Trusts and Estates Outline Spring 2020

I. Freedom of Disposition
a. The organizing principle of T&E is freedom of disposition – property owners
have unrestricted right to dispose of their property as they see fit.
b. Shapira case
i. Father leaves trust to son but only if he marries Jewish woman
1. Son sues, arguing constitutional right to get married
a. Brings forth argument that this is a state action – enforcing
“Probating” the will constitutes state action and therefore
the state is impinging on my constitutional right to marry
i. Court rejects this argument here, saying it’s
different from Kramer
1. It’s not prohibiting the son from getting
married at all – just to enforce a trust w/
some questionable requirements.
2. Stronger argument – public policy
a. This is unseemly restraint on his ability to marry
i. To what extent can a donor influence a donee?
1. Cites Maddox – get inheritance if maintain
good reputation and marry within same
religion – is that enforceable?
a. Against public policy
i. Different in that only five or
six women within same
religion – lot of Jewish
women – less intrusive
ii. Total restriction of marriage
is completely unenforceable
as violative of public policy.
ii. At end of day, it’s Mr. Shapiro’s property – he could do w/ it as he wants
– court does not think Mr. Shapiro was motivated with bad intentions.
c. Hodel Case
i. Statute created in 1800’s gave Indians the right to property, but couldn’t
pass it on to heirs by will
1. Within generations, the land would become miniscule – it would
be divided up among children
ii. Statute passed in 1980’s meant to deal w/ this problem
1. Meant to consolidate the fractured interests into a whole
a. If interest is less than 2%, it would go to the tribe
 i. SCOTUS said you cannot do that – it is a “taking” –
violates constitution – taking property w/o just
compensation
1. Gov’t cannot abrogate completely –
unconstitutional “taking” of decedent’s
property w/o just compensation
a. Limitation on what you do w/ your
property per se is not a taking –
however, there is a limit.
d. Shaw Family Archives
i. Can you pass on property that you don’t have when you die but that you
subsequently acquire?
1. Court says you have to look at the state law to interpret that will,
which is the state you were domiciled in at time of death.
ii. Here, this is personal property – should look at where decedent was
domiciled.
1. Two possibilities: NY and CA
a. So, to determine whether MM can pass on this posthumous
right, have to look at laws of NY and CA at time of her
death
i. Those laws stated you can only pass on property
that you had at the time of her death.
1. Despite Indiana’s law
2. Not every state, but around 20 states have
adopted a law where you can acquire
property after the decedent’s death.
a. And it is in the Model Probate Code
i. But general rule is you can
only pass on property you
acquired before your death.
II. Professional Responsibility
a. Simpson v. Calivas
i. “Homestead” – just house, or all properties on that road?
1. Extrinsic evidence that wife and decedent were close, so he
intended to give her more
2. Notes of attorney in consultation w/ dad said that all other property
should go to son – son wants to bring these notes in as evidence.
a. Probate court excluded this evidence – son settles w/
second wife
ii. Estate planner used imprecise language – son sues attorney b/c he
breached duty to son
 1. Attorney argues no privity of contract – only dad can sue me.
a. Rule: attorney has duty not only to clients but to
intended beneficiaries, but ought to be very limited (when
mistake is patently clear on face of will – not through
testimony from beneficiary)
b. A. v. B.
i. Couple asks lawyer to draft will for both, giving all property to survive.
ii. Conflict of interest – missed – husband informed lawyer that he had
illegitimate child
1. Only comes to light when firm representing for estate plan is
informed that law firm in suit against husband/father for child
support of illegitimate child
iii. Wife has no idea of illegitimate child
iv. Wills will likely say that if wife dies, go to husband, then to his kids –
problematic since property would go to illegitimate child too
1. Wife needs to know this
v. Rule: Lawyers may disclose confidential information when the
lawyer’s services have been used to commit a fraudulent act and
disclosure is necessary to rectify the fraud.
III. Intestate Distribution
a. We apply the Statute of Descent and Distribution – the intestacy statute – for
people who die without a will (intestate) as opposed to with a will (testate)
i. In accordance w/ the principle of freedom of disposition, the primary
objective in designing an intestacy statute is to carry out the probable
intent of the typical intestate decedent.
1. American intestacy law generally favors the decedent’s spouse,
then descendants, then parents, and then collaterals and more
remote kindred.
b. Intestate Rules
i. Uniform Probate Code (UPC) provision: if all the decedent’s
descendants are also descendants of the surviving spouse, and
surviving spouse has no other descendants, then the surviving spouse
receives the entire estate.
1. Reasoning: decedent would have wanted to provide financial
security to the surviving spouse – and surviving spouse will pass
any remainder to the couple’s children.
2. Also, spouse gets all property if decedent’s parents are already
dead and there are no kids.
ii. UPC 2-102: If no descendant, however, about half of states provide, as
does the UPC, that the surviving spouse share the estate w/ the decedent’s
parents.
 iii. Spouse gets first $300,000, and ¾ of the remainder, IF there are no kids,
and a parent of decedent survives. The rest goes to your parents –
rationale: paying back your parents
iv. IF there are common kids, but surviving spouse has a kid with someone
else, spouse gets first $225,000, plus a half of the remaining estate.
Doesn’t say who gets remainder.
v. IF decedent has surviving child who is not common child of both, then the
first $150,000 and half of remainder to surviving spouse.
vi. If no surviving spouse, all goes to decedent’s descendants (nothing to
parents).
c. 2-103: no surviving spouse
i. All goes to decedent’s descendants (kids), regardless of their age.
1. Parents of decedent get nothing.
ii. 2-102(2) applies when there is a spouse but no descendants.
iii. 2-103(2): applies if no kids and no surviving spouse – all goes to
decedent’s parents.
