, his mom was
back up. Wife’s dad was the administer of her estate.
b. Holding: Wife’s estate gets husband’s life insurance. There was sufficient
evidence that she out lived him.
2. Not a problem anymore.
a. UPC §§ 2-104 and 2-702: To “survive” a decedent, an heir, devisee, or life
insurance beneficiary must survive by 120 hrs (5 days).
i. If you don’t survive by 5 days, you’re considered to have died before
the decedent.
ii. Advantage: Clear rule. Don’t need expert testimony on time of death
iii. Disadvantage: It can disinherit ppl even when they outlive the
decedent. In a will, you can shorten or lengthen the time.
b. Applies even if the deaths aren’t from a common disaster.

d. Descendants
i. If all descendants (kids) are alive, they take in equal share (per capita).
1. But if a kid died before decedent, but has kids of her own, it gets complicated.
a. Three methods of dividing prop when multiple generations are involved.
i. Step 1: Identify intestate’s kids
ii. Step 2: Determine if any predeceased child has a surviving kid.
1. If predeceased child didn’t, that line is done.
 iii. Step 3: Ascertain state’s method of handling multi-generation
succession.
ii. Principle of representation of ancestors/multi-generation succession.
1. If one of decedent’s children predeceases her, when decedent dies, the child’s
descendants represent her and divide the child’s share among themselves.
2. Whether the division into shares shall begin at the generational level immediately
below the decedent or at the closest generational level w/ a descendant of the
decedent alive.
a. English per stirpes:
i. One share per child (whether living or dead, so long as dead child has
surviving kids).
ii. Children are moved into their dead parent’s position
iii. Leads to unequal shares across grandchildren, equal shares across the
decedent’s lines of descent
1. Vertical equality, but no horizontal equality
Intestate
Son Daughter (50%)
Arthur (25%) Brenda (25%) Charles

b. Modern per stirpes (per capita with representation):

i. Followed in about ½ the states
ii. Key: Must determine at what generation decedent’s estate is initially
broken into shares.
1. Divide equally at the first generation w/ at least 1 living
descendant. The share drops down the line and is divided by
the kids of a predeceased parent.
iii. Treats equally each line of descent beginning at the closest living
generation.
iv. Vertical equality (each line of descent treated same) w/ horizontal
equality at the closest living generation.
v. The overwhelming majority of ppl prefer dividing stocks at the closest
generation in which someone is alive.

Intestate
Son Daughter (1/2)
Arthur (1/4) Brenda (1/4) Charles

Intestate
Son Daughter
Arthur (1/3) Brenda (1/3) Charles (1/3)

c. Per capita at each generation (1990 UPC):

i. Equally near, equally dear
1. All kids take same share, all g-kids take same share.
ii. Division of shares is made at the closest generation in which one or
more descendants are alive, but the shares of the dead ppl at that level
are treated as one pot and divided equally among everyone in the next
generation.
iii. Horizontal equality (everyone in same generation treated same), but
no vertical equality.

Intestate
Arthur Brenda Charles (1/4) Doris
(1/4)
Ed Fran (1/6) Tom
(1/6) (1/6)
 1. Arthur, Brenda, Charles, and Doris each get ¼. Arthur’s ¼ +
Brenda’s ¼  ½  equal division btwn Ed, Fran, & Tom
e. Ancestors, collaterals, and others

P. 86

i. In all states, descendants are favored over ancestors and collaterals, even if the descendant is
a more distant relative, e.g., grandkid is favored over parent.
1. If there are no descendants, ancestors and collaterals will inherit what doesn’t pass
to the spouse.
ii. Collateral: related by blood to decedent, but not descendants or ancestors
1. First-line collaterals: descendants of dead person’s parents (i.e., siblings, nieces and
nephews).
a. If both parents are alive: they divide the estate that doesn’t pass to the spouse
b. If only one parent is alive and at least one sibling: Jurs are split.
i. UPC § 2-103 says that parent gets it all,
Scanned by none for sibling(s)
CamScanner
ii. Other states say that it’s split. Parent gets ½, siblings split other ½
c. No parent and at least one sibling: Goes to the sibling(s). If one or more of the
siblings predeceases the intestate, distribution among the nieces and nephews
will depend on whether the jur uses per stirpes, per capita w/ representation,
or per capita at each generation.
d. If no first-line collaterals, states differ on who’s next in line:
i. Parentelic system: The intestate estate passes to g-parents and their
descendants. If no one in that line, to great g-parents and their
descendants. And so on. Goes down the lines of collaterals. Everyone
in the line takes.
ii. Degree-of-relationship system: The intestate estate passes to the
closest of kin, counting degrees of relationship.
1. Degree of relationship is determined by counting the steps
(one for each generation) up from the dead person to the
 nearest common ancestor, then counting the steps down to the
claimant from the common ancestor.
2. Laughing heir rules: Collaterals beyond a certain point can’t take.
a. UPC draws the line at 3rd line collaterals.
f. Disinheritance by negative will
i. Old rule: To disinherit a child, the parent must devise his entire estate to other ppl.
1. If will says, “son shall receive none of my property,” son will still take a portion that
passes through intestacy.
ii. UPC § 2-101(b) authorizes a negative will by way of an express disinheritance provision.
Treated as if he predeceased the decedent.

g. Transfers to children
i. Advancements and Hotchpot
1. If a child wants to take from the parent through intestacy, the child must permit the
administrator to include in the determination of the child’s share, any advancements
the child received from the parent while living.
a. At CL, it was presumed that any gift to a child was an advancement
i. Child had the burden of proving it was a gift
ii. Based on the assumption that parent would want the assets to be
distributed equally
b. If it’s treated as an advancement, it’s brought into hotchpot
i. O has no spouse and 3 kids: A, B, and C. O gave A $10K during O’s
life. O’s estate has $50K. The $10K is added to the $50K = $60K, then
divided by 3 = $20K per kid. A’s $10K is subtracted, so she gets $10K
and the others get $20K.
ii. If O had given A $40K during O’s life, the total would now be $90K.
Divided by 3 = $30K. This is less than what A already got, so A sits
out. A doesn’t have to pay anything back bc O wanted A to have at
least $40K. Other two divide the $50K to get $25K each.
2. UPC § 2-109 (p. 128): Advancements
a. Applies to gifts made by intestate to lineal descendants, spouses, and
collaterals during her life.
b. Applies if person dies in total or partial intestacy
c. Presumed to be a gift, not an advancement
i. It’s an advancement only if a contemporaneous writing by heir or
decedent said it was an advancement, or that it should be taken into
consideration in distributing decedent’s estate.
d. Value of the prop is its value when intestate got possession
e. If recipient pre-deceases, her line of descent isn’t effected by the gift, unless a
contemporaneous writing says otherwise.

III. Wills: Formalities and Forms

a. Basic terms:
i. Testate succession: The passage of property under the decedent’s will.
ii. Will: A written document or oral declaration directing who will own the decedent’s property
upon the decedent’s death.
1. Holographic will: Handwritten by T
2. Will substitute: insurance policy, joint tenancy w/ right of survivorship, etc.
a. Accounts for ~ ½ of prop passing at death.
b. Shouldn’t be used instead of a will! Too many loose pieces.
iii. Codicil: A type of will that merely amends an already existing will.
iv. Testator: A person who dies w/ a valid will.
v. Devise: A gift of real property in a will.
vi. Legacy: A gift of money in a will.
vii. Bequest: A gift of personal property in a will.
viii. Beneficiary: A person who receives property under a will.
 b. Execution of wills
i. Attested wills: Wills that are witnessed
1. Core formalities req’d by Wills Act
a. Purpose of formalities: enable the court easily and reliably to discern the
authenticity of a purported act of testation.
i. Make sure testator intended to make an at-death distribution
(deliberation, not merely hypothesizing about what to do w/ prop)
ii. Evidentiary: create reliable evidence of testator’s intent.
iii. Protective: Harder for an evil person to exert undue influence.
iv. Channeling. Increase confidence of the testator that her desires will be
carried out. The whole process seems “legal.”
b. In writing
c. Signed by testator
d. Attested: Two witnesses are req’d
2. UPC § 2-502: Execution, Witnessed or Notarized Wills; Holographic Wills
a. Witnessed or notarized wills
i. Written, signed, and witnessed by 2 ppl or notarized
b. Holographic wills
i. Doesn’t comply w/ (a), but testator signed it and wrote material
portions of the doc in her handwriting.
ii. Doesn’t need to be witnessed
c. Extrinsic evidence
i. Is allowed to prove that the doc is the testator’s will. Portions of the
doc not in the testator’s handwriting is allowed as proof for
holographic wills.
3. Attestation clauses aren’t req’d, but they should be included.
ii. Interested witnesses and purging statutes
1. Purging statute:
a. A will w/ an interested witness is valid, but the witness doesn’t take her
devise.
b. Majority of states still have a purging statute.
i. But they allow an interested witness to take an amount equal to what
she’d get through intestacy.
c. Only applies to a witness who’s necessary for the will’s validity.
i. A witness who’s not needed is supernumerary and is entitled to her full
devise.
Substantial 2. UPC § 2-505(b): A will is valid even if witnessed by an interested person; she doesn’t
minority follow lose her gift even if disinterested person doesn’t testify about authenticity
UPC here a. But it might  litigation bc the presence of an interested person is a
suspicious circumstance that could lead to a challenge for undue influence.
3. CA and some other states say that a witness w/ an interest  rebuttable
presumption of undue influence, duress, or fraud.
a. Interested witness must prove no undue influence, etc. to keep the gift.
4. E.g., Estate of Morea: Will had 3 witnesses. George was a friend & a beneficiary,
Kevin was his son who got a smaller share than he’d get through intestacy, Bob
wasn’t a beneficiary.
a. George’s gift is still valid. 2 disinterested witnesses: Son wasn’t interested
since he’d get more if will wasn’t valid and Bob.
i. State statute req’d 3 witnesses, but said that interested witness is valid
if there are 2 disinterested witnesses.
iii. Ad hoc relief from strict compliance

