Wills

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SPRING 2011, PROF. GANS: WILLS, TRUSTS, &

ESTATES
CHAPTER 1: INTRODUCTORY MATERIALS
I. POLICY ISSUES & BACKGROUND: WHY HAVE WILLS?

I. Arguments for having Wills.
A. Wills create an incentive to work harder.
B. If there were no Wills, you can’t transfer your belongings, creating a disincentive
to work.
C. People would save less b/c they won’t keep their earnings.
D. Moral argument: State shouldn’t take my stuff b/c I earned it.
E. People just like Wills. They show affection for loved ones by bequeathing or
devising to them.
II. Arguments against Wills.
A. Dead Hand: People are controlled through Wills. See Shapira below.
B. Everyone should have the opportunity to grow and become rich.
III. Client Meetings: Importance of intent breaks down into 3 pieces:
A. Find out what the testator wants
A. “tell me what you have in mind.”
B. Provoke the client to consider contingencies that they’ve yet to consider
A. “what happens if your son dies before you?”
B. “who is your executor”
C. “what if everyone dies in a common disaster?”
C. Draft the Will as unambiguously as possible
A. Ambiguity in a Will leads to confusion as to the testator’s intent, which may
very well lead to full blown litigation
IV. Types of Proceedings
A. Probate Proceeding: court decides if it’s valid
B. Construction Proceeding: court determines the meaning of the Will
A. Problems with Construction Proceedings:
a. Litigations costs + delay
a. Risk of error we’ll never know if the court got it right, since the testator
is dead. This could be avoided through more careful drafting.
a. Risk of family disharmony likely to cause bad blood between family
members. Counterargument: this would’ve happened anyway. Response:
maybe, but there’s no need to be the accelerent
V. Is there a constitutional right to make a Will? Gans says no, but it’s extremely
unlikely that a legislature would take the power away from you.
A. Hodel v. Irving: Native American tribe. Congress gave land to natives, who
engaged in endless fractionation. Congressional statute forced land to escheat to
the tribe at death. Held: This was a taking.
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1. Gov could have ended fractionation w/out completely undoing devise &
descent.
2. Lingo defined:
a. Devise: gift of real property
b. Bequest: gift of personal property
c. Descent: real property passed by intestacy
d. Escheat: in the intestacy context, determines which relatives Will take
property when the decedent doesn’t make a valid Will
3. Two types of takings.
a. Per se taking: Complete physical invasion of the land.
b. Regulatory/Non-per se: Gov restricts land to the point of making it
useless. Factors:
i. Economic impact on the land;
ii. Interference with investment backed expectations;
1. How much the regulation interferes with the people’s
expectations;
iii. Character of the regulation.
1. This was the determinative factor: taking away one’s
right to make a Will is an extraordinary thing.
iv. Note: some courts, like the Hodel court, Will make up
additional factors:
1. Average Reciprocity of Advantage
a. One person’s loss is offset by a greater gain
(here, person loses their de minimus right to
land, but that is offset by the overall gain by the
tribe of other people’s losses escheating to the
tribe.
B. Lingel v. Chevron U.S.A.: When considering a taking, court doesn’t care about
the gov’s interest. If it’s too intrusive, it’s a taking.
VI. Constraints on the right to make a Will (testamentary freedom). Remember that
courts can always give an “advice and consent” (declaratory judgment) to say if a
Will is valid.
A. Right of election: You cannot disinherit your spouse. See EPTL § 5-1.1.
1. “Homestead” is also here. Some states use it instead of right to election. A
homestead is the surviving spouse’s right to use all or part of T’s estate no
matter what the Will says.
B. Rule against perpetuities.
C. Creditor’s rights and estate tax.
D. Public policy: Something is so offensive that courts refuse to enforce it on public
policy grounds.
1. Shapira v. Union Nat’l Bank: Residuary clause left estate to sons “if they
married a Jewess born to two Jewish parents” w/in 7 years of T’s death. If
not, estate goes to State of Israel.
a. Note: Residuary clause is the last dispositive clause in a Will.
Everything that is not disposed of by the rest of the Will goes into this
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pot. Usually for “after acquired” property obtained between the

execution of the Will and the testator’s death. GREAT TOOL!!
b. Son first argued this was unconstitutional. No state action  doesn’t
work.
i. Court would probably find state action if the Will were more
discriminatory (e.g., racial discrimination instead of religion).
Rest. § 6.2 says the same.
c. Son argued this violated public policy. It’s valid as a partial restraint
on marriage. Wills can reasonably restrain marriage. Son had 7 years
to marry any Jewess.
i. Wills can’t unreasonably burden 1st marriages or promote
divorce/separation.
1. But they can give support. Look at T’s intent! *Hypo:
T leaves to his son if he gets divorced so that he won’t
have financial need  valid.
2. Wills or trusts can burden 2nd marriages. *Hypo: trust
to spouse ends & goes to kids when she remarries. It’s
valid b/c it’s considered supportive only. Look at T’s
intent! Rest. (2d) Property § 7.1.
ii. *Hypo: T Wills to daughter his estate if she divorces her
husband. It’s invalid and she can take anyway. T could say
this to his daughter in life, not by Will.
d. *Hypo: Dad leaves estate to daughter, but not if she marries b/c father
is against all contractual relationships  invalid.
e. *Hypo: What if son had been gay? Unsure, but courts might say it’s
invalid today.
f. Rest. (3d) of Trusts § 29(c) is against Shapira.
2. Courts might not allow T to destroy all of his property by Will b/c it’s a waste.
a. *Hypo: If executor does this, he may be violating his fiduciary duty to
the beneficiaries. If he gets sued, he might sue the lawyer for
malpractice.
3. Illegal action: Will is invalid if it requires beneficiary to undertake illegal
action to take.
II. THE PROBATE AND NON-PROBATE PROCESS
A. PROBATE
I. Probate Functions: Wills are not self-executing. They need a court’s backing to take effect.
This protects the beneficiaries, the intent of the testator, and the third parties holding the
testator’s property (e.g., bank).
A. Probate court determines whether a Will is valid.
1. Invalid: If invalid, court does not admit the Will to probate and intestacy
applies (see below).
2. Valid: If valid, court admits the Will to probate and T’s wishes may then be
carried out.
B. Statute of Limitations.
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1. NY does not have a SoL for probate process. Wills can be submitted for
probate at any time.
2. Some states do have SoLs, so admitting a Will to probate can “expire.”
3. UPC § 3-108: Intestacy must be used if no Will is probated w/in three years of
T’s death.
C. Real Estate Titles: T’s name on real property passes on to the beneficiary through
probate.
D. Protects Creditor: Probate process in court pays off creditors before giving to
beneficiaries.
II. Probate Process.
A. Common Form vs. Solemn Form of Probate. Executor first takes the Will to a court
to admit it into probate. Different jurisdictions follow one of these two approaches at
that pint:
1. Common Form: Submit the Will to the court for probate in an ex parte
manner. Nobody needs to be served. Executor then receives “letters
testamentary.”
a. Letters testamentary allow the executor to execute the Will.
i. Example: Executor takes letters to a bank to give beneficiary the
bank account.
b. *This approach gives others an amount of time (e.g., a year) to bring a
Will contest in order to revoke the probate.
2. Solemn Form: NY uses this approach.
a. Anybody under SCPA § 1402 fills out a probate petition seeking as
relief an issuance of letters testamentary to the executor named in the
Will.
b. SCPA § 1401 requires petitioner to serve a citation (like a summons)
on all people listed in SCPA § 1403. That’s all of the intestate takers,
under EPTL § 4-1.1. *Anyone who might be injured has standing to
challenge the Will under the statute.
c. People served have 20-30 days to respond. If they don’t respond, the
court Will admit the Will to probate. That is a decree binding everyone
and it’s hard to reopen.
i. A way around the decree is “fraud or the like.” That’s very
difficult to argue.
d. SCPA § 1404 requires examination of the attesting witnesses (at least
2). Then the examiner gets 10 extra days under SCPA § 1410 to file a
pleading.
i. SCPA § 1410: Only people whose interest in property or in the
estate of the testator who would be adversely affected by the
admission of the Will to probate may file objections to the
probate of the Will. You can’t object to the probate of a Will
and get § 1404 examinations just b/c you were cut out of it, but
you can argue that the Will is invalid. § 1404 extends objection
times.
B. Executor and his Functions: Executors can retain lawyers to help them carry out their
duties.
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1. Executor has duties, in order of importance, to the gov’t, creditor, and

beneficiaries.
a. Taxes: Executor must pay T’s taxes for the last year before distributing
assets.
b. Creditors: Executor owes a fiduciary duty to T’s creditors. Creditors
can sue the executor for breach of his fiduciary duty if he gives to the
beneficiaries before them.
c. Beneficiaries: Executor owes a fiduciary duty to the beneficiaries.
They can also sue him for failing to distribute assets or for stealing, etc.
i. Executor may fail to distribute assets to creditors or Bs for good
reason (but that can lead to legal malpractice suits against his
lawyers if things get bad).
2. Marshals T’s assets. He may need to sell some assets for money (e.g., to pay
creditors).
a. He must make the assets productive (e.g., leave money in an interest
earning account to get more for Bs). He can be sued for failing to make
assets productive.
b. He can hold property (e.g., title to a house) for B’s benefit temporarily
or by order.
3. Accounting: An accounting tells beneficiaries all of the transactions the
executor undertook.
a. The beneficiaries sign a receipt and release releasing the executor of his
duties (won’t hold him liable later) and acknowledging receipt of
assets. This must have full disclosure showing an informed release on
the part of the Bs.
b. Receipt/release is not needed, but it cannot be valid unless an
accounting was made.
c. Judicial Accounting: Executor goes to court and asks to be released of
his duties. Bs are served with summons and citation. Bs can litigate
this if they disagree or had problems with executor’s performance.
4. Payment to Executor: Executors get paid an “executor’s commission,” but it
can be waived.
a. SCPA § 2307 sets the fee in NY. It’s 2% for big estates and 5% for
small estates.
b. Some states have a quantum meruit method for paying executors.
5. Lawyers as Executors: In most states, lawyers can also be executors, thereby
getting fees for both services. NY lawyers must meet all of these requirements
to be executors and lawyers:
a. Matter of Weinstock: Lawyers defrauded T, old man and first time
client, into naming them joint executors. T never wanted to have the
estate pay the fee. Daughter argued this was fraud. Held: Lawyers
can’t be executors and are guilty of constructive fraud.
b. Bar Association Opinion: Says lawyers can be executors under these
2 situations:
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i. Client asks lawyer, of his own free Will, to serve as executor.

Matter of Weinstock says lawyer must then disclose
consequences, costs, etc.; or
ii. Lawyers generally cannot solicit appointment as executor
unless:
1. There’s a longstanding A/C relationship (most
important factor);
2. Client is experiencing difficulty in choosing executor;
3. Lawyer thinks client would choose him if client knew
he’s Willing to;
4. And lawyer discloses costs and consequences of being
executor.
c. SCPA § 2307-a: Lawyer can serve as executor, but only if client signs
a disclosure agreement separate from the Will. Lawyer only gets half
the executor’s fee here.
C. Court’s Supervision: Depends on the jurisdiction. It’s expensive and estate bears fees.
1. Point: Executor might get tempted to breach his duties. Some high supervision
states require court permission to sell assets. Such states tend to have more
people using revocable trusts.
2. UPC: Executor can choose low supervision; however, Beneficiaries can
impose high supervision.
3. NY: Very low supervision state.
B. NON-PROBATE
I. Non-Probate Process: Good alternative to probate, which can take a long time and can be
expensive. These do not require statute of Wills procedures. There are five main types.
1. Decedent dies with no debt or assets. No probate is necessary b/c nobody is getting
anything.
2. Joint Tenancy: All property held jointly or by co-tenancy with rights of survivorship Will
trump Wills.
A. Example: Testator Tim and Smith had a joint bank account with rights of
survivorship. When Tim dies, Smith takes the bank account under K law.
B. Example: Father left his estate to Daughter. Father also had a joint bank account with
Son. If Daughter sues Son for the bank account, Son wins b/c the joint tenancy
trumps Wills.
C. Note that this is an impure Will substitute b/c it creates irrevocable rights in the joint
holder during decedent’s life.
1. UPC § 6-101: Person who puts the money into a joint bank account can
withdraw his share.
a. But the bank can pay out the entire amount to each joint-depositor.
2. NY Banking Law § 675: Rebuttable presumption that joint depositors
intended to have half the account each during the time they’re both alive.
a. *Hypo: Dad & daughter have joint bank account. Dad put the entire
amount in the bank. He can take out half of it. If he takes all of it out,
daughter can sue for half.
3. Revocable Trusts: Pure Will subs. It’s an inter vivos transfer of assets to a trust for the
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benefit of a trustor, held by a trustee. They can always be revoked.

A. NY: There is a ceremony that must be followed under EPTL § 7-1.18:
1. The RT must be in writing, and
2. It must be witnessed by two witnesses or notarized by a single notary.
B. The trustee holds the trust for the benefit of the trustor until a condition occurs. The
donor sets the condition (e.g., when trustor turns 25).
1. The donor loses title to the assets given to the trust. He still gets to use them
for his life.
2. The trustee gets the title to the assets. The donor can name himself trustee and
then name a successor trustee for after his death.
C. Pros & Cons.
1. RTs are private (not public like probated Wills).
a. This is important for clients with extramarital affairs.
2. In some states, RTs change the burden of proof if there is a Will contest.
a. NY’s SCPA § 502 says that Will & RT contests must both have jury
trials.
3. Creditors cannot reach the trust of the trustee (but they can reach the grantor’s
estate).
a. EPTL § 7-1.5: Spendthrift protection doesn’t let creditors reach the
trust of the trustee. It’s automatic spendthrift protection in NY.
i. Some states require spendthrift protection to be written into the
trust.
b. Note that this only protects against the creditors of the trustee, not
grantor.
4. RTs can be just as expensive, if not more so, than creating and probating Wills.
D. Even with an RT, always do a Will b/c the RT only has the property listed in the
instrument. Property not listed in the RT instrument can get lost after the donor dies
intestate.
4. Life Insurance: Pure Will subs.
5. Pension Plans: Pure Will subs.
A. There’s the Egelhoff exception for ERISA pension plans. See Chap 4, II.B.
III. LAWYER’S ETHICS ISSUES

I. Privity Rule, still alive in NY, is that an attorney cannot be sued for legal malpractice by a
non-client.
A. Exception # 1 in NH & CA: Growing trend in the country says disappointed
beneficiaries can sue the drafting lawyer for legal malpractice to recover what they
ought to have received under the Will.
1. Simpson v. Calivas: T died, leaving homestead to wife from his 2nd marriage
and residue to son from his 1st marriage. Son and wife disagree over whether
the homestead gives the wife usage rights to the residential property or to the
residential and business property. Son wants the business. Construction
proceeding held wife gets the whole property. The drafting lawyer’s notes said
the wife gets the residence only, but he didn’t write so in the Will.
a. Note: Statute of Wills excludes extrinsic evidence of the decedent’s
intent. It’s EPTL § 3-2.1 in NY. Rest. Prop. § 4.2 cmt. f says the
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opposing view: We allow in the statements and assess the witness for
credibility.
2. Son sued drafting lawyer for legal malpractice, using his notes against him (it’s
not the Wills case, so statute of Wills is inapplicable). Atty argued the privity
rule. Held: exception 1.
a. Note that T’s estate could sue the atty, but that would only get back T’s
legal fees, which is not what the son wanted.
B. Exception # 2 in NJ: Privity is abolished, but B must prove his cases by clear &
convincing evidence in some situations.
C. Exception # 3 in MI: Privity is abolished, but no extrinsic evidence is allowed in
some cases.
II. Privity Rule & Exceptions Applied
A. Hypo: Att’y drafts Will leaving everything to Son. T signs in front of one witness, in
violation of the statute of Wills. Will is declared invalid and Son sues Atty for legal
malpractice. Results:
1. NY: Privity rule applies. Son loses.
2. Exceptions 1, 2 & 3: Son wins. Extrinsic evidence is not a problem here.
B. Hypo: Att’y A drafts Will leaving all to T’s friend, J. It’s validly executed. T’s
daughter D shows up and argues she was supposed to be beneficiary, not J. J gets the
bequest. D sues A. Results:
1. NY: Privity rule applies and D loses b/c she can’t sue A.
2. Exception 1: D can still sue A, but must prove that she was really the intended
beneficiary.
3. Exception 2: D must use extrinsic evidence (docs other than the Will) to show
she was the intended beneficiary. She has to prove her case by clear and
convincing evidence.
4. Exception 3: D can sue A, but she cannot rely on extrinsic evidence, so she’ll
lose.
III. Reformation of Wills: States under exception 1 tend to allow Will reformation to avoid
lawyer liability.
A. Two Approaches: NY & MA follow approach 1. NH follows approach 2.
1. Traditional: Reformation of Wills is prohibited, even if evidence shows there’s
clearly a mistake in the drafting.
2. Rest. Prop. § 12.1: Allow reformation if clear and convincing evidence shows
T’s intent.
B. Trend: As states become more flexible, allowing for the exceptions to the privity rule,
they tend to allow reformation to shield lawyers from most malpractice claims.
IV. Fraud: Hotz v. Minyard incorrectly held that a lawyer can be sued for fraud under the privity
rule. A lawyer is always liable for fraud to anybody, not just clients. Lawyers can’t
actively mislead clients.
V. Representing Husband & Wife Simultaneously.
A. Informed Consent: Usually don’t need it, but it’s required or strongly suggested in
some cases.
1. General trend is that you don’t need it for jointly representing H&W. NY &
Rest. follow this.
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a. Hypo: Atty represents H&W. Atty has H transfer his property to W.