1. Siblings don’t get anything.
iv. 2-103(a)(3): if no descendants, no surviving spouse, no parents – siblings
get it.
v. 2-103(a)(4): if no siblings, descendants, spouse or parents – it goes to your
grandparents.
d. Order of Preference:
i. Surviving spouse
ii. Children
iii. Parents
iv. Brothers and sisters and their lineal descendants
v. Grandparents and their lineal descendants
vi. Next of kin
vii. If no next of kin, then escheat to the state
e. Who is left out?
i. Common great-grandparents’ descendants – second cousins, great
aunt/uncles – they get nothing.
1. Considered “laughing heirs”
f. Elective share statute: spouse is guaranteed to get something, based on length of
marriage
 i. In the United States, statutory elective share law exists to prevent
disinheritance of a spouse.
ii. Elective share statutes give to a surviving spouse a fixed fraction, typically
out of a probate estate of the deceased spouse.
iii. Traditionally that fraction is one-third of the estate regardless of the
length of the marriage.
iv. The Uniform Probate Code provides a more complicated scheme for
determining the elective share.
v. Elective share statutes are enacted in “separate property states.”
1. These are often contrasted with “community property states.”
vi. The elective share is usually calculated from assets beyond those in the
probate estate alone, and the assets that are added together to make this
calculation are called an augmented estate.
g. Co-habitants – not married – should they get anything?
i. Living together for 10 years, and children…
1. Doesn’t get anything.
a. Despite increase in cohabitation
h. Simultaneous Death
i. Historically, a person succeeds to the property of a decedent only if the
person survives the decedent for an instant of time.
ii. The Uniform Simultaneous Death Act (USDA) states that an heir, devisee,
or life insurance beneficiary who fails to survive by 120 hours (5 days) is
deemed to have predeceased the decedent.
i. Stepchildren
i. Can inherent if no one related to decedent through parental line.
1. Despite fact that no blood line relation
j. Half-siblings
i. Treat half-siblings as full-blood siblings under UPC – FL and TX give
half-siblings a half-share; LA does parentelic approach.
1. Common law: half-siblings got nothing.
k. Escheat – gives all property to the state, if no survivors entitled to property.
l. Adoption
i. Adopted children are the children of the person/people who adopted them,
not their biological parents.
1. They should get right to be in the adopted parents’ will, but
inheritance rights from biological parents are cut off.
a. LA Law: adopted child can inherit from both sets of parents
m. Posthumously-born children (born w/in 300 days of death of testator – still able
to inherit), non-marital children (can’t discriminate against children born outside
of marriage – must demonstrate affiliation to dad – mom is obviously related –
use DNA evidence, UPA allows for informal acknowledgment procedures –
person who has acted as parent is treated as parent.
n. Reproductive technology and new forms of parentage
i. Posthumously conceived children
1. Woodward v. Commissioner of Social Security
a. Two Prongs:
i. First, the genetic relationship with the parent
must be clearly established.
ii. Second, the deceased parent must have consented
to both the posthumous conception and the
posthumous support of the children.”
1. Some level of affirmative consent to use of
genetic material after death.
2. Hard timeline – not going to allow this, if 10
years after dad’s death.
ii. UPC requirements:
1. Requires consent of deceased parent to posthumous conception in
a signed writing or consent is otherwise proved by clear and
convincing evidence, and
2. The child is in utero not later than 36 months or is born not
later than 45 months after parent’s death.
o. Surrogacy
i. UPA rules:
1. Surrogate must be at least 21, must have previously given birth,
must complete a mental health exam, and independent legal
counsel during drafting of K.
ii. What happens after child is born if surrogate wants to keep child?
1. Genetic gestational surrogacy
a. UPA says, a genetic surrogate may withdraw consent
w/in 72 hours of birth of child – intended parents have
no claim for damages.
p. Advancements and Hotchpot
i. Over time, change in perception – when parents give gifts, they’re doing
the even-ing up in their head – no need to impose an equalizer of the
inheritances
1. Not an advancement anymore, but an extra portion.
ii. UPC:
1. Only an advancement if:
 a. Executes contemporaneous writing indicating it is an
advancement at time of advancement.
IV. Calculating Shares
a. Three Approaches:

Per Stirpes Modern Per Stirpes Per Capita

Where is the estate First generation First generation live First generation live
divided first? always taker taker
How many shares is One share each party One share each party One share each party
the estate divided into alive; one share each alive; one share each alive; one share each
at that generation? party dead but party dead but party dead but
survived by issue. survived by issue. survived by issue.
How to treat Drop by bloodline Drop by bloodline Drop by pooling
dropping shares?

V. Bars to Succession
a. In re Estate of Mahoney (Slayer Statute)
i. Legal title passes, makes slayer a constructive trustee, and goes to
next of kin of the decedent, under equitable principles (intervening from
benefiting from crime – result same as probate court, but doesn’t violate
statute)
ii. Why can’t slayer inherit?
1. Decedent wouldn’t want slayer to inherit – presumed intent
2. Unjust enrichment – shouldn’t profit from bad acts – is that the
role of estates law?
iii. Should this apply to all killings? Or just murder?
1. Court says line should be drawn b/w voluntary and involuntary
manslaughter
iv. General rule: treat slayer as pre-deceased (Slayer Statute)
b. UPC §2803:
i. The slayer rule allows courts to presume the murderer disclaims her
property interest, and therefore behave as though the murderer
predeceased the victim.
1. This has the effect of disqualifying the murderer from receiving
property from the estate of the victim.
ii. The slayer rule applies only if killing was felonious and intentional.