c. Substantial compliance doctrine

i. Old rule is strict compliance.
1. A will is invalid if it’s imperfectly executed.
 a. E.g., Pavlinko’s Estate: Non-English speaking couple went to lawyer for sweet
heart wills. Residuary clause said everything goes to wife’s brother if spouse
died first (i.e., it goes to surviving spouse, if he/she has died, goes to wife’s
bro). They accidentally signed each other’s wills. Wife died, then husband.
Tried to admit husband’s will into probate.
i. Holding: His will is invalid bc signed by wife. His estate goes through
intestacy, so his heirs, not wife’s bro, gets everything.
b. But see In re Snide (30 yrs later): Husband & wife had sweetheart wills,
accidentally signed each other’s. LC switched the names to make the will
valid. A child objected bc she’d inherit through intestacy, but not under will
bc all went to mom.
i. Holding: The rule doesn’t need to be applied formalistically. The
testamentary scheme is clear. The dispositive positions are identical
other than the names.
2. Two ways to correct a switched wills error
a. Probate the will that the decedent intended to sign but didn’t.
i. This req’s abandoning strict compliance for substantial compliance or
harmless error bc testator didn’t sign it.
b. Probate the will that the decedent actually signed, then reform its terms to
make sense (e.g., switch “Harvey” for “Helen”).
ii. Substantial compliance doctrine:
1. The insistent formalism of the law of wills is mistaken and needless.
2. A defective will creates a rebuttable presumption of invalidity that can be overcome
w/ strong evidence of intent and satisfaction of the purposes of the Wills Act.
3. The key question is whether the manner in which an instrument was executed
satisfied the purposes of the Wills Act formalities.
a. When a will is defective, ask if it expresses the testamentary intent, and does
its form sufficiently approximate Wills Act formality to enable the court to
conclude that it serves the purposes of the Wills Act.
i. Purpose of Wills Act: admit only legit wills.
iii. Attestation: witnessing the signing of a doc then also signing it to verify that it was properly
signed by those bound by its contents.
d. Harmless error rule
i. UPC § 2-503 (adopted in ~ 10 states) P. 184
1. Will w/ errors is valid if the proponent of the doc or writing establishes by C&C
evidence that the decedent intended the document or writing to constitute
a. Her will,
b. A partial or complete revocation of the will,
c. An addition to or an alteration of the will, or
d. A partial or complete revival of her formerly revoked will.
2. The larger the departure from the imposed formalities, the harder it will be to prove
that the doc reflects the testator’s intent.
ii. In re Estate of Hall: Husband and wife had a will, then went to lawyer to get a new will.
Lawyer notarized it, but no other witnesses. They got home and tore up the old will, then
husband died.
1. The draft will is valid even though it didn’t meet formalities. He intended the new
one to be the will (tearing up old will = revocation). Harmless error rule eliminates
the witness req’t.
iii. Restatement 3rd priority of formalities:
1. Writing. There must be a document. Lack of document can’t be fixed by harmless
error rule.
2. Lack of signature is next hardest to excuse.
3. Attestation problems are more easily excused. This is the usual problem that
harmless error rule fixes.
e. Holographic wills
i. Written by the testator’s hand, signed by the testator, & testamentary intent.
 1. Rationale for admissibility: There is more handwriting available for experts to
investigate, so probate of a forged document is unlikely.
ii. Three approaches for handwriting req’t:
1. First generation: entirely hand-written, signed, and dated
a. Even one or two printed words invalidates. Must have full date Mo, day, year
b. ~ 1/3 of states that allow holographic wills follow this approach
c. Invalid even if will is written on hotel stationary & hotel’s name is written on
the top.
2. Second generation: material provisions (1969 UPC)
a. The signature & material provisions must be hand written. Hand-written
portions must be enough alone to = testamentary intent, but pre-printed can
give context. (Split recognized in Gonzalez)
i. If you take all the hand-written portions and make it a separate doc &
it’s a will (has testamentary intent, describes the prop, and devisee), it’s
valid. If the statement of testamentary intent is typed, will is invalid.
1. I give, devise, and bequeath …. is seen as 1 provision that
must all be handwritten.
b. ~ 1/5 of the states permitting holographic wills follow this approach
3. Third generation: material portions and extrinsic evidence allowed
a. Material provisions changed to material portions
i. Material portions: The words identifying the property and the devisee
must be hand-written, not “I give, devise, and bequeath.”
ii. Portions of the doc not in the testator’s handwriting = extrinsic
evidence, and extrinsic evidence is allowed.
b. Most common
iii. Testamentary Intent
1. Issue: was it intent to make a conditional gift, intent to make a future will, or present
testamentary intent (bequeath prop at death)–only last satisfies req’t.
2. Conditional language is presumed to be intent to make a testamentary gift, not a
conditional gift.
3. In re Kimmel: Dad wrote a note that said “if enny thing happens…sons get prop” then
sent the letter to his sons.
a. Clear intent to make a testamentary gift.
4. Estate of Kuralt: Man had a mistress and stayed w/ her at his MT prop. He deeded
part of the prop to her and gave her $ to pay for it. He was going to deed the rest to
her. Wrote her a letter saying he’d have a lawyer come to make sure she got the
property “if it comes to that.” He died.
a. The letter is a holographic codicil to his formal will. The events show
testamentary intent. (conveyance w/out consideration, and said he planned to
give the rest to her as a gift too).

f. Revocation of wills
i. All states permit revocation of a will by:
1. A subsequent writing executed w/ Wills Act formalities (i.e., a new will)
a. Express revocation says that you’re revoking all prior wills
b. Implied revocation occurs when there’s an inconsistency
i. Occurs when testator has a later will that doesn’t expressly revoke the
prior will.
1. If 2nd will makes a complete disposition of testator’s estate, it
presumptively revokes the prior will by inconsistency.
2. If the second will doesn’t make a complete disposition, it’s
viewed as a codicil, & any prop not disposed of under it is
disposed of in accordance w/ the prior will.
c. Stoker (CA–harmless error state): Decedent had a will from 1997 that gave
prop to his gf. Daughter introduced a hand-written letter from 2005 that said
 he revokes the 1997 one and gives all prop to his kids, not the gf. No
witnesses signed the new one.
i. The letter is valid, so the 1997 will is revoked. Harmless error rule
dispenses w/ witness req’t, so the 2005 will is an express & implied
revocation.
2. A physical act such as destroying, obliterating, or burning the will
a. Maj: The physical act of destruction must touch the words of the will
i. Thompson: Woman had a valid will & codicil. She told her lawyer to
destroy both. He didn’t, but he wrote a note on the back of the
coversheet that they were null and void and saved only as a template.
Woman signed the note.
1. The will was still valid bc she didn’t in any way destroy any
part of the will. Didn’t touch the words.
b. Minority (UPC): Revocation by physical act is ok whether or not the
cancellation touches any of the words on the will.
c. Presumption of physical act revocation
i. Presumption of testator’s intent to revoke the will if:
1. Will was in testator’s possession & can’t be found after death
2. Will was in testator’s possession & it’s found after death w/ a
revocatory act performed on it.
3. Harrison: Evidence that will was in her possession, but it
wasn’t found at her death, so presumption she revoked it.
ii. No presumption of revocation if:
1. The will was last known to have been in the possession of
someone other than the testator.
iii. Presumption can be rebutted by preponderance of the evidence
1. E.g., Will is missing, but disinterested witness saw it the day
decedent died, and a disinherited relative had access to it.
3. UPC § 2-507 (and most states) authorize partial revocation by physical act. Some
states allow partial revocation only by subsequent writing.
4. Presumption of revival:
a. If will #2 wholly revokes will # 1, and will # 2 is destroyed by an act,
presumption is that will 1 isn’t revived.
b. If will #2 partially revoked will # 1, and will # 2 is destroyed by an act,
presumption is that will # 1 is revived.
ii. Dependent relative revocation (DRR)
1. A mistake revokes the intent to revoke.
2. A revocation is ineffective if the testator wouldn’t have revoked her will but for a
mistaken belief about law or fact.
a. Ex: Testator destroys an old will bc she believes her new will is valid. New
will is invalid. If court finds that she wouldn’t have destroyed the old will but
for the belief that the new will was valid, the old will will be probated.
3. E.g., Alburn: Woman had a 1955 will, then made a will in 1959 that expressly
revoked the 1955 will. She tore up the 1959 will thinking it would revive the ’55 will.
Mistake of law: it’s not revived; need a new will.
a. Holding: the 1959 will isn’t revoked. There’s evidence that she didn’t want to
die intestate.
i. This is the second-best remedy. First best would be to probate 1955
will, but that wasn’t an option.
4. Burden is on the person who’s trying to bring the will back to life (say the revocation
wasn’t effective).
iii. Revocation by operation of law
1. Divorce: A divorce revokes any provision in a decedent’s will for the decedent’s
divorced spouse. (vast majority rule)
a. UPC also revokes gifts to any relatives of the ex-spouse, e.g., step-kids.
b. And revokes gifts in “any governing instrument.”
 2. Marriage: A premarital will is valid even after marriage, but a surviving pretermitted
spouse is entitled to an intestate share of the deceased spouse’s estate, unless it
appears that the omission was intentional or the pretermitted spouse is provided for
in the will or by a will substitute.
3. Birth of children: Pretermitted child statutes give a child born after the execution of
a parent’s will, and not mentioned in the will, a share of the parent’s estate.

g. Components of a will (what is the decedent’s will?)

i. Incorporation by reference and acts of independent significance are two doctrines that
permit extrinsic evidence to resolve the identity of persons or property.
1. Different from republication by codicil: a validly executed will is treated as re-
executed (i.e., republished) as of the date of the codicil.
a. The original will is treated as having been signed when the codicil was
signed. Everything is brought forward to the latest codicil/signing.
b. Applies as long as the it’s consistent w/ testator intent. Curing problems.
c. Ex: Will had interested witnesses, but codicil didn’t. Bringing everything
forward to the date of the codicil makes it valid.
ii. Incorporation by reference
1. UPC § 2-510: A writing that was in existence when the will was signed and is
referenced in the will, is valid as part of the will; it’s not a codicil. The writing
doesn’t have to be signed by testator or witnessed.
a. Clark v. Greenhalge: 1997 will made Greenhalge primary beneficiary. Will
said he’d get all prop other than items designated in a memo left by her and
known to him. In her notebook, she said her friend gets an expensive
painting. Greenhalge tried to keep the painting.
i. Painting belongs to the friend bc the notebook existed when the will
was executed, and was referenced in the will.
2. Subsequent writings and tangible personal prop
a. UPC § 2-513: A testator may dispose of tangible personal property by a
separate writing, even if prepared after the execution of the will if the will
makes reference to the separate writing.
i. Allows the testator to reserve the power to make and then continue
revising a list of bequests of tangible personal property w/out add’l
testamentary formalities.
1. Allows a lot of prop to pass informally.
ii. Only a slim majority have adopted.
3. Acts of independent significance
a. UPC § 2-512: A will can dispose of prop by referencing acts or events that
have significance apart from their effect upon the disposition made by the will,
whether they occur before or after the execution of the will or before or after
the testator’s death. E.g., execution of another’s will.
b. Permits a testator to effectively change the disposition of his property
without changing a will, if acts or events changing the disposition have some
significance beyond avoiding the requirements of the will.
c. Can’t be used to get around formalities of Wills Act.

IV. Wills: Construction

a. Mistaken or ambiguous language
i. Trend is to liberalize, but majority rule is to strictly enforce the rules.
ii. Plain meaning and no reformation
1. Plain meaning/no extrinsic evidence rule: Extrinsic evidence isn’t allowed to try to
prove the testator intended another meaning than the plain meaning.
Modern courts admit a. Patent ambiguity: The ambiguity appears on its face/the text itself.
extrinsic evidence to i. Estate of Cole: Will said “the sum of two hundred thousand dollars
resolve both patent and ($250,000).”
latent ambiguities. b. Latent ambiguity: Surrounding circumstances create ambiguity in the text.
Ambiguity manifests itself only when the terms of a will are applied to the
Some still distinguish. facts.
i. Extrinsic evidence is allowed. It merely makes the words more precise,
it doesn’t add to them.
ii. E.g., I give my house to my friend Susan. Testator has two friends
named Susan.
2. No reformation rule: courts can’t reform a will to correct a mistaken term to reflect
what the testator intended the will to say.
3. Rationale for rules: Testator can’t corroborate or refute extrinsic evidence of intent
that’s at odds w/ the words of her will, so she’s protected from fraud & error by
categorically excluding the evidence.
4. Mahoney: Woman said she wanted her cousins to inherit. Lawyer drafted will to leave
prop to her “heirs at law.” Cousins aren’t included in the meaning of “heirs at law” so
they don’t take.
iii. Ad hoc relief for mistaken terms
1. Mere erroneous description doesn’t vitiate: Delete the erroneous parts of the
description and apply the part that fits.
a. E.g., Arnheiter: Will said she left her prop at 304 Harrison Avenue. P didn’t
own 304 Harrison Ave, but she owned 317 Harrison Ave.
i. Holding: The street # can be dropped–“I leave my prop at Harrison
Ave”–and it’s sufficient to identify the prop.
2. Details like middle initials and addresses are subject to mistake. Shouldn’t be subject
to such sanctity to frustrate an otherwise clearly demonstrable intent.
a. Gibbs Estate: Gift to Robert J. Krause at 4708 46th St, Milwaukee. Robert W.
Krause had never lived at that address, but was an employee for 30 yrs.
Robert J. Krause at that address was unknown to the Gibbs.
i. There is no patent ambiguity in the text: clearly applies to J. Kraus,
but this obviously wasn’t testator’s intent, so it will be changed.
iv. Openly reforming wills for mistake
1. UPC § 2-805: Court may reform text, even if unambiguous, to conform the text to
the testator’s intent if it’s proved by clear & convincing evidence what the intent was
and that the terms were affected by a mistake of fact or law.
a. Herceg: Had a residuary clause but no one was named as the beneficiary. Will
from 2 yrs earlier had residuary clause w/ nephew’s wife as beneficiary.
i. Holding: Nephew’s wife’s name is inserted into the will bc that was
testator’s intent.
b. Lapsed or void gifts
i. Void: I leave something to my dog or a person who is already dead.
ii. Lapsed: Testator leaves something to X, X dies, testator doesn’t update the will. Unless
testator has added an alternate taker, or there’s an antilapse statute, the gift lapses.
1. Where it goes to depends on the type of devise that X was beneficiary to:
a. A general or specific devises, the gift falls into the residuary clause.
i. Specific devise: Blackacre, my widget company, my watch. A concrete,
specific piece of property.
ii. General devise: I leave $10K to X (stated amount of $).
b. If X was a beneficiary of the residuary clause,
i. If X was the only beneficiary, residue goes through intestacy
ii. If there were multiple beneficiaries and others are still alive, the
residuary passes to the surviving ppl (leave to A, B, C, A predeceases,
B & C get).
1. No residue of a residue (tiny minority): share that would’ve
gone to A goes to intestacy, not the other members.
 2. E.g., Russell: Will says ½ goes to Chester and ½ goes to Roxy. Roxy is a dog. Chester
tried to say that intent was for him to get entire residuary estate to take care of
Roxy. Rejected bc no evidence that this was intent. 1/2 of estate for Roxy passes
through intestacy.
iii. Class gift (Blackacre to my kids): CL: The remaining members of the class take the gift.
1. UPC: The issue of the predeceased class member takes in class member’s place.
2. It’s a class gift if the number of people entitled to take can vary.
a. Characteristics of class gift:
i. Members stand in the same relation to each other or to the testator.
ii. Amounts of shares (# of takers) are uncertain until testator’s death.
b. Ex: “My children” can vary btwn the time the will is executed and when
testator dies. Testator can have another kid, or a kid can die. The number of
shares can fluctuate.
c. If it’s not possible for the members of the class to change, it’s a gift to a group
of individuals, not a class gift.
3. This matters for who gets the gift if one predeceases.
a. If it’s class gift: goes to other members/issue
b. If not a class gift: It lapses
4. Dawson: Wife was left a farm by her husband (belonged to his family). She left the
farm to two of her husband’s nephews in equal shares. Residue went to unrelated
ppl. One nephew pre-deceased; other wanted whole farm.
a. Holding: Gift of farm wasn’t a class gift. The gift to pre-deceased nephew
lapsed and passed to the residue of the estate.
i. A 3rd nephew wasn’t included, she had a survivorship gift in the
residuary clause: she knew how to write it and didn’t.

iv. Anti-lapse statute:

1. UPC § 2-605. Two elements all anti-lapse statutes have:
a. Scope: To whom does it apply. Here, g-parent, lineal descendant of a g-parent.
Only gifts to these individuals can be saved by anti-lapse statute.
i. Some are narrow: Descendants of testator
ii. Some are broad: All kindred of testator, or all kindred of testator and
spouse.
b. Where does it go. Here, the issue (kids & g-kids) of the devisee.
2. It presumes to do what the testator would do if she thought about it.
3. Default rules. If testator doesn’t like it, testator can contract around it.
a. “If he survives me” is sufficient in majority of states to override anti-lapse
statute. Indicates that testator wouldn’t want a substitute taker if the person
dies.
i. Share and share alike probably isn’t enough to overcome
b. UPC § 2-603(b)(3): “if he survives me” isn’t enough to impose a condition of
survivorship. [minority: 7 states]. The issue of the deceased beneficiary will
take under anti-lapse statute.
i. Rationale: If he survives me is boilerplate language. Doesn’t actually
express intent of testator.
1. Problem: Pretentious. Goes against the text of the will.
ii. Ruotolo: G-ma’s will made gift to daughter “if she survives me.” G-
daughter wanted anti-lapse statute to apply so she could take.
1. Intent to get around the statute must be plainly obvious and
burden is on person trying to bar application of the statute.
4. Reasons for anti-lapse statute not applying
a. Devisee not w/in scope
b. Testator provided alternative gift
c. Testator provided intention that anti-lapse statue not apply
c. Ademption: Changes in property after the execution of the will
i. Ademption by extinction: a specific gift fails bc the prop isn’t in the testator’s estate when the
testator dies.
1. Identity theory: If I leave Blackacre to A, then I die and A is alive, but I don’t own
Blackacre anymore, it can’t pass to A. The identical asset has to be in the estate for
the gift to be good.
a. Advantage: simple. If it’s not there, beneficiary can’t get it.
b. Disadvantage: can produce harsh results.
Scanned A gets nothing.
by CamScanner
c. Majority rule.
2. Intent theory: If identical prop isn’t in estate, beneficiary is allowed to prove that
testator intended that he take w/e the prop was turned into. The presumption is still
that if it’s not there, it’s not available, but it can be overcome.
a. Right to go to court & introduce evidence that testator intended that he’d get
value of the car, or new car if the specific car wasn’t available.
3. UPC § 2-606. (a) Specific devise: devisee has right & balance of purchase price (if
testator sold it, any amount left), condemnation award (leave Blackacre to A, if it’s
condemned, A gets what’s left of the condemnation award), etc. Presumption is that
testator didn’t want the gift to adeem.
a. (6) is controversial. Reinstates identity theory w/ the exception of things
covered in (1)–(5). Up to P to prove there hasn’t been an ademption (intent
that person would get alternate gift). Presumed that gift is extinguished.
b. (b) prop sold by conservator or agent, or w/in durable power of attorney.
ii. By satisfaction: Testamentary gift fails bc the testator has already transferred the prop to the
beneficiary btwn the time of execution & death.
1. Analogous to advancement (in intestate succession).
iii. Exoneration: gifts are often encumbered by mortgages, liens, etc.
1. CL: Exoneration is presumed–beneficiary gets enough $ to pay off the burden
2. UPC § 2-607 and many states: exoneration occurs only if there is express language
req’ing it in the will.
a. Bc exoneration can really mess w/ the estate–paying a mortgage can be huge.
iv. Abatement: Occurs when testator attempts to give away more property than he is actually
able to give. Abatement is the reduction or elimination of a testamentary gift to pay an
obligation of the estate or a testamentary gift of a higher priority.
1. Might have misjudged how much $ was in estate, or amount of debts due.
a. Debts must be paid before making the gifts.
2. Abatement order (order of elimination of gifts to pay something else):
a. Prop passing via intestate succession (partial intestacy)
b. Residuary gifts
c. General gifts ($10K to Sam)
 d. Specific gifts (my gold watch to Kim)
3. If a specific gift has to be used to pay the obligations, beneficiary can pay the
obligations herself then receive the gift. Otherwise, the executor sells the gift and
gives beneficiary w/e proceeds remained after satisfying the creditors.
V. Trusts
a. Basics:
i. A trust is a legal arraignment btwn 3 ppl: settlor, beneficiary, trustee.
ii. Trust: A property conveyance in which the owner divides title to the property into legal &
equitable interests and imposes fiduciary duties on the holder of the legal title to deal with
the property for the benefit of the holder of the equitable title.
iii. Settlor (or trustor, grantor, or donor): Person who creates a trust by making the property
transfer which divides title and imposes duties.
iv. Beneficiary (or grantee): The person who receives the equitable title to trust property; has a
right to benefit from that prop according to the settlor’s instructions.
v. Trustee: The person who holds legal title to trust property and has the fiduciary duty to
manage that property according to the settlor’s instructions and trust law.
vi. Corpus, estate, res, or principal: The property conveyed in trust form.
vii. Income: The profits or other earnings made by property after it’s conveyed in trust form.
viii. Ways to create a trust
1. Trust agreement: inter vivos conveyance to trustee
a. Inter vivos trust: Set up when settlor is alive.
i. Can be set up by an oral declaration of trust or deed of trust.
1. Need clear & convincing evidence for an oral declaration to be
valid. Should tell someone that you made a trust.
ii. Can be revocable or irrevocable. If irrevocable, settlor doesn’t own it
anymore, so taxes aren’t settlor’s responsibility. If revocable, the taxes
are the settlor’s responsibility bc he still owns the prop.
2. Declaration of trust: Settlor declares herself to be the trustee of prop, then
transfers some or all of its equitable title to beneficiaries.
3. Testamentary trust: Created by T’s will. Doesn’t go into effect until T dies. Prop
goes through probate.
ix. Merger: When someone has equitable and legal title. They merge and there’s no trust.
x. Bifurcation: trustee is divided into two legal people. Creditors can only come after trustee in
proper capacity.
1. Debts due to role as trustee. Can’t come after trustee’s individual money.
2. Debts due to individual capacity. Can’t come after prop in the trust.
xi. Fiduciary duties
1. Duty of loyalty. Need to act for benefit of the trust. Allowed to compensate yourself
out of the trust. No self-dealing
2. Duty of prudence. Must make decisions prudently. Reasonable manner, usual level of
skill that person in the position would have. Personally liable if you do something
imprudent.
a. Applies to more than just decisions on investment. Any act.
3. Duty of impartiality. If trustee is trustee of multiple trusts, and btwn various
beneficiaries, trustee must be impartial.
4. Duty not to commingle assets of trust and other accounts
5. Duty to inform and account. Keep track of what’s going on in trust, and tell
beneficiaries.
6. Remedies:
a. Get the prop back, unless it was bought by a bona fide purchaser.
b. Get compensation back if trustee was paid.
c. Remove the trustee.
xii. The trust isn’t a thing. It can’t sue or be sued, but the trustee can.
xiii. 31 states have adopted the Uniform Trust Code (UTC). It’s majority rule!

b. Creation and characteristics

 i. Intent
1. No specific language req’d (don’t need to say you intend it to be a trust or that
someone is to be the trustee).
2. Need language to show intent to split ownership, e.g., to X for the benefit and use of
Y. Someone other than trustee has beneficial ownership.
3. Precatory words (moral obligations) don’t create a trust. Must intend to impose
fiduciary duties/mandatory req’ts. I wish/hope/suggest, are usually not binding.
a. Colton: Left estate to his widow, & recommended that she use the estate to
care for his mom and sister. Widow said the estate was hers, free and clear.
Mom and sister said she had to use part of it for their benefit.
i. Holding: Court can look to the circs involved to see why the condition
is included. The size of the estate ($1 mill), fact that husband had been
supporting mom & sister, and he made the will 3 days before he died,
shows some of the assets need to go to the husband’s mom and sister.
1. Even though precatory, held mandatory.
b. Brill v. Phillips: Devise to A said that it was given w/ understanding that A
will take care of mom
i. Holding: Precatory, and not meant to create a trust.
4. A settlor can appoint herself as trustee; must manifest intention to do so.
5. Must have a present intention to create a trust.
ii. Trust Property (corpus)
1. The trust must have prop in it to be valid. Doesn’t have to be substantial.
2. Rippenstein: Can’t say “$200 per month to X;” need to designate some prop to be in
the trust.
iii. Ascertainable Beneficiaries
1. Invalid if it’s a bequest to indefinite persons.
a. Clark: Beneficiaries “my friends as my trustees shall select” is too
indefinite/unascertainable. “Friends” unlike relations has no statutory
meaning. No way to figure out who’s in the class.
b. UTC allows for indefinite classes. The power must be exercised w/in a
reasonable time or it fails.
2. Exception: Pet and other non-charitable purpose trusts
a. Pet and Other Noncharitable Purpose Trusts
i. A charitable trust doesn’t need a beneficiary. It must be for a charitable
purpose.
ii. UTC and trend in cases allows enforceable trusts for animals (§ 408)
and other noncharitable purposes (§ 409). (traditional rule: invalid for
want of a beneficiary).
iii. § 408: Honorary trust for pet is ok
iv. § 409: A trust may be created for a noncharitable purpose w/out an
ascertainable beneficiary or for a non-charitable but otherwise valid
purpose to be selected by the trustee.
1. Usually lack of ascertainable beneficiary is only ok in
charitable trust. Here, it’s ok for things like maintaining a
grave stone (noncharitable, but valid purpose, and no
beneficiary).
v. No one is needed to enforce charitable trusts bc the state AG enforces.
vi. Neither 408 nor 409 can be for capricious or illegal purpose.
1. Can’t encourage criminal acts.
vii. A bequest for the care of a specific animal is an honorary trust bc its
binding on the conscience of the trustee. No beneficiary is capable of
enforcing it.
1. Bequest is made for the person to do something on his honor;
nothing besides honor binds him.
iv. Nonprobate transfers
 1. E.g., Trusts, life insurance policies, joint real estate w/ right of survivorship, pension
accts.
2. Not a good idea to do estate planning w/ all will substitutes.
3. Two kinds of questions law has to deal with:
a. Do they have to meet Wills Act req’ts since they pass prop at death?
b. If not subject to the Wills Act, should the subsidiary wills laws apply?
i. Anti-lapse rules, creditor rights, etc.
v. Irrevocable trusts
1. Created to transfer ownership of prop to reduce taxes
2. It goes into effect during grantor’s life, and can’t be revoked after it’s finalized.
vi. Revocable trusts
1. Created to avoid probate
2. It goes into effect during the grantor’s lifetime and can be revoked at any time.
3. It is like a will. It can be changed by the settlor at any time during their life.
4. UTC § 602: (how settlor can change a revocable trust)
a. (a) Settlor may revoke or amend the trust unless it says that it’s irrevocable.
Presumption is that it’s revocable.
b. (c) Settlor may revoke or amend a revocable trust by:
i. Substantial compliance w/ a method provided in the trust, or
ii. If the terms of the trust don’t provide a method or the method isn’t
expressly the exclusive option,
1. Revoke in a later will or codicil, or specifically devise the prop
that would’ve passed in the trust under a will or codicil.
a. Residuary bequest in another will or codicil (anything
other prop) doesn’t qualify. Need to specifically give
the prop.
2. Any other method manifesting clear and convincing evidence
of the settlor’s intent
a. Includes revoking it orally or by physical act.
5. Benefits of Revocable trust:
6. Consolidate disposition of all property under 1 instrument.
a. Only need to change one document, and whole estate plan will be changed.
All assets pour into the trust. Easy to change estate plan.
7. Pour-over will: O sets up a revocable trust w/ himself or a 3rd party as trustee.
a. O then executes a will devising his probate estate to trustee of that trust.
8. Publicity is a reason to have a revocable trust. Anything in a will is public record.
Assets in a revocable trust are secret. Avoid probate.
9. You can choose which state’s law will apply. In a will, you can only pick the law for
defining terms, but not for substantive req’ts, e.g., changing forced shares (surviving
spouse’s rights).
10. One reason not to use revocable trust: Creditors have a shorter period of time to
make a claim on assets in the probate estate. Claim goes away if they don’t make the
claim. They have a much longer time for assets in a revocable trust.
vii. Subsidiary Law of wills
1. A will substitute is in reality a non-probate will. A will substitute is therefore subject
to substantive restrictions on testation and to rules of construction and other rules
applicable to testamentary dispositions.
2. Creditor rights: Creditors can access the assets in the trust that the settlor could’ve
used for his own benefit at the time of his death.
a. But other nonprobate transfers can’t be accessed by creditors if they’re paid
directly to the beneficiary.
3. Divorced spouse: Depends on the state. Massachusetts: applied the state’s law that
ex-spouse is cut out.
a. Clymer: Woman made a will w/ husband as primary beneficiary. He was
beneficiary of life insurance & retirement plans too (nonprobate transfers).
She then executed a new will & revocable trust. The bulk of her estate was to
 pour over into the trust. Husband was the life beneficiary. They divorced, and
she changed the life insurance but nothing else.
i. Husband’s interest is revoked. The trust & will are an interrelated
whole.
4. Other subsidiary rules of wills:
a. Ademption: Also applies to assets in a revocable trust.
i. Blackacre is in a revocable trust & trustee is supposed to give it to X,
but Blackacre is gone. If identity theory, X gets nothing.
b. Abatement also applies as if passing under a will. Residual benefit used first
to make up short fall, then specific devises go next.
c. Anti-lapse: same as under will. If beneficiary hasn’t survived, antilapse
statute kicks in and the beneficiary’s issue will take her place. But written
beneficiary has to be a certain relation. Same controversy about whether “if
he survives me” shows into to not have antilapse apply.
viii. Other will substitutes:
1. Life insurance:
a. Nonprobate asset: Has a named beneficiary.
b. Term life insurance is most common. It’s a K that obligates the insurance co
to pay the named beneficiary if the insured dies w/in the policy’s term.
c. Whole life insurance: combines life insurance w/ a savings plan. The policy
eventually is paid up or endowed, then no more premiums are owed. It’s
permanent; payment to insured is guaranteed.
d. Not subject to Wills Act formalities. Difficult question is whether subsidiary
laws apply.
i. To change the beneficiary, it must comply w/ the insurance company’s
req’ts; can’t just state a new beneficiary in the will.
1. Three exceptions:
a. The insurance co waived strict compliance req’t &
issued a new certificate after insured changed the
beneficiary. Old beneficiary can’t complain.
b. If it’s not possible for the insured to comply literally.
c. If insured has done everything in his power to change
the beneficiary, but died before the new certificate has
been issued.
ix. Planning for incapacity
1. Revocable trust: The trustee can only use prop put in the trust before settlor became
incapacitated.
2. Durable power of attorney: Effective during incapacity of the principal & until the
principal dies. But must be signed when principal has capacity. UPC: all power of
attorneys are presumed to be durable.
a. Springing durable power of attorney: power is effective only once principal
becomes incapacitated.
i. Otherwise, it is effective once signed (while principal has capacity)
b. Usually must be in writing. In some states, it must be witnessed or notarized.
c. General: agent can do anything principal can v. limited: agent can only do
certain things or limited to certain time period.
d. Advantage: Agent can be authorized to act for any of principal’s prop, not just
what’s in a trust.
e. Disadvantage: The permissible scope of the agent’s powers & contours of the
agent’s fiduciary’s duties may not be as clear as revocable trust.
f. E.g., Kurrelmeyer: Agent can have the power to create a revocable trust. It
was a general power of attoryen, which means wide latitude. Authority isn’t
limitless-must meet fiduciary duties.
c. Limits on Freedom of Disposition: Protection of Spouse and Children
i. Marital Property Systems
1. Community Property
 a. Lumps together “the fruits of the marriage.” Prop that spouse brings to the
marriage or acquires by gift or inheritance intended for themselves
individually, is separate property.
i. E.g., each spouse’s paycheck is community prop.
b. death of one spouse dissolves the community
c. Each spouse has the right to dispose of separate prop & ½ of the community
prop.
d. Views marriage as a partnership; each contributes, even if one doesn’t
contribute financially.
e. If spouse doesn’t get anything in the will, no elective share bc spouse already
owns half. Husband can give his entire ½ of estate to kids.
2. Separate Property (CL)
a. spouses own separately all earnings and acquisitions from earnings during the
marriage, unless they agree to joint form of ownership
b. stresses the individual’s autonomy over her earnings
c. Disinherited spouse’s options:
i. Forced share of the probate estate.
ii. Typical forced share is 1/3 decedent’s probate prop plus certain non-
probate transfers
ii. Elective share of surviving spouse
1. Forced share applies to only the probate estate, so it’s possible to create a revocable
trust to eliminate probate estate.
a. Tests for determining if spouse gets forced share of revocable trust:
i. Fraudulent intent: intent to disinherit the spouse.
1. How soon before death a gift was made, the amount of support
otherwise available to the spouse, the relationship of the
spouses.
ii. Illusory transfer: the trust is illusory; settlor didn’t in good faith divest
himself of ownership of his prop.
1. Newman: Settlor mad a revocable trust w/ all his personal &
real prop. He reserved income to himself for life and powers to
control trust administration. Court treated the trust prop as
part of his estate; widow got portion.
2. MAJORITY: If during the marriage the deceased spouse made an inter vivos trust
over which she alone retained general power of appointment, the assets in the trust
are subject to spousal election. Sullivan.
3. Statutory reform
a. Many states enacted statutes providing objective criteria for determining
which non-probate transfers are subject to the elective share
4. UPC:
a. Augmented estate approach: Expanded definition of decedent’s estate for
purposes of determining spouse’s forced share.
i. Surviving spouse gets 1/3 of probate estate + the following non-
probate and inter vivos transfers that are made during the marriage.
1. Transfer in which decedent retains the right to possession or
income from the property
2. Transfer that the decedent can revoke or invade or dispose of
the principal for his own benefit
3. Transfer in joint tenancy w/ someone other than the spouse
4. Transfer made w/in 2 yrs before death exceeding amount for
fed gfit tax exclusion (now $14K).
5. Prop given to surviving spouse during life, including a life
estate in a trust, & prop received by the spouse at death
derived from the decedent, e.g., life insurance & pensions.
a. If spouse has already been well provided for, no
elective share.
 b. 1990 changes:
i. Close to community property system
ii. Survivor’s share increases the longer they were married
iii. Many transfers before marriage are added to the augmented estate
iv. Surviving spouse receives a minimum of $50K.

v. W’s
elective share is $225,000 (50% of $450,000), but subtracted from it is
$75K (W’s prop), $25K in life insurance W received, $50K + $50K for
the joint tenancy.
1. Final amount of elective share is $25K.
iii. Waiver by premarital or postnuptial agreement
1. Spouse can waive right to elective share.
2. Post-nuptial agreement is ok in some states, but risk of coercion.
3. UPAA (premarital agmt act) applies in ½ the states: party opposing enforcement of
the pre-nup must prove:
a. It wasn’t voluntary, or was unconscionable when executed and the party
opposing enforcement didn’t have fair and reasonable disclosure of the other
party’s prop & finances. Scanned by CamScanner
b. Two states have Uniform Premarital & Marital Agmt Act: req’s each spouse
to have independent counsel & access to full and fair disclosure of the other
party’s finances.
iv. Intentional omission of a child
1. In all states but Louisiana, child or other descendant has no statutory protection
against intentional disinheritance by a parent.
a. But juries are often sympathetic to disinherited child. Will find duress, undue
influence, etc.
b. Louisiana allows a child to be disinherited for “just cause,” but the cause must
have existed at the time the will was executed.
v. Protection against unintentional omission
1. Spouse omitted from pre-marital will
a. CL: A premarital will was revoked upon marriage or marriage followed by
birth of an issue.
b. Statutes: Surviving pretermitted spouse will get an intestate share; the
marital will is otherwise intact.
i. Can be overridden by evidence that testator deliberately omitted the
surviving spouse and didn’t mistakenly fail to update the pre-marital
will.
ii. UPC § 2-301: Entitlement of spouse; premarital will
1. Surviving spouse is entitled to value of share of estate she
would’ve received if testator had died intestate. But only from
portion of estate, if any, not devised to his kid who was born
before he married surviving spouse and not surviving spouse’s
kid.
2. UNLESS:
 a. Will was made in contemplation of marriage to
surviving spouse
b. Will expresses intent to be effective notwithstanding
any subsequent marriage
c. Testator provided for spouse by transfer outside the
will & w/ intent to transfer in lieu of testamentary
provision
c. Courts sometimes apply to inter vivos trust bc it’s like a will.
vi. Forced Share (intentional omission) vs. Pretermitted Spouse (unintentional)
a. forced share
 Overcomes intentional omission of surviving spouse
 Has to be elected by surviving spouse
 Not only probate but also augmented assets
b. pretermitted spouse
 Overcomes unintentional omission
 Spouse doesn’t have to elect—automatic
 Only probate assets
c. things in common
 Both can be waived
 Pretermitted spouse share comes first. If entitled to elective share and makes it,
then pretermitted share comes
vii. Unintentional disinheritance of a child
1. Pretermitted heir statutes prevent the unintentional disinheritance of a child
2. UPC § 2-302: applies only to children born before the will was executed. (some
apply to children alive when will was executed & born after execution).
a. Omitted after-born or after-adopted child receives a share in the estate as
follows:
i. If no kids were alive at execution, kid takes what she’d get under
intestacy.
1. Unless all or substantially all was devised to the other parent
and the parent survives.
ii. If at least one kid was alive at execution and the will devised prop to
one or more of them, omitted kid gets:
1. An equal portion of the devises made to the then-living kids
(add up and divide by # of current kids).
a. The devises to the other kids abate ratably.
b. Doesn’t apply if it appears omission was intentional or the kid was provided
for through another transfer.
i. If the will mentions the kid, e.g., “not unmindful of my son, John,” the
kid can’t get a share.
c. E.g., Gray v. Gray: Dad had kids, remarried, executed a will, then had a kid w/
new wife. Court refused to give son a share of the estate bc statute said that
kid isn’t entitled if a kid was alive & substantially all of estate was left to the
other parent of the omitted kid.
3. States don’t apply pretermitted child statute to non-probate assets when it says
will/probate estate, e.g., revocable trusts. CA is only exception. Jackson
d. Fiduciary Administration
i. Trustee’s power: w/e power settlor had over the prop. Same as being outright owner.
1. UTC § 816: specific grant of power. It’s not necessary, but it provides clarity.
2. UTC § 1012: 3rd party acting in good faith w/out knowledge that trustee has
exceeded power isn’t liable. Burden isn’t on 3rd party to prove trustee had power
3. Exculpatory clause (waiving negligent breach of duty):
a. Majority/UTC: Burden on trustee to show clause was fair & reasonable
i. Safe harbor: If settlor had an independent counsel representing her, it
shows lack of overreach.
 ii. Duty of loyalty
1. Must act solely for the benefit of the beneficiaries and w/out a conflict of interest
2. No further inquiry rule: If a trustee undertakes a transaction that involves self-
dealing or a conflict btwn the trustee’s fiduciary capacity and personal interests:
a. No further inquiry is made. Good faith and reasonableness aren’t defenses.
b. Only defenses the trustee has:
i. Settlor authorized the particular self-dealing or conflicted action in the
trust instrument
ii. The beneficiary consented after full disclosure
iii. The trustee obtained judicial approval in advance
c. Even w/ a defense, the beneficiary remains entitled to judicial review of
whether the trustee acted in good faith and of the fairness of the transaction.
Acting in bad faith or unfairly is a breach.
3. Categorical exceptions:
a. Corp trustee can deposit trust assets w/ its own banking dept and invest the
trust assets in a mutual fund operated by the trustee or an affiliate.
b. Securities firm can invest stock in its own mutual fund account that it
manages.
c. Trustee can take reasonable compensation for herself from the trust funds
d. Structural conflict: conflict created by the settlor, e.g., settlor appoints
someone on the board of a corp to be trustee of a trust w/ shares of that corp
in it.
i. Settlor structured the trust to have a built-in conflict.
4. Remedies for breach:
a. Compensatory damages: restore the trust estate & trust distributions to what
they would’ve been but for the breach.
b. Disgorgement of the trustee: get any profit made on the transaction.
i. Serves deterrent and disclosure purpose. Doesn’t let trustee profit
from wrongdoing.
c. Appreciation damages: Value of prop at time of the case (not at time of sale).
i. Available if: there’s a direction to retain assets & trustee sells them or
if there’s self-dealing in addition to selling them for too low.
5. Criticisms:
a. Some self-dealing or conflicted transactions are in the best interest of the
beneficiaries. An absolute no-further-inquiry rule prevents some desirable
transactions.
6. Trustee can’t buy from himself at his own sale, same applies to spouse. Hartman
a. UTC: transaction btwn trustee & spouse, sibling, parent, spouse of any of
those ppl = self-dealing.
7. Trustee can’t deal in his individual capacity w/ the trust property.
a. Gleeson: Trustee was the tenant of a farm that was then in the trust when
settlor died. Doesn’t matter that he acted w/ good faith & trust sustained no
loss. He needed to decide if he wanted to be a trustee or a tenant.
8. Rothko: Decedent was a painter & died testate. 3 co-executors. Executors sold the
paintings to museums they had ties to. They would benefit indirectly. 3rd executor
didn’t have ties, but was N; didn’t prevent. Breached duty of care.
iii. Duty of prudence (care)
1. Objective standard of care in all fxns of trusteeship. Need to use reasonable care,
skill, & caution.
2. A co-trustee has to do something to stop wrongful transactions by co-trustees. Must
go to court & ask for a transaction.
3. Applies to any action trustee takes: custodial, administrative, investment, and
distribution actions.
a. Distribution function: Trustee is req’d to make distributions of income or
principal to the beneficiaries in accordance w/ the terms of the trust.
 i. Mandatory trust: must make specified distributions to an identified
beneficiary.
ii. Discretionary trust: trustee has discretion over when, to whom, or in
what amounts to make a distribution.
1. Often subject to a standard: to provide for beneficiary’s
support and maintenance.
2. Allows trustee to deal w/ changed circumstances.
3. Marsman: Trustee is req’d to pay Cappy (T’s husband) to care
for him. Standard: provide comfortable support & maintenance
of Cappy (req’d looking at Cappy’s other sources of support).
Trustee breached by not inquiring.
4. Duty to inquire: Presumption is that you need to inquire into
other sources of income.
b. Investment function:
i. Reviewing the trust assets and then making and implementing an
ongoing program of investment in light of the purpose of the trust and
the circumstances of the beneficiaries.
ii. Old rule:
1. List of “prudent investments”: presumptively prudent
investments. Even if investment went south, trustee isn’t
liable.
2. List of “imprudent investments”: presumptively imprudent
investments. If investment went south, trustee is
presumptively imprudent.
iii. Prudent man rule: trustee must observe how prudent men regard their
own affairs considering the probable income and the probable risk. No
speculation (equities)–investment in common stock is imprudent.
Preserving capital was key.
iv. Prudent Investment Rule
1. Uniform Prudent Investor Act (1994) is in all 50 states.
2. It is a default rule.
3. A trustee isn’t liable to a beneficiary if she acted in reasonable
reliance on the provisions of the trust.
4. Standard of care: act as a prudent investor would. Considering
the purpose, terms, distribution req’ts, & other circs of the
trust. Must exercise reasonable care, skill, and caution.
5. Trustee’s investment & mgmt. decisions are judged in the
context of the trust portfolio as a whole–overall investment
strategy. (don’t judge one decision in isolation).
6. Trustee must consider [p. 621 (c)(1)–(8)]: general econ
conditions, possibility of inflation or deflation, tax
consequences of investments to the beneficiaries, other
resources of the beneficiaries, need for liquidity, etc.
7. Duty to diversify
a. Trustee shall diversify.
i. Unless: trustee reasonable determines that
bc of special circs, the purposes of the trust
are better served w/out diversifying. Ex: a
trust that holds a family vacation home or a
family farm.
ii. Other excuses: tax reasons, transaction
costs, trust is just one piece of larger wealth
mgmt. program (diversified overall)
iii. A concentration in a single security of more
than 5% req’s explanation.
 b. Trustee must invest for risk & return objectives
reasonable suited to the trust.
c. Types of risk
i. Market risk: How did stock market do?
Diversification does not impact this risk.
ii. Industry risk: Lowered by diversification.
Don’t put all your $ in one industry–if it
tanks, you lose.
iii. Firm risk: If you’re only invested in one
company, it’s a huge risk. If something
happens to one of them, you lose a ton.
Investing in other companies in that
industry will help bc if one loses, the others
may benefit.
d. A trustee may invest in any kind of property or type of
investment, i.e., no type of investment is per se
unreasonable.
e. The risk tolerance of a trust will vary depending on
the purposes of the trust and the relevant circs of the
beneficiaries.
i. If the main purpose is to support an elderly
widow, the risk tolerance will be lower. If
it’s to accumulate wealth for a young scion,
it’ll be higher.
ii. There’s usually no reason to not diversify.
Lack of diversification increases risk, but
doesn’t lead to greater return.
v. Damages: Goal is to make beneficiary whole. When fiduciary has
negligently not divested, the damages = the value of the lost capital.
1. The value of the stock on the date is should’ve been sold – the
proceeds from the sale of the stock.
vi. Janes: Trust was set up for widow. It was created w/ 71% stock of
Kodak. Trustee needed to divest & diversify. It was meant to care for
widow for her life, so this was too risky.
1. Damages: value of the Kodak stock on Aug 9 (date it should’ve
been divested) plus compound interest through Oct 1 (date
case brought) minus actual value of the trust on Oct 1.
vii. Settlor must use specific language to waive duty to diversify
1. Wood: Settlor set up trust that had stocks of 2 banks in it. One
of the banks was the trustee. Settlor said bank had “power to
retain any securities that existed at conception, even though
not otherwise allowed to.”
a. This eliminated duty of loyalty, not to diversify.
4. Custodial and administrative functions
a. Taking custody of the trust property and properly safeguarding it.
i. Duty to collect and protect the trust property w/out unreasonable
delay. Make sure it remains in good condition. If it suffers a loss,
you’re liable.
ii. Duty to earmark trust property: designate it as trust property.
1. Meant to prevent trustee from saying that investments that
proved profitable were hers or that ones that lost money were
the trust’s (act opportunistically).
a. Duty not to mingle w/ own prop. Trustee is liable
only to the extent that commingling caused the loss.
i. Old rule: trustee is SL for any losses.
 2. Creditors can’t reach assets held by the trustee in her personal
capacity.
3. Prevent mingling of assets of multiple trusts.
4. Trustee is liable only if the loss results from the failure to
earmark, not liable if the loss results from general economic
conditions.
a. Old rule: SL for failing to earmark
b. Administrative function: recordkeeping, bringing and defending claims held
in trust, accounting and giving information to the beneficiaries, and making
tax and other required filings.
i. Duty to maintain adequate records of the trust property and the
administration of the trust, including documentation of important
decisions and actions and the trustee’s reasoning for those decisions
and actions.
1. This promotes prudent and loyal administration by imposing
discipline, enables beneficiaries to meaningfully review the
trustee’s administration of the trust, and protects the trustee
against hindsight review by memorializing her analysis.
ii. Duty to bring and defend claims against the trust.
5. Trustee selection and Divided Trusteeship
a. A trustee w/out knowledge about investment must delegate investment role
to someone w/ knowledge.
b. Uniform Trust Code § 807: Delegation by Trustee
i. (a) Trustee may delegate duties & powers that a prudent trustee would
delegate. Using reasonable care, skill, and caution in:
1. Selecting agent; instructing agent; monitoring agent.
ii. (b) The agent owes a duty to the trust to use reasonable care to
comply w/ the terms of the delegation
iii. (c) A trustee who complies w/ (a) isn’t liable to the beneficiary for
actions of the agent, agent is.
iv. (d) Agent submits to the jur of the state by accepting a trusteeship
c. Division by settlor:
i. Co-trustees: settlor can name co-trustees w/ allocation of duties.
1. Each has duty to take reasonable steps to prevent a breach of
trust by a co-trustee.
ii. Power of appointment: can name X trustee & give Y power to appoint
trust assets.
iii. Directed trusts and trust protectors
1. Give X power to direct trustee to do something = directed
trust. Presumptively a fiduciary.
2. Trust protector: discretionary powers over trustee’s
administration of trust. Maybe a fiduciary.
iv. Duty of impartiality
1. Trustee must treat each beneficiary impartially. Doesn’t req equal treatment.
a. Ex: life tenant (income beneficiary) wants a high income, but residuary
interest holder wants to preserve the underlying asset.
2. UTC § 803: If trust has multiple beneficiaries, act impartially, giving due regard to
the beneficiaries’ respective interests.
3. Conflict: whether to produce the most income or grow principal.
a. Howard v. Howard: Trust was created to provide income payments to
surviving spouse, then step-kids had remainder interest in principal. Kids said
it was proving too much bc it wasn’t considering whether she needed the
payments. Holding: Trust didn’t req trustee to consider whether she needed
the distributions.
b. Solutions:
 i. Trustee can adjust amount that’s designated income & principal (if
trust is getting a lot of income, but principal isn’t growing).
ii. Unitrust: Settlor can set a % of the value of the trust corpus that must
be paid to the income beneficiary each year.
1. Allows trustee to maximize the return on the trust.
c. A trustee who is also a beneficiary can’t use adjustment power, but can
change the trust to a unitrust.
v. Duty to inform and account
1. UTC § 813: Duty to keep the beneficiaries informed about the administration of the
trust (info they need to protect their interest).
2. Duty to make affirmative disclosure of significant developments or intended
transactions; must inform beneficiaries fully of all facts which would aid them in
protecting their interests.
a. Beneficiaries must know what’s going on to keep trustee accountable.
b. Exists by statute or CL.
c. Allard v. Pacific Nat’l Bank: Bank was trustee of property. It was leased to
another bank. Leasee had a right of first refusal for any sale. The trust gave
the trustee “full power to sell or lease, the assets.” (consent of beneficiaries
wasn’t needed)
i. Holding: Breach of fiduciary duty bc even though beneficiaries couldn’t
have prevented the bank from selling the prop, they could have outbid
Credit Union for the prop. Trustee had a duty to inform them of the
sale so they’d have this opportunity.
d. Other non-routine transactions: change in trustee, delegation of trustee
duties, big changes in investment mgmt. technique.
3. Duty to respond promptly to a beneficiary’s request for information
a. Trustees have a duty to let the beneficiaries know what the assets are if they
ask. Beneficiaries are equitable owners.
b. Fletcher v. Fletcher: Beneficiary requested info, trustee said it would violate
settlor’s right to privacy. Beneficiary said he needed to know to be able to
hold trustees accountable.
c. Loophole: Settlor can put in writing in the trust doc that they don’t want
trustee to divulge content of the trust.
i. Can’t override beneficiary’s right to info reasonably necessary for the
protection of the beneficiary’s interest in the trust.
d. UTC: Upon request, trustee must give each beneficiary a complete copy of the
trust doc. (default rule; opt-out allowed).
4. Repose for a trustee who makes an accounting to the beneficiaries.
a. Trustee isn’t liable for breach if she makes a disclosure filed in court w/ the
facts of the breach, and serves notice of the accounting on the beneficiary, and
beneficiary doesn’t timely object.
i. Beneficiary is barred by res judicata.
ii. Carrot to encourage trustee to make regular and substantial
accountings to the beneficiary.
e. Alienation of the beneficial interest
i. Discretionary trust
1. Beneficiary can’t transfer his beneficial interest
2. Creditor of the beneficiary can’t compel the trustee to make a distribution
3. A trustee may be given discretion over when, to whom, and in what amount to make
a distribution. Trustee must exercise the discretion reasonably & in gf.
 Reason for creating: Preserve flexibility in distributions over time, protect assets
 Pure discretionary trust: trustee has absolute discretion over distributions to the
beneficiary
o Creditor can’t compel trustee to make a distribution to satisfy a debt
 Bc the beneficiary doesn’t have a real interest.
 Creditor can go to court and ask for a “Hamilton Order”
  Before trustee can make a distribution to or for beneficiary,
it must satisfy the claim of the creditor. Limit on trustee’s
right to pay the beneficiary.
o No direct access, but can cut off distributions to the
beneficiary.
o Gives the creditor a lot of leverage. Only way to
circumvent the order is to stop making distributions,
but that’s not likely to happen.
o Trustee can’t circumvent by making a distribution
to a 3rd party for the benefit of the beneficiary. Can’t
do indirectly what you can’t do directly.
 UTC § 501
 This doesn’t apply to a spendthrift trust!
o Beneficiary can’t voluntarily alienate his beneficial interest. He had
nothing to alienate bc he couldn’t compel a distribution.
 And freedom of disposition of the settlor.
o If trustee refuses to give a distribution when he should (e.g.,
beneficiary is insolvent), beneficiary has a right to demand that enough
be paid out of the trust to allow him to live.
 Support trust: trustee is req’d to make distributions as necessary for the beneficiary’s
needs (to provide support for the beneficiary).
 Creditor can’t reach beneficiary’s interest
o But child or spouse seeking alimony, or a supplier of necessities for the
beneficiary such as a Dr or grocer, can access through the beneficiary’s
right to support.
 This doesn’t carry over to § 504.
 Beneficiary can’t alienate her interest
 Discretionary support trust: E.g., to provide for the comfort and support of my daughter
in the trustee’s sole and absolute discretion.
 Treated as pure discretionary trusts
 Protective trusts: Gives the beneficiary a mandatory right to regular distributions, but
also offers the asset protection of a discretionary trust.
 Trustee is directed to pay income to A, but if A’s creditor’s attach A’s interest,
it’s automatically changed to a discretionary interest. Once A’s interest is
discretionary, the creditors can’t demand any part of it.
 UTC & Restatement don’t distinguish btwn discretionary and support trusts.
The rule for creditors’  Restatement: If the terms of a trust say that beneficiary receives distributions
right to access trust $ in the trustee’s discretion, a transferee or a creditor of the beneficiary is
entitled to receive or attach any distributions the trustee makes or is req’d to
Only ppl who can get a make in the exercise of that discretion.
Hamilton Order are ppl in o Could proceed against the principal of the trust by proving the trustee
504(c) was req’d to make a distribution.
Strict limit on class of  UTC § 504: subject to an exception for claims by a child or spouse for support
creditors who are or alimony, a creditor can’t compel a distribution even if the beneficiary could
protected do so.
o Even if abuse of trustee’s discretion (purely discretionary trust &
beneficiary is insolvent) or trustee doesn’t follow the standard (doesn’t
give enough to allow beneficiary to support herself).
o § 504(c): creditors that can proceed
 Support of beneficiary’s child, spouse, or former spouse by
court order
 But it’s limited to what the beneficiary could get if trustee
complied
 o § 504(d): beneficiary can still sue the trustee for abuse of discretion or
failure to comply w/ a standard for distribution.
ii. Spendthrift trust
1. Creditor can’t attach it. Even if beneficiary has a present right to a mandatory
distribution.
2. The beneficiary can’t make any alienation, voluntary or involuntary, of her interest
in the trust
a. Beneficiary can only take her interest; can’t transfer it to others.
b. Puts a limit on what the beneficiary’s creditors can do.
3. Allows settlor to protect beneficiary’s interest from creditors.
a. Policy: Freedom of disposition, creditor should investigate to see that person
shouldn’t be trusted w/ debt.
4. Under traditional law, a trust isn’t spendthrift unless the settlor includes a
spendthrift clause in the trust instrument. But trend is that trusts are presumptively
spendthrift.
5. The trust is regarded as a conditional gift, and a beneficiary takes his interest in the
trust subject to any restrictions imposed by the settlor.
a. Freedom of disposition includes the right to impose conditions on the
beneficiary’s enjoyment of the trust property, including a disabling restraint
on voluntary and involuntary alienation of the beneficial interest.
6. Criticism: Creates an aristocracy.
7. UTC §§ 502 & 503
a. 502: Spendthrift provision
i. Spendthrift provision must restrain both voluntary & involuntary
transfer. Involuntary transfer: bankruptcy
ii. Trust terms only need to say that the beneficiary’s interest is subject
to a “spendthrift trust” or similar words.
iii. Creditor can’t reach the money in the trust
b. 503: Exceptions to spendthrift provision
i. (b)(1): beneficiary’s child, spouse, or former spouse to receive support;
(2): lawyers can recover; (3): taxes or Medicaid (state provided benefit)
ii. (c): Creditor gets a § 501 Hamilton Order
8. Station-in-life rule
a. Recognized in NY and a few other states.
b. Creditors can reach spendthrift trust income in excess of what is needed to
maintain the beneficiary in his station in life.
i. If beneficiary lives a life of luxury that req’s full income of the trust to
maintain, they won’t be able to reach any of it.
f. Modification and termination
i. The power of a court to modify or terminate a trust w/out the consent of the settlor
1. Two grounds for modifying absent settlor’s consent:
2. Claflin doctrine: Modification or termination is allowed if all the beneficiaries
consent & it isn’t contrary to a material purpose of the settlor
a. A trust can’t be terminated or modified if:
i. It’s a spendthrift trust
ii. The beneficiary isn’t to receive the property until a specified age
(postponed enjoyment)
iii. It’s a discretionary trust, or
iv. It’s a trust for support of the beneficiary.
b. Can be terminated or modified:
i. Trust w/ successive beneficiaries, i.e., to A for her life then remainder
to B for his life.
c. Estate of Brown: Trust was set up to pay for the college of the nephew’s kids.
Once they all went to college, it was for the support of nephew & his wife,
then anything left for their kids. Once all kids graduated, nephew & wife
tried to terminate trust.
 i. The trust had 2 purposes: provide for college for the kids, and assure
life-long income for the beneficiaries. First is complete, but second
isn’t until they die. Can’t modify.
d. UTC § 411: Preserves the traditional material purpose rule, doesn’t req
unanimous consent.
i. An irrevocable trust, by consent of all the beneficiaries, may be
1. Terminated: if the court concludes that continuing the trust
Way to isn’t necessary to achieve any material purpose of the trust
modify a. If terminated, trustee shall distribute the prop as
w/out agreed by beneficiaries
unanimity i. It should be distributed proportionally based
on interest, otherwise it’s subject to tax
(either is or isn’t a gift…?)
2. Modified: if the modification isn’t inconsistent w/ a material
purpose of the trust
ii. A spendthrift provision isn’t presumed to be a material purpose
1. Many states don’t follow, i.e., spendthrift provision is a
material purpose.
iii. If not all the beneficiaries consent to a modification or termination, the
modification or termination may be approved by the court if the court
is satisfied that:
1. The trust could be modified or terminated if all had consented,
&
2. The interests of a non-consenting beneficiary will be
adequately protected.
a. E.g., A, B, & C are beneficiaries. A & B want to modify,
but C doesn’t. Court can have the trust be terminated
proportionally for A & B, but keep C’s portion in trust.
e. Restatement (Third): Permits modification or termination if all the
beneficiaries can persuade the court that the reasons for termination or
Weakens modification outweigh the material purpose.
material i. Minority position (also minority position about creditor rights in
purpose discretionary and spendthrift trusts, see p. 692 and 700)
req’t ii. Spendthrift provisions don’t create a presumption of a material
(balancing purpose
test). iii. Unanimous consent of beneficiaries is req’d
3. Equitable deviation doctrine: Changed circumstances not anticipated by the settlor
that would defeat or substantially impair the accomplishment of the purpose of the
trust.
a. UTC § 412: Modification or termination bc of unanticipated circs or inability
to administer trust effectively
i. Court may modify terms of the trust or terminate it if, bc of circs
unanticipated by the settlor, modification or termination will further
the purposes of the trust.
1. Modification should be made in accordance w/ the settlor’s
probable intention if practicable
ii. Modification of administrative terms is ok if continuing would be
impracticable or wasteful or impair the trust’s administration
1. Ex of waste: Trust was worth $120K, & was to pay the two
beneficiaries $100/mo for their lives. Rest was to go to a
charity. It became worth $3.5 mill.
iii. Party asking for modification has burden of proving changed circs
iv. Upon termination, the trustee shall distribute the trust prop in a
manner consistent w/ the purpose of the trust.
b. Restatement (Third): Same as UTC, but settlor’s probable intent doesn’t
factor into modification decision.
 c. Riddell: G-parents made a trust for their son; once he died, it was to be
distributed to the kids once they were 35. Son is trustee, & he asked to modify
trust to be a special needs trust bc daughter has schizophrenia. Said purpose
of giving at 35 was to give it to kids when they were mature enough to handle
it.
i. Daughter’s mental illness was a changed circumstance
ii. G-parents intended daughter to use the funds as she saw fit, but state
would take the $ to pay for her benefits. She can’t manage it. Change
will allow it to be used for her general support as they intended.
4. Other permitted changes:
a. Trustee’s duty to modify:
i. An administrative provision if she knows or should know of circs that
justify deviation.
ii. A distributive provision if the trustee has actual knowledge of circs.
b. UTC § 417: Two trusts can be consolidated & a trust may be divided into
separate trusts if the result doesn’t materially impair the rights of any
beneficiary or adversely affect achievement of the purposes of the trust.
i. Court approval isn’t needed.
c. UTC § 414: Termination of the trust is allowed if the value of the trust has
declined to less than $50K. Trustee must notify qualified beneficiaries that she
is going to terminate the trust. Then trustee can terminate it and distribute
the prop in a way that’s consistent w/ trust purpose.
d. E.g., Ladysmith Rescue Squad: Testator’s will created a unitrust for 4 ppl. Had
spendthrift provision. 2 charities had remainder interest. One of the charities
wanted to split the trust & have their ½ paid now; they would pay the 2 living
income beneficiaries based on life expectancy.
i. No equitable deviation bc failed to prove unanticipated circs (that they
want the money early isn’t unanticipated circ–that always happens),
and it would frustrate purpose bc it’s a spendthrift trust, but giving $
to income ppl now allows creditors to get it.