Then there’s a divorce. H can sue Atty for failing to foresee this. This
is why you want consent.
2. Some states, like CA, require informed consent.
B. Confidentiality: Some states require speaking of the issue. Others do not.
1. Two types of representation.
a. Joint: No confidences b/w H&W. This is the preferred method.
b. Separate: What H or W tells you cannot be told to the other spouse.
It’s like there were separate lawyers for each. It’s not common to use
this and it’s discouraged.
2. Some states require speaking of confidentiality issues at the outset of
representation. Not NY.
a. NY/FL: No authority requires disclosure of confidentiality issue, but
you should do it.
b. NJ: A. v. B. case requires disclosure of confidentiality issues at start of
representation.
C. A. v. B. (NJ): Firm undertook joint representation of H&W, informing them of
confidentiality issues and having them waived. Firm drafted mirror Wills for H&W
leaving all to each other and then to issue. Due to clerical error, firm represented M
in a child support matter against H. Firm didn’t know it was H. When it knew of the
error, firm asked H if W could be informed. H refused and sued to enjoin firm.
Held: firm may tell W.
1. Rest. of Lawyers § 60: If situation involves material detriment to one of the
clients, firm must withdraw and may disclose the information to the client
affected by it.
2. FL Bar: Firm must withdraw in this case, but cannot disclose the information.
3. To avoid the A. v. B. problem, draft a provision saying “H gives to W and
won’t change it without first giving notice to W.” In such a situation, W can
sue H’s estate for breach of K. W then is like a creditor taking precedence over
M’s trust or gift.
VI. Attorney-Beneficiary: Usually, a lawyer cannot draft a Will leaving himself a
bequest/devise.
A. MCPR § 1.8 & NY: Attorney commits malpractice by drafting an instrument leaving
himself a gift.
1. Exception 1: Attorney is the donor’s family member.
2. Exception 2: The gift is of minimal value.
B. Rest. Lawyers § 127: Family member exception applies, but only if atty gets a
proportionate share.
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CHAPTER 2: INTESTACY & SUB-ISSUES
I. THE BASIC SCHEME
A. BASICS, SPOUSAL SHARES, PARENTS & IN-LAWS

I. Intro: Intestacy applies when T dies w/out a Will (or part of/entire Will is invalid) and there
are probate assets.
A. Basic Elements & definitions.
1. First, always start intestacy problems by asking “who survived T?”
a. Intestate takers must survive T in order to take. People who
predeceased T don’t take.
b. An issue is a lineal descendant (e.g., offspring, grandkids, etc.).
2. Second, look at the applicable intestacy statute.
B. Intestacy Process.
1. Person is appointed administrator (unlike a named executor) and receives
“letters of administration.” He then does the same as an executor, only he
wasn’t named.
2. NY’s intestacy statute is EPTL § 4-1.1.
3. Remember that some property is non-probate (e.g., jointly held w/ rights of
survivorship).
C. *Conflicts of Law: Not uncommon to see conflicts of law in intestacy.
1. EPTL § 3-5.1(b): *Hypo: T lived in CA all his life, but owned a house in NY.
Dies intestate.
a. Real Property: Apply law of the place where property sits (law of
situs). NY in hypo.
b. Personal Property: Apply the law of T’s domicile. CA in hypo.
II. Share of Surviving Spouse.
A. NY (EPTL § 4-1.1).
1. Spouse & Issue Survive: Spouse gets $50k and 50% of the estate. Issue split
remaining 50%.
a. *Hypo: Spouse and Son survive T. T had $250k in his estate. Spouse
gets the first $50k and $100k (half the estate). Son gets the other
$100k.
2. Spouse & No Issue: Spouse gets the entire estate.
a. *Hypo: Spouse and T’s father survive T. Spouse gets the entire estate.
B. UPC § 2-102: Spouse gets everything if
1. T isn’t survived by descendants or parents or
a. *Hypo: Spouse and T’s father survive T. Spouse and father each get
part of the estate.
2. All of T’s surviving descendants are also the spouse’s descendants (i.e., kids in
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common).
a. *Hypo: T dies intestate, leaving spouse and daughter from first
marriage. Spouse doesn’t take the entire estate. In NY, it’s the same
as A.1.a. supra.
C. Domestic Partners: The statute says “spouse,” not partner, so partner doesn’t take
under intestacy.
1. A way to resolve this issue, write a Will naming the partner a “spouse.”
2. VT & MA have civil unions, so same-sex partners are “spouses” for intestacy
purposes. That means they’re also the only ones who can challenge Wills
under their intestacy statutes – cuts off standing of other family members of
the Testatory who might try to attack the Will.
3. Rest. Prop. §. 2.2 treats same-sex partners like spouses b/c they cohabited for
so long.
III. Parents: Some states (NY – EPTL § 4-1.1(a)(4)) & UPC allow parents to take if there’s no
issue or spouse.
IV. In-Laws: NY does not give to in-laws under intestacy. CA gives to parents in-law.
B. DISTRIBUTION SYSTEMS
I. Per Capita: “Per head,” meaning every surviving issue takes the same amount. This is almost
never used.
A. *Hypo: Decedent D has children A and B. A, who predeceased D, has 3 kids. B
survived D and has two kids. Surviving issue: A’s 3 kids, B, and B’s 2 kids = 6, so
everyone gets 1/6.
II. Per Stirpes: First count how family lines there are, then ask if you’re under modern, classic,
or NY approach. *Hypo: Decedent D has children A and B, both of whom predecease D. A
has 4 kids, B has 2.
A. Classic Per Stirpes: Start dividing the transfer at the first family line after the
decedent.
1. The first line after D is A and B. It doesn’t matter that they predeceased D. A
and B would have gotten ½ each. A’s kids get 1/8 of the estate each. B’s kids
get ¼ of the estate each.
2. Hypo under I.A: B gets half and A’s three kids get 1/6 each.
B. Modern Per Stirpes: Start dividing the transfer at the first family line with living issue.
1. The first line where there’s living issue is the second line, where the grandkids
of D are. Each one gets 1/6 of D’s estate.
2. Hypo under I.A.: B gets half and A’s three kids get 1/6 each. It’s the same as
classic.
a. Can make it classic by defining “per stirpes” to apply as “determining
the number of family lines at the first generation” or similar language.
C. NY: EPTL § 1-2.14 says issue take by representation, which is modern per stirpes
with a twist.
1. EPTL § 1-2.16 adds a twist when more than one person predeceased the
decedent: Pool together the predeceased shares and divide them evenly to the
next familial line. Whenever a Will leaves to “issue,” 1-2.16 applies per
EPTL § 2-1.2(b). Representation is presumed.
2. Answer to hypo (II above): same as under modern per stirpes approach.
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3. *Hypo: Decedent D dies intestate, leaving children A, B, and C. A and B are

dead, C lives. A has two kids, B has four kids.
a. In NY, C gets 1/3. A’s and B’s thirds are pooled together (2/3) and
passed equally to the next line. That means A’s kids and B’s kids all
get 2/18, or 1/9. (Note: under Modern Per Stirpes, A and B would’ve
each gotten their 1/3, which would pass to their children resulting in an
unequal distribution – A’s 2 kids would each get 1/6, while B’s 3 kids
would each only get 1/12).
C. UNIFORM SIMULTANEOUS DEATH ACT (USDA)

I. USDA, UPC, and NY: As always, a beneficiary/intestate taker must survive the
testator/decedent to take.
A. UPC and USDA says that if there’s insufficient evidence as to which person died first
(beneficiary or testator), we assume that the beneficiary predeceased the testator
(unless the governing document provides otherwise). Thus, intestacy kicks in.
1. To “survive,” the beneficiary must survive the testator by at least 120 hours (5
days).
B. NY: EPTL § 2-1.6 presumes beneficiary predeceased testator if there’s no evidence
to the contrary.
1. NY does not apply the 120 hours rule. If there’s evidence against the general
rule, B gets it. CHECK THIS!!!!
2. *Hypo: Cops arrive at car crash scene and see W moving. She dies. H was
already dead. H’s life insurance named W as beneficiary. In NY, W gets it
b/c there’s evidence she lived.
C. Janus v. Tarasweicz: Stanley and Teresa took the same pills, not knowing they were
poisoned. They went to the hospital. Stanley was dead on arrival; Teresa died two
days later. Stanley’s life insurance named Teresa as beneficiary and his own mother
as contingent beneficiary. Issue is who gets insurance $. Wife’s father was appointed
administrator and he says he gets the $ by intestacy from Teresa. Stanley’s mother
also gets appointed administrator and argues she gets the $ b/c wife never survived
Stanley (she was just on life support). Held: Teresa survived 2 days and her father
gets it.
1. Janus applied the old USDA, which proscribed a rule similar to NY’s. The
result would be the opposite under the newer version of the USDA.
2. Stanley’s mother Will likely sue the lawyer for legal malpractice, unless
privity
rule applies.
D. Avoid the problems of the USDA by asking the client what he wants! Draft around
the statutes.
II. Tax Issues: Estate tax is 35% on transfers over $5M. This doesn’t apply to transfers to a
spouse.
A. *Hypo: H & W have kids. Each spouse has $5M. They die in a common disaster.
Their Wills left all to the spouse, but to kids if spouse predeceased. We don’t know
who died first. There’s no tax problem under any approach b/c the transfer to the kids
is $5M or less from each parent.
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B. *Hypo: W had $10M and H had nothing. W’s Will leaves all to H, but to kids if he
predeceases her. There’s common disaster. Cops see H moving and W dead when
they arrive. H dies in 2 minutes.
1. NY: H survived her under 2-1.6. He gets the $10M tax-free. But there’s a
35% tax on the amount over $5M when it then passes to kids (i.e., the
remaining $5M is taxed at about $1.75M in tax, kids get $8.25M).
2. UPC/USDA: 120 hours approach applies, so he predeceased her. Kids get the
whole $10M from W with the tax taken out (again, $8.25M).
C. *Hypo: Same facts as B, but W only leaves $5M to H in her Will.
1. NY: H gets $5M tax-free. W retains $5M in her estate. Both amounts pass to
kids tax-free, and kids take the full $10M.
2. UPC/USDA: W keeps the $10M b/c H predeceased her. Estate is taxed
$1.75M.
D. Disclaimers can be used to get around estate tax issues (see below).
II. TRANSFERS TO CHILDREN, ADVANCEMENTS, & GUARDIANSHIP
A. CHILDREN
I. Adoption: Every state treats adopted children as issue.
A. Severance means adopted child is completely severed from its biological family for
Wills purposes.
1. Almost every state follows severance, including NY (Domestic Relations
Law § 117).
2. Exception: In many states (e.g., NY) and UPC § 2-114, stepchildren retain
connections to their biological family members. They or their issue can inherit
from the natural family.
a. Hall v. Vallandingham: H and W had kids. H died and W remarried.
Stepfather adopted kids. Kids’ uncle on biological father’s family died
intestate. Held: Kids cannot take b/c they are severed out of biological
family.
b. The point of the exception is to go against Hall. Many states still the
follow Hall rule.
3. You can always disinherit an issue, including adopted issue. You can define
“issue” in a Will as excluding adopted kids.
B. Adopting Adults: Generally allowed. NY doesn’t allow same-sex couples to make
“issues” this way.
1. In re Robert Paul P. (NY): Same-sex couple wanted to avoid family
challenging the Will, so one adopted the other. Held: Invalid b/c legislature
never intended adoptions to include sexual relations. Gans: This might come
out the other way today.
2. Stranger to the Adoption (a.k.a., Third Party Adoption): Valid in NY.
Adoption occurs after T died and left the devise/bequest, thereby T becomes a
“stranger” to the new adopted issue.
a. *Hypo: T left son B a trust for life, with “all issue” as remaindermen.
B adopts an adult (e.g., his spouse). T is the “stranger” to the adoption.
NY allows this as long as it’s not the In re Robert Paul P. problem.
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b. UPC § 2-705(c) rejects adult strangers to the adoption unless the adult
had lived with the adopting parent while he or she was a minor.
c. Minary (KY): H was beneficiary of trust w/ remainder to “issue.” He
wanted his wife to get it, so he adopted her. KY didn’t use UPC.
Court looks at “in-law syndrome” to hold that spouse can’t be an issue
by adoption.
i. If he had divorced her first, the it would have worked.
C. Equitable Adoption: Occurs when people live with children like they were theirs or
take steps to adopt children but don’t perfect the adoption. In many states (including
NY), the child can argue to be intestate taker, like CL marriage. Rest. Prop. § 25
cmt. K. See O’neal v. Wilkes.
D. Half-Bloods: Half-brothers/sisters are treated like regular siblings under EPTL § 4-
1.1(b). Many states follow this approach.
II. Posthumous Children: Kids born after the parent’s death are still issue across the US. EPTL
§ 4-1.1(c).
A. Reproductive Technology: Woodward: H deposited sperm in bank, then died. W
used it later and had posthumous child, meaning H has conceived after death. Held:
Child is still an issue for intestacy. This is the majority approach in the country. Two
factors must be considered:
1. Did decedent consent to the use of his sperm? Decedent must consent to or
intend for the use of his sperm in order for the posthumous child to be his
issue.
a. Consent usually must be in writing. CA and some other states require
the writing.
2. How long after death did wife use the sperm? Most states say about 2 years is
reasonable.
a. Timing issue doesn’t matter if a Will’s language includes posthumous
children.
III. Non-marital Children: States cannot constitutionally discriminate against non-marital
children just b/c they want to avoid fraud (Trimble v. Gordon). Preventing fraud is a valid
state interest, but a complete bar to taking by non-marital children goes too far. Most states
have statutes requiring bastard children to prove by clear and convincing evidence that there
was a child-father relationship (child-mother is self-proving).
A. EPTL § 4-1.2: Bastard child must prove father-child relationship by C&C evidence.
Two ways: Through DNA evidence or father openly and notoriously took the child as
his own. (There are other methods in the statute.)
B. EPTL § 5-3.2: Accidentally omitting a posthumous non-marital child and not
changing the Will can lead to the child taking under intestacy. Intentional omissions
take the child out of § 5-3.2.
B. ADVANCEMENTS
I. Common Law: An inter vivos gift reduces the amount a person takes b/c it “advanced” the
estate distribution.
A. *Hypo: Father dies intestate, leaving $100k. Kid A had gotten $100k from his father
as a gift. Kid B never got anything and argues he should get the entire estate b/c A
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already got $100k. CL rule gave B a rebuttable presumption that father wanted to
treat kids equally, so B gets the entire estate.
II. NY & UPC: EPTL § 2-1.5 & UPC § 2-109 say that for a gift to be an advancement, the
donor or donee must sign a writing contemporaneous with the gift showing that the gift was
intended to be an advancement.
A. This is almost never litigated. Parents can just give one kid more money than another
in their Will.
C. GUARDIANSHIP & MINORS

I. Guardianship of the Person: In NY, a person can become the new guardian of a minor by
obtaining letters of guardianship from a court. The Will and the letters Will be admitted to
probate. Court then determines whether the person appointed is fit to be a guardian. Court
almost always accepts the wishes of the testator.
A. If the parents die intestate, the court must appoint a guardian.
II. Property Management Options: Guardian must watch over minor’s property. It need not be
the guardian of the person (but it usually is). Court’s supervision is very high.
A. NY (Guardianship of the Property): Guardian must give kid all property when he turns
18.
1. If parent(s) dies intestate, half the property goes to the kid and the other half to
the guardian. When the kid turns 18, he gets all of the property.
B. Alternatives to guardianship of property.
1. Revocable trust created by Will: If any minor inherits money by the Will, a
trust
is made for his benefit with a person as trustee. See ML Notes p33.
a. Benefits: Donor says when & how donee gets the gift; no expensive
supervision.
2. UTMA (Uniform Transfers to Minors Act) & Custodianship: EPTL § 7-6.1 is
like a trust where custodian (like trustee) controls a bank account that
transferor made for the benefit of the minor. Transferor picks the custodian.
The minor gets the money when he turns 21 (or 18, if the transferor says so).
a. Drawback is that this is an irrevocable gift, unlike the trust.
C. Administrator’s Choices in NY:
1. Make an UTMA or similar trust account for the benefit of the minor. EPTL §
7-6.6.
2. Give the money to the guardian for the benefit of the minor (minor gets it
when he’s 18).
III. BARS TO SUCCESSION

I. Homicide: Generally, if the heir apparent murders the decedent, heir apparent predeceases the
decedent.
A. NY: Riggs v. Palmer held general rule in NY. Unlike other states, NY doesn’t
require conviction.
1. EPTL § 4-1.6 forbids inheritance of joint bank accounts if one holder killed
the other. Normally, a conviction for first or second degree murder is required
in this situation.
a. Exception to conviction requirement: The murderer commits suicide.
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2. If a beneficiary killed the decedent or testator, the person who’s next in line to
inherit (e.g., residuary legatee) can sue the primary beneficiary in Surrogate’s
Court to make him lose his inheritance. Π must show by a preponderance of
the evidence that Δ murdered the decedent.
a. This can be done even if the primary beneficiary was acquitted in the
criminal trial. UPC § 2-803(g) takes the same approach as NY.
3. Manslaughter: The trend in NY is to accept manslaughter (murder by
recklessness) as a trigger for losing the inheritance. Rest. of Restitution § 187
cmt. e agrees.
II. Unworthy Heirs: General idea is that people who commit misconduct shouldn’t inherit.
A. Rest. Prop. § 2.5: The person who commits misconduct (not homicide) doesn’t
inherit.
B. NY: EPTL § 4-1.4 enumerates misconduct. If parents commit it, they forgo
inheriting from child. (e.g., parent guilty of failing to provide child support, or of
abandoning child)
III. Disclaimer (a.k.a. Renunciation): Beneficiary can disclaim all types of gifts, testamentary or
not.
A. NY: EPTL § 2-1.11 disclaims gifts if the following requirements are met:
1. Writing: Disclaimer must be in writing (same is true in the entire country);
2. Order: Donee must disclaim the gift before ever receiving it (can’t disclaim
after receipt); and
3. Timing: Must make the disclaimer w/in a given amount of time (9 months after
death in NY).
B. Disclaimant in NY is said to predecease the donor, so next beneficiary in line gets the
gift.
C. Point of Disclaimers: Lower taxes (that’s the important reason to disclaim) and
sidestep creditors.
1. Taxes: Disclaimant predeceases donor, so next person in line (or the donor’s
estate) takes.
a. *Hypo: Rich D dies intestate, leaving his kids and spouse. In NY, the
spouse gets $50k and ½ the estate. Kids get ½ the estate with a 35%
tax. If the kids disclaim their interests & predecease D, Spouse gets the
entire estate with no tax consequences.
b. Note that partial disclaimers are also allowed (good for $2M mark).
2. Creditors: NY & CL allow you to sidestep creditors, but many states do not
allow this at all.
a. Fraudulent Conveyance: Gifting for the purpose of defeating a creditor.
The creditor can then sue the party that received the gift from the
debtor.
b. In NY & under the CL, a person in debt may disclaim a gift, leaving it
for the next beneficiary to accept, without committing a fraudulent
conveyance.
i. Exception: If beneficiary filed bankruptcy and received a gift
w/in 180 of doing so, fed bankruptcy law (trumps state law)
forbids disclaimers. But Wills can draft around this law (e.g.,
“To my son, unless he filed bankrupt, then to X”).
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ii. Exception: no disclaimers in Medicaid/nursing home situations.