1. The murderer is not required to be convicted of the crime, but if
she is convicted of murder, the conviction establishes a conclusive
presumption that the murderer did feloniously and intentionally kill
the victim.
 a. In absence of conviction, the probate court must
determine under preponderance of evidence standard
whether individual would be criminally accountable for
being decedent’s killer.
c. Other, related topic: disclaimer
i. Renunciation – a way for successor to say, “thanks but no thanks.”
ii. Who doesn’t want free money?
1. Conditions are too burdensome
2. Dodge taxes
a. Want money to go to grandson – lower tax bracket
i. Have so much money I don’t need it.
b. IRS: have to disclaim w/in 9 months
i. So that no acceptance or gift recognized.
3. Loss of governmental programs.
a. Some states require you to report this disclaimer of benefits
to receive governmental programs.
4. Bankruptcy – rather S get it than the bank.
a. Drye v. U.S.
i. Can’t disclaim succession to avoid IRS liability
VI. Wills – Formalities and Forms
a. 3 types:
i. Attested wills (available everywhere)
1. Core requirements for attested wills:
a. Writing, signature by testator, and witnesses (2)
i. Specifics differ state-to-state.
2. Most jx require strict compliance, but the modern trend favors
either substantial compliance or the harmless error approach.
ii. Holographic wills (handful of states have this)
1. Need not be witnessed, but must be handwritten, signed by
testator, and express testamentary intent.
iii. Notarized wills (allowed in about 2 or 3 states)
1. Must be signed by a notary.
b. Why do we have formalities?
i. Writing is best evidence of decedent’s intent (as opposed to oral)
ii. But why 2 witnesses?
1. Because one of witnesses could be coerced.
2. A way to make sure this is voluntary – of course, more witnesses
would help – but there has to be a practicality element in there.
iii. Make them think about it more
iv. Channeling/ritual function – want will to look professional/easy to read
c. In re Groffman
 i. Witness did not actually see the will being signed by decedent.
ii. Law requires both witnesses to be present at the same time as decedent’s
signing.
iii. Court held the will was invalid and unenforceable – why?
1. This is a slippery slope – we cannot deviate from statute even
one step. Strict compliance approach.
d. Stevens v. Casdorph
i. Witnesses testified that they did not actually see the decedent place his
signature on the will.
1. Is this a valid will?
a. Held, no, will was not properly executed
e. What does presence mean exactly?
i. Not all states interpret “presence” the same way
1. Some say has to be in light of sight – most statutes don’t actually
require that you watch the person, just that you could see the
person sign.
ii. Some say something broader than line of sight – conscious presence – use
your senses to acknowledge what the other person is doing.
1. What if you’re calling the other person on phone?
a. Still in each other’s presence?
i. Conscious presence – much better argument than
line of sight jx. What about facetime? Maybe – one
state said no.
f. UPC - §2-502
i. A will must be:
1. In writing;
2. Signed by testator or in the testator’s name by some other
individual in the testator’s conscious presence and by the
testator’s direction; and
3. Either:
a. Signed by at least two individuals, each of whom signed
within a reasonable time after the individual witnessed
either the signing of the will or the testator’s
acknowledgement of that signature; or
b. Acknowledged by the testator before a notary public or
other individual authorized by law to take
acknowledgments.
i. Noticeably, no requirement that testator has to
witness the witnesses signing the will.
g. What is a valid signature?
i. Courts are pretty flexible about what a signature is.
 1. Could even be “Big Shooter” or something
2. Could even sign w/ a mark (e.g., “X”) if can’t sign name
a. What are we trying to achieve?
i. Sense of finality/adoption of document
3. Signature indicates a handwriting, not some pre-printed font.
h. How far after testator’s signature can witnesses sign?
i. A week? A month?
1. UPC – “within a reasonable time” – gives courts flexibility – may
include after death of testator.
a. Most statutes still have presence requirement
i. NY requires witnesses to sign will w/in 30 days
i. Current version of UPC: no version whatsoever of “Purging Statute” – drafters
found this to be too convoluted.
i. Just sue for undue influence if witness is too interested – a way to
invalidate will.
1. Some statutes have presumption of undue influence if witness is
interested party
j. Ad Hoc Relief from Strict Compliance
i. Reciprocal wills – if you die before I do, I get it all; if I die before you do,
you get it all.
1. In re Pavlinko’s Estate (Strict Compliance)
a. Testators signed wrong wills – but they are reciprocal.
i. Have to substitute names for each other in both
wills
1. Strict compliance requires courts to reject
validity of these wills – justified it by
reasoning that once a court makes
exceptions to Wills Act to make equitable
decisions, the door will be open to
fraudulent claims that Act successfully bars.
a. Floodgate Argument
ii. In re Snide (Substantial Compliance)
1. Equity demands that court intervenes to do something – opposite
result of In re Pavlinko’s Estate
a. Dissent: ignoring positive law – majority doing ad hoc
relief from strict compliance.
iii. “Substantial Compliance”
1. Just because you don’t strictly comply w/ requirements doesn’t
mean you should die intestate
a. Harmless error doctrine
 i. Ask, “does this document reflect testator’s intent?
And does will satisfy purposes behind Wills Act?”
1. Jx’s have substantial compliance approach,
but then ask if deviation was really minor or
not
2. In re Will of Ranney
a. Witnesses signed affidavit, but not the will. Court held that
will was valid, using substantial compliance approach.
3. In re Estate of Chastain
a. Decedent signed affidavit, but not own will
i. TN court said we have strict compliance – you die
intestate – not an outlier – lot of states (even those
that adopt substantial compliance) will still follow
strict compliance.
iv. Substantial Compliance Elements:
1. #1: is there clear evidence that testator wanted this to be his
will, and
2. #2: have formalities been substantially complied?
a. However, courts that have adopted substantial compliance
tend not to forgive most errors – Ferree (“Jensen Beach”)
case
i. Notary signed will, not witnesses.
1. Not equivalent – minor deviation (e.g., using
two affidavits instead of one) would be ok,
but this is major deviation
k. “Harmless Error” Rule
i. UPC §2-503:
1. Only about 11 states have adopted it –
a. As long as proponent establishes by clear and convincing
evidence that the decedent wanted the relevant non-
complying document to be his will, then we will allow it.
i. Never mentions “minor error” as a requirement –
ii. Professor Langbein is arguably the father of the Harmless Error approach.
l. In re Estate of Hall (Harmless Error)
i. Will was not attested to by two witnesses
ii. In the interim, this will (on pg. 180) was deemed the will until they
execute final will
iii. Husband dies, and never executed final will
iv. Kids petition for court to hold that will is invalid b/c no witnesses signed
v. Montana is a “harmless error” jx
 1. As long as prove decedent wanted this to be will, court can probate
will
vi. Kids says this is different – still shouldn’t probate this will. Why?
1. Not clear and convincing evidence decedent wanted this to be will
a. Clear that this was supposed to be “interim will” – not
completely finished the way decedent wanted to finish it.
vii. Court asks Betty more questions –
1. Becomes clear that decedent wanted this to be his official will until
he executes final will
a. Court willing to give this a lot of credence
viii. Second argument: kids argue court shouldn’t use substantial compliance
rule here. Why?
1. Non-compliance typically a result of unintentional errors
a. Here, they intentionally non-complied w/ requirements –
this wasn’t innocent
i. Court says, nothing in law that harmless error
doctrine only applies to unintentional non-
compliance – court ultimately probates the will.
m. Non-traditional writings
i. In re Estate of Javier Castro
1. T on his deathbed, and says to brothers, I want to make my last
will
2. Nobody has paper and pen, but has Samsung Galaxy tablet
a. Testator scrolls out will on tablet
i. Signed by testator and 3 witnesses
1. Can you probate this?
a. It meets the form requirements…
b. Two issues: writing and signature
i. This is a writing – statute is
broad, court doesn’t want to
constrain legislature
ii. Anything fits as a writing
iii. Was it signed?
iv. Yes – used stylus and wrote
signature
3. Court says there is no attestation clause in will, however
a. Court observes that OH law does not require attestation
clause
i. Regardless, court says it can still probate will b/c of
harmless error doctrine
 1. Clear that decedent wanted this to be his will
b/c of the three witnesses
a. Raises Q of what other electronic
writings could you probate?
i. 4 jurisdictions: FL, NV, AZ,
and IN that have electronic
will statutes.
VII. Holographic Wills
a. Requirements;
i. In testator’s handwriting, and
ii. Signed by testator.
b. In re Kimmel’s Estate
i. Testator writes really ambiguous letter with some language regarding
disposition of his property once he dies.
ii. Does this document evidence testamentary intent?
1. No – not formal – doesn’t feel like a will
a. Generally, don’t talk about recipes for pickling pork in your
will…
2. Yes – has language of “if anything happens to me, this is what I
want done with my property”
a. Does evidence testamentary intent…
i. However, it’s conditional – “if anything happens to
me”
1. It is ok to have “conditional wills.”
a. However – is will still effective after
trip is over? Courts today interpret
these conditions as motivations for
writing wills, not conditions – so the
will is still effective post-event.
c. In re Estate of Gonzalez
i. Third class: wills w/ combination of handwritten and typed
ii. Testator printed two forms and brought one to the bank to witnesses but he
wrote the will on the other form. No witnesses signed that document.
1. Can we probate it?
a. Some states still require entirety of will to be handwritten
and the date on the will (old-fashioned)
b. Some states ignore the part that is pre-printed and only
probates the handwritten stuff.
i. “Surplusage Approach”
c. Then you have statutes which require material provisions
of will to be handwritten (more liberal)
 i. If in this jx, we would probate Gonzalez’s will.
d. UPC – material “portions” of will have to be handwritten
(most liberal)
i. Who is giving, and what property?
1. Boilerplate language is not going to be
considered material.
ii. NOTE, however, that under the harmless error
doctrine, a holographic will that otherwise would
fail for want of material provisions in the testator’s
handwriting still might be valid so long as the
document is signed and there is clear and
convincing evidence that testator intended the
document to be his will.
d. In re Estate of Kuralt (Holographic Will)
i. The property that Charles had in Montana – did he mean to give it to his
gf?
ii. The second will revokes the first will.
iii. However, the letter after the second will seems to affirm the first will.
1. Can the court probate that letter so that Pat (gf) gets the property?
a. Form-wise: seems ok.
b. Does this document evidence testamentary intent?
i. Language of “I’ll have the lawyer visit the hospital
to be sure you inherit the rest of the place in MT. if
it comes to that.”
1. Not a present disposition of property, but a
present intent to do something in the future
so she does inherit the property.
a. However, court probates the letter.
Found a present testamentary intent
to transfer property in Montana to
Pat.
iv. Kuralt is an extreme case of holographic wills being probated
1. Letter is not a holographic will – just an expression of future intent
a. We don’t know 100% whether testator would have actually
gone through with the present intent to do future actions.
2. Difference b/w document evidencing future intent and document
itself being a will showing present testamentary intent.
a. Kuralt blurred difference – only the latter can be probated.
VIII. SCOPE OF A WILL
a. Integration
 i. The scope of a will starts w/ the threshold issue of determining what
constitutes the pages of the will. The doctrine of integration provides that
those pieces of paper that are physically present at the time of execution
and that the testator intends to be part of the will constitute the pages of
the will.
ii. In re Estate of Rigsby
1. The district court admitted only the first page to probate, finding
that the second page “lacked indicia of testamentary intent.” Betty
Dorsey, Rigsby’s sister, appealed, claiming that both pages should
be admitted together as the will.
a. Rule: Where a purported will contains more than one
page, it must be made clearly apparent that the testator
intended that all of the pages together should constitute
his last will and testament.
i. To clearly establish integration, should have page
numbers, stapled together, and signed at the end.
b. Republication by Codicil
i. A codicil is a will that merely amends an existing will.
1. Executing a codicil to a will “republishes” the underlying will.
ii. Classifying a will as a codicil presumes a preexisting valid will.
1. If the purported will is not valid, the codicil cannot be a codicil and
will be its own freestanding will.
a. Still possible to use the valid will (codicil) to give effect to
the testamentary wishes expressed in the invalid will
through incorporation by reference.
c. Incorporation by Reference
i. Allows for a writing that was in existence but not present at the time of
execution and that was not itself executed w/ testamentary formalities to
be absorbed into the testator’s will – a kind of constructive integration.
1. Can I incorporate a document that by itself does not meet the
formalities of the will?
a. Generally, yes, but not in LA and NY.
b. Requirements:
i. Document has to be in existence at time of writing
will, and
ii. Document must be referenced w/ sufficient
particularity that we know you intended to
incorporate it.
ii. Clark v. Greenhalge
1. Will executed in 1977 naming F as executor and benefactor
2. Will states that F does not get the items listed on memorandum
 3. Memo executed in 1972, updated in 1976
4. In 1979 – additional property to other people listed in notebook
5. Rule: If sufficient evidence establishes that an informal
document, such as a list or memorandum, is the document
referenced in a will, that document may be incorporated by
reference into the will provided it was in existence at the time
the will was executed.
a. Republication by Codicil doctrine saves the notebook = the
codicils were executed in 1980 – notebook written in 1979
i. So, the notebook did exist in 1980 when decedent
“wrote” will in 1980.
d. Subsequent Writings and Tangible Personal Property
i. A will may refer to a written statement or list to dispose of items of
tangible personal property not otherwise specifically disposed of by the
will, other than money.
1. To be admissible, the writing must be signed by testator and must
describe the items and the devisees w/ reasonable certainty.
ii. The writing may be prepared before or after the execution of the will.
1. Incorporation by reference just requires clear referral and existence
at time of executing will.
2. Much less necessary in jx that allow holographic wills –
holographic codicil
iii. Why redo will completely if only making minor change?
1. In re Last Will and Testament of Moor
a. Any property not listed in will – sell it, and distribute the
money to heirs – is that allowed?
i. Seems to run afoul of “other than money”
ii. Most jx would not be as liberal as DE court in
finding that no running afoul of statute – not
functionally different from telling executor to sell
painting and distribute cash in will
1. UPC excludes this, DE court let it in.
e. Acts of Independent Significance (like Integration)
i. Example: if Ron said in will, “I leave car that I own to you when I die.”
1. Suppose Ron sells car and buys new car.
a. Does beneficiary get new car?
i. Presumably – decedent did an act of independent
significance – why did decedent want to get new
car?
1. Not to give beneficiary new car – but b/c he
wants new car
 a. Validly changes the will by virtue
of doing an action completely
outside of the will
ii. See this often when language in will is “I leave the contents of X to Bob.”
iii. Problematic when there’s random, special things in X that is not normally
in X (e.g., stock).
1. Narrower the scope  the more likely the stock will be given to
beneficiary. No hardline rule.
IX. Revoking the Will
a. How do you revoke a will?
i. 2 ways:
1. Subsequent Will – “hereby revoking all prior wills”
a. Can even revoke prior will by making an “incompatible
disposition”
i. First will – all property goes to Tulane
ii. Second will – all property goes to my wife
1. Still revokes first will via incompatible
disposition
2. Revocatory Act –
a. E.g., tearing it up or otherwise physically destroying the
will
i. Has to be w/ intent to revoke the will
b. Thompson v. Royall
i. Decides she wants to get rid of both prior will and codicil
ii. Lawyer says don’t destroy them – might want to keep them as prototype
iii. Puts note on back of codicil that says this will is null and void
iv. VA statute:
1. Either revoke will by:
a. Subsequent will, or
b. Some affidavit that is in same manner as will, or
c. Obliteration of prior will.
v. This was none of those first two categories – leaves obliteration as last
option
1. But it wasn’t destroyed either. The statute does say “cancel”
though
vi. Court notes that other courts have expansive notion of cancelling – but
court distinguishes them
1. Signature beneath (Warner) or completely defacing will (Evans)
vii. Here, statement on back of manuscript cover and back of codicil – nothing
on will itself to cancel it – court is not willing to cancel it by extending
notion of cancelling that far.
 1. UPC says that a “revocatory act” does not mean that the burning,
tearing, or cancellation touched any of the words on the will…
viii. Would stapling a post-it notes saying cancel this will be enough?
1. No – the revocatory act needs to be on the will itself – even though
it doesn’t need to touch the words themselves.
a. This court construes revocation by cancellation under
the statute to mean words that are written across or
over the text of the will in a way that obliterates or
obscures the language of the will.
i. Does not matter that her intent was to make this will
null and void.
c. Harrison v. Bird
i. Daisy Speer has duplicate originals of her will – bad b/c there are two
equally valid wills out there
ii. Her lawyer has one, and the executor has the other.
iii. Daisy doesn’t like the will and wants to revoke it.
iv. Lawyer rips up will and sends it to Ms. Speer
v. Harrison (executor) says he wants to probate the will he has – it is the
alleged original – but did Ms. Speer revoke her will?
1. No – Alabama statute requires more – so, can executor probate his
will?
a. No – the four pieces of will that lawyer mailed her were
gone – Ms. Speer likely threw them away. Had she kept
them, the court likely would have found that there was no
revocatory act.
vi. There is a presumption that one revokes their will when they do not
have the will among their personal effects after their death, after it is
established that decedent had possession of will before their death
d. In re Estate of Stoker
i. Wrote a will that had gf own trust after his death
ii. Several years later, he dictated to his friend that he writes down that he
revokes the will.
iii. Stoker urinated and burned original will.
iv. Which of these acts revoked the earlier will?
1. California is both holographic and harmless error jx.
a. This falls under subsequent will – inconsistent statement.
v. However, holographic will is not in his handwriting – fails under strict
compliance
vi. Harmless error in revocation – witnesses attested that this is what
decedent wanted – court can still revoke will as long as proponents show
by clear and convincing evidence that this is the will T wanted.
 vii. What about the urinating and fire?
1. What if he had not drafted 2005 will?
a. Revocatory act w/ intent
i. Court seems to suggest either the document or his
revocatory acts would have sufficed.
1. Does urinating and burning a copy revoke
the will?
a. No – it has to be the original!!!
e. Dependent relative revocation
i. If the belief is incorrect, then maybe the revocation shouldn’t be in effect
either.
1. Makes some revocations dependent on correctness or truth that
testator was operating under.
a. E.g., I give money to sister b/c I thought brother died
ii. Doctrine only applicable if fact upon which the revocation is based is
either:
1. Stated explicitly in will itself or
2. Clear and convincing evidence.
iii. LaCroix v. Senecal
1. Witness of codicil was husband of a beneficiary of will
a. Problematic b/c not enough neutral witnesses – legacy to
Aurea is purged.
i. However, codicil only clarified what Nelson’s real
name is – substantively the same.
1. Court applies Dependent Relative
Revocation
a. Item 5 was dependent on
effectiveness of codicil, and since
codicil isn’t effective, the revocation
should not be effective.
f. Last revocation topic: the law itself revoking the will
i. Divorce: will gives all property to wife, but you’re divorced – by
operation of law the will would be revoked – should the law revoke the
will in that context? Why didn’t decedent change will?
1. Major life-changing event – are there others like divorce such that
the law ought to do something?
a. Getting married – chances are that the will you executed
while single does not leave property to future spouse.
b. Birth of children
i. Pretermitted hairs – didn’t put them in your will b/c
they hadn’t yet existed for you yet – will is still
 effective but we will give a certain share of your
property to your spouse/children – we think that is
what you want to happen. You can override it, but
that is default.
ii. Historically, law didn’t do much about divorce – but it did w/ child or
subsequent marriage
1. Now, we have automatic revocation provision when there is a
divorce – but not when subsequent marriage or birth of a child
a. People might have made a prenup – don’t want doctrine to
come in and upset that prenup
b. Generally, rule is that divorce revokes will – “revokes any
revocable disposition or appointment of property”
i. Sometimes can’t revoke
ii. Could have life insurance, pay on death account,
retirement plan that all name spouse as beneficiary
of that plan
1. Rule applies to these instances too – revokes
all of them (default)
a. Most states are not this broad.
X. Contracts to Make or Revoke Wills
a. Need some evidence in will itself or separate signed writing (for SoF problems) to
enforce a K to make a will.
i. E.g., Anna Nicole Smith – saying that husband promised to give me all his
property – court said sorry, just b/c you’re taking care of husband, doesn’t
mean you have proven promise.
b. Contracts not to revoke a will.
i. Could be enforceable – tend to see this in husband/wife scenarios where
they make reciprocal wills.
1. Surviving spouse gets remarried – wants to change will so that new
spouse gets all property instead of little Johnny
a. Not allowed, b/c implied K not to revoke – decedent would
not have given surviving spouse all the property if he knew
you would revoke the will.
c. Keith v. Lulofs
i. Will + Life insurance policy named both kids as equal beneficiaries –
surviving spouse changed will and life insurance policy to just benefit
daughter of wife.
ii. Keith brought this challenge to Lucy’s will, arguing that Arvid and Lucy’s
reciprocal wills became irrevocable contracts upon either of their deaths.
iii. Court ruled that no K existed here – no express statement in will that
both parties agree not to revoke this will.
 iv. Also, there’s only circumstantial evidence – need clear and convincing
evidence – e.g., witness testimony or implied from circumstances.
1. UPC 2-514: “The execution of a joint will, or mutual wills, does
not create a presumption of a K not to revoke the will or wills.”
a. This presumption would unreasonably limit a surviving
spouse’s ability to provide for a future spouse or child.
XI. Wills: Capacity and Contests
a. Substantive validity as opposed to formal validity
i. Need to have capacity and free consent to form a valid will.
1. Even if done perfect formally.
b. Minimum level of capacity: it’s pretty low – standard should be higher
probably…
i. Lower b/c if make it higher, it will deprive a certain amount of people
from executing a will.
c. Standard:
i. The testator must be capable of knowing and understanding in a general
way:
1. 1) the nature and extent of his property
2. 2) the natural objects of his bounty (kids, spouse, siblings)
3. 3) the disposition that he or she is making of that property, and
4. 4) capable of relating these elements to one another and forming an
orderly desire regarding the disposition of the property.
d. In re Wright’s Estate
i. At the hearing, Thomas and the two subscribing witnesses testified that
they each thought Wright was of unsound mind when he signed the will.
ii. Rule: A testator is presumed sane, particularly when two witnesses
have signed the will
iii. Quirky acts do not in itself mean he is incapable of executing a will.