g. Trustee Removal
i. UTC allows removal by consent of all the beneficiaries if removal would be in the best
interests of the beneficiaries and not contrary to a material purpose of the settlor.
ii. Should always have a removal provision in the trust instrument.
iii. Who can remove: Settlor, cotrustee, or beneficiary. Or court on own initiative
iv. On what grounds:
1. Trustee has committed serious breach
2. Co-trustees aren’t getting along & it’s substantially impairing administration of the
trust
3. Trustee isn’t administering the trust effectively due to unfitness, unwillingness, or
persistent failure, & court determines beneficiaries’ interests are served best by
removing the trustee.
a. Ex: long-term pattern of mediocre performance, e.g., consistently poor
investment results when compared to comparable trusts.
4. (1) There’s been a substantial change in circs or
5. (2) removal best serves the interest of all the beneficiaries and
a. isn’t inconsistent w/ a material purpose of the trust and
b. a suitable co-trustee or successor trustee is available.

v. UTC § 706(b)(4): allows for removal of trustee w/out any showing of wrongdoing
1. The court may remove a trustee if:
a. Removal is requested by all the qualified beneficiaries &
i. Qualified beneficiaries: on date of qualification determination:
1. Is a permissible distributee (currently entitled to distributions)
 2. Would be a permissible distributee if (would get distributions
if)
a. The interests of the permissible distributees described
in paragraph (a) of this subdivision terminated on that
date, or
b. The trust terminated on that date
b. Party seeking removal proves:
i. Removal best serves the interests of all the beneficiaries
1. Merely req’s showing that the change somehow inures to the
beneficiaries’ benefit
ii. Removal of the trustee isn’t inconsistent w/ a material purpose of the
trust, and
iii. A suitable cotrustee or successor trustee is available and willing to
serve.
2. Davis v. U.S. Bank Nat’l Ass’n: Davis was income beneficiary, his son & daughter
were residual beneficiaries. He wanted to change the trustee to someone closer.
a. He & his kids are the only qualified beneficiaries (they take if his interest ends
or the trust is terminated). This is fine to change; it will save them $.

h. Powers of Appointment
i. Only ~7 states have adopted the Uniform Power of Appt Act (UPAA)
ii. Purposes, terminology, and types of powers
1. A trustee’s power to allocate income among the beneficiaries or to invade trust
principal on someone’s behalf are powers of appointment.
2. POA: Settlor can give someone other than a trustee a nonfiduciary power to
distribute trust prop
a. Power: power of appointment
b. Donor: person who creates the power (settlor)
c. Donee: person who holds the power
i. Not a fiduciary. Donee has discretion to exercise the power or not.
ii. If you give a fiduciary a power of appointment, it’s mandatory–they
must exercise the power.
d. Objects of the power (permissible appointees): ppl who may be given the
property
i. Person becomes an appointee when the power is exercised.
e. Takers in default: ppl who will take if the power isn’t exercised.
f. Appointive property: the prop subject to a power of appointment
3. Benefits of powers of appointments: Flexibility, tax planning, & asset protection.
4. Creation of the power:
a. Donor must manifest the intent to create a power of appointment. Not
necessary to use the words “power of appointment.”
b. It confers discretion, as distinguished from a nondiscretionary, direct
disposition by the settlor
c. E.g., Giving tangible prop to my niece, Wendy, to give to such persons as she
may designate.
d. Not: giving tangible prop to my niece, Wendy, to dispose of in accordance w/
a letter in my desk.
5. General and nongeneral powers
a. General power: done can give the prop to himself, his estate, his creditors, or
the creditors of his estate.
i. Donee can give to anyone (anyone is a permissible appointee).
b. Non-general power: donee can’t give prop to his estate, his creditors, or the
creditors of his estate. AKA special power or a limited power.
6. Time & manner of exercise:
a. Presently exercisable: may be exercised now or whenever.
 b. Postponed power: exercisable only upon the occurrence of a specified event,
satisfaction of an ascertainable standard, or passage of a specified time.
7. Ownership equivalence
a. A general power of appointment permits the donee to do almost anything w/
the prop that an owner of the fee simple could do. Especially if it’s presently
exercisable.
i. Donee can simply write that she devises the prop to herself, then it’s
hers.
ii. If donee doesn’t exercise the power before she dies, she is taxed on it as
if it’s her prop.
iii. Taxed on it & creditors can come after it bc it’s just like donee’s prop.
b. A nongeneral power isn’t an ownership-equivalent power.
i. Donee acts like an agent for donor.
ii. Donee isn’t taxed on it, donee’s creditors can’t get it.
c. The size of the class of beneficiaries has nothing to do w/ whether it’s a
general or nongeneral power.
i. It can be a huge class of ascertainable beneficiaries and still be
nongeneral.
8. Tax Considerations
a. If a general power, any tax consequence of the prop become tax consequences
for the donee
i. If you have power to appoint any of the trust income, you are taxed on
it, even if you don’t exercise the power. If trust has $1mill of assets,
even if you don’t exercise it, on your 1040, you need to show w/e
income the trust earned.
ii. If you release the assets during your lifetime, you’ve made a taxable
gift.
iii. If you die holding that power, all the prop in the trust is taxable to
your estate for gift tax purposes.
b. Exceptions from tax liability for general power:
i. Power w/ ascertainable standard: Donee has general power, but only
for her health, education, support, or maintenance. (HEMS)
ii. Five-or-five power of w/drawal: Says donee can appoint prop to
herself, can w/draw 5% of trust corpus or $5K, whichever is greater.
Donee isn’t taxed on it if she doesn’t do it.
1. It’s not cumulative. If you don’t exercise the right to w/draw
5K one year, you don’t get to do 10K the next year.
iii. Trust can be used to go right up to the line of giving someone a
general power, but stop short so donee won’t have tax liability. (P.
802)
1. Generation skipping tax tries to prevent this. S creates trust
for A. If S exceeds her GST tax exemption, A pays a GST tax
when she dies.
a. GST tax exemption: if the assets in the trust are
funded w/ under 5 million, GST doesn’t apply.
Husband and wife can combine the 5 million cap (10
million total is ok if married).
b. Lets ppl avoid estate tax.
iv. Tax reasons for giving someone a general power
1. Estate tax marital deduction: not taxed on what your spouse
leaves you in a trust when he dies as long as the surviving
spouse has a general power of appointment. (general power
req’d to qualify)
2. Crummey power: A gift in trust is excluded from gift tax if the
beneficiary has a power to w/draw the prop from the trust–the
power to remove from the trust is a general power.
 9. Creditor rights
a. Nongeneral power: creditors have no claim. It’s not your prop.
b. General power: creditor of donee can get it so long as the donee’s other assets
aren’t sufficient to satisfy the claim.
i. Self-settled general power: creditors can reach the assets. Just like if
settlor creates a revocable trust or is beneficiary of own trust.
c. Forced share for surviving spouse:
i. Majority rule: NO; Minority: Yes.
iii. Exercise of a power of appointment
1. Choice of law: Law of where the trust was set up applies–not where donee is
2. How to exercise:
a. A donee must manifest an intent to exercise the power
i. Majority rule: A residuary clause doesn’t presumptively exercise a
power of appointment
1. Minority: Residuary clause exercises a general power unless a
contrary intent is apparent. Tiny minority: can exercise
general or special.
b. The manner of expression must satisfy any of donor’s formal req’ts
i. The nature of the instrument req’d for exercise
1. E.g., the power could be exercisable by donee’s last will &
testament duly probated, or just by donee’s last will &
testament (probate not req’d).
2. Restatement 3rd: A power that can be exercised by will can be
exercised by revocable trust as long as the trust remained
revocable at donee’s death.
3. A power “exercisable by deed:”
a. Is exercisable by a revocable trust or anything
sufficient to pass title.
b. Can’t exercise it in a will.
4. A power “exercisable by written instrument” is exercisable by
deed, will, anything in writing.
ii. Whether the donee must make a specific reference to the power.
1. Donee must specifically refer to the power, preferably by
naming the doc that gave her the power & the doc’s date.
2. Meant to prevent donee from accidentally exercising the
power.
3. UPC § 2-704: If a governing instrument says that the power
can be exercised only by a reference to the power or its source,
it’s presumed that it’s meant to prevent inadvertent exercise of
power.
4. Some courts req strict compliance. But R3d and draft UPAA
are substantial compliance.
5. A blanket exercise clause isn’t sufficient to exercise a power
that req’s a specific reference.
a. But if extrinsic evidence shows that the donee
intended to exercise a power by the blanket-exercise
clause, the power would be exercised.
c. The appointment must be a permissible exercise of the power
i. Clearly invalid if it benefits someone who isn’t an object
ii. In your exercise, you must identify permissible objects.
iii. Fraud on a nongeneral power: A donee can’t circumvent the limit by
appointing to a permissible object & having them transfer it to a
person of donee’s choosing. It’s invalid.
iv. Donee’s ability to exercise the power to create a trust:
1. General power: Yes bc person could exercise the power then
put the prop in a trust. This just simplifies process.
 2. Nongeneral power: Traditionally no, but modern law says it’s
fine if the trust is only for the benefit of an object of the power.
v. Donee’s ability to create a new power of appointment
1. Donee of general power can create a new POA.
a. Because donee could just appoint the prop to herself
then create a POA over the property.
2. Donee of nongeneral power can create a general power in an
object of the original power or a nongeneral power in any
person to appoint to an object of the original power.
vi. A nongeneral power can be exclusive or nonexclusive. Depends on
donor’s intention (look to governing instrument). If intent isn’t clear,
presumption in jur. R3d & UPAA: presumptively exclusive.
1. Exclusive: donee can appoint all the prop to one or more
objects, excluding the other objects. Can do w/e you want as
long as you keep it w/in the class/objects.
a. “To any” (of your kids) or “to such of”
b. Can give to just one kid, 3/5 kids, etc. Anything ok.
2. Nonexclusive: donee must appoint some amount to each
object. No one can be excluded.
a. “To all and every one” or “to each and every one”
b. Illusory appointment rule: Each object must receive a
reasonable benefit.
i. E.g., Barret: Giving $1,000 to 3 objects and
$147K to the fourth wasn’t allowed; the $1K
was illusory.
ii. Must give roughly 25% to everyone. Not a
hard and fast rule.
vii. Salvage doctrines: allocation & capture
viii. When a donee intends to exercise a power of appt, but the exercise is
ineffective for some reason.
1. Apply only if it’s clear that donee tried to exercise it, but it’s
clear that there’s something wrong w/ the exercise.
ix. Allocation: If a donee disposes of appointive prop & her own prop
under a common dispositive instrument, the blended prop is allocated
to the various interests in the manner that best carries out the donee’s
intent.
1. A typical case involves an ineffective appointment to a
nonobject of a power
a. Ex: A holds a nongeneral testamentary power created
by her dad to appoint prop among A’s descendants.
Trust prop: $100K. A’s prop is $350K.
i. A’s will says that she gives all her prop,
including the prop over which she has power
of atty, to her daughter-in-law, B, and the
rest to A’s daughter, D.
ii. The trust prop can’t go to B bc she’s not A’s
descendant. $100K from A’s prop can go to
B, and the trust prop + $250K of A’s prop
goes to D.
iii. If A only had $50K of her own prop, this is
all B could get–the prop comes from A’s own
prop.
2. There must be a blending of donee’s prop & the trust prop.
a. A blanket exercise may do this.
3. R3d & UPAA don’t req blending.
 a. Any prop in a revocable trust can be added to the
personal prop/more to play w/ for the allocation.
4. Applies only to nongeneral power
x. Capture: Donee ineffectively exercises general power, but clear her
intent was to assume control. It becomes part of donee’s estate.
1. Occurs if a donee of a general power manifests an intent to
assume control of the appointive property for all purposes &
not merely for the limited purpose of giving effect to the
expressed appointment.
2. Ex: A gives all her prop, including that which she has general
power of appt over, $10K to friend B (who predeceased A, w/
no antilapse available), 15K to her dog, and the rest to C.
a. C gets everything.
i. A has captured the appointive prop by
blending it w/ her own prop. The first two
bequeaths are invalid, so C gets it all.
3. Restatement 3rd of Prop: The appointive prop passes to the
takers in default of under donor’s governing instrument (doc
that created donee’s power). If no taker in default provision, it
goes to the donee or the donee’s estate.
xi. Disclaimer: Donee can disclaim a power in whole or in part. Donee is
treated as never having acquired the power.
xii. Release: Donee who has acquired prop can later release it in whole or
in part, and can reduce or limit the objects, unless donor intended the
power not to be releasable.
1. E.g., Beale: released her general power to the extent that it
allowed her to appoint to anyone who wasn’t a descendant of
her father, i.e., turned it into a special power.
2. Need to make sure donee who is releasing it isn’t creating a
taxable gift tax problem.
xiii. Contract: If the power is presently exercisable and the promised
appointee is an object of the power, the K is enforceable, i.e., the power
can be sold to an object.
1. If the power isn’t presently exercisable or the person buying it
isn’t an object of the power, the K isn’t enforceable.
a. Donee doesn’t have the power to make the promised
appointment currently, he can’t bind himself to do so
by K; this would be contrary to donor’s intent.
iv. Failure to exercise a power of appointment
1. General power:
a. Traditional law: if donee fails to exercise it, prop goes to takers in default. If
there’s no taker in default, the prop goes to donor/donor’s estate.
b. R3d: Prop reverts to the donor or donor’s estate only if donee released or
otherwise expressly refrained from exercising the power.
i. Implied gift in default of appt to the donee or donee’s estate.
2. Non-general power:
a. Goes to takers in default. If no takers in default, goes to the donor or donor’s
estate.
b. If the objects are a defined & limited class (special power), the appointive prop
may pass to the objects & is divided among them in equal shares.
i. Implied gift in default of appointment/imperative power: If the
creating instrument manifests an intent that the objects be benefited
even if donee fails to exercise the power.
i. Future Interests
i. It’s an interest in property that isn’t currently possessory.
1. Owner may transfer it
 2. Creditors may seize it
3. It passes in probate or by will substitute at the owner’s death
ii. Used for multi-generational transfers of prop
iii. Different from present interest bc owner doesn’t have a current right to possession or
enjoyment of the property.
iv. Classifications:
1. Revisionary interests: future interests retained by person transferring the property
a. Reversion:
i. Transferor only conveys part of the estate that he has. W/e interest
remains w/ the transferor is the reversion.
ii. E.g., A has a fee simple and gives B a life estate. When B dies, it goes
back to A or A’s descendants.
iii. If there’s a contingent remainder, transferor has a reversion.
1. If the contingency doesn’t happen, the prop will go back to
transferor.
b. Possibility of reverter:
i. The future interest that remains in a grantor who conveys a fee simple
determinable.
ii. E.g., O gives land to the school board so long as the land is used for a
school. The school board has a fee simple determinable. O has a
possibility of reverter; it becomes possessory automatically if land isn’t
used for a school.
c. Right of entry (power of termination):
i. Future interest that’s retained by a grantor who conveys a fee simple
subject to a condition subsequent.
ii. E.g., O gives land to the school board, but if it’s not being used for
school purposes, O has a right to reenter. The school board has a fee
simple subject to a condition subsequent. O has a right of entry, and
has the option to exercise it or not.