c. Exceptions to NY/CL (note that many states don’t allow avoiding
creditors anyway).
i. Medicaid is used to be in a nursing home. The condition for it is
to be poor. A person can’t become poor by gifting all assets
(unless gifts were made 5 years before). These people cannot
disclaim gifts received. This is true in many states.
a. Hypo: I am in a nursing home and I met the Medicaid
requirement of 5 years. State is paying for my case. Kids
have my assets. Somebody dies and leaves me money.
Held: court Will not respect a disclaimer in this situation.
Also, note that if I were to take the money and gift it, that
would be a fraudulent conveyance.
ii. IRS won’t allow you to disclaim gifts if you owe it money. It’s
a fraudulent conveyance to disclaim in this situation.
a. Hypo: Relative dies and leaves me some money. I
haven’t paid income tax in a couple of years. I try to use
disclaimer to prevent the IRS from getting the money
owed. Held: IRS is a super creditor. SC says as a matter of
federal law IRS has super rights and you can’t use
disclaimer to defeat them.
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CHAPTER 3: WILLS: CAPACITY & CONTESTS
I. MENTAL CAPACITY
I. The Test of Mental Capacity: Every state requires testators to be mentally capable for their
Wills to be valid (otherwise, entire Will invalid!). This can come up during execution or
after death.
A. States always require a certain age for testamentary capacity. Most say T must be 18
or over.
1. NY (EPTL § 3-1.1): T must be at least 18 to be mentally capable. “Sound
mind and memory” is the other requirement that NY, and many other states,
requires.
2. Common fact pattern is old or sick person who makes a new “friend” and
changes his Will for the friend’s benefit and to the detriment of the
beneficiaries in the original Will.
B. Main Issues: In determining whether T had “sound mind and memory,” states usually
ask this:
1. Issue 1: Does T know who constitutes his family or loved ones?
2. Issue 2: Does T know his property? T must know what he’s disposing of.
3. Issue 3: Does T understand the consequences of his Will? Courts often ask
this.
4. Issue 4: Can T interrelate issues 1-3 in a logical and orderly manner?
5. Rest. Trusts § 11 cmt. c.: It’s easier to have testamentary capacity than it is to
have capacity to enter an inter vivos K. Ks impact the party’s own future, so
the party must also understand the impact of the K on it. In Wills, the testator
is not impacted by the Will b/c he’s dead.
C. Common Issue: Can reasonable jurors differ as to whether T had testamentary
capacity? If they can, the jury decides testamentary capacity. If they cannot, the
issue is decided as a matter of law.
1. In re Estate of Wright: T was strange and a habitual drunk. Daughter let him
live in squalor. T’s Will left some to the daughter and most to a woman T
knew. Daughter argued T lacked capacity, so she takes everything under
intestacy. Attesting witnesses even said T lacked capacity. Held: Will is valid.
The court treats the daughter as morally undeserving person.
a. The bar for capacity is really low. Testators can be crazy and still meet
the four issues in I.B. Court makes a big deal of the fact that T went to
the lawyer alone, proving he wasn’t influenced and that he met all four
issues above.
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i. Attesting witnesses didn’t get credit b/c they had signed the
Will, stating that all of the statute of Wills requirements were
met (including capacity).
ii. That daughter let T live in squalor shows that she wasn’t a good
daughter, so T most likely intended to leave her very little. That
shows he was rational.
2. Washburn: T executes a Will in March 1992 leaving $5k to her caretaker and
the residue to her niece. A few weeks later in April 1992, she suddenly and
inexplicably changes the Will go leave $5k to her niece and the residue to the
caretaker. Additionally, medical testimony demonstrated that the T was in the
early stages of Alzheimers. Witnesses testified that T seemed confused, cited
several examples. Held: the Will was found to be invalid because T lacked
capacity. The MAIN reason, per Gans, is likely the sudden change of heart as to
the terms of the original Will, done in a short time period and without
explanation. Court notes that Alzheimer’s doesn’t automatically mean incapacity.
Effect of Will declared invalid: a beneficiary of the earlier March 1992 Will can
come forward and seek to probate that earlier Will.
3. See also Wilson, p161
D. Burden of Proof: in NY, the BoP for capacity is the proponent of the Will (the person
who is offering the Will for probate – essentially, the beneficiary).
II. Insane Delusion v. Mistake: A person can be mentally capable yet hold an insane delusion.
Don’t confuse the two concepts! (remember: unlike Incapacity, here only that portion of the
Will held to be the result of ID is stricken!)
A. Insane Delusion: A false perception of reality that’s obvious and obsessively held.
1. Elements:
a. Testator obsessively and irrationally holds a false conception of reality,
and
b. That false conception of reality actually causes him to disinherit
somebody in his Will.
c. Remedy: Only invalidate Will clauses causally affected by the insane
delusion. You leave everything else alone b/c it wasn’t affected by the
insane delusion!
2. Common Fact Patterns:
a. Spouse obsessively believes spouse is having 20 affairs and disinherits
him/her
b. Parent thinks his or her child died, but really didn’t. Child gets
disinherited.
c. Paranoid person thinks family members are trying to kill him, but they
really aren’t.
B. Mistake: A false conception of reality that’s accidental, not obsessively held like
insane delusions.
1. Elements:
a. T receives incorrect information;
b. T believes that information;
c. Incorrect information causes T to disinherit or leave out someone from
his Will.
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d. Remedy: Minority allows reformation. Majority (including NY) gives

no remedy.
2. Two Approaches:
a. Traditional/Majority: Mistakes cannot be fixed no matter what. NY &
MA apply this.
b. Modern/Minority (Rest. Prop. § 12.1): Mistakes in Wills are like
mistakes in Ks. If there’s clear and convincing evidence showing T’s
intent, we allow reformation. CHECK THAT THIS IS STILL
MINORITY
3. Example: Father receives letter from gov’t saying his son died in a war. The
letter is incorrect, but the father doesn’t know it. As a result, he doesn’t leave
anything in the Will for his son.
C. Distinguishing b/w Mistake and Insane Delusion – Two Approaches:
1. Majority (NY is here): Assume it’s an insane delusion, not a mistake, unless
there’s a pile of facts such that a rational person in T’s place would have
reached the same conclusion.
a. Hypo: A tells G his son was shot. G believes son was killed. It’s
insane delusion.
2. Minority: Assume it’s a mistake, not an insane delusion, if there’s any factual
basis for the false conception. This is a very low bar.
a. Hypo: A tells G his son was shot. G believes son was killed. It’s a
mistake.
D. In re Honigman (NY): Man left half his estate in trust to his wife, with remainder to
his siblings. Rest of the estate went to his siblings outright. (NY allowed this in the
60s. Today, spouse gets at least 1/3 of the estate outright, not in trust). She argued
T’s insane delusion made him leave her a trust, not an outright gift. T obsessively
thought she was having an affair & told many people about it. Siblings argued it was
a mistake and provided weak evidence (e.g., she likes to answer calls first) to show T
rationally believed in the false conception. Held: Wife gets half the estate outright.
1. Jury Instructions (NY follows this):
a. Jurors first determine whether the stories they heard actually occurred.
b. Then they determine whether T rationally believed in the false
conception. If he did, NY/majority approach says there’s a mistake. If
it’s not a rational belief, it’s ID.
c. Jurors determine whether the false conception caused the devise. Two
standards:
i. NY: Jurors determine whether insane delusion might have
caused the bequest – RELAXED STANDARD;
ii. Jurors determine whether insane delusion in fact caused the
bequest.
2. Wife had helped T become a successful businessman. Court took pity (she’s
deserving).
3. Caveat: T always has the right to be fickle. He can disinherit people. If the T
in Honigman had not told people all of his crazy ideas, the siblings probably
would have won.
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E. In re Strittmater: Testatrix hated men. She belonged to a pre-feminist organization

and left her estate to it. Distant cousins she rarely talked to argued insane delusion.
Lawyer testified that she seemed fine. Held: Cousins take under the intestacy statute.
1. This is an example of society using insane delusion doctrine to apply its own
biases. This case would almost certainly come out the other way today (we
have different biases today).
F. See also Breeden at p171
III. Lawyer’s Ethics: Lawyers do have a duty not to write Wills for people who seem to lack
capacity or have an insane delusion. Lawyers almost never get sued for failing to see that
client suffered an insane delusion or lacked capacity. Drafting lawyers can just say client
seemed fine (assuming that’s true).
A. Lawyers can “coach” the client to a point by stating the law of insane delusion and its
consequences.
1. Lawyers should not tell clients to shut up about the insane delusion, but can
explain the law.
II. UNDUE INFLUENCE - GANS’ FAVORITE TOPIC

I. Definition, Types, and Burden of Proof: Beneficiary (“B”) overcomes the free Will of the
testator (“T”), causing T to write a Will that T doesn’t really want. There are two types of
undue influence.
A. Classic “Gun to the Head” Coercion: Rarely happens. B literally forces T
(physically) to write Will.
B. Manipulation: B subtly makes T think that T must leave B something in the Will.
This
is common.
C. Burden of Proof: Burden of proof is normally on the party arguing undue influence.
It’s preponderance of the evidence in NY, clear and convincing evidence in NJ.
II. Attorney Beneficiaries, No Contest Clauses, & Lipper Upshots
Lipper v. Weslow: 81-year-old lady died, leaving her kids from a 2nd marriage, Frank and
Irene (Δs). Julian, her son from her 1st marriage, predeceased T, leaving a spouse and three
kids (Πs). Frank disliked Julian. T never had much contact with Julian’s spouse or Πs.
Frank was the drafting attorney. He lived next door to T and had a key to her house. Frank
didn’t read T’s new Will aloud during the execution ceremony. She executed it 22 days
before her death, but she was healthy and active. Her original Will left Julian part of the
estate. Her new Will left everything to Δs, expressly disinheriting Πs b/c they never visited
T. There was also a no contest clause. Πs sued, claiming undue influence. Jury held for Δs.
Reversed: Although there was evidence of undue influence introduced, the P’s failed to carry
their burden of proof through clear and convincing evidence that the Will of the T was
replaced by that of the D. CHECK THE NY BOP!
A. Drafting Attorney Beneficiary & Confidential Relations: Although suspicious, an atty
can draft a Will leaving him a gift. Different states hold the atty to different
standards.
1. Some states make the atty-beneficiary prove by a preponderance of the
evidence that he did not unduly influence the T. CA requires attys to prove it
by clear and convincing evidence.
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2. Matter of Putnam (NY & Rest.): Burden of proof is not switched to the
attorney in NY. Jury is instructed that atty drafted the Will and that an
inference of undue influence can be drawn.
3. Confidential Relations: Atty-client, physician-patient, nurse-nursing home
patient, etc. Making a confidence a beneficiary is suspicious. The burden of
proof might switch or a jury instruction is given. Confidential relations also
exist where T is dependent on B (Lakatosh).
a. Estate of Lakatosh: Roger began caring for T, an old lady, to the point
she became dependent on him. Roger suggested he get the power of
attorney (document giving him control over her financial matters). He
got it. 8 months after they met, T named Roger beneficiary of her entire
estate. Roger’s cousin was the drafting lawyer, who videotaped the
execution. Roger used the PofA to take a $128k gift from her and gave
half of it to his girlfriend. Intestate takers argued undue influence.
Held: There’s undue influence.
i. The confidential relation b/w Roger and T shifted the burden of
proving a lack of undue influence to Roger. He had to show it
by C&C evidence and failed.
ii. Taping Executions: Bad idea. The tape shows the client’s
weaknesses. If the client gets camera shy, the lawyer asks
leading questions. That makes it seem like the lawyer is unduly
influencing the testator.
b. Rest. Prop. § 8.3: Presumption of undue influence if there’s a
confidential relation and suspicious circumstances (pp. 160-61).
4. Lawyer’s Ethics:
i. Return to Lipper
1. Did Frank do anything unethical in drafting Will? Could
grandchildren now write letter to grievance committee and say this
guy was unethical?
ii. Rules
1. Family member exception in ethics rule
a. Model Rule 1.8 – Attorney may not draft a Will in which
they are a beneficiary EXCEPT unless they are a family
member
b. If Texas followed 1.8 then we would say Frank did not do
anything unethical.
2. Restatement of Law Governing Lawyers
a. Section 127 – Same exception for the family member but
only if the attorney did not receive a disproportionate
request under the Will
b. Frank loses under this because he got half the estate when
he really should have got only 1/3rd.
3. NY Ethics Rule 1.8
a. Family member exception but only if a reasonable lawyer
would say it was fair and reasonable
b. Professor would think Frank passes under this.
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i. Would say “look court found no undue influence so

he didn’t do anything improper”
ii. Also point to powerful explanation for disinheriting
grandchildren
iii. Bottom Line
1. NY: If you have two siblings and each are getting 1/3 go ahead and
do the Will
a. If one sibling is getting cut out don't do the Will
B. No Contest (a.k.a. In Terrorem) Clause: Clause says B loses his bequest if he

unsuccessfully challenges the Will. It’s a disincentive to start Will contests.
1. It didn’t work in Lipper b/c Πs had no bequest to begin with, so there was no
disincentive. The clause had the effect of showing that Frank foresaw a Will
contest, which was bad for his case.
2. Approaches to Clause: Some jurisdictions prohibit no contest clauses, while
others limit them.
a. FL: Clauses are always invalid.
b. NY: EPTL § 3-3.5 allows them. Unsuccessful objectors lose their
bequest even if they had probable cause to bring the claim.
i. Exception: Forgery claims based on PC. This is the only
exception!
VERY narrow exception. Courts are not opening the
flood gates with this exception. If, for example, you can
bring in a handwriting expert to show that the signature was
forged, court Will let you keep your money. Policy = don’t
want to prevent someone from getting their money if they
legitimately didn’t think the T signed the Will.
ii. Safeguard: SCPA § 1404(4) allows examination of attesting
witnesses, executor, and depositions before filing a claim (i.e.,
clause doesn’t kick in yet).
c. Rest. Prop. § 8.5: Clause is valid, but unsuccessful Bs can keep their
bequests if they show the court that they had probable cause to bring
the contest in the first place.
C. Upshots: Main themes and rules to get from Lipper.
1. As people get older, they tend to have diminished capacity, meaning they’re
more susceptible to undue influence. Will executions a few days before T’s
death is also suspicious.
a. Sudden Will Changes: Sudden changes in a Will (especially one that
existed for a long time), as in Lipper, are very suspicious.
2. Reversals & JNOV: It’s common to see appellate courts reverse jury verdicts
in undue influence cases, as in Lipper. Juries often decide this type of case on
emotions. CHECK THIS!
a. In undue influence cases look for some adequate explanation for T’s
actions. If there is one, the Will is most likely upheld.
3. Inspiration v. Manipulation: If B was kind to T, which inspires T to leave B
something, that’s valid. If B manipulates T, then it’s undue influence.
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4. Record Keeping: It’s a good idea, but not necessary, to read the Will at the
execution ceremony if a Will contest is anticipated. Everyone hears what’s in
the Will then. It’s also a good idea to document the reason for Will changes or
disinheritances.
5. Unnatural Disposition: Leaving everything under the intestacy statute is
presumed to be T’s intent (everyone’s treated equally). Leaving everything to
a complete stranger is suspicious.
III. Precautions when Anticipating a Will Contest: Often a good idea when someone was
disinherited.
A. No contest clause.
B. Have client document or explain the Will (e.g., clause in Lipper).
C. Drafting lawyer must take excellent notes to prepare a record.
1. For example, write down the names of all family members and their properties.
D. Psychiatric Consultation (and/or general doctor’s letter, if psychiatrist is unavailable):
Letter from client stating that client is in good mental health makes challenging the
Will really difficult.
E. Client handwrites a letter explaining why he is leaving property in a given way.
F. Have friends/family members be the attesting witnesses. They’ll remember the client
on that day.
1. If attorneys are attesting witnesses, have them write a memo about the
execution ceremony.
2. Go over the Will during the execution ceremony, in the presence of attending
witnesses.
G. Revocable Trust: Client uses it instead of a Will, always naming new property (e.g.,
bank accounts) to the RT. The point is to show the client is committed to the RT.
H. Make a new Will now and then to reiterate commitment to a given estate plan.
1. Extremely difficult to challenge Wills if the client got different lawyers to do
the same thing.
2. Second bit at the apple: If a newer Will is deemed invalid, a beneficiary can
submit the older Will to probate. The objector would then have to get that
second Will invalidated.
I. Sometimes it’s good to tell the would-be beneficiary he was cut out. It shows the
testator is strong.
J. NY allows Ks in which a would-be beneficiary waives her interest in the estate.
IV. Intimate Relations: Courts sometimes use the sexual relationship b/w intimate partners to
hold that one partner unduly influenced the other into disinheriting her family. It’s like an
unnatural bequest situation. This often reflects the court’s bias.
A. In re Will of Moses (MS): T had married three times. During her 3rd marriage, she
met Holland, a lawyer. She had a relationship with him. Eventually, she was singled
and kept seeing him. They never married, but she left her entire estate to him. A
lawyer called Shell drafted the Will. He was unrelated to Holland. T’s sister argued
undue influence. Held: There was undue influence.
1. There’s a presumption of undue influence in MS if counsel is not independent.
Court said that Shell failed to ask T why she wanted Holland to take,
disinheriting her sister.
a. If the jurisdiction doesn’t apply the old privity rule, Holland could sue
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Shell.
2. Court was biased against T’s sexual history and the age difference b/w Holland
and T. Holland was seen as the “gold digger,” a young guy trying to get an old
woman’s estate.
B. Restatement & NY approaches.
1. Rest. Prop. § 8.3 cmt. f: Not unnatural to leave money to an intimate relation,
but there can be a presumption of undue influence if the evidence merits it.
2. NY: Don’t question what happens b/w married couples, no matter what the age
difference or the confidential relation. Example: Old man married his nurse.
He died intestate and she argued for 1/3 of his estate under the right of election.
She got it w/out question.
a. In re Henderson (NY): T had a long A/C relationship with B, her
lawyer. She asked him to draft her Will, leaving ½ her estate to him. B
had always charged her full price. B told her the ethics issues involved.
He drafted a memo for her to take to independent attorney. But it didn’t
say why she was giving him the bequest. T’s drafting attorney never
asked why she did this. T’s sister sued, claiming undue influence.
Held: No summary judgment to T’s sister, but a jury must determine
why T gave B half her estate (i.e., determine why she disinherited her
sister).
i. NY: There’s a duty to figure out why a testator disinherited
her family.
ii. B wouldn’t be able to sue the attorney for malpractice in NY
(privity rule).
3. NY is moving in the direction of the Restatement (e.g., allowing “unnatural”
dispositions).
C. Same-Sex Couples: In re Kaufmann’s Will: R & W were a couple. R had the money;
W was head of finances. R left everything to W, explaining why in a letter. R’s
brother challenged the Will, and W said there was no relationship to avoid bias by the
jury. Held: R had a confidential relation w/ W and W exercised undue influence.
1. Court showed bias against same-sex couples and used undue influence to get
its away.
2. In states allowing civil unions, W can file a motion to dismiss—R’s brother
lacks standing.
3. Braiger (NY): T owns bar in Manhattan. His gay lover, B, works there. T
leaves all to him. T’s sister argued that B is a gay “gold digger.” B denied the
sexual relationship to avoid bias. Held: There’s an adequate reason for the
devise (ensure business prospers), so it’s valid.
V. Trends and Alternatives to Undue Influence: Courts really use undue influence to protect the
family’s share.
A. Trend in the country follows Oregon and Rest. Prop. § 34.7: Focus on the behavior of
B. If it’s egregious, there’s undue influence.
1. Gans likes this b/c it’s what juries really do everywhere.
B. LA’s Civil Code Approach: Impossible to disinherit family. A portion of the estate
must be left for young and disabled children.
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III. FRAUD, DURESS, & TORTIOUS INTERFERENCE WITH