1. Only need to know what your property is, who your family is, how
you are disposing of property, and the knowledge to understand
these elements working in sync.
iv. What to do when your client is pretty weird like Mr. Wright?
1. Ask basic questions – what day is it? Who is the president?
v. We have exceptions to when testator does not meet the criteria to be
competent:
1. Doing the will during a “lucid interval” is sufficient to be capable.
e. Wilson v. Lane
i. Showing that the testator may have been suffering from Alzheimer’s,
without showing how the disease prevented the testator from having a
decided and rational desire regarding the disposition of her property ,
is insufficient to set aside a will for lack of testamentary capacity
 ii. Difference b/w this case and Wright is that this one has medical evidence.
1. Whose got the burden of proof?
a. Presumption that decedent was sane – burden of proof
shifts to person challenging will to prove lack of capacity.
f. Insane Delusion
i. A person may satisfy the test for testamentary capacity but nonetheless be
suffering from an insane delusion that causes the entire will or a
particular disposition to fail for lack of capacity.
1. Most states allow for this rule – mental illness causing will to be
void despite being able to plan for funeral/do other normal things.
a. E.g., paranoid schizophrenic mother that gave nothing to
son b/c she thought he was trying to kill her – will is void.
g. In re Strittmater
i. Rule: Where a testator’s distribution of her estate is the product of insane
delusions, the will must be set aside.
h. Breeden v. Stone
i. Reminds us that you could have harmless insane delusions – important is
whether insane delusion caused you to write your will in a certain way –
harmless insane delusions are still enforceable
i. Undue Influence
i. In re Estate of Sharis
1. Rule: If you can show that recipient of gift had confidential
relationship w/ testator, and there were other suspicious
circumstances, there is a presumption of undue influence, and the
recipient has to rebut that presumption.
2. How to rebut presumption?
a. Independent legal counsel
XII. Will Construction
a. Three types of Will Construction:
i. Strict adherence to Plain Meaning/No Reformation
ii. Ad Hoc relief for Mistaken Terms
iii. Open Reformation for Mistakes in Wills
1. Under UPC and number of states, using “harmless error” or
liberal approach.
a. Still a majority of states use strict adherence.
iv. Strict Adherence
1. Extrinsic evidence cannot be admitted varying the plain meaning
of words of a will (plain meaning approach)
2. Justification: words of will are best evidence of intent. Testator is
no longer alive to testify as to what he intended. To allow extrinsic
evidence risks the possibility of fraud or mistake in interpreting the
will.
3. Mahoney v. Grainger
a. RULE: Testimony as to a testator’s intention in using
certain language in her will may not be admitted to prove
the meaning of the language unless the language is
ambiguous and susceptible to different meanings
4. In re Estate of Cole
a. Will provides that testator leaves “To my friend, Veta, the
sum of two hundred thousand dollars ($25,000).”
b. Will is ambiguous on its face (i.e., patently ambiguous)
c. Need extrinsic evidence to clear this ambiguity up.
v. Ad Hoc Relief for Mistaken Terms
1. Arnheiter v. Arnheiter
a. Testator’s will directs testator “to sell my undivided one-
half interest of premises known as No. 304 Harrison
Avenue, Harrison, NJ” and to use the proceeds to establish
a trust for her two nieces.
b. Problem: testator didn’t own No. 304 Harrison Ave, but she
did own No. 317 Harrison Ave.
c. Old-fashioned approach – the will is void.
d. N.J. decides to it cannot just correct the mistake and read
the provision in the will as 317, when it clearly says 304.
e. Court does, however, grant relief.
i. Falsa demonstration non nocet – false description
does not vitiate.
 ii. “304” is erroneous, so disregard and the will
functionally says, “to sell my undivided one-half
interest of premises known as __ Harrison Ave.”
vi. Openly Reforming Wills for Mistake (“Harmless Error”)
1. UPC 2-805: court may reform the terms of a governing instrument,
even if unambiguous, if it is proved by clear and convincing
evidence what the testator’s intent was, and that the terms of the
governing instrument were affected by a mistake.
a. Only 5 states have adopted UPC 2-805.
2. In re Estate of Duke
a. Irving Duke writes holographic will that provides that he
leaves his property to “my beloved wife” – she dies before
he did, and Duke never changed will. It said if they died
simultaneously, it should be given to charity.
b. Nephews of testator contend that they should inherit, as
there was no provision in the will if Irving’s wife died first!
So, they should inherit in intestacy.
c. Rule: If you can prove both the testator’s intent and that
there was a mistake by clear and convincing evidence, then
the court will reform the will.

XIII. Death of Beneficiary

a. Common Law approach:
i. Specific or General (i.e., money) Devise: lapse goes to residue
ii. Residuary Devise: lapse goes to intestate heirs, even for lapse of a share
of the residue b/c “no residue of a residue” rule
iii. Class Gift: lapse goes to other members of the class.
iv. Void Devise: Treated same as lapsed devise.
b. Russell Case
i. Provision of will gave everything to Chester and Roxy Russell
1. Roxy is a dog
 ii. Holding: void legacy to the dog passes to intestate heirs.