2. Nonreversionary interests: future interests given to the transferee

a. Remainder: a future interest in a transferee that will become possessory, if at
all, upon a natural expiration of all prior interests simultaneously created.
i. Vested remainder:
1. Is given to a presently ascertainable person, and
2. Isn’t subject to a condition precedent other than the
termination of the preceding estates
3. Ex: O conveys a fund in trust for A for life, then to B. B has a
remainder that will become possessory once A dies.
a. B’s interest is an indefeasibly vested remainder since
it’s certain to become possessory. If B dies during A’s
life, B’s remainder, like B’s other property passes
under B’s will or by intestacy.
4. Can be devised (passes at death)
5. Vested subject to partial divestment
a. A remainder is given to a class of persons & some, but
not all are ascertained, and the remainder isn’t subject
Be careful about the difference btwn to a condition precedent.
vested subject to divestment and i. The remainder is vested in the present
contingent. It’s contingent if the members of the class, subject to partial
condition is incorporated into the gift of divestment by add’l ppl coming into the
the remainder. class.
b. E.g., O conveys a to A for life, then to A’s kids.
Contingent: Then to B if B survives A
Vested subject to divestment: Then to
i. If A has no kids at the time of the
be, but if B doesn’t survive A, to C conveyance, it’s contingent (takers are
unascertained).
 ii. O had a reversionary interest until A had a
kid. If A didn’t have a kid, it would go back
to O.
iii. If A has a child, B, B has a vested remainder
subject to divestment aka vested remainder
subject to open. B can be partially divested if
A has more kids.
b. Contingent remainder
i. Isn’t given to presently ascertainable person (not born/ID’ed), or
1. Ex: O conveys trust prop to A for life, then to A’s heirs. The
remainder to A’s heirs is contingent until A dies. If A has no
living heirs when she dies, it reverts back to O.
ii. Is subject to a condition precedent in add’n to the termination of the
preceding estates.
1. Ex: O conveys trust prop for A for life, then to B if B survives
A. B has a contingent remainder; if B is alive when A dies, B
will take, if B isn’t, B won’t. Subject to condition precedent of
surviving A.
iii. A class gift that’s subject to a condition precedent is contingent, e.g.,
to A for life, then to A’s kids who survive A. Same w/ “the heirs of A
[a living person]”. The class is unascertainable until A dies.
3. Executory interest
a. Divests a preceding estate prior to its natural expiration
b. Springing executory interest: may divest the transferor in the future if a
specified event happens
c. Shifting executory interest: may divest another transferee if a specified event
happens.
i. Follows a vested remainder subject to divestment.
d. Arbitrary distinction btwn contingent remainder. But know difference.

j. Rule Against Perpetuities (RAP)

i. Judicially created rule to encourage the alienability of property. Limit dead hand.
ii. Balances the interests of:
1. Landowners who want to maintain land in the family for many generations
2. Future generations (want land to be freely alienable), prevent dead hand control.
iii. Req’s imagining untimely births and deaths.
iv. Rule against too remote vesting of interest. As long as the interest is vested, it doesn’t
matter if the possession takes effect after the perpetuities period.
v. Measuring lives are generally beneficiaries, but not always.
vi. Focus on spotting the problems: fertile octogenarian, unborn widow.
1. Extra credit: say how to solve the problem.
vii. CL Rule
1. A future interest is valid only if it vests or fails no later than 21 yrs after the death of
someone who’s alive when the interest is created.
a. Vested interest: RAP doesn’t apply.
b. Contingent interest: RAP applies.
i. If it vests too remotely, RAP voids/invalidates. Void from inception.
c. Interests that are vested at the creation of the trust are valid.
2. Three categories of interests are always “good” under RAP bc they’re deemed vested
at the creation of the trust:
a. All future interests in the grantor:
i. Reversions, possibilities of reverter, rights of entry
b. Any present possessory interest in third parties:
i. Immediately present possessory interest such as a life estate, fee tail,
term of years, fee simple absolute, fee simple subject to condition
 subsequent, fee simple determinable, or fee simple subject to an
executory limit to a third party.
c. Any future interests held by third persons if the interests are vested
immediately upon creation: vested remainders.
d. Life estates are almost always valid. They vest in interest and possession
when the previous interest ended. If previous interest was a measuring life,
it’s therefore w/in 21 yrs of death of that person.
3. Rule is limited to:
a. Future interests
b. In third parties (i.e., not the grantor)
c. When the third party is unascertained (can’t be named) OR there’s a
condition precedent to the interest becoming vested. (contingent interest)
d. AKA it applies to:
i. contingent remainders
ii. executory interests: springing and shifting executory interests
iii. vested remainders subject to open (class gifts)
4. The identity of all beneficiaries with a claim to the prop must be ascertained w/in
the perpetuities period.
5. They can end the trust at the end of the perpetuities period (Claflin doctrine doesn’t
apply at end of period).
6. If they don’t terminate it, the principal will be distributed to the remainder
beneficiaries when the preceding life estate expires.
7. Validating life: a life in being used to prove that the interest will vest or fail w/in
that person’s life or 21 yrs after that person’s death.
8. When the lives in being are ascertained:
a. When the perpetuities period starts to run (typically, when the instrument
takes effect).
i. If the interest is created by:
1. Trust created by will: the validating life must be alive at the
testator’s death.
2. Deed or irrevocable trust: the validating life must be ppl alive
when the deed or trust takes effect.
3. Revocable trust: validating life must be alive when the power
to revoke terminates (that’s when the prop becomes tied up)
a. If power to revoke terminates at settlor’s death (usual),
measuring life must be alive at settlor’s death.
9. Fantastical Characters (possibility of vesting after perpetuities period)
a. One possibility of violation of RAP invalidates the interest.
b. Fertile Octogenarian
i. Everyone is presumed to be able to have more kids (even at 80 yrs)
ii. Kid born after the instrument takes effect might die >21 yrs after all
measuring lives (parent & all siblings–if that’s the distribution).
iii. Some states limit the presumption of fertility to 13–65 & allow
introduction of evidence of infertility. Ignore possibility of adoption
c. Unborn Widow
i. It’s possible for someone to marry a person who hasn’t yet been born.
T  H for life, then to H’s widow for life, then to H’s surviving
descendants.
viii. Reform
1. No state follows the pure CL
a. Self-help through a saving clause
i. Prevents overlooking a possibility of violating the Rule
ii. E.g., Notwithstanding any other provisions in this instrument, the
trust shall terminate, if it hasn’t previously terminated, 21 yrs after the
death of the survivor of the beneficiaries of the trust living at the date
this instrument becomes effective. The principal is then distributed.
 iii. If it’s terminated, look to all beneficiaries who get income, and divide
the principal up btwn them.
b. Reformation (or cy pres)
i. Authorized by statute or judicial decision in many states
ii. Courts are allowed to modify a trust that violates the Rule as
necessary to carry out the testator’s intent w/in the perpetuities
period. Asking the court to write out the portion that violates the
Rule. Court tries to follow the settlor’s intent as much as possible.
1. Court could insert a savings clause. This does very little to
interfere w/ settlor’s intent.
iii. Advantage: solves the problem right now. But req’s you to go to court.
c. Wait-and-see
i. Wait and see what actually happens, don’t invalidate an interest bc of
what might happen. E.g., wait to see if octogenarian has another kid.
ii. Adopted in a majority of states. In Restatement (Second)
iii. Problem: Uncertainty in how it will turn out. But usually can carry out
the life estate, then see what happens when life estate person dies.
iv. Uniform Statutory RAP (USRAP): calls for wait & see approach. Can
wait for 90 yrs.
VI. Misc.
a. Sweetheart will: Spouses each have a will that is the mirror image of the other’s. If one spouse dies
first, other gets everything.
b. Tips for wills:
i. If there is a blended family and want all kids treated equally, can say that the step-kids shall
be treated as children for all purposes of the will (or trust).
ii. Always say that debts and funeral expenses shall be paid by the estate first.
iii. Name at least one alternate executor.
iv. Include a residuary clause.
v. Attestation clause
c. When resolving distribution of a will:
i. What property does the person own?
ii. Is the property probate or nonprobate?
d. Codicil: a will that supplements, rather than replaces, an earlier will. The codicil supersedes the
earlier will to the extent of inconsistency between them. Makes a specific bequest, not a bequest of
the entire estate.
i. Holographic codicil is allowed
e. Intent of testator:
i. Presumption that testator intends to avoid intestacy, otherwise she wouldn’t have bothered
to make a will.
1. Particularly strong when it comes to the residuary estate.
2. No one would choose to die w/ a will for some prop & intestacy for the rest.
ii. Preference to avoid disinheriting a line of descent.
iii. A technical term, e.g., lineal descendant, should be given its legal definition unless it was
obviously used in a different sense.
f. Gifts: require intent and delivery
g. Special needs trust: a trust that’s established for the disabled person’s benefit and that’s intended
to supplement public benefits w/out increasing countable assets and resources so as to disqualify
the individual from public benefits.
h. “Heirs of X” are determined at the time X dies.