EXPECTANCY
A. FRAUD
I. Three Types of Fraud and Elements.
A. Fraud in the Inducement: Misrepresentation of a fact or circumstances induces T to
execute the Will. It does not relate to the content of the instrument!
1. *Hypo: T is about to sign his Will, leaving half his estate to child A and half to
child B. A tells T that B has been stealing T’s money. A does this in order to
get the entire estate. If these facts can be proven, there’s fraud in the
inducement.
B. Fraud in the Execution: The content of the document is misrepresented to T.
C. Innocent Misrepresentation: It’s really mistake. The wrongful actor mistakenly
believes something about the would-be beneficiary. He tells T about it, causing T to
disinherit the heir apparent.
1. NY and MA do not allow remedies for mistake or innocent misrepresentation.
2. Modern approach (Rest. Prop. § 12.1): Grant one of the remedies below if
there’s C&C evidence of the innocent misrepresentation.
D. Elements of Fraud
1. Π must prove by clear and convincing evidence that
2. Δ made a false statement intentionally
3. To induce T to do something for the benefit of Δ, the wrongdoer,
4. And to the detriment of Π.
II. Remedies to Fraud: Every state grants relief for fraud (unlike mistake).
A. Probate Remedy: Court denies probate to the new Will, which was induced by fraud,
and accepts the original or older Will. This is the preferred remedy.
1. *Hypo: T has a Will leaving his estate to A. B tells T lies about A in order to
get T to leave him (B) all of his estate. T makes a new Will leaving his estate
to B. Court Will apply a probate remedy here. The new Will is denied
probate and its revocation clause is struck out.
B. Constructive Trusts: Court makes up a trust, naming wrongdoer as trustee holding the
trust for the benefit of the person who was harmed. This is used when the probate
remedy does not work.
1. *Hypo: T’s friends are A and B. T’s Will leaves all to A. Before T executes
it, B tells T something awful about A to get T to leave all to B instead. (Note
that there’s no prior Will.) T falls for it, changes his Will leaving all to B, and
executes it. A sues B for fraud.
a. Probate remedy doesn’t work here b/c A and B are not intestate takers.
If the court denies probate, neither B nor A take (no prior Will).
Intestate takers get T’s estate.
b. B/c the probate remedy doesn’t work, the court Will place T’s estate in
trust, with B as trustee holding the trust for benefit of A. This is what
the testator originally intended.
c. Standard of Proof: A Will have to prove fraud and T’s intent by C&C
evidence.
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B. DURESS & TORTIOUS INTERFERENCE WITH EXPECTANCY

I. Duress: Rest. Prop. § 8.3(c): Duress is undue influence in an overtly coercive nature.
A. Latham v. Father Divine (NY): T’s Will left all to Father Divine and his org (Δ). T
wanted to create a new Will, revoking the prior Will and leaving $350k to Π. Π and
Δ were friends of T. T had the new Will drafted, but never executed it. After Δ had
T’s original Will admitted into probate, Π sued Δ for a constructive trust of $350k,
arguing Π used undue influence & physical force to stop T from executing the new
Will. Π alleges Δ murdered T. Δ argued Π lacked standing. Held: Π has standing to
bring this suit. On remand, Π must establish duress by C&C evidence.
1. Latham is a narrow case. On remand, Π Will also need to show T never had a
chance to execute the Will.
2. Court of Appeals did not say the remedy was a constructive trust. It left it for
the lower courts to decide.
B. This case becomes the predicate for a new tort…
II. Tortious Interference w/ Expectancy of Inheritance:
A. Rest. Torts § 774B: “One who by fraud, duress or other tortious means intentionally
prevents another from receiving from a third person an inheritance or gift that he
would otherwise have received is subject to liability to the other for loss of the
inheritance or gift.” Elements:
1. Π must have a valid expectancy;
2. Δ must have intentionally interfered with Π’s valid expectancy;
3. Δ must have engaged in independently tortious conduct;
4. There must be a reasonable certainty that Π would have received the
expectancy absent Δ’s tortious interference;
5. Π must prove damages as a result of Δ’s tortious interference.
B. NY does not accept this doctrine. See Vogue, 87 NY2d 998. If it did, the Π in Father
Divine would fall under it.
III. Tort v. Constructive Trust: Duress’s equitable remedy is a constructive trust, which is what
the heir apparent would have gotten. The tortious interference remedy includes punitive
damages (much more).
A. Why are many states resisting this?
1. Maybe there is sense that adopting this tort would significantly change the
whole dynamic of the Will contest process and settlement
a. If tort was adopted you could leverage settlement by threatening
punitive damages.
b. Person probating Will doesn't want to be exposed to punitive damages
c. Potential threat of testamentary freedom
Person wanted to give you money but you may surrender it in
fear of punitive damages
2. The tort is redundant
a. Under current system you think there is undue influence you oppose
probate the Will
b. This tort is saying that in addition to challenging the probate you can
also sue in tort
Why do we need both?
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We have plenty of opportunities to argue validity of Will. Why

do you need an independent tort to do the same thing?
B. Schilling v. Herrera (FL): Florida adopted tort. Involves caregiver who is caring for
decedent. Caregiver winds up with the estate. Probate is not opposed. Then it was too
late to attack probate. Relative that got cut out did not live in Fla and didn’t know
she had died. Also says caregiver told her person did not die. Now too late to sue. Tort
is not available if you could seek adequate relief in the probate process.
1. Makes it very unlikely that you could ever use this in a case. But does allow
him to use tort in this case since technically he could not have sought relief in
probate process.
2. Shows that tort is marginalized and rarely invoked.
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CHAPTER 4: WILLS: FORMALITIES & FORMS
I. DUE EXECUTION OF WILLS

I. Statute of Wills (“SoW”): SoW says the process required to create a valid Will.
A. Policy underlying Statute of Wills and its formalities – 4 functions:
1. Ritualistic function: Execution ceremony is a ritual that impresses upon the
testator the importance of his actions. Although Wills are ambulatory (can
always be changed), the ritual still shows the testator that his actions are
important to others.
2. Protective function: Witnesses are present to protect the intent of the testator.
3. Channeling function: Procedure signals to everyone that testator made a Will
reflective of his intent.
4. Evidentiary function: T is dead, so this gives proof (along with T’s signature)
of his intent.
a. But note that the Wtatute of Wills is in decline these days. Non-
probate transfers always get around the formalities.
b. Also note that revocable trusts do not need to comply with the SoW.
B. Elements: (see ML notes p 61-62 for good hypo) Wills must be:
1. Writing: Wills must be written to comply with the statute of frauds;
2. Signature: T must sign the Will or acknowledge his signature in the presence
of the witnesses;
a. Acknowledgement: T tells witnesses that it is his signature and that he
did make it.
b. Someone else may sign for T in his presence (EPTL § 3-2.1). Also, it
doesn’t have to be T’s entire name. It could be an X or a mark if he’s
too feeble (e.g., in hospital).
c. Stevens v. Casdorph: T was in a wheelchair. He went to a bank where
a woman non-lawyer would help him find attesting witnesses. T signed
his Will in her presence. She left him by her desk and went to other
rooms in the bank. She got two people to sign as witnesses, separately
and not in the presence of each other. Held: Will is invalid b/c it
violates the SoW. T needed to sign before the presence of attesting
witnesses & attesting witnesses must sign in each other’s presence (see
6 below).
3. Witnesses: Wills must be attested by a certain number of attesting witnesses;
a. Most of the country uses 2, but VT uses 3.
b. Note on Notarization
i. NY: It’s not OK to have only one witness who is a notary
notarizing the Will! There must be at least two witnesses,
whether notaries or not.
ii. UPC § 2-502 (amended) & CA: It’s OK to have one witness if
he’s also a notary notarizing the Will.
iii. Louisiana is only state to require 2 witnesses and a notary
4. Request: Some jurisdictions require T to request the attesting witnesses to act
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in that capacity;
a. NY’s EPTL § 3-2.1(a)(4) requires this, UPC doesn’t.
5. Publication: T must publish the Will by declaring to the witnesses that it is his
Will;
a. NY requires this under EPTL § 3-2.1(a)(3), UPC doesn’t.
6. Subscription: Witnesses must subscribe to the Will by signing it.
a. NY allows attesting witnesses to sign separately, but only if they do so
w/in 30 days of each other. There is a rebuttable presumption that
witnesses met this requirement.
i. NY says attesting witnesses can sign after T died (30 day rule
still applies).
b. UPC also says attesting witnesses need not sign in the presence of each
other or of T. They can sign “w/in a reasonable time” after T’s death.
c. Some states forbid attesting witnesses from signing after T’s death.
Some states require the attesting witnesses to sign in the presence of
each other.
i. In re Groffman (UK): T signed the Will and acknowledged it to
the two attesting witnesses. Witness 1 subscribed in the living
room and then left the room. Seconds later, witness 2
subscribed in the living room. Held: Will is invalid b/c the
witnesses must sign in the presence of each other.
ii. See Stevens v. Casdorph (2 above).
C. Execution Ceremony under Gans’s “Least Common Denominator” Method (assuming
Wills contest isn’t anticipated). This method makes the Will valid in all jurisdictions.
1. Initial: Have T initial each page in the presence of the three attesting witnesses.
a. This shows all of the pages were present. It doesn’t show T read all of
the pages.
2. Sign: Have T sign and date the Will at the end of the instrument.
a. Dates are not required in Wills, but they’re helpful if there are future
Wills.
b. T writing in the date shows that he’s not completely crazy or weak.
c. NY: This helps with the 30-day presumption of compliance.
3. Publish: Ask T if this is his Will. If he says “yes,” the Will is published before
the witnesses.
a. NY: EPTL § 3-2.1 requires this. UPC § 2-502 doesn’t require it.
4. Request: Ask T if he wants the witnesses to be attesting witnesses.
a. NY: EPTL § 3-2.1 require this. UPC § 2-502 doesn’t require it.
5. Attestation Clause: Read attestation clause to the witnesses and T, then
witnesses sign it.
a. Attestation clause below T’s signature line recites everything that
occurred in the ceremony. It mentions all of the SoW requirements.
The witnesses sign it.
i. Although not legally required, attestation clauses are really
helpful for binding the witnesses’ future testimonies to what
occurred in the ceremony.
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ii. In many states, these clauses create a rebuttable presumption of

due execution.
b. NY requires the witnesses to sign and include their addresses. Failure
to include their addresses doesn’t affect the validity of the Will,
however.
i. Some lawyers prefer lawyers as attesting witnesses b/c they’re
easier to locate; in NY, lawyers must give their addresses to the
appellate division in their dep’t.
D. Self-Proving Affidavits repeat the attestation clause, state that T was competent and
free of restraint, and are notarized. They’re attached to the Will.
1. NY: Witnesses sign them and notary notarizes it.
a. SCPA §§ 1406, 1408: Self-proving affidavit is good enough to allow
the Will into probate. The witnesses no longer have to testify in court
for probate to start.
b. Although NY’s statute says not to admit the Will to probate if there’s a
Will contest, courts still do it and say there’s a rebuttable presumption
that everything recited in the affidavit is valid (that includes undue
influence and capacity).
2. UPC: § 3-406 admits a Will to probate if there’s a self-proving affidavit, even
in Will contests.
a. UPC states that self-proving affidavits carry a conclusive presumption
that all SoW requirements were satisfied. (But things like fraud/undue
influence can be argued).
i. The only exception to this presumption is forgery of the
signatures.
b. All other requirements get a rebuttable presumption.
c. UPC § 2-504 has two types of self-proving affidavits:
i. Combined or One-Step: Will & affidavit are together, so T and
witnesses sign once in front of a notary who notarizes the entire
document.
ii. Separate or Two-Step: Separate documents. Affidavit is
attached.
3. Some states also require T to sign the self-proving affidavit.
E. Special Rules under EPTL § 3-2.1
1. Anything added after the execution is invalid unless it’s done in compliance
with the SoW.
a. 3-2.1(a)(B): T cannot add things (by pen or typing) to the Will after its
execution.
b. 3-2.1(a)(B): Anything written after T’s signature is invalid. The rest of
the Will (before T’s signature) is valid.
i. Only exception is the attestation clause, which can be after T’s
signature.
2. *Hypo: Before execution ceremony, T says he wants to give something to his
sister. It can be added before the ceremony. It cannot be added in the space
after T’s signature. T should initial (to show it was there at the time of
execution) and everyone should sign it.
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3. See ML Notes p 66-67 for additional hypos.

II. Conflicts of Law: Use Gans’ “least common denominator” approach (I.C above) to avoid
these issues.
A. NY: EPTL § 3-5.1(c) says that a Will disposing of real property in NY or of personal
property located anywhere is valid if one of these three requirements is satisfied:
1. The Will satisfies NY’s SoW (EPTL 3-2.1);
2. The Will satisfies the SoW of the jurisdiction where the Will was created; or
a. *Hypo: T, a NY resident, goes to CA and makes a Will there. CA only
needs one attesting witness. T returns to NY and stays here until he
dies. Will is valid.
3. The Will satisfies the SoW of the jurisdiction where T was domiciled at the
time of death.
a. *Hypo: A executed a Will in FL, where she lives. FL only requires one
attesting witness. She owns a house in NY. A dies in FL. A’s sister
can get the house in NY.
III. Witness Beneficiaries & Issue of Competency: To be an attesting witness, a witness must be
competent to testify if he is required to do so later. This is so even if there are self-proving
affidavits.
A. Witness Beneficiaries at CL: An attesting witness is incompetent if he’s also a
beneficiary.
1. *Hypo: 2 witnesses to T’s Will. T is leaving witness 1 a dollar w/ residue to
another person. Witness 2 is not getting anything under the Will. Will is
invalid under the CL b/c there was only one witness. Neither witness 1 nor the
residuary legatee take (unless through intestacy).
B. Purging Statutes: States made these statutes to get rid of the CL rule. They erase the
bequest to the beneficiary-witness, so that the residuary legatee gets it. The idea is to
end witnesses being biased. REVIEW THIS SECTION
1. NY’s purging statute is EPTL § 3-3.2.
a. The bequest to the attesting witness is void, unless there were two other
non-interested attesting witnesses. He doesn’t get anything unless he’s
an intestate taker. Or
b. Attesting witness gets the lesser of these two: Intestate share he would
have gotten or the disposition itself. He gets it in one of these two
ways:
i. From the residuary legatee only; or
ii. If no residuary legatee is named, EPTL § 4-1.1 applies to the
disposition.
c. A disinherited attesting witness will want to sue the lawyer, but NY
still applies the common law privity rules. It may be different in other
states.
2. UPC § 2-505 says it doesn’t matter that an attesting witness is getting a
disposition. Let the tainted witness testify and allow the jury to judge their
credibility.
3. Estate of Parsons (CA): CA’s SoW required two competent witnesses. There
were three witnesses, and two were getting bequests. Witness #1 got real
property; witness #2 got $100. Witness #1 was just a friend of T. Lawyer told
32
#2 to disclaim the gift to make the Will valid and get around CA’s purging
statute (requiring two disinterested witness for a tainted witness to take).
Held: Witnesses must be competent at the time of execution.
a. Court applied the statute rigidly. Another court might allow the
disclaimer argument.
b. CA’s current purging statute is a revised version of UPC § 2-505. The
interested witnesses take, but there’s a rebuttable presumption of undue
influence (so, sort of a middle ground btwn purging and UPC).
IV. Crisscrossed Wills: The general rule in Wills is not to reform them, unlike Ks.
A. In re Pavlinko’s Estate: H &W didn’t read English. Lawyer made mirror Wills for
them naming W’s brother residuary legatee. Lawyer stupidly had H sign W’s Will
and vice-versa. W died first, but H didn’t offer the Will to probate. H then died and
W’s bro offered it with W’s Will to prove the simple mix up. Held: Both Wills are
invalid b/c they weren’t signed by their testators.
B. In re Snide (NY): Same facts as in re Pavlinko. Held: For this very narrow
situation, where the evidence is so crystal clear, reformation is allowed in NY.
Otherwise, NY prohibits reformation.
C. Rest. Prop. § 12.1: Reformation of Wills is allowed if there is C&C evidence of
mistake.
V. Harmless Error & Substantial Compliance: If there’s C&C evidence that the decedent
intended for the document to be his Will, we should simply ignore the deficiencies in
following the SoW.
A. UPC § 2-503 (p. 226) is harmless error. This also applies to revocation, alteration,
& revival.
1. In re Estate of Hall (MT): H & W went to lawyer to make a joint Will. They
make it, but only the lawyer was a witness. He said he’d have it notarized
(doesn’t do anything in MT). They meant to get another witness, but H died.
Held: Harmless error saved the Will.
B. Rest. Prop. § 3.3 is substantial compliance.
1. NJ: In re Will of Ranney: T and witnesses signed the self-proving affidavit on
the back of the Will, but never signed the actual Will. Held: Remanded to
determine if the Will substantially complied with the SoW requirements.
a. NY & Rest. Prop. § 3.1 cmt. c: Signature on the self-proving affidavit
is considered a signature affixed to Will. It’s good enough for the
SoW.
C. NY does not allow either doctrine! Even if it did, lawyers should never rely on the
doctrines.
1. *Hypo: T is a NY resident. He goes to MT and makes a Will, but only one
witness attests. T returns to NY and dies. Is the Will valid? No, b/c the MT
SoW itself isn’t satified. The harmless error/substantial compliance
doctrine doesn’t get carried over w/ conflicts of law.
VI. Holographic, Nuncupative, & Conditional Wills
A. Holographic Will Elements.
1. All or most of the Will must be written in T’s handwriting.
2. Must contain T’s signature somewhere on the document.
33
a. T must intend it to be his signature. Kimmel’s Estate: Father wrote