1. Apply general rules of lapse – why apply these rules?
a. Can’t have residue of residue – this is residuary devise to
dog and individual.
c. Anti-Lapse Provisions
i. Ruotolo v. Tietjen
1. Rule: Mere survivorship language is an insufficient indication that
the testator intended to negate operation of the antilapse statute.
a. Survivorship language, which is often boilerplate form
language included by a drafting attorney is not sufficient
evidence to show that the testator knew or intended that the
survivorship language could act to disinherit the
descendants of the devisee
d. Class Gifts
i. “all my children…” or “my descendants” or “my siblings”
1. Intrinsic – if one child dies, the other children get his lapsed share.
e. Dawson v. Yucus
i. For a devise to be defined as a class gift, the number of beneficiaries and
the size of the shares must be uncertain, depending on the number of class
beneficiaries surviving at the time of the testator’s death.
XIV. Changes to Property
a. What if you say you give car to Frank, but when die, no car?
i. Ademption – “to take away” – applies only to specific devises, not general
1. If it isn’t there, you do not get anything. Common law rule.
a. Identity Theory
i. If the specific item devised to beneficiary could not
be located in the decedent’s estate, it was irrefutably
presumed that the gift was revoked (i.e., adeemed).
b. In re Estate of Anton
i. Where a specific devise is removed from an estate by the act of an
attorney-in-fact that was not known or assented to by the testator, the
 devise is not adeemed, i.e., cancelled, to the extent that identifiable
proceeds remain in the possession of the estate.
c. INTENT THEORY:
i. Not adeemed, unless extrinsic evidence suggest that the testator intended
revocation. Otherwise, beneficiary is entitled to the specific devisee of a
pecuniary amount equal to the value of the specific devise
1. This is the modern approach.
XV. Trusts
a. What is a trust?
i. It is a legal relationship whereby a settlor transfer property to a trustee
who holds it and administers it on behalf of a beneficiary.
b. Three parties to trust:
i. Settlor – creator of trust
ii. Trustee – has legal title – treated as owner (manages the trust)
1. Cannot personally benefit from trust
a. All of the trust trustee “owns” must be to benefit of
beneficiary
iii. Beneficiary – has equitable title
c. What kind of trusts are there?
i. Testamentary – i.e., created trust in a will
ii. Inter Vivos – either:
1. Revocable
a. If settlor wanted to retain ability to revoke trust. That is a
way to get property out of your estate when you die.
i. Instead of leaving property to 11-year-old daughter
outright, leave property in trust, to be used for
benefit of daughter when she’s a major.
b. Downside: still taxed while alive – IRS thinks settlor has
too much control – treated as if still the owner.
2. Irrevocable
a. To get no taxes and get property out of estate, use this.
 i. Taxed at trust tax rate or beneficiary tax rate (much
lower rate)
d. Requirements for Creation of a Trust
i. Intent by the settlor to create a trust
ii. Specific property (or Trust Res)
iii. Ascertainable Beneficiaries
iv. Correct Form
1. Will, if testamentary
2. No particular form for “inter vivos,” but may require writing, if
trust property includes real estate.
v. But no “magic words” are required
1. N.B.: “A trust will not fail for want of a trustee.”
vi. Don’t use “precatory language”
1. i.e., language that expresses a wish, a hope, or desire. Use
mandatory language. Need clear manifestation of intent.
e. Jimenez v. Lee
i. Transfer of property with the intent to vest the beneficial ownership of the
property in a third person gives rise to a trust and imposes on the trustee
duties to administer the trust solely for the benefit of the beneficiary and
account for trust income and expenditures.
f. Declaration of Trust
i. When I am trustee of trust that I am setting up, I can just do a declaration
of trust.
1. Holding it not as owner, but as trustee
g. Specific Property (or Trust Res)
i. Unthank v. Rippstein
1. Letter that states “I… hereby and herewith bind my estate to make
the $200 monthly payments…”
a. Kuralt – might be able to probate this as holographic will
i. But Texas in 1960s says no.
2. Second argument: written declaration of trust
 a. Tell me what the specific property is here?
i. Entire estate apparently – court is apprehensive to
assume all that.
1. Rippstein: only 10% of estate needed for my
portion
a. So, 90% remains for beneficiaries.
i. Court does not buy that – this
letter is not enforceable b/c
no consideration, and not put
in his will.
ii. Also, no specific property
allocated.
iii. Thus, no trust created.
h. Ascertainable Beneficiaries
i. Don’t need a trustee, but you do need an ascertainable beneficiary
ii. Clark
1. Class of “friends” is too generic and broad to constitute
ascertainable beneficiaries
a. Class of “family” is specific enough b/c easily
ascertainable.
b. Group labels can be used, but has to be like family or
something
2. A valid private trust will not arise unless the trust is made for the
benefit of definite and ascertainable beneficiaries and is to be
distributed in specific proportions.
i. In re Searight’s Estate
i. Pet being beneficiary - valid
j. In re Estate of Fournier (Oral trust may be created)
i. If proved by clear and convincing evidence, a valid oral trust may be
created under Maine law by transferring property during the settlor’s
 lifetime with the intention that the transferee hold the property as trustee
for the benefit of a definite beneficiary.
XVI. Nonprobate Transfers
a. Will Substitutes for Nonprobate Transfers:
i. Revocable trusts (created while alive - really important),
ii. Life insurance,
iii. Pension and retirement plans,
iv. Pay-on-death and transfer-on-death contracts,
v. Nonprobate Transfer of Real Property
b. Is a present transfer of property necessary?
i. Yes – Farkas v. Williams (traditional approach)
ii. No – Fulp v. Gilliland (modern approach)
1. So too does the UTC
c. How to revoke a revocable trust
i. If the terms of the trust do not provide a method or the method provided in
the terms is not expressly made exclusive, by
1. A later will or codicil that expressly refers to the trust or
specifically devises property that would otherwise have passed
according to the terms of the trust; or
2. Any other method manifesting clear and convincing evidence of
the settlor’s intent.