WILLS

● Issue is whether will is prima facie valid.

○ UPC Section 2–502.Execution; Witnessed Wills; Holographic Wills
■ Will must be (1) in writing, (2) signed by testator, or in their name by another in testator’s
presence and by their direction and
● (3) either
○ (A) signed by 2+ individuals within a reasonable time after the individual
witnessed either the signing or acknowledgement of the signature or
■ (B) acknowledged by testator before a notary public or equivalent
■ The UPC does not require
● (1) The testor to info the witness that the document is his will
● (2) The testor to ask the witness to sign the will
○ NY
■ (a) Must be in writing,
● (1) signed at the end by testator or proxy, ((B) anything after signature doesn’t count,
(C) proxy cannot also be a witness)
● (2) In front of 2+ witnesses, or acknowledge signature to each witness if signs not in
their presence (each separately)
● (3) Inform each witness that this is testator’s will
● (4) All sign within 30d
■ (b) No need to do everything in order
○ PRESENCE
■ Moris v. West (TX 1982) (holding that will was invalid when attesting witnesses were not in
the presence of the testator when witnesses signed the will)
○ Signature – Essentially anything that can be identified as testator’s mark
■ i) NOTE – If T can’t sign by themselves, they should ask for help
○ Witnesses
■ i) Most states require 2
■ ii) Often law office personnel, must be competent to testify, should be someone who will
remember it
■ iii) DO NOT USE
● (1) Anyone who might contest the will (someone named in intestacy statute)
● (2) Anyone who is named in the will (interested parties)
■ iv) NY § 3-3.2 – Competence of Interested Witness
● (1) (a) Interested witness is competent subject to: (1) any interest is void unless there
are 2+ other witnesses who are disinterested, (2) their interest is effective unless the
will cannot be proven without their testimony
● (2) (3) Any witness with a void disposition who would take if the will wasn’t
established, is entitled to get up to what they would have gotten if the will was
invalid
● v) Note: Some states invalidate the entire will, not just the part for the interested
witness
■ The Uniform Probate Code includes no disqualification for interested witnesses.
 ○ Attestation Clause
■ i) Establishes facts that occurred at the ceremony, not required by statute
■ ii) Creates a rebuttable presumption that will is validly executed and events described in the
clause actually occurred – thus it is good so long as witness can ID their signature
○ Self-Proving Affidavit
■ i) Serves as testimony to show witness saw the signing and is the person that signed it
■ ii) Attached to will, signed by witnesses, testator, and notary at time of execution
■ iii) Sufficient to lay foundation for will to be admitted to probate, eliminates need to track
down witnesses unless will is contested
■ UPC § 2-504 – Drafter may combine attestation clause and self-proving affidavit
○ UPC’s Dispensing Power
■ UPC § 2-503 – Although document wasn’t executed properly (§ 2-502), it is treated as if it
was if proponent establishes by C&C evidence that decedent intended the document to
constitute the decedent’s will
■ Estate of Hall (Mont. 2002) No witness but still valid
● Facts: Testator drafted “Joint Will” with new spouse, met with lawyer and approved
draft but asked lawyer if they can make the draft official pending the final
○ Lawyer has them sign in front of him and he notarizes (not valid)
○ Final is never signed, but held that draft was valid
○ Reasoning that joint will specifically revoked prior, testator had wife destroy
○ the old one, and wife testified this was his intent
○ (4) Note – All data came from interested wife, & boiler plate language on
will
● Outside Documents
○ Incorporation by Reference
■ Permits a court to give effect to a will that disposes of property in accordance with an
unattested document, so long as the document was in existence at the time the will was
executed, and so long as the document is sufficiently identified in the will.
○ Facts of Independent Significance
■ Permits a court to give effect to events which would change the disposition of testator’s estate
after execution of testator’s will—so long as those events have significance apart from a
change in testator’s dispositive scheme.
○ Integration and Incorporation by Reference
■ Estate of Norton:No reference in the codici that it intends to incorporate 6 pages - Failed
attempt at incorporation by reference
● Rule: A document may be incorporated into a will by reference if the document was
in existence at the time of the will, and if there is a reference that provides assurance
that the document was intended to be incorporated into the will.
■ Clark v. Greenhalge: Bequest of a painting in a notebook were incorporated by reference
● Facts:
○ Nesmith executes will in 1977
■ Tangible property to be distributed as “designated by a memorandum
left by her and known to Greenhalge”
■ Rest of property: to Greenhalge
 ■ 1972 memorandum with 1976 additions
○ Clark (P) claimed that she was entitled to a painting referred to in a note
written by the testator, but Greenhalge (D) refused to turn it over to her.
● Rule: A properly executed will may incorporate into its terms by reference any
document or paper not properly executed or witnessed, if the document was in
existence at the time the will was executed and is identified by clear and satisfactory
proof as the document referred to in the will.
● Notes:
○ You should probably not rely on the court's analysis in a case that is not as
appealing as this one. The court in this case found that the codicils ratified
the clause of the will (aka a notebook entry that occurred after the will was
executed).
○ Greenhalge is a villain!!!
■ UPC - Incorporation by Reference (RELAXED)
● Section 2–510.Incorporation by Reference
○ A writing in existence when a will is executed may be incorporated by
reference if the language of the will manifests this intent and describes the
writing sufficiently to permit its identification.
● Section 2–513.Separate Writing Identifying Devise of Certain Types of Tangible
Personal Property
○ Whether or not the provisions relating to holographic wills apply, a will may
refer to a written statement or list to dispose of items of tangible personal
property not otherwise specifically disposed of by the will, other than money.
To be admissible under this section as evidence of the intended disposition,
the writing must be signed by the testator and must describe the items and the
devisees with reasonable certainty. The writing may be referred to as one to
be in existence at the time of the testator’s death; it may be prepared before
or after the execution of the will; it may be altered by the testator after
its preparation; and it may be a writing that has no significance apart from
its effect on the dispositions made by the will.
● Order of abatement to provide for claims:
○ intestacy property, residuary property, general devises, specific devises
● Ademption (specific devisee)
○ Specific items of property devised in will are adeemed if absent from estate
○ Identity Theory of Ademption
○ Intent Theory of Ademption
● Simultaneous Death
○ Uniform Simultaneous Death Act applies
■ - applies when relative times of death cannot be determined
■ - presumes devisee dies before testator
■ - presumes heir dies before decedent
■ - only applies in the absence of language in will or policy stating simultaneous death
○ Estate of Villwock: Simultaneous Death Statute does not apply
 ■ Facts:
● Villwock was pronounced dead minutes after his wife was pronounced dead, but
medical personnel testified that Villwock died first.
● Villwock’s will left everything to his wife, with no requirement that she survive him
by any period of time. The will of Villwock’s wife left everything to members of her
family.
■ Rule: The Uniform Simultaneous Death Act applies only when there is insufficient evidence
that the decedents did not die simultaneously. Medical evidence of the time of death that is in
accord with accepted medical standards is sufficient to prove that deaths did not occur
simultaneously.
○ UPC:
■ UPC § 2-104 – Requirement of Survival by 120hrs
● (1) (a)(1) Individual born before decedent’s death who fails to survive decedent by
120hrs is deemed to predecease unless C&C shows otherwise
■ UPC § 2-702 – Same for (a) surviving an event, (b) construing written instrument, © property
in joint tenancy w/ right of survivorship, (d) doesn’t count if instrument contemplates
simultaneous death
○ Disclaimer
■ Relation Back – A properly executed disclaimer is treated as if the beneficiary never received
the interest (i.e. relates back to the moment they got the inheritance)
● One of the primary motivations for disclaimers is estate taxes
■ Estate of Baird (Wash. 1997) (holding that the plain language of Washington statute does not
allow anticipatory disclaimer of an expectancy interest created by will)
■ Note:
● The result in the case would have been different if Baird executed the disclaimer 3
days after mother’s death even though it was to avoid creditors. (However note the
court never says this). THUS UNCLEAR IF DISCLAIMER WORKS TO AVOID
CREDITORS (courts UPC DEALS WITH THIS PROBLEM
■ UPC § 2-1105/6
● Take what would have been the disclaimer’s interest and give the interest to their
direct lineal descendants
● The Uniform Probate Code, which incorporates the Uniform Disclaimer of Property
Interests Act (UDPIA), directs that a disclaimer of intestate distribution or
testamentary gift must be in written form, signed by the disclaimant and delivered to
the estate’s personal representative. It also provides that a disclaimed interest should
pass as though the disclaimant died immediately before the time of the distribution of
the property. See UPC §§ 2–1103–1105.
● LAPSE
○ Common Law
■ Common law treats residuary legatees as a class, with share of predeceased class member
going to surviving members of class
○ Anti-Lapse Statute:
■ Ask:
● (1) Does it apply to class gifts
 ● (2) For whom does the statute save a gift for
● (3) Who does the property go to?
○ Issue of deceased beneficiary - does not matter if the deceased beneficiary
had a will
■ Statutes
● NY: Saves gift for issue and siblings
● UPC: Saves gift for descendant of grandparents
○ Revocation or Modification of Will
■ Revocation and Revival
● Revocation
○ Implied Revocation
■ A will which cannot be found is presumed revoked; the existence of
copy is irrelevant
■ Later will acts as implied revocation of earlier will to extent of
inconsistency
● Revival
○ General Rule:
○ Dependent Relative Revocation
■ Limit on Power to Revoke
● Joint Wills
● Will Contest:
○ Capacity:
■
○ Undue Influence:
■ - 4 elements: susceptibility, opportunity, disposition, unnatural will
○ Fraud
■
○ SUCCESSFUL/Unsuccessful Will Contents
■ No contest Clause
● Enforceable?
○ Section 3–905.Penalty Clause for Contest
■ A provision in a will purporting to penalize any interested person for
contesting the will or instituting other proceedings relating to the
estate is unenforceable if probable cause exists for instituting
proceedings.
○ In New York, no-contest clauses are enforceable even against contestants
who have probable cause. N.Y. EPTL § 3–3.5(b).
● If the contest is unsuccessful - beneficiaries take nothing
● If the contest is successful - beneficiaries get whatever judgement they ask for.
○ EX: Under undue influence --- whole will is invalid, the proponent of earlier
will can offer earlier will for probate. Since will is invalid; no contest clause
is invalid as well
● Elective Share
○ Note: The fact that someone contest a will does not deprive you of your elective share
 ○
● Inadvertent Exclusion of Spouses
○ Pre-Marital Will Statute
● Intestate Succession - NO WILL
○ I. The Share of the Surviving Spouse
■ i) WY § 2-4-101 (2010)
● (1) (a)(i) 50% to surviving spouse, rest to surviving children & descendants
● (2) (a)(ii) If no surviving children, all to the surviving spouse
■ ii) UPC § 2-102
● (1) (1) Entire estate if
○ (i) no surviving parent or
○ (ii) all decedent’s surviving descendants are also descendants of the spouse
and no surviving descendant of the surviving spouse
● (2) (2) $300k + 75% to spouse, the rest to any surviving parents if no descendants
● (3) (3) $225k + 50% to spouse, if all decedent’s surviving descendants are with the
spouse and the spouse has 1+ surviving descendants not from the decedent
● (4) (4) $150k + 50% to spouse, if 1+ of the decedent’s surviving descendants are not
descendants of the surviving spouse
■ iii) NY § 4-1.1(a)(1)-(2)
● (1) If spouse + issue 50k + 50% to spouse, rest to issue by representation
● (2) If spouse + no issue 100% to spouse
■ Case: DIVORCE
● (1) Estate of Goick (MO 1996) (holding that a verbal agreement to settlement in a
non-finalized divorce did not constitute a divorce to prevent the spouse from
inheriting or being appointed representative of decedent)
○ (a) Standing – Mother was a “creditor” so she had standing, bro/sis no
standing
■ Standing requires some showing that you would benefit in some way
from the claim that you are making
○ (b) Divorce – Must be a final decree to terminate the divorce
● UPC
○ Uniform Probate Code section 2–802 provides that a person whose marriage
has been terminated by divorce or annulment does not qualify as a surviving
spouse, and that a decree of separation that does not terminate the status of
husband and wife is not a divorce for the purposes of 2–802.
○ II. Share of Lineal Descendants
■ i) Rule – Living descendant cuts off rights of that descendant’s children to inherit
■ ii) Strict per stirpes (WY § 2-4-101(c)(i) (2010))
● (1) Divide X’s estate at the generation of children—the generation closest to the
decedent—whether or not any children were actually living at X’s death.
● (2) Then, the descendants of X’s children would take their parents share “by stocks,”
or “per stirpes.”