letter to sons, naming them beneficiaries of property and signing
“Father.” Held: It’s valid.
b. Rest. Prop. § 3.1 cmt j: If T intends to sign, it’s a signature for Wills
purposes.
i. *Hypo: “I, Mitchell Gans, leave blah blah.” Then he doesn’t
sign it. It’s invalid under the Restatement unless he
acknowledged it as his Will to others or other extrinsic evidence
shows that he intended for it to be his Will.
3. Some states require the Will to be dated.
B. NY: No holographic Wills unless EPTL § 3-2.2(b) applies. If the entire Will is in
T’s handwriting, EPTL § 3-2.2 makes exceptions (NARROW), subject to time
limitations, for the following groups:
1. A member of the US armed forces during war;
a. Will is invalid one year after being discharged from armed forces.
2. Person who serves w/ or accompanies the armed forces during war (e.g.,
journalist);
b. Will is invalid one year after ending services or accompanying armed
forces.
3. A mariner while at sea.
c. Will is invalid three years after returning from the sea.
C. UPC § 2-502(b): Only material portions of and signature in the holographic Will need
be in writing.
1. Estate of Muder (AZ): T bought a pre-printed Will from the store and filled in
the blanks with his own handwriting. Held: a T who uses a preprinted form,
and in his own handwriting fills in the blanks by designating his beneficiaries
and apportioning his estate among them and signs it, has created a valid
holographic Will.
a. Printed portions of a Will form can be incorporated into a
holographic Will where the Court finds a testamentary intent.
D. Handwritten Additions: Some states require T to sign again if there’s an addition,
others do not.
1. *Hypo: T wrote a holographic Will 6 months ago, entirely in his handwriting.
He takes it out and adds, “I also give $10k to my brother John.”
a. Valid in a state that doesn’t require resigning. Rest. Prop. § 3.2(f)
b. In a state that requires resigning, a harmless error argument could be
made.
2. *Hypo: T is from NY. He has a valid Will typed out. He takes it out during a
trip to AZ and adds, in writing, “I also give $10k to my brother John.”
a. EPTL § 3-5.1 (conflicts of law) applies. If the holographic Will is
valid in AZ, it’s valid in NY. But substantial compliance/harmless
error can no longer be argued.
E. In re Estate of Kuralt: T had an affair with S w/out his wife knowing. T wrote a
holographic Will leaving a house in MT to S. Then T made a formal Will leaving
everything to his wife and kids. But two weeks before he died, he wrote S a letter
34
saying he would contact a lawyer so S can inherit the house. S argued it was a
holographic Will. Held: It was a holographic Will & S gets the house.
1. Gans says a promise to make a gift is not enforceable. Court just felt bad for S.
2. Estate Tax: Will can say who pays the tax. If the Will is silent, look at the
state’s rule.
a. EPTL § 2-1.8(b): There are two methods of distribution of the tax:
i. Pay according to the amount distributed to the person (equitable
distribution);
ii. Pay according to what the Will or other instrument says.
F. Nuncupative Wills: Oral Wills. Almost all jurisdictions require two witnesses.
1. NY: EPTL § 3-2.2(a) and (b) apply (see B.1-3 above). Only valid if its
“provisions are clearly established by at least two witnesses.”
H. Conditional Wills: T disposition to B is based on a contingency. Often arises in
holographic Wills.
1. Presumption Against Intestacy: Always construes ambiguous Wills as
operative if possible. This is different from questions of validity (see
revocation below), which prefers intestacy.
a. Eaton v. Brown (USSC): T’s Will said he was going on a journey and
may never return. If he didn’t return, he wanted his son to have
everything. He returned and died 8 months later. Held: Admit the
Will and son gets everything b/c T’s intent was clear.
b. *Hypo: Gans writes a letter saying he’s going to Europe and, if he dies,
Mary gets everything. He comes back and dies 5 years later. Mary
takes under the valid Will.
II. REVOCATION OF WILLS
A. TYPES OF REVOCATION
I. Preliminary Elements: Approaches include UPC § 2-507 and NY w/ EPTL § 3-4.1.
A. Intent: Revocations are invalid unless T actually intended to revoke his prior Will.
B. Testamentary Capacity: Revocations are invalid unless T had testamentary capacity.
C. Presumption of Intestacy: We presume revocations are performed correctly whenever
possible.
D. Note: there are 3 methods for revoking a Will: (1) revocation by Will, (2) revocation
by writing, and (3) revocation by physical act
II. Revocation by Wills: A subsequent Will does away with a prior Will expressly or by
inconsistency.
A. Clause: A clause in the new Will expressly revokes all prior Wills.
B. Inconsistency: New Will’s clauses are inconsistent with old Will’s  old Will’s
clauses are revoked.
1. *Hypo: Will #1 leaves T’s house to A. Will #2 leaves T’s house to B. There
is no revocation clause in Will #2. Will #2 revokes Will #1 by inconsistency.
2. *Hypo: Will #1 leaves T’s house to A with residue to Z. Will #2 leaves T’s
house to B.
a. B gets the house b/c it’s the latest clear expression of T’s intent.
b. Z still gets the residue b/c Will #2 (which lacks a revocation clause) is
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silent about it.

III. Revocation by Writing: A writing executed in compliance w/ SoW revokes all prior Wills
and leaves T’s estate under the intestacy statute.
A. Example: T wants to revoke his Will. He can sign a piece of paper stating that he
revokes his prior Wills. To do so, he must meet all of the SoW requirements,
including witnesses.
IV. Revocation by Physical Act: Lawyers try to avoid this. T destroys the Will in some way.
Three elements:
A. (1) A physical act of tearing, burning, cutting, cancelling, obliteration, or other
mutilation is performed to the Will; and
B. (2) T or an agent of T performed the act;
1. T must destroy an original (just one if there is more than one), not just a copy
of the Will.
2. Writing “X” on the signature or on the major parts of the Will also works.
3. A third party is allowed to perform the act on behalf of T.
a. NY: EPTL § 3-4.1(a)(2)(A)
i. A third party may destroy the Will on behalf of T, but only if T
and two other witnesses are present when the third party
destroys Will.
ii. T can always destroy the Will on his own, without witnesses
present.
b. UPC § 2-507: More lenient than NY. No witnesses are required.
i. T can always destroy his own Will without witnesses.
ii. A third party can destroy T’s Will on T’s behalf and in his
presence.
C. (3) With the intent of revoking the Will.
1. *Hypo: T’s Will is burned in a house fire. There’s no revocation b/c he didn’t
intend to lose it. If T also died in the fire, court might have to admit the Will
not in existence.
a. NY: SCPA § 1407 deals with the probate of nonexistent Wills.
D. Harrison v. Bird: T’s lawyer held the original Will. T told him by phone that he
wanted to revoke it, so the lawyer ripped it up, put it in an envelope, and mailed it to
T. T died later, nobody could find the pieces, and the objectors argued there was no
valid revocation (Will wasn’t destroyed before T). Proponents argued revocation b/c
T got it and now it’s lost. Held: T revoked his Will.
1. There’s a rebuttable presumption of revocation if T had his Will when he died
and it cannot be found after his death. This applies only if T was the one who
had the Will when he died.
a. Copies don’t matter; they’re there just in case T didn’t intend to revoke.
b. Parties against the presumption must show there was no revocation by
C&C evidence.
2. Parties could also have argued substantial compliance, if their state allowed it.
E. Thompson v. Royall (VA): T wanted to revoke her Will. She was with her lawyer
and 2 witnesses. Lawyer turned the Will over and wrote on the back cover “this Will
is null and void.” T wanted to keep it as a memo to write another Will. T signed
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underneath that. Held: No revocation b/c the revoking language must come in
contact with the language of the Will.
1. UPC § 2-507 overrules Thompson.
2. NY & CL: Thompson is the CL rule still applied in NY. The revoking
language must come in contact with the provisions of the Will to have any
effect.
a. Can argue C&C evidence of T’s intent (i.e., substantial compliance),
but not in NY.
3. Holographic Revocation: States that allow holographic Wills would allow T to
write a revocation, in her own handwriting, on the back of the Will and sign it.
Not NY.
F. Partial Revocation by Physical Act: Taking a pen and destroying just part of a clause
of a Will so that somebody else takes that gift.
1. NY & many jurisdictions prohibit partial revocation by physical act.
a. T can write a codicil or an entirely new Will instead.
b. In places other than NY, harmless error/substantial compliance might
be argued.
2. UPC § 2-507 allows partial revocation by physical act.
B. REVIVAL, DEPENDENT RELATIVE REVOCATION, & REVOCATION BY

OPERATION OF LAW
I. Revival: If Will #2 revokes Will #1 by inconsistency or by an express clause, and T revokes
Will #2, does Will #1 get “revived”? There are three approaches:
A. (1) CL “Cover Approach”: Will #2 “covers” Will #1, which was never revoked.
Will #1 revives when Will #2 is revoked. (Note: no inquiry into T intent, simply
assumes that T intended to go back to Will #1).
B. (2) NY’s EPTL § 3-4.6 “Destruction Approach”: Will #2 “destroyed” Will #1 by
inconsistency. When Will #2 is revoked, Will #1 cannot return b/c it was already
destroyed. We turn to intestacy instead.
1. Estate of Lea Lake (NY): Will #1 gave all real property to A with residue to
B. Will #2 gave real property C and $5k to D. T then revoked Will #2,
triggering the revival statute. Held: Destruction approach doesn’t apply b/c
there’s no complete revocation. **Go gift-by-gift when dealing with
inconsistent Wills.
a. What the court did:
i. The real estate goes to the residue.
ii. B still gets the residue b/c that was never revoked.
iii. $5k was originally taken out of the residue, so it must go to
intestacy.
b. Under regular revocation, C gets the real property, B gets the residue,
and D gets $5k.
c. *Hypo: Analysis of revival under other two approaches:
i. CL: Will #1 is revived when the “cover” (Will #2) is revoked.
ii. UPC: Rebuttable presumption that T intended to revive Will #1.
C. (3) UPC § 2-509: When Will #2 is revoked, turn to T’s intent, determined under two
presumptions:
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1. Return to Will #1: If Will #2 partially revokes Will #1, there’s a rebuttable
presumption that T intended to revive Will #1 when he revoked Will #2.
2. Destroy Will #1: If Will #2 fully revokes Will #1, there’s a rebuttable
presumption that did not intend to revive Will #1 when he revoked Will #2.
II. Dependent Relative Revocation & Revival (“DRR”): Under the CL, when T revoked a
Will by mistake, DRR creates a rebuttable presumption that the Will wasn’t revoked, but
only if T’s intent is furthered thereby.
A. When the following 3 elements are present, there’s a rebuttable presumption T didn’t
intend to revoke (but only if T’s intent is furthered thereby!!!):
1. There must be a revocation, and
2. That revocation must have been made on the premise of a false
assumption (i.e., mistake) about the validity of a new disposition,
3. That is attempted in connection with the revocation.
*Hypo: T has kids from a prior marriage. T’s Will #1 leaves all to his wife.
He rips up the Will and writes Will #2, also leaving all to his wife but using a
different executor. T used only one witness when executing Will #2. Kids
argue for intestacy. What can wife argue?
a. If we’re not in NY, wife can argue harmless error/substantial
compliance.
b. If we’re in NY, wife can argue DRR.
i. There was a revocation and
ii. T made it by mistake—falsely believed the new Will would be
valid.
iii. Thus, there’s a rebuttable presumption that Will #1 was never
revoked.
*Hypo: Same as above, but T had a fight with his wife and wants a divorce.
He rips up the Will and makes Will #2 leaving all to his kids from his 1st
marriage, but only one witness is there.
a. If we’re not in NY, the kids can try to argue substantial
compliance/harmless error.
b. If we’re in NY, the wife will not win with DRR b/c T didn’t want her
to get Will #1 (goes to intent). Result: Kids will get their intestate
share.
Note: this seems to be at odds with CL rule of no relief for mistakes. Gans
thinks Courts are more comfortable in these situations because they can take a
peak at Will #2.
B. LaCroix v. Senecal (CT): T’s Will #1 left half to his nephew and half to his friend.
T’s codicil then did the same, but used the nephew’s nickname to clarify who it was.
Problem was that friend’s wife was a witness, so the purging statute invalidated the
codicil. Held: DRR applies to save Will #1.
C. Estate of Auburn (WI): Will #1 was made, then #2 revoked it. She ripped up #2,
saying she wanted to return to #1. The beneficiaries in both Wills were very similar.
WI’s statute was like NY’s in that it caused destruction of the prior Will. Held: DRR
saves Will #2, not Will #1.
1. The reason is that Will #1 was destroyed w/out mistake under the revocation
statute of WI.
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2. T had revoked Will #2 by physical act and under the mistaken belief that Will
#1 would return. Will #2 is revived under DRR b/c that one was closest to
what T wanted (i.e., #1).
3. Rest. Prop. § 4.3: In cases like Estate of Auburn, there must be C&C evidence
that T wanted to return to Will #1 to show the revocation was ineffective.
III. Revocation by Operation of Law – Change in Family Circumstances: Certain legal acts
that will undo a Will, no matter what T intended.
A. Divorce: If T writes a Will leaving a portion to his spouse, and if he divorces his
spouse before he dies, the bequest to the spouse is void.
1. NY: EPTL § 5-1.4 says annulment of marriage or divorce voids
bequests/devises to a spouse.
a. If T intends not to revoke, he can remarry, draft a new Will, or draft
around the statute.
b. If T dies before the divorce or annulment is completed, the spouse
still takes.
c. Unless there’s a prenup, T cannot disinherit the spouse b/c of the right
of election.
d. **This includes probate and non-probate property (e.g., Revocable
Trusts, life insurance, non-ERISA pension plans, etc.).**
2 UPC § 2-804: Says the same thing as NY (also excludes non-probate
property).
3. Stepchildren: If Will says that the property goes to the stepchild, and then
there’s a divorce, NY still allows the property to go to the stepchild. Some
other states don’t.
4. Egelhoff (USSC): T divorced wife, but never changes his ERISA pension plan.
Wife & kids from a prior marriage argue over it. State courts revoked out wife.
USSC reversed, holding ERISA pension plans are an exception to state
revocation by operation of law statutes.
a. NY’s statute says distribution is “according to law,” so it follows
Egelhoff.
B. Birth of Children: EPTL § 5-3.2 requires the partial revocation of a Will, leaving to
the child what it would have gotten under the intestacy statute, in the following
situations:
1. *Hypo: T executes a Will leaving to his sister and parents. He then has a non-
marital child. T dies w/out providing for that child (his only child).
a. Child gets the entire estate, subject to the standard of proof under
EPTL § 4-1.2 for paternity. If T had been married, wife would get
$50k & ½ the estate.
2. *Hypo: T has a child before executing his Will. He leaves estate to his parents
in the Will.
a. Child gets nothing. In NY, if T executes the Will after the child’s
birth, child is cut out of the Will. Any child born after this is also cut
out to treat children of T equally.
3. *Hypo: T is married and has a child. T then leaves his estate to his wife. After
execution, T has another child. Answer: Neither child gets anything.
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4. Remember that T can always make a new Will to include or exclude after-born
children. T can also draft around EPTL § 5-1.4.
C. Marriage: If the T executes his will and subsequently marries, statutes in a large
majority of states revoke the Will and give the spouse her intestate share, unless it
appears from the Will that the omission was intentional or the spouse is provided for
in the Will or by a Will substitute with the intent that the transfer be in lieu of a
testamentary provision. UPC § 2-301.
1. NY does not follow this rule. The wife still gets her elective share, but the
original Will is not revoked.
III. COMPONENTS OF A WILL

I. Integration of Wills: We ask whether a page was meant to be part of the Will. Get around this
doctrine by having T initial each page. This happens more with laymen (e.g., holographic
Wills).
A. Elements:
1. The page must be physically present at the time of execution; and
2. T must intend to make the page part of his Will.
B. *Hypos.
1. T is executing a Will, but forgot a page at home. T tells everyone that he
meant to include that as part of his Will. It’s not part of the Will b/c it’s not
physically present at execution.
2. Page is now physically present, but T says he doesn’t want it. It’s not part of
T’s Will.
II. Incorporation by Reference: Incorporates another document into the Will, but this only works
for physical, tangible property. It’s generally accepted, just not in NY.
A. Elements (CL & UPC § 2-510):
1. Document T seeks to incorporate must exist at the time the Will is executed;
and
2. Document must be referenced with sufficient specificity.
B. NY rejects the doctrine of incorporation by reference.
C. UPC § 2-513: Incorporation of a document is allowed for documents relating to
personal tangible property (other than money) only, even in the following situations:
1. Writing referred to didn’t exist at the time of execution; and/or
2. Writing referred to is changed after execution solely for testamentary purposes.
*Hypo: “I give my tangible personal property to such people I may identify in a
document to be prepared by me after the Will is prepared.” That’s allowed under the
UPC, never in NY.
III. Republication by Codicil: Codicil revalidates the Will or cures defects in the Will, but only
if doing so furthers T’s intent.
A. Simon v. Grayson: T’s Will left property as would be stated in a separate letter,
which left $4k to a beneficiary. CA’s incorporation by reference statute required the
letter to be in existence at the time the Will was executed. Letter was then created,
and T made a codicil to cure the defect. Held: Codicil cures defect and furthers T’s
intent.
1. Rest. Prop. § 3.4 says codicils can be used to cure defects in the original Will.
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2. We only use the republication by codicils to help T’s intent! *Hypo: Gans
leaves to Hofstra. On his deathbed, he makes a codicil changing executors. In
his state (not NY), a mort main statute invalidates all gifts to charities if T
made it and died w/in 90 days. We do not invalidate the Will. We don’t apply
the republication by codicil doctrine, because that would trigger the mortmain
statute and knock out the Hofstra donation, which was NOT the T’s intent!
B. NY recognizes republication by codicil, but only to cure defects that don’t pertain
to the SoW. (can cure undue influence, lack of capacity, etc.)
1. *Hypo: T has a prior Will that he signed but no one ever witnessed. T wants to
make a codicil to save the Will. NY will not allow this b/c the original Will
violated the SoW.
2. *Hypo: T signed the original Will when he lacked testamentary capacity, but
now signs a codicil when he’s fine. NY does allow this b/c the original defect
did not violate the SoW.
C. Johnson v. Johnson: T is a lawyer who makes his own Will, but never executes. He
writes in one day, “To my brother James, I leave $10.” He writes it’s his final Will
and won’t be altered. He died w/out executing the Will. Held: Extra bequest is a
valid holographic codicil that republishes the Will. REVIEW THIS!
1. Arguments that could be made are substantial compliance/harmless error.
2. If not, argue that the extra bequest is a holographic codicil republishing the
Will.
3. This wouldn’t work in NY b/c it’s a SoW error in the original Will, T wouldn’t
fall under the holographic Will exceptions, and NY doesn’t accept substantial
compliance/harmless error.
4. CA has rejected this case. However, in CA, T can write a separate
holographic codicil (not on the Will) and then incorporate the typed Will by
reference.
IV. Acts of Independent Significance: Validate the gift if the post-execution act/event has
sufficient non-testamentary or independent significance. If the act is mostly for
testamentary reasons, the gift is invalid.
A. Definition: The clause in the Will allows for the introduction of acts or events
extraneous to the Will.
1. *Hypo: T leaves to his daughter the car that he owns when he dies. This
means the daughter gets whatever T had, based on what he did. It might be a
$50k car or a $1k junk car.
2. *Hypo: T leaves his estate according to what’s in a piece of paper in his desk
that he can change from time to time. That’s invalid b/c the act is for purely
testamentary purposes.
a. But a state using UPC § 2-513 would allow it if it’s all tangible
personal property. REVIEW THIS (see ML Notes p 84-85).
IV. CONTRACTS RELATING TO WILLS

I. Ks to Make a Will: Person usually comes in claiming T made a K w/ her during life.
A. Common Situations: The biggest problem with these two situations is that there’s no
written K.
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1. Non-Marital Relations: People never got married and never wrote a Will.
Intestate takers will want to take before the domestic partner.
a. Rest. Prop: Allow the people to have something like a CL marriage;
partner takes.
2. Oral K: There was a regular oral K made w/ T.
B. Elements: Law allows Ks to make a Will, but only if:
1. K is valid under state law; and
a. Biggest problem for claimants is state Statute of Frauds b/c Ks are
often not in writing.
b. NY Statute of Frauds is EPTL § 13-2.1: K must be in writing &
signed by T.
c. CA Probate Code 2170 allows oral K if there’s C&C evidence of it.
2. K must not alter the Will.
a. The Will itself cannot be changed b/c of the K.
If both requirements are satisfied, claimant becomes a creditor after the Will is
admitted to probate. If the Will is valid, and if the claimant fulfilled the two
elements, she gets expectation damages.
C. Quantum Meruit: If claimant can show that compensation was expected for some
service, she can get the compensation for those services from T’s estate.
1. *Hypo: Gans lived with a woman in NY. They never got married & Gans
never made a Will. She cannot argue the restatement in NY or the K b/c it
violates the statute of frauds. If she proves that she expected compensation for
services rendered, she can get that quantum meruit.
a. It would be hard for her to prove that, but the court might take pity and
give a “prize.”
II. Ks Not to Revoke a Will: K stating that a Will shall not be revoked.
A. NY: Oursler v. Armstrong: H & W made mirror/mutual Wills, leaving all to each
other then to all of their kids. H had two kids from a prior marriage; W had two kids
from a prior marriage. H died, leaving all to W. Years later, W changed her Will,
leaving all to her kids only. She died and H’s two kids sued her estate. They made
two arguments:
1. W breached her K with H, leaving all to the kids. Consideration was their
assets going to each other on the promise that all the kids got equal shares.
Signature on Wills implies K.
a. Court rejected this b/c of EPTL § 13-2.1. There’s no written K.
b. Do not infer a promise not to revoke a Will simply b/c there are
mutual/mirror Wills.
i. UPC § 2-513 agrees that there’s no inference of a promise/K.
c. Joint Wills: where the H & W draft only one Will document. Courts
are much more inclined here to infer a promise not to revoke!
i. EPTL § 13-2.1 states that, in the case of a joint Will, there will
be no contract unless there is evidence of the contract on the
face of the Will
2. Constructive trust ought to be made. Court rejects this b/c all four elements
of the constructive trust were not proven by C&C evidence:
a. (1) There must be a confidential relationship b/w the parties;
42
i. H & W were married, which is a per se confidential relationship.

b. (2) There must be a transfer of assets made;
i. H’s assets went to W and W’s combined assets went to her kids.
c. (3) There must be a transfer made in reliance on a promise; and
i. Πs argued there was a promise not to revoke, but court held
there was not.
d. (4) There must be unjust enrichment to someone if the promise is
violated.
i. This is usually automatic if the first 3 elements are met. Πs
failed to prove by C&C evidence the third element.
ii. Note: this Constructive Trust remedy is essentially a case
law EXCEPTION to the Statute of Frauds!!!
3. To avoid this problem, lawyers should ask H & W signing mutual or joint
Wills whether they want to make it a binding promise. (Gans prefers to address
the promise expressly in a mutual Will than to execute a joint Will).
a. In NY, courts will not find a binding promise in Wills (whether mutual
or joint) unless there’s a K or a binding clause in the Wills.
4. Alternatives:
a. Draft a K explicitly setting forth the parties’ intent, including the
binding promise.
b. Create a trust for the benefit of the spouse’s life, then going to the kids
equally.
c. Life insurance
5. NY says there’s always an obligation of good faith even where there is a
written K not to revoke a Will.
a. Party with assets cannot give them all away as inter vivos
giftsviolates good faith.
b. But party with assets can pay for some things with the assets (e.g.,
wedding party).
B. UPC § 2-514: There is no binding promise at all if there’s no writing. There is no
inference of a promise just b/c joint or mutual Wills were signed. There are only 3
ways to find a binding promise:
1. The Will(s) states the material provisions of the K and the parties signed the
Will(s);
2. There’s an express reference in the Will to the K & extrinsic evidence proves
the K terms; or
3. Writing signed by the decedent evidences the K.
a. Oursler case would have been decided faster under the UPC—no
writing, no promise.
4. NJ follows the UPC approach.
5. This is a surprising UPC section rare instance where the UPC does not look
to intent and instead focuses on formalism.
C. CA: Evidence of a K not to revoke a Will can come in with C&C evidence of its
terms.
III. Right of Election vs. Ks not to Revoke
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A. Via v. Putnam (FL): H died, leaving all to his wife in a Will w/ a clause not to
revoke. W remarried, died, and her new husband tried to exercise his right of
election. Held: Right of election takes precedence over the K not to revoke. She
could have made him sign a prenup waiving his rights.
1. This is the minority view in the US.
B. Majority view: Right of election yields to the previous K not to revoke.
C. NY: Rubenstein v. Mueller: K not to revoke applies to the collective property of H &
W when one of them dies, leaving all to the other in a Will with a clause not to
revoke.
1. This leaves open the possibility that if surviving spouse gets more money, the
new spouse (after remarriage) can exercise his or her right of election against
that portion of the estate.
D. Hypo
iv. H and W come to you. W says she is concerned that when H dies she
wants money to go to kids. She doesn’t trust him, thinks he will get
remarried. Worried about the 2nd wife getting an elective share.
1. Tell her lets put assess into a trust for husband. Provide that when
he dies the money in the trust goes to the kids. Then whatever he
says in his Will is irrelevant
a. What about elective share to new wife?
i. The trust won't be included in his probate estate
CHECK THIS
b. Defeats everything
i. Can't even make inter vivos gifts
v. Problem with this: Husband finds this out and goes, “what the fuck?”
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CHAPTER 6: NONPROBATE TRANSFERS &

PLANNING FOR INCAPACITY
I. WILL SUBSTITUTES
A. John H. Langbein, The Nonprobate Revolution & the Future of Law Succession
I. Identifies 4 types of will substitutes:
1. Revocable trust (key one)
2. Life insurance
A. Will substitute because you put money in with an insurance
company and direct that when you die it goes to a
designated beneficiary
3. Pension
4. Joint bank accounts/joint brokerage accounts
A. Put money in joint account with rights of survivorship.
When you die other person gets all the money
5. Real Estate Titling (Gans added this one)
A. Title real estate in a way that it passes to survivor when one
dies
B. Ex: Home is owned with wife that has rights of
survivorship
II. Says we could create dichotomy regarding Will substitutes
1. They come in two flavors:
A. Pure
I. Just like a will
II. Means that rights are created in the other person
only when T dies
B. Impure
I. Some rights are created during T’s lifetime
III. Two common questions in this area:
1. Does Will substitute have to be created in accordance with the
Statute of Wills?
2. How does the subsidiary law of Wills apply in the case of Will
substitutes?
A. What about all the other rules we studied regarding Wills?
B. Do they apply with equal force to will substitutes?
C. Ex. Revocation of Wills.
I. Does the law of revocation apply to Will
substitutes?
B. Introduction to Trusts (Review)
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I. Two types:
1. Inter vivos trust
A. Created during the settlor’s life
B. May be revocable or irrevocable
2. Testamentary trust
A. Created by Will
B. Always irrevocable
II. Trusts are created in 1 of 2 ways
1. A deed of trust – I create a trust and name someone else as the
trustee.
A. Ex. I decide to put property in trust and name someone
down here.
I. Deliver deed or asset itself to trustee
II. This is deed of trust
2. A declaration of trust
A. The settlor/grantor/trustor (person who creates a trust)
names himself as trustee
I. Create trust and make yourself trustee
II. You can't deed something to yourself so you declare
it instead
III. Declare that you are holding the asset in trust for the
benefit of someone else (daughter)
1. Nothing in the law prevents you from
naming yourself trustee
III. Statutes
1. Uniform Trust Code [UTC]: 15-20 states have adopted it
A. NY has not adopted it
B. Benefit: Uniformity Makes law accessible and
transparent
2. No statute governing NY trusts generally in the EPTL
A. Done through case law.
3. But see EPTL 7-1.17 governing revocable trusts:
A. Covered infra under “Revocable Trusts”
IV. Elements of a trust:
1. Intent to create a trust
A. Similar to testamentary intent
2. Capacity
A. Standard may be higher in trust setting then in will setting
B. Why are we more willing to invalidate a trust on capacity
grounds then a Will?
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I. In trust case you are still alive and giving up your

property.
II. May leave yourself destitute
III. Want to protect you from yourself
IV. Less concerned after you dead
3. A “Res” (thing)
A. In order to have valid trust you must have a thing
I. there must be something in the trust which it could
operate on
1. In a Will you can just say “give everything”
2. The trust can only operate on things that
have been conveyed to it
A. Ex: if you put a watch in the trust
then the only thing the beneficiary
will have access to is that watch
4. An ascertainable beneficiary
A. Policy: Have to know who to give property to
B. Hypo: Create trust to daughter for life. Then say that when
she dies it should go to her then living issue/decedent.
I. At the time the trust is created we don't know who
these people will be. They’re not ascertained now
but will be ascertainable.
1. When she dies we will know who they are
II. Couldn’t say “give it to her friend when she dies.”
1. Too broad of a concept
5. A Trustee
A. Least critical requirement
B. Law around country = a trust will not fail for want of a
trustee
I. If you create a trust and forget to name a trustee the
court will appoint one for you
C. Trustee has legal title (ability to sell)
I. Beneficiary has equitable title
1. Right to go into court of equity and force the
trustee to follow the trust document
C. REVOCABLE TRUSTS
I. (old rule) Farkas v. Williams: The settlor, Farkas, is the sole trustee of a
revocable trust in which he puts 4 stock certificates directed to the
beneficiary, Williams, at his death. If F didn’t revoke the trust, W was
required to be alive when Farkas died or the trust would be automatically
revoked. When F died, his intestate takers brought this action to obtain a
declaration of rights to the stock certificates, claiming that the trust was
47
testamentary and invalid because F hadn’t complied with the Statute of

Wills in making his declarations of trust.
1. Held: overrules prior precedent and holds that the trust is valid
even if not done in accordance with the Statute of Wills. A
revocable trust is an impure Will substitute because rights are
created in the beneficiary right away (they can sue the trustee for
breach of fiduciary duty owed to the trust), and therefore does not
have to comply with the SofW.
2. Rule: a revocable trust (and Will substitutes generally) does
not require compliance with the Statute of Wills
A. Policy: why not if an RT acts just like a Will?
I. A lot of money is passing outside the SofW and
probate
II. Court appreciates that the SofW is on the decline
1. See Harmless Error
A. allows us to admit Will to probate
without witnesses
B. this is a HUGE move away from
SofW
III. There are other mechanisms in place that assure us
of the integrity of the document
1. See EPTL 7-1.7 and UTC § 407 infra
II. (modern rule) Linthicum v. Rudi: After the settlor revised her revocable
inter vivos trust to remove the Linthicums as successor trustees and
primary beneficiaries upon her death, the Linthicums filed suit alleging
that the amendment was a result of incapacity or undue influence and
requested a constructive trust.
1. Held: a beneficiary of a revocable trust can’t challenge the trust
during the settlor’s lifetime. A revocable trust is really a pure
Will substitute, and a beneficiary to a revocable trust has no more
rights than one to a Will.
2. Rule: There are no rights in a beneficiary while the settlor is
still live (true across the country)
III. NY: EPTL 7-1.17- Revocable Trusts must be in writing, signed, and (1)
executed in the presence of two witnesses who also must sign, OR (2)
notarized.
1. Note: Sounds a lot like the Statute of Wills (except notary part)
IV. UTC § 407: an oral trust will be enforced if established by clear and
convincing evidence
V. Hypo to further illustrate the Farkas/Linthicum rules:
1. Gans creates a revocable trust right now, puts in assets, and names
Hofstra as the beneficiary. He is sole trustee. He dies.
Afterwards, can the beneficiary under this trust now sue Gans’
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estate for his derelictions (i.e. he poorly invested the trust assets)
while he was trustee during his lifetime, saying he poorly invested
the trust assets?
A. Farkas court seems to assume that Hofstra can sue Gans’
estate, that they have a present right to sue during his
lifetime
B. Gans do we like this premise/outcome that Farkas
adopted?
I. Problem with allowing this is that during Gans’
lifetime, if he thought Hofstra was going to come
after his estate, than before dying he would have
amended the trust and changed the beneficiary, or
simply revoked the trust!! So, in a way, Hofstra is
trying to take advantage of his oversight by taking
action after he’s already died.
C. Gans law seems to moving toward, “if I am responsible
for these assets, they are my property, I can not be held
liable for administration of my own assets” – moving away
from Farkas
D. TREAT THE SETTLOR AS IF THEY HAD ABSOLUTE
RIGHT TO THE PROPERTY DURING THEIR
LIFETIME
2. UTC § 603: in a case like this, beneficiary can’t sue
A. NY – Milaski case
I. Rule: During the lifetime of the settlor of a
revocable trust, the trustee’s duty runs exclusively
and solely to the settlor.
VI. Revocation
1. Rule: The common law presumption of revocation when a Will
cannot be found after a testator’s death does not apply to revocable
trusts
A. Note: here we see a departure from the normal trend of
treating RT’s and Wills the same
2. In re Estate and Trust of Pilofas: Decedent had a revocable trust
and also had a Will. Takes both documents with him and after his
death nobody can find either document. The trust provided that it
could be amended at any time “by an instrument in writing
delivered to the trustee.”
A. Issue: does the common law presumption (re: Wills) that
the will, under these circumstances, was “destroyed with
the intent to revoke” also apply to the trust?
B. Held: No. Applies with respect to the Will, but NOT with
respect to the trust. In the law of trusts, the law does
indicate that you can provide in your trust instrument
49
exactly how it can be revoked. In this case, since we didn’t

have the instrument in writing, as dictated by the trust, the
court therefore wouldn’t follow the common law rule
applicable to Wills.
I. Note: The court does give acknowledgment to the
argument that the law is moving in the direction of
saying let’s try to avoid giving different outcomes
merely because someone chose to use a different
form
1. Making a “Form over Substance” argument
– doesn’t want to allow differences in form
to significantly affect the outcome
3. NY: two sections that deal with revocation
A. EPTL 7-1.17: revocation of a RT is done by having the
revocation document executed in the same way in which
you executed the RT in the first place (signed writing and 2
witnesses or notary), UNLESS the RT provides otherwise
B. EPTL 7-1.16: you can revoke an RT by a provision in a
later Will specifically referring to the RT
C. Hypo: I visit someone in hospital and say I really want to
revoke all my old Wills. Under Wills laws, I can write out
new document that says you revoke and have it seen by two
witnesses. Would this count for RT too?
I. Yes. In the new Will, “I also revoke my RT dated
such and such.” This is sometimes referred to as a
“Blockbuster Will”
II. Malpractice Trap: Client says “I want to revoke
everything,” but doesn’t mention the RT. You write
out a document and fail to revoke the RT.
1. The problem with an RT is that it’s easy to
overlook. If you don’t make specific
reference to it in the revocation document,
that you haven’t properly revoked it!
4. UTC § 602: 3 ways to revoke a RT
A. Follow the express terms of the RT
I. i.e., RT says, “this document can be revoked by…”
B. By specific reference in a later Will
C. Demonstrate by clear and convincing evidence that the
settlor intended to revoke
I. NOT available under NY law
II. Sounds a lot like harmless error!!
VII. Creditors
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1. CL Rule: Creditor may sue the settlor and reach the assets in a RT
so long as the settlor retains the right to revoke the trust
A. Same as the rule for Wills
2. NY EPTL 10-10.6: same as CL rule
A. Note: this is different than saying that creditors may reach
the assets in trust as against the beneficiary in that
situation, spendthrift protection kicks in
VIII. “Pour Over Wills”
1. Term we use to describe following arrangement: Gans does a
revocable trust for his client, puts in assets. Suggests a POW,
which says that I leave everything I own to my trust. Gans: never
do a revocable trust without a Will. Why? In case you forgot to
put something in the trust, since the trust can only operate on assets
named in the name of the trust.
2. Assets from the probate estate are “pouring over” into the trust
3. Question: is a POW valid?
A. Yes. Jurisdictions throughout the country have
incorporated legislation allowing this.
B. NY EPTL 3-3.7: Original trust must have been executed
prior to or simultaneously to the execution of the Will
4. Clymer v. Mayo: Pour over will into a revocable trust. Revocable
trust names the husband as the beneficiary. Before decedent’s
death, wife and husband get divorced
A. Issue: does husband get revoked out as a beneficiary of the
revocable trust as a result of the divorce?
I. Note: if this were a Will, in most states husband
would be revoked
B. Problem here = statute talking about divorce affecting
revocation doesn’t talk about trusts! (case of the law not yet
catching up)
C. Held: court is going to apply its statute to this situation and
revoke out the husband
I. After this case, we see statutes being amended to
apply the revocation rule to trusts
1. EPTL 5-1.4
2. UPC 2-804
D. Rule: revocation by operation of law will apply equally
to Wills and RT’s
IX. Pros and Cons Comparison of RT’s vs. Wills/Testamentary Trusts
1. Amendmentspro: RT saves some administration costs versus the
probate process
2. Delaypro: RT saves some time versus the probate process
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3. Creditors con: probate may let you eliminate creditors more

quickly
4. Publicity pro: may prefer using a revocable trust, likely that it
won’t get the same public records status that a Will does
A. Remember Charles Curall and his Montana relationship –
maybe this would’ve helped
5. Real estate pro: located someplace other than where I lived (ie
domiciled in NY, real estate in CA). When I die, may have to go
into CA Ct system and do “ancillary probate”
A. May have to probate Will in CA, get letters testamentary in
CA and probate in CA why? If you want to get deed of
land in CA, they might want docs from their own court
(instead of from NY)
B. BUT, if land titled in name of trustee in a trust can avoid
this entire process
6. Right of Election / Elective Share
A. In probate estate in NY, 1/3 goes to spouse
B. What about assets in an RT do we count those assets in
terms of the entire pot?
I. Ex: I put all my assets into a RT. Under NY law,
spouse entitled to 1/3 of probate estate. If nothing
in probate estate, spouse appears entitled to nothing.
1. Turns out, in NY and in overwhelming
majority of states
2. “Augmented Estate” concept
A. my wife is entitled to 1/3 of my
probate estate together with this
augmented estate add to the pot
those testamentary Will substitutes
B. EPTL 5-1.1A
3. Makes sense, otherwise elective share would
be very easy to avoid
A. Gans doesn’t believe there are
many states out there that don’t
follow this rule
B. Thinks CT may have a non-augment
approach
7. Supervision
A. Testamentary trusts = more court supervision than with
inter vivos trusts
B. NY practice example
I. In NY, there’s a testamentary trust created under
someone’s Will. We want to have the trustee resign
52
and appoint a new one. May need to go and get

court approval.
1. Whereas in case of inter vivos (revocable)
trust, don’t need court supervision to do so
8. Choice of Law
A. Traditionally, courts tend to be more willing to respect a
choice of law provision in an inter vivos trust than in a
testamentary trust
B. UPC 2-703: tries to iron out the difference and permit same
choice of law flexibility in both types of trust
C. Policy law should be moving in the direction of ironing
out differences between RT’s and Wills
9. Lack of Certainty in the Law
A. More so in RT’s than in Wills
I. i.e., revocation by operation of the law (Clymer
case)
10. Will Contests
A. Traditional: a RT is preferable when you anticipate a
contest
I. When I create RT, I go to bank or brokerage firm
and title accounts in my name “as trustee under this
RT”—for rest of life I deal with asset in it’s trust
form, i.e. signing docs as trustee, receiving docs
referring to the trust shows I was aware of what I
did, nature of it, etc
1. Whereas with Will, you can do it once and
forget about it
2. With RT, there’s sort of a repeated
commitment to the plan
A. Court/jury less inclined to upset a
revocable trust bc you are committed
to the pattern of serving as trustee
B. Alternative: burden/standard of proof might change
I. 3 things to consider when comparing Will vs. Trust
1. does the burden of proof change?
2. Does the standard of capacity change?
A. NY: RT contest, settlor must meet
higher standard of capacity for
validity than in the case of a Will
B. Gans finds troubling, standard
should be the same
3. Availability of a jury trial?
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A. Check if there’s a difference btwn

RT and Trust
11. Tax treatment
A. No real difference
B. Why? Tax law isn’t going to let you get an advantage
because you chose 1 form over another
D. “POD” ARRANGEMENTS (PAYABLE ON DEATH)
I. In re Estate of Atkinson (1961, ie old case, viewpoint has been changing):
decedent goes to bank and creates some POD accounts in his name, “POD
to my daughters from my first marriage.”
1. What does this mean? Until I die, you have nothing, but when I
die, it’s yours
A. Note: NY doesn’t really have these PODS – instead,
“Totten Trusts”
2. This is a pure Will substitute haven’t conferred any rights at all
on the beneficiary during grantor’s lifetime
3. So, opens PODs. Then executes a Will, in which he disinherits his
new spouse. He dies, new wife seeks her elective share. Note,
there isn’t much in his estate. What do we do with these POD
accounts? She will want to say that the PODs are part of the pot
and she should be able to get her 1/3 against this larger pot
augmented by these POD accounts.
4. Turns out, in this state at that time, no augmentation for POD
accounts
A. Gans what do we think about this?
I. We should augment, otherwise again it’s too easy a
way of avoiding the elective share rule
B. Law has been catching up
C. Today in NY- if you have a Totten Trust, it would clearly
be added to the probate estate and augment the pot
I. This is probably the case now in a majority of states
5. Wife argues that the POD is just an ineffectual Will substitute
it’s nothing more than a probate asset that he is trying to dispose of
under a Will that was not executed in accordance with the SofW.
Therefore, I should be entitled to 1/3 of these assets.
6. Held: wife is right, this is not a valid non-probate form of transfer
and she is entitled to 1/3 of assets included in the invalid “POD”
7. Gans this is similar to a simple K involving a 3rd party
beneficiary
A. I enter into K with bank: “in exchange for depositing this
money with you, when I die I want you to give a certain
sum of money to my daughter.”
B. Isn’t this very similar to a life insurance K?
54
I. Go to insurance company, put money in and in

exchange they will give your daughter money when
you die.
II. Yet we never think that a life insurance K needs to
be executed in accordance with the SofW.
C. So, maybe the life insurance K is like the POD, and yet the
court is not being consistent
II. Estate of Hillowitz (NY Ct App 1968): I am a partner in a partnership and
in the p’ship agreement, we provide that in the event of my death my wife
shall become a successor in interest in the p’ship. I die, and the question
is: who’s entitled to the partnership interest? My wife under the
agreement? Or was this an invalid Will and therefore maybe the p’ship
interest passes under the residuary clause of my Will?
1. Held: this does not have to comply with the SofL. So we see what
might be called sort of a “contract exception” to the SofW
2. Gans here we are starting to see the movement in the law that we
need a contract exception
A. Takes care of life insurance, the partnership agreement, etc
E. LIFE INSURANCE
I. Cooke: Husband has a life insurance policy under which 1st wife is the
beneficiary. He gets divorced. Then, he gets remarried and doesn’t
change the beneficiary listed under the policy. What he does do, however,
is he writes a Will and in it he says, “I have a life insurance policy and I
would like to change the beneficiary and make clear that the life insurance
proceeds should pass to my 2nd wife and our child.” 3 years after
executing the Will, he dies. 1st wife comes to insurance company and
says she wants the money. 2nd wife and money say he didn’t intent for
1st wife to get the money.
1. What do we think he intended when he died?
A. Overwhelmingly clear that he wanted money to go to 2nd
wife
B. Note: today in NY, our revocation by operation of statute
EPTL 5-1.4 specifically applies in the case of divorce with
respect to a life insurance policy. Similarly, or under the
UPC 2-804 we revoke out a life insurance beneficiary in
the case of divorce.
2. Problem in this case = they don’t have such a statute in place
3. 1st Wife argues if you study the insurance policy, it will say
clearly and unambiguously that the way to change the beneficiary
is to file a certain form with the insurance company, which was
never done. Therefore, the Will is irrelevant – he made an
agreement with the insurance company, done deal. Additionally,
part of life insurance people like is the “instant cash” aspect…that
you get the cash instantly without any hurdles.
55
A. By letting the Will speak here, we’ve muddied up the

process
B. Insurance company might be hesitant to pay knowing or
being afraid that there’s a Will out there, etc shows that
there’s more at stake here than meets the eye
C. Possible Answer = insurance company, you pay out in
good faith according to the contract, you are off the hook.
The 2nd wife is permitted to sue the 1st wife disgorgement
of her unjust enrichment
D. BUT, the law so far, as demonstrated in the Cooke case, is
that the money goes to the named beneficiary
I. We don’t have a blockbuster Will concept that can
bust through a life insurance designation…a Will
that can override Will substitutes
II. Gans if 2nd wife sues for unjust enrichment, she
will likely fail
II. NY Rule- McCarthy: similarly holds you can’t change the beneficiary of a
life insurance policy by Will
III. Rest. Property § 7.2: mentions the Cooke case, calls outcome “heartless” –
in this type of case, probably prepared to accepted the Blockbuster Will
concept in this context  they’d allow the 2nd wife to bring claim for
unjust enrichment
1. Blockbuster Wills think about this concept “context by
context”
A. Should look at each kind of Will substitute and see if it can
be impacted by a blockbuster Will provision in your state
I. Life Insurance BW in NY does not work
II. Revocable Trust BW in NY does work
1. EPTL 7-1.16: can revoke RT in Will if you
make specific reference to it
2. UTC 602: same idea as in NY
F. JOINT BANK ACCOUNTS / JOINT BROKERAGE ACCOUNTS
I. Things to think about:
1. Keep in mind: are they pure or impure Will substitutes?
2. Recall Atkinson
3. Joint Bank Accounts respected across country without need to
comply with SofW
4. What are the nature of the rights that I confer on my daughter and
myself when I open the account?
A. Have to think: in what timeframe?
I. Her rights during my lifetime vs. when I did
1. If I conferred rights on her now, it’s impure
56
2. If no rights until I did, pure Will substitute

5. Critical focus: what was my intent when I opened the account?
A. Think elements of the gift
I. First element = Donative intent
II. 3 Outcomes when opening a joint account (depending on intent)
1. a “true” joint account
A. if I put $50k in account, I’ve conferred rights to my
daughter to half that money (other half when I die)
2. a “convenience” account (think caretaker)
A. put daughter’s name on the account so that she could
withdraw it on my behalf – daughter has no present right
B. didn’t intent to confer any rights
C. when I die, the bank will give daughter the money, but the
estate can sue to bring the money back into the estate
3. a “POD” or Totten Trust (NY) arrangement
A. during my lifetime, daughter has no rights to keep the
money (can withdraw, but has to bring money back to me)
B. when I die, money is hers
III. Varela v. Bernachea: Man and woman begin living together. Turns out
guy is still married to his first wife. Starts providing gifts for new woman,
paying her expenses -- she stops working. She claims she had no idea he
was married, says he held her out as his wife. He denies these 2 claims.
Gives feeling court is sympathetic to her story. He has a heart attack.
Daughters come onto the scene to take care of him, woman is kicked out
of the apartment. Important: he had opened a joint brokerage account with
her at Merril Lynch. She was using the account for expenses, had a debit
card to make charges against the account. Now that they’re breaking up,
she goes to ML and withdraws $280k (note: we don’t know if this is
whole amt, half amt, etc). We’ll assume she took half. He now sues her
to get the money back.
1. He is claiming that he only intended to create a convenience
account, or in the alternative a POD account. Either way, he’d
prevail bc he conferred no present rights to the money. She claims
it is a true joint account
2. Held: she can keep the $280k. Court applies a rebuttable
presumption that a true joint account was created, absent clear
and convincing evidence to the contrary
3. Thoughts?
A. Gans thinks he probably intended that if he died, she should
take the money, BUT that if he wanted to go back and get
his money out while he was alive, it’s still his!
I. Most people don’t think that when they open up a
joint account they are giving away ½ their money
57
B. Regarding the rebuttable presumption – Gans fine to apply

that in the death context
I. In the lifetime context, should presume that he
wanted to get his money back  clear and
convincing standard should be on her
II. So, C&C standard goes one way in death, another in
life
IV. UPC 6-211 (adopts Gans standard): the money belongs during lifetime to
the person who contributed it (absent C&C evidence to contrary), and after
death to the joint account holder (absent C&C evidence to contrary)
V. NY Banking L. § 675: rebuttable presumption of a true joint account (like
Varela)
VI. NY - Totten Trust: “My name, in trust for my daughter x”
1. Pure Will substitute
A. During my lifetime I can take all the money back
B. At death, it belongs to my daughter
I. Won’t run into the Varela problem of unintentially
creating present rights in the joint holder
2. EPTL 7-5.1: codifies the result of the Totten case NY’s version
of a POD account
A. Blockbuster Will in NY, you may revoke a Totten Trust
in a later Will by making specific reference to the trust.
See EPTL 7-5.2
I. UPC: cannot revoke in a later Will
VII. EPTL 13-4.1 – TOD (transferrable on death)
1. Deals with brokerage accounts and securities
2. Can I title a security “my name, TOD to x”?? YES.
3. Blockbuster Will in NY, you may revoke a TOD in a later Will
by making specific reference. See EPTL 13-4.6
II. PLANNING FOR INCAPACITY
A. Introduction
I. Whole semester we talked about death. Now we are dealing with
incapacity
II. Typically when client comes to see you they are talking about death.
1. Important to suggest that they should plan for their incapacity
III. Client becomes incompetent. How does family deal with the clients
financial issues
1. Ex.They want to sell investment of client or buy some other one,
deal with tax returns
IV. How do they do it?
1. Power of attorney
B. Power of attorney
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I. Have client give someone they trust power of attorney

II. By doing this client is making that person their agent
III. CL Rule: If you give someone POA and then you become incompetent
what happens to authority of agent to act?
1. It terminates
2. CL rule is reflective of this thinking: If I give you power to act you
are acting on my behalf but if im incompetent I cant act anymore
so how can you act on my behalf
3. But this is stupid because you only need POA when you become
incompetent
C. Durable POA
1. It remains effective even if principal becomes incompetent
2. Practice: All people should have provision to deal with incapacity
through POA
II. Practical problem with POA
1. Hypo: Daughter goes to bank and says the account is in my dad’s
(Gans) name. He gave me POA. Bank will be up tight. Maybe she
is lying.
2. How do you fix this?
III. Revocable Trust
1. Use a revocable trust instead of POA
A. Account is in both names as trustees under Gans’ revocable
trust
I. Bank will want signatures from both of them
B. No resistance from bank here
C. Shows RT as tool to deal with incapacity planning
2. Another good thing for RT over POA
A. Law for RT is more developed then the law for POA
3. Question: Should money be put into RT or instead just do a joint
account?
A. Can’t revoke it
IV. In re Estate of Kurrelmeyer
1. Question of whether agent can make gifts on behalf of the
principal
2. Wife had a Durable POA. She uses her POA to put some real
estate that her husband had owned into a revocable trust.
A. Can an agent make gifts on behalf of principal
I. Yes if P gives A the authority to give gifts
1. Ex. Say you are supporting your adult
daughter. Give her check every month. Not
obligated. All of a sudden I become
59
incompetent. IF agent has permission he can

continue to give these gifts
II. What about self gifting powers?
1. Agent gives herself gifts
2. Yes
B. If agent has power to give gift should we permit a provision
to say that as agent they can create a revocable trust on
behalf of the principal?
I. Gifts cannot be taken back. RT could be.
II. Argue: If you can give full out gifts shouldn’t you
be able to give a lesser RT
C. Well under that logic can agent do a Will for principal?
I. No.
D. So if we give POA to daughter she can put all assets into
RT and say when I die all goes to Hofstra
I. Isn’t this just like making will
E. We need to decide whether someone can dispose of my
property after I die
I. Either they can do it by both Will and RT or by
neither
II. However, law is developing differently
1. Says no to Will but yes to RT
F. Rule: When agents have gift giving power and can make
RT they have extraordinary power
3. Held: RT was permissible. Then remanded back to lower court to
determine whether creating a revocable trust was a breach of
fiduciary duty
A. Just because you have gift giving powers doesn’t mean that
you can do anything you want. Principle of fiduciary duty
prevents this
I. Agents have fiduciary duties
V. NY - Estate of Ferrara: Will says all his money goes to salvation army.
Give nephew POA with gifting powers including self-gifting powers.
Nephew takes assets and gives it all to himself. If this is valid gift then
these assets are not part of estate so nothing goes to salvation army. They
sue and argue this is a problematic gift.
1. Shows the danger of the powers
2. NY Rule: in NY we now say if you want to give gift giving
powers it has to be in a separate document and signed and
witnessed
A. Policy: Impresses on the principal the importance of what
they are doing
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3. Held: COA finds for salvation army. Say that like court in
Kurrelmeyer, an agent is a fiduciary and this limits what they can
do with these powers. Court goes on to say you can only give gifts
if it’s in the best interest of the principal.
A. Gift was only in nephews interest
4. How could the salvation army sue here?
A. Since nephew had conflict of interest (he wouldn’t sue and
he is executor) there is special statute that allows it.
I. Can be appointed a special purpose executor
1. Need someone else in there to bring lawsuit
2. Nephew wouldn’t bring it himself
5. Back to daughter hypo: Are these gifts in the principal’s best
interest?
A. Not really. Doesn’t help their financial interest. Only in
their altruistic interest.
B. Hard to square with Ferrara
C. Don’t know how this will play out
D. Health Care Proxy
I. Same thing as POA
1. Proxy means agent
II. POA deals with money. HCP deals with health issues.
III. Hypo: I become incompetent. Dr. says “you need treatment A B or C.”
Dr. wants informed consent. If daughter is HCP then she can choose for
you
1. Practice: want to discuss this with client too
E. Living Will
I. General
1. Seems like an oxymoron
2. Issue: What do we do when someone is at end of life, terminal or
vegetative, do we pull the plug? Who gets to decide?
II. Cruzan v. Director
1. Rule: SC says you have right to turn down treatment even it means
you will die
2. State has a statute that lets you write document that says whether
or not you want treatment (advance directive)
A. Statute may require a witness – look to statute
3. Gluxberg
A. Rule: No constitutional right to assisted suicide by
physician
III. NY: no statute regarding refusal of treatment, only case law
61
1. O’Connor (NY Ct. App.): Court says if there is clear and

convincing evidence that patient did not want treatment then we
can pull the plug
A. Even if its just oral evidence
B. Practice: either way get in writing so it wont be a problem
IV. FLA - Bush v. Schiavo: woman was in vegetative state. Husband said
pull the plug, parents said no. Fl. Art. 29-C says “if you don’t have a
living Will and are terminally ill, etc., and there is no proof of what you
intended, your spouse or domestic partner gets to decide the question. If
no spouse, children.”
I. Held: Under the Fla. statute, husband had the right
to pull the plug
F. After Death – Body
I. General
1. Can be instances where dispute over where person gets buried
II. NY - Public Health L. § 4201: You can indicate in your will how you
want to be buried or authorizing person x to make decision for you
1. Statute says it doesn’t matter if Will is valid. Whatever Will says is
valid.
A. Don’t want to worry about body during prolonged litigation
2. Also does not have to be a Will can just be a document
62
CHAPTER 5: CONSTRUCTION OF WILLS
I. LAPSE: DEATH OF BENEFICIARY BEFORE DEATH OF TESTATOR

I. Common Law Approach: If B dies before T, B’s gift lapses (is voided) and it goes to intestacy
or to the residue. If the residuary legatee dies before T, the residue goes to intestacy. *Hypos
below show the rule:
A. General Rule: “I leave $100k to my friend, John.” If John predeceases me, $100k
goes to intestacy.
1. To avoid lapse, lawyers can write, “and to John’s estate if he predeceases me.”
2. CL wanted to avoid the “in-laws syndrome” by having the lapse rule.
B. Residue Takes Lapses: “I leave $100k to my friend John, and I leave Alice the
residue.”
1. If John predeceases me, Alice gets the $100k and the rest of the residue.
2. If Alice predeceases me, the residue goes to intestacy under CL, not to John.
a. Rule: If the residuary legatee predecease T, the residue goes to
intestacy, not to the pre-residuary beneficiary.
C. Residue Lapses: “I leave my residue to my friends, John and Mary.” John
predeceases me.
1. CL says that Mary would get her half of the residue, but John’s half goes into
intestacy.
2. “Residue of a Residue” Statutes: where you have a lapsed share in the
residue, that share lapses into the other residuary legatee (so, Mary would get
John’s half). See EPTL § 3-3.4.
D. Exception = Class Gifts: “T leaves $100k to all of his employees at the time of his
death.” When T makes the Will, he has four employees, but one predeceases T. T
then dies.
1. Answer: The three remaining employees share the class gift.
a. Rule: If a member of a class gift predeceases T, the rest of the class
63
members take.
2. Rest. Prop. §§ 13.1, 13.2: A class must a general label with members that can
change around.
a. Examples of classes: Nieces, nephews, employers, employees, sons,
etc.
b. A defined group is most likely not a class. Example: “A, B, and C take
$100.”
2. *Hypo: “I leave $100k to John and Mary.” John predeceases me.
a. This is not a class gift b/c John and Mary are defined members.
b. John’s $50k goes into intestacy. Mary gets her $50k.
II. NY’s Approach: Anti-lapse law EPTL § 3-3.3 creates a substitute beneficiary for the lapsed
gift if it applies.
A. Elements of EPTL § 3-3.3:
1. The beneficiary whose gift lapses must be T’s issue or sibling; and
2. The beneficiary must be survived by issue.
*Hypos show the NY rule:
B. General Rule & Residue.
1. “I bequeath $100k to my son John.” John predeceases me. John had a son
called Mike.
a. There’s a lapse, but the NY rule applies instead of the CL. John is T’s
issue and had issue. Thus, Mike would take.
2. “I bequeath $100k to John and my residue to my brother Alex.” Alex has a
daughter called Jane. Alex predeceases me.
a. There’s a lapse and NY rule applies instead of CL. Alex is T’s sibling
and had issue. Jane would take instead of Alex.
3. “I bequeath $100 to my mother.” She predeceases me.
a. There’s a lapse, but the NY rule doesn’t apply b/c my mother is my
ancestor. That means the CL rule applies. The gift goes to my residue
(if there is one) or intestacy.
4. “I bequeath $100k to my niece.” She predeceases me.
a. There’s a lapse, but the NY rule doesn’t apply b/c she’s the issue of my
sibling. She’s neither my issue nor my sibling. CL rule applies and gift
goes to residue/intestacy.
C. Residue of a Residue Rule under EPTL § 3-3.4: This doesn’t apply if EPTL § 3-3.3
applies!
1. If there’s more than one residuary legatee in the Will, and if one of them
predeceases T, the other residuary legatee gets the residue.
2. *Hypo: “T leaves his residue to his kids, Mary and John.” Mary predeceases T
w/out issue.
a. There is a lapse, and the NY rule applies. John would get the residue of
the residue.
b. *Hypo: What if Mary had a child? Half the residue to John, other half
to Mary’s kid.
D. Class Gifts: “T leaves $100k to his children.” T’s children are A, B, and C. C had a
son and predeceases T.
1. There’s a lapse and the NY rule still applies even in class gifts. A, B, and C’s
64
kid get $33.3.

2. Exception: “I leave to my issue per stirpes.” Leaving to the issue already
preserves the bloodline. This is not like leaving to “children.” This just goes
to the intestacy statute.
III. UPC Approach: Anti-lapse rule UPC § 2-603 is exactly like the NY rule, only it’s broader
by allowing more relatives to take. Everything from II above applies under the UPC. NY
doesn’t accept the UPC approach.
A. Elements of UPC § 2-603
1. The beneficiary whose gift lapses must be an issue of T’s grandparents; and
2. The beneficiary must be survived by issue.
B. General Rule & Residue.
1. “I give $100k to my first cousin Alice.” Alice predeceases me.
a. There’s a lapse. The NY rule wouldn’t apply, but the UPC does.
Alice’s issue takes.
IV. Procedure to Take & Drafting.
A. Three Packages Approach: Follow this procedure for lapse questions:
1. First ask if there was a lapse.
2. What is the effect of lapse?
a. Before applying the CL lapse rule, ask if a state anti-lapse statute or
UPC applies.
3. If a state anti-lapse statute or the UPC apply, what is their effect?
B. Drafting: Lawyers can always draft around lapse statutes!
1. *Hypo: “I leave $100k to Jane, but if Jane predeceases me to the Vatican.”
a. Both the UPC and NY would say this gets around the lapse statute.
2. *Hypo: “I leave $100k to my son Jon if he survives me.”
a. NY: The language “if he survives me” creates a fee simple
determinable. If he doesn’t survive me, the CL lapse rule applies.
b. UPC § 2-603(b) & Rest. Prop. § 27.2: “If he survives me” is
boilerplate language that doesn’t get around the antilapse statute.
Testators must clearly write that the antilapse statute doesn’t apply to
get around it.
i. Example: “I leave to John and the antilapse statute doesn’t
apply.”
ii. Example: At top of Will, it says “all lapsed gifts shall form part
of the residue.”
65
CHAPTERS 13-14: FUTURE INTERESTS &

THE RULE AGAINST PERPETUITIES
I. CONSTRUCTIONAL PREFERENCE FOR EARLY VESTING

(“CPFEV”)
I. CPFEV Application: Lapse applies when the beneficiary predeceases the testator. CPFEV
applies when a secondary beneficiary predeceases the principal beneficiary. The secondary
beneficiary’s estate gets the gift.
A. *Hypo: “T leaves estate in trust to A for life, then to B.” B and A survive T, but B
predeceases A.
1. Lapse can no longer apply in this situation. Lapse applies only if A or B
predecease T!
2. CL & NY Approach: If B predeceased A, B’s estate gets the gift.
a. This means the gift is divided according to B’s Will, if there is one.
3. UPC § 2-707: The deceased devisee’s issue would get it, not his estate. B’s
issue would get it. There is no requirement that B have a close relationship
with T.
a. Very few states have adopted this concept.
B. Lawyers can always draft around this or draft the UPC into the Will.
1. Example: “T leaves estate to A for life, then to B, but if B doesn’t survive A to
B’s issue.”
II. THE ESTATES SYSTEM

I. Present Interests: These interests affect the rights of the transferees and transferors right now.
A. Fee Simple Absolute: Absolute ownership for an infinite duration.
1. “I leave my house to the Church.”
B. Fee Simple Determinable: Absolute ownership that may or may not have an infinite
66
duration.
1. “I leave my house to the Church for so long as it is used for church purposes,
then to John.”
a. If the condition is satisfied, the Church has absolute ownership.
b. If the condition is not satisfied, the Church loses its interest.
C. Fee Simple on a Condition Subsequent: Same a B, but the condition express is a
condition subsequent, not a condition precedent. Look for “but if” somewhere.
1. “I leave my house to the Church, but if the Church ceases to be use it for
church, to John.”
D. Life Estate: It’s an interest that lasts for the transferee’s lifetime.
1. “I leave my house to Jake for life.”
E. Life Estate Pur Autre Vie: Life estate for the duration of another’s life.
1. “I leave my house to Jake for the life of Susan.”
a. If Susan dies, Jake loses his life estate pur autre vie.
b. If Jake dies, Jake’s estate can still have the interest for the length of
Susan’s life.
F. Term of Years: Give the interest to another for a given amount of time. It ends when
the time ends.
1. “I give my house to Jake for 10 years.”
II. Future Interests in the Transferor
A. Possibility of Reverter: This always follows the fee simple determinable! Remember
the 3 Es.
1. “I leave my house to the Church for so long as it’s used for church purposes.”
a. If the house is no longer used for church purposes, I automatically take
it back.
B. Right of (Re)Entry: This always follows the fee simple subject to condition
subsequent!
1. “I leave my house to the Church, but if the house is no longer used for church
purposes, back to me.”
a. If the house is no longer used for church purposes, I could take it back.
C. Reversion: Catchall category for all other present interests, which are not absolute.
1. “I leave my house to A for life, then back to me.” I have a reversion.
III. Future Interests in the Transferee – THIS IS THE IMPORTANT ONE
A. Executory Interest: This future interest can become possessory upon the natural
expiration of the prior interest simultaneously crated, but only if it cuts short or
divests other transferees.
1. Example: “I leave my house to the Church, but if the house is no longer used
for church purposes, to John.” John has an executory interest. It cuts short the
Church’s interest.
2. Example: “I leave my house to the Church for so long as it is used for church
purposes, then to John.” John still has an executory interest b/c it’s cutting
short the Church’s interest.
B. Remainder: This future interest can become possessory upon the natural expiration of
the prior interest simultaneously created without cutting short or divesting any other
transferee.
67
1. Contingent Remainders: There’s a condition precedent to taking the gift or

the beneficiary is not ascertained.
a. Example: “To A for life, and if B reaches the age of 25 then to B.” The
writing makes it a contingent remainder. If B were 26 now, it’d be a
vested remainder.
b. Example: “To A for life, then if B survives A to B.” Surviving =
condition precedent.
c. Example: “To A for life, and then to A’s then-living oldest child.”
i. The beneficiary is not ascertained.
ii. Condition precedent is that A’s oldest child must be living
when A dies.
2. Vested Remainders: Remainder on an ascertained person and there’s no
condition precedent to the interest becoming possessory other than the natural
expiration of the prior estate.
a. Indefeasibly Vested Remainder: Regular vested remainder without a
problem.
i. Example: “To A for life, then to B.” B is ascertained (i.e.,
identifiable and born) and alive. There’s also no condition
precedent.
b. Vested Remainder Subject to Complete Divestment: Vested remainder
that Will be taken away from someone if a condition subsequent is not
satisfied.
i. Example: “To A for life, then to B, but if B fails to reach the age
of 25, then to C.” B has a vested remainder subject to complete
divestment b/c he’s not cutting short A’s interest. Turning 25 is
a condition subsequent b/c of “but if.”
c. Vested Remainder Subject to Open: A class gift that is vested, but the
members of the gift to each member of the class may grow or shrink.
i. Example: “To A for life, then to A’s children.” The number of
children may increase or decrease, so the gift to children is
vested remainder subject to open.
1. Someone not born cannot have a vested remainder. If
the instrument left it to an unborn child, there would be
a contingent remainder.
III. RULE AGAINST PERPETUITIES (“RAP”)
I. Application: The CL RAP erases all devises/bequests that violate the RAP. RAP only applies
to contingent remainders and executory interests. It never applies to present interests or
vested remainders.
A. RAP only cares about when the interests vest. It doesn’t matter how long the interest
is.
1. Example: “To A for life, then to B for 500 years, then to C.” No RAP
problems.
2. Example: “To A for life, then to B for thirty years, then to C in fee.” No RAP
problems.
68
a. Even if B predeceases A, CPFEV says B’s estate gets it for thirty years.
B. Procedure to Follow: Always use this process when faced with RAP questions.
1. Determine which interests exist.
2. If there is a contingent remainder, an executory interest, or a class gift
(e.g., vested remainder subject to open), ask when it will vest.
3. Main question: Is it possible that the interest could vest beyond the point
of lives in being plus 21 years? If the answer is always yes, it’s an invalid
interest. If there is one no, it’s valid.
a. List of all the people who can be lives in being and ask the question
for each one.
C. Example: “To A for life, then to B for thirty years, then to C if C survives A.”
1. A has a life estate, B has a term of years, and C has a contingent remainder.
List:
2. B: Is it possible that C’s interest could vest 21 years after B dies? Yes, b/c B
can die right now and the CPFEV gives his estate the interest. B could die
right now, A could have the interest for 30 years, and then B’s estate gets it.
3. A: Is it possible that C’s interest could vest 21 years after A’s death? No, b/c
C’s interest vests the second A dies. Thus, the interest is valid.
II. Hypos from Handout:

A. “Devise to A for life, then to B for 10 years, then to whoever is Mayor of Albany.”
1. A has a life estate, B has a term of years, and M has a contingent remainder b/c
of the condition precedent (being Mayor of Albany). List:
2. A: Is it possible that M’s interest could vest 21 years after A dies? No, it’s 10
years after.
3. B: Is it possible that M’s interest could vest 21 years after B dies? Yes, B
could die right now, A could live for another 50 years. It’s valid.
B. “Devise to A for life, then to B for 30 years, then to whoever is Mayor of Albany.”
1. A has a life estate, B has a term of years, and M has a contingent remainder.
2. A: Is it possible that M’s interest could vest 21 years after A dies? Yes, 30
years later.
3. B: Is it possible that B’s interest could vest 21 years after B dies? Yes, B could
die long before A. The gift is invalid and it is erased. The new Will reads as
follows:
a. “Devise to A for life, then to B for 30 years.”
b. M’s gift now goes to the residue. If this is the residuary clause, it goes
to intestacy.
C. “Devise to A for 30 years, then to A’s oldest child then living in fee.”
1. A has a term of years. A’s oldest child (“AOL”) has a contingent remainder
b/c of the conditions precedent to survive A and to be the oldest child.
2. A: Is it possible that AOL’s interest could vest 21 years after A dies? Yes, b/c
A could die right now, and her estate still has it for 30 years. The gift is
invalid. New Will reads:
a. “Devise to A for 30 years.” AOL’s gift goes to the residue. If this was
the residuary clause, it goes to intestacy.
D. “Devise to A for life, then to B for 30 years, then if C is alive to C in fee.”
69
1. A has a life estate, B has a term in years, and C has a contingent remainder
(must survive B as a condition precedent).
2. A: Is it possible that C’s interest could vest 21 years after A dies? Yes, b/c C
doesn’t get it until 30 years after A dies.
3. B: Is it possible that C’s interest could vest 21 years after B dies? Yes, b/c B
could die long before A and the CPFEV still gives his estate the interest.
4. C: Is it possible that C’s interest could vest 21 years after C dies? No, b/c it
could vest 21 years after her own death. C can be her own validating life!
E. Extraneous Life: “Devise to A for life, then to B for 30 years, then if J is alive to C in
fee.”
1. A has a life estate, B has a term in years, C has a contingent remainder
(condition precedent).
2. A: Is it possible that C’s interest could vest 21 years after A dies? Yes, 30
years later.
3. B: Is it possible that C’s interest could vest 21 years after B dies? Yes, B
could die before A.
4. C: Is it possible that C’s interest could vest 21 years after J dies? No, the
interest is valid.
F. “Devise to A for 10 years, then to A’s oldest child then living for life, then to whoever
is the Mayor of Albany.”
1. A has a term in years, AOL has a contingent remainder, M has a contingent
remainder.
2. AOL Part: The gift is valid
a. A: Is it possible for AOL’s interest to vest 21 years after A’s death?
No, it’s 10 years.
3. Mayor part: Gift is invalid.
a. A: Is it possible for M’s interest to vest 21 years after A’s death? Yes,
AOL might live another 50 years.
b. AOL cannot be on the list b/c he’s not ascertained! You can put A’s
current oldest child, but we don’t know if he’ll be the oldest child when
A dies. Gift is void.
G. Acceleration: “Devise to A for life, then to A’s oldest child then living for life, then to
whoever is the Mayor of Albany, then to Bob in fee.”
1. A has a life estate, AOL has a contingent remainder, M has a contingent
remainder, and B has an indefeasibly vested remainder.
2. AOL Part: Gift is valid.
a. A: Is it possible that AOL’s interest could vest 21 years after A dies?
No.
3. Mayor Part: Gift is invalid and void.
a. A: Is it possible that M’s interest could vest 21 years after A dies? Yes,
b/c AOL could life for a long time.
b. We can’t place AOL on the list b/c he’s not ascertained.
4. B’s interest is not subject to RAP. B argues for acceleration, meaning he gets
it after AOL b/c M’s interest is erased out of the Will. This is accepted.
III. Class Gifts, All-or-Nothing-Rule, & Fertile Octogenarian
A. Group of Measuring Lives: A group of people can be the life in being.
70
1. “To A, B, and C for life, then, upon the death of the survivor, to whoever is the
Mayor of Albany.”
a. A, B, and C have a life estate. M has a contingent remainder.
b. A: Is it possible that M’s interest could vest 21 years after A, B, or C
dies? Yes.
c. You don’t ask about the individual member of the group in this
situation!
2. Group: Is it possible that M’s interest could vest 21 years after the group of
lives A, B, and C dies? No, b/c M Will take after the survivor dies. It’s a valid
gift.
B. All or Nothing Rule: If you have a class gift and one member of the class has an
invalid gift, the invalid gift invalidates the gift to the entire group.
1. “Devise to T’s children A, B, and C for life, then to T’s grandchildren in fee.”
a. T’s children have a life estate; T’s grandchildren who are alive have a
vested remainder subject to open; T’s grandchildren not alive have a
contingent remainder.
b. Group: Is it possible that T’s grandchildren’s interest could vest 21
years after the group of lives A, B, and C dies? No, b/c they follow the
last survivor.
i. We do not care about in vitro fertilization for perpetuities
purposes.
2. “Deed to a trustee in trust for grantor’s children for life, then to grantor’s
grandchildren in fee.” – THIS IS INTER VIVOS!
a. Children have a life estate in trust; grandchildren alive have a vested
remainder subject to open; grandchildren not born have a contingent
remainder.
b. Group: Is it possible that G’s interest could vest 21 years after the
group of lives (assume there are three kids alive, A, B, and C)? Yes,
b/c the grantor could have an extra child D. If so, grandchildren might
vest 21 years later.
C. Fertile Octogenarian: In CL, a woman can always have more children, regardless of
her age.
D. Savings Clauses (a.k.a., Perpetuities Termination Clause): You can always draft
around RAP:
1. “To A for thirty years, then to A’s then oldest living child, but if, however, the
date determined as follows should sooner occur, it shall go to the AOL on that
sooner date. The sooner date is defined as 21 years after the death of the last
surviving issue of A.”
2. This means the interest must vest in one of the two situations, and the second
one is always valid. It’s impossible for AOL’s interest to vest 21 years after
the death of the last surviving issue of A, as drafted in the instrument.
IV. RAP Approaches
A. NY: EPTL § 9-1.2 keeps CL RAP, but gets rid of the fertile octogenarian. Women
are presumed infertile after they turn 55 years old.
B. Reformation: Some states reform interests that are invalid under RAP to meet RAP
requirements.
71
C. Wait & See Approach: Some states wait and see what actually happens with the
interests, not what is merely possible.
D. Uniform Statutory Rule Against Perpetuities (USRAP): If in fact the interests vests
w/in 90 years of the life in being, it’s valid. It’s a combination of wait & see and 90
years.
E. Alaskan Rule: RAP is completely abolished. Trusts can go on forever, which has a
huge tax advantage. DE also follows this approach.
1. A trust can always be drafted so that it follows the laws of a given state (e.g.,
Alaska).
72

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SPRING 2011, PROF. GANS: WILLS, TRUSTS, &

CHAPTER 1: INTRODUCTORY MATERIALS

I. POLICY ISSUES & BACKGROUND: WHY HAVE WILLS?

pot. Usually for “after acquired” property obtained between the

II. THE PROBATE AND NON-PROBATE PROCESS

1. Executor has duties, in order of importance, to the gov’t, creditor, and

i. Client asks lawyer, of his own free Will, to serve as executor.

benefit of a trustor, held by a trustee. They can always be revoked.

III. LAWYER’S ETHICS ISSUES

a. Hypo: Atty represents H&W. Atty has H transfer his property to W.

CHAPTER 2: INTESTACY & SUB-ISSUES

I. THE BASIC SCHEME

A. BASICS, SPOUSAL SHARES, PARENTS & IN-LAWS

3. *Hypo: Decedent D dies intestate, leaving children A, B, and C. A and B are

C. UNIFORM SIMULTANEOUS DEATH ACT (USDA)

II. TRANSFERS TO CHILDREN, ADVANCEMENTS, & GUARDIANSHIP

C. GUARDIANSHIP & MINORS

III. BARS TO SUCCESSION

ii. Exception: no disclaimers in Medicaid/nursing home situations.

CHAPTER 3: WILLS: CAPACITY & CONTESTS

d. Remedy: Minority allows reformation. Majority (including NY) gives

E. In re Strittmater: Testatrix hated men. She belonged to a pre-feminist organization

II. UNDUE INFLUENCE - GANS’ FAVORITE TOPIC

i. Would say “look court found no undue influence so

B. No Contest (a.k.a. In Terrorem) Clause: Clause says B loses his bequest if he

III. FRAUD, DURESS, & TORTIOUS INTERFERENCE WITH

B. DURESS & TORTIOUS INTERFERENCE WITH EXPECTANCY

We have plenty of opportunities to argue validity of Will. Why

CHAPTER 4: WILLS: FORMALITIES & FORMS

I. DUE EXECUTION OF WILLS

ii. In many states, these clauses create a rebuttable presumption of

3. See ML Notes p 66-67 for additional hypos.

a. T must intend it to be his signature. Kimmel’s Estate: Father wrote

II. REVOCATION OF WILLS

silent about it.

B. REVIVAL, DEPENDENT RELATIVE REVOCATION, & REVOCATION BY

III. COMPONENTS OF A WILL

IV. CONTRACTS RELATING TO WILLS

i. H & W were married, which is a per se confidential relationship.

CHAPTER 6: NONPROBATE TRANSFERS &

I. In trust case you are still alive and giving up your

testamentary and invalid because F hadn’t complied with the Statute of

exactly how it can be revoked. In this case, since we didn’t

3. Creditors con: probate may let you eliminate creditors more

and appoint a new one. May need to go and get

A. Check if there’s a difference btwn

I. Go to insurance company, put money in and in

A. By letting the Will speak here, we’ve muddied up the

2. If no rights until I did, pure Will substitute

B. Regarding the rebuttable presumption – Gans fine to apply

I. Have client give someone they trust power of attorney

incompetent. IF agent has permission he can

1. O’Connor (NY Ct. App.): Court says if there is clear and

CHAPTER 5: CONSTRUCTION OF WILLS

I. LAPSE: DEATH OF BENEFICIARY BEFORE DEATH OF TESTATOR

kid get $33.3.

CHAPTERS 13-14: FUTURE INTERESTS &