■ iii) Modern per stirpes (Majority; PA § 2104 (p. 87))
● (1) Divide at closest generation in which there is 1+ descendant living
 ● (2) Then per stirpes after that
● (3) Spot: All of decedent’s children are dead when decedent kicks it
■ iv) Representation (UPC § 2-106(b); NY §§ 1-2.16, 4-1.1(a))
● (1) Let’s look at the generation closest to the descendant in which there are living
persons
● (2) Let's divide the estate into as many shares as there are living children and
deceased children who left descendants
○ Give shares to living children
● (3) Take the remaining shares (deceased children shares), combine them, and
distribute them as if deceased children and non deceased children had died before X
○ III. Share of Ancestor and Collateral Heirs
■ UPC § 2-103 – Share of Heirs other than Surviving Spouse
● (1) (a) Anything not passing to spouse passes
○ (1) to decedent’s descendants by representation,
○ (2) if none, to parents,
○ (3) if none to descendants of parents by representation,
○ (4) if none, split equally between paternal/maternal grandparent sides, then
by representation to descendants of grandparents
● UPC § 2-106(c) – For descendants of grandparents, shares are divided “per capita” at
each generation
● UPC § 2-105 – No Taker – Passes to state if no one under § 2-103
■ vi) NY EPTL § 4-1.1
● (1) (a) Passes to
○ (1) spouse/issue 50/50,
○ (2) if no issue all to spouse,
○ (3) if no spouse all to issue,
○ (4) if none then to parents,
○ (5) if none then to descendants of parents,
○ (6) if none then split equally between paternal/maternal grandparent sides by
representation but not more remote than grandchildren of grandparents,
○ (7) if no grandparents and no grandchildren of them, then per capita to any
surviving great grandchildren of the grandparents
■ Estate of Locke (NH 2002)
● Facts:
○ Locke dies intestate, no spouse, children, siblings, parents, grandparents
○ On maternal grandparent, 2 1st cousins (4th degree), on paternal, 4 1st
cousins once removed (5th degree)
○ Statue RSA 561:1, II(d) – Divide in half to paternal, issue taking equally if
all are of the same degree, if unequal degree, more remote take by
representation, and the other half passes to maternal in the same manner
■ RSA 561:3 – No representation allowed among collaterals beyond
4th degree
 ● Held: 561:3 only kicks in if, on one of the sides, there are issue of different degree
such that there will be taking by representation – here all on each side are of the same
degree
○ V. Half-Bloods
■ The modern trend is to treat half bloods equally with whole bloods.
■ UPC § 2-107 –
● Halfblood = Whole blood (Same in NY)
■ FL 732.105 –
● If decedent is survived by relatives of the halfblood and relatives of the wholeblood
in the same degree, the relatives of the halfblood take half as much as the relatives of
the wholeblood.
■ MS § 91-1-5 –
● Whole Bloods take to the exclusion of half bloods
○ VI. Adoptees
■ i) UPC § 2-118 – Adoptee and adoptee’s adoptive parent or parents
● (1) (a) Parent-child relationship between adoptee and adoptive parent(s) exists
■ ii) UPC § 2-119 – Adoptee and adoptee’s genetic parents
● (1) (a) No parent-child between adoptee and genetic parents unless otherwise
○ (b) Stepchild adopted by stepparent
■ Parent-child between individual adopted by the spouse of either
genetic parent and (1) genetic parent whose spouse adopted the
individual and (2) the other genetic parent, BUT only to allow
adoptee or their descendants to inherit from that genetic parent
(NOTE this only goes 1-way towards the kid)
○ (c) Individual adopted by relative of genetic parent has parent-child with
them and the genetic parent, but only to inherit from the genetic parent
○ (d) Individual adopted after death of parents has parent-child relationship
with genetic parents for purposes of inheritance
■ Estates of Donnelly (Wash 1972)
● Facts:
○ RCW 11.04.085 – Lawfully adopted child is not considered the heir of his
natural parents for purposes of this title
○ Notably silent about inheriting from natural grandparents and obviously does
not contemplate step-parent adoptions
● Held: Child cannot inherit from genetic grandparents because she is no longer the
natural heir of her biological father who would inherit from them
● Dissent points out that the child had a good relationship with the grandparents, thus
none of the circumstances contemplated by the legislature are present
■ Kummer v. Donak: Adult Adoption
● Facts:
○ The biological niece and nephews of the decedent claimed that their mother’s
(the decedent’s sister’s) adoption as an adult did not affect their right to
inherit from their aunt.
 ● Rule: For purposes of determining inheritance rights, an adopted person is the child
of the adopting parent and not of the biological parents.
● Holding: For the purpose of the statute, Kummer is not the sister of Crtizwer (the
decedent) and thus, Kummer’s children are not entitled to take
■ CA
● California Probate Code
○ Section 6454. Foster parent or stepparent
■ For the purpose of determining intestate succession by a person or
the person’s issue from or through a foster parent or stepparent, the
relationship of parent and child exists between that person and the
person’s foster parent or stepparent if both of the following
requirements are satisfied:
● (a) The relationship began during the person’s minority and
continued throughout the joint lifetimes of the person and the
person’s foster parent or stepparent.
● (b) It is established by clear and convincing evidence that the
foster parent or stepparent would have adopted the person
but for a legal barrier (ex: natural parent prevents
adoption).
○ Section 6455. Equitable adoption
■ Nothing in this chapter affects or limits application of the judicial
doctrine of equitable adoption for the benefit of the child or the
child’s issue.
■ In California the doctrine of equitable adoption is a relatively narrow
one, applying only to those who “though having filled the place of a
natural born child, through inadvertence or fault [have] not been
legally adopted, [where] the evidence establishes an intent to adopt.”
■ Bean v. Ford: No Formal Adoption, No legal barriers, and No Equitable Adoption in this case
● Facts:
○ Bean (P) was placed in the Fords’ (D) home as a foster child and lived
continuously with them for about twenty years. Bean (P) knew that Mr. and
Mrs. Ford were not his biological parents, but he called them “Mom” and
“Dad” and stayed involved with them and their biological daughter even after
he grew up and got married.
■ The Fords never petitioned to adopt Bean (P), but Mrs. Ford was
apparently under the impression that if she tried to adopt him, Bean
(P) could be placed in a different and unsafe foster home, so she
refrained despite her desire.
■ Bean (P) claimed a right to inherit from Ford’s estate based on a
claim of equitable adoption, but the court denied his claim because
he failed to prove the Fords intended to adopt him.
○ Rule: No equitable adoption is shown unless the parties’ conduct and
statements clearly and convincingly demonstrate an intent to adopt.
○ Holding: Bean is not entitled to take
 ○ VII. Non-Marital Children and Questions of Paternity
■ Taken together, Trimble and Lalli establish that states can justify excluding non-marital
children from inheriting only by applying procedural rules designed to assure adequate proof
of paternity.
■ UPC
● Section 2–117.No Distinction Based on Marital Status.
○ Except as otherwise provided in Sections 2–114 [termination of parental
rights], 2–119 [adoption], 2–120 [assisted reproduction], or 2–121 [assisted
reproduction], a parent-child relationship exists between a child and the
child’s genetic parents, regardless of the parents’ marital status.
■ Presumption of Paternity (Minnesota Statute)
● Is created when child is born while deceased married to biological mother
○ Treat someone in Prince’s situation as the child only of presumptive parents
and not of partes
○ Note: HOW MUCH SHOULD GENETICS MATTER
■ There is a move in other jurisdictions to allow a child in Prince’s
situation to inherent from genetic parents
● Who can challenge this presumption?
○ Only a parent can challenge
■ EX: The deceased parent while alive but that challenge needs to be
made at a relatively early time child’s life
■ In re Estate of Prince: Paternity Presumption - No genetic testing allowed
● Facts:
○ The purported half-siblings of the deceased music star Prince sought review
of a decision by the special administrator of Prince’s estate declaring the
purported half-siblings ineligible for genetic testing to determine whether
they were Prince’s intestate heirs.
● Rule: Even if an heirship claim is not based on the paternity presumption under the
state parentage act, the paternity presumption applies to that claim if a father-child
relationship has already been established under that presumption and the claimant
seeks to establish a genetic relationship between the claimant and decedent through
the decedent’s father.
● Gift
○ Requirements:
■ Donative Intent, Delivery, and Acceptance
● Gift and the Delivery Requirement
○ The delivery requirement: it shows that the person given the gift has
relinquished control and dominion which in turn shows notice of
irrevocability
○ Delivery must be considered in light of the circumstances of the gift.
○ Gruen v. Gruen Gift (Non-Probate Asset) Valid Gift
■ Facts:
 ● Michael Gruen (P) claimed that the gift (the letter gave him a future interest in
painting) of a painting from his father was subject to a life estate in the painting for
his father,
● Gruen’s stepmother (D) claimed that the gift was an invalid testamentary gift
○ The letter was just an attempt to write a will without the proper formalities
and therefore invalid
■ Rule: An inter vivos gift of personal property may reserve a life interest in the property in the
donor.
■ Rational: In order to prove the existence of an inter vivos gift, the party who claims the gift
must prove by clear and convincing evidence the donor’s intent to make a gift, either actual
or constructive delivery of the gift, and acceptance by the donee.
○ JOINT INTERESTS WITH RIGHT OF SURVIVORSHIP
■ Franklin v. Anna National Bank NO GIFT - BANK ACCOUNT GOES TO THROUGH
PROBATE b/c set up for convenience of testator
● Facts: Franklin’s (P) father designated Goddard (D) as a co-tenant on his bank
account, and later sent a letter designating Franklin (P) as co-tenant.
○ Goddard: Argues that what Franklin's dad was doing when he created a joint
bank account was making a gift to her of whatever rights he had in the
account at the time of his death. (Joint-Tenancy = Gift)
○ Franklin: Argues that there was no attempt to make a gift. This account was
set up for Franklin's dad convenience so it should pass through probate
● Rule: The intent of the donor is pivotal in determining whether a joint tenancy was
created.
● Holding: The money in account No. 3816 should have been found to be the property
of the estate.

Trusts
● Validity of trust
○ 3 elements: intent, delivery, acceptance
● Formalities
○ F
● Trust Property:
○ In New York - a trust instrument that simply provides I declare that I hold this property in trust and
name it is not enough.
■ There needs to be a transfer of property to trust
■ Deed needs to be recorded
● Breach of Fiduciary Duties
○ Trustees have fiduciary obligation to both income and remainder beneficiaries; must balance interests
of both groups in managing trust corpus
○ Duty of Loyalty
○ Duty of Care
■ To to inquiry
 ■ To to inform
● Rfert v. Meyer - A trustee has a duty to fully inform the beneficiary of all material
facts so that the beneficiary can protect his or her own interests where necessary. In
the case although lawyer did not know facts, he made it so he would not know
● Uniform Trust Code: Section 813.Duty to Inform and Report
○ (a)A trustee shall keep the qualified beneficiaries of the trust reasonably
informed about the administration of the trust and of the material facts
necessary for them to protect their interests.
■ Delegation of Fiduciary Duties
● Shriners Hospital for Crippled Children v. Gardiner: A trustee breaches the standard
of care when he or she delegates responsibilities that the trustee reasonably can be
expected to perform personally.
● Of course, the trustee could solicit advice, but remained responsible for making the
ultimate decisions about investment, distribution, and other critical matters.
● Uniform Trust Code, reverses the common law rule, and authorizes trustees to
delegate essential investment functions
○ Still need to owe duty care in : (1)selecting an agent; (3)periodically
reviewing the agent’s actions in order to monitor the agent’s performance
and compliance with the terms of the delegation
○ Problem: if delegates power, who bears loss of imprudent business decision?
■ Beneficiaries should bring against advision and not against trustees.
■ Prudent investor standard
● Modern Portfolio Theory
○ Every investment can be prudent at the right price, so long as the investor
diversifies
○ Issue: Whether trustee has appropriately diversified in light of the trust’s
objectives
○
● Exculpation of Trustee
○ Only relieves the trustee of liability and not of duty so can still be breach.
■ Remedy = removal of trustee
○ NY- Exculpation clauses are per se unenforceable
○ UTC (section 10008) - Exculpation is unenforceable to the extent it relieves the trustee of liability for
breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the
interests of the beneficiaries; or
● Power of Appointment
○ Special
■ Does not entitles the donee to appoint to anyone—including herself or her estate
● Donee cannot treat the property as her own
○ General
■ Entitles the donee to appoint to anyone—including herself or her estate.
○ Exercising Power of Appointment
■ When is Power Exercisable
● Testamentary Power (need to appoint by will)- not presently exercisable
 ● Presently Exercisable Power of appointment
■ Requirements: Does a Residuary Clause of will Exercise Power w/o mention to power itself
(No Specific Reference requirement in Trust)
● Common Law: there needs to be a specific reference to the trust
● UPC
○ If Special Power--- take common law approach
○ Section 2–608.Exercise of Power of Appointment
■ In the absence of a requirement that a power of appointment be
exercised by a reference, or by an express or specific reference, to
the power, a general residuary clause in a will, or a will making
general disposition of all of the testator’s property, expresses an
intention to exercise a power of appointment held by the testator
only if (i) the power is a general power and the creating instrument
does not contain a gift if the power is not exercised or (ii) the
testator’s will manifests an intention to include the property subject
to the power.
○ Thus, a general residuary clause operates to exercise a general power of
appointment if the donor did not make a provision for takers in default. If
donor did make a provision for takers in default, or if the power is special, a
general residuary clause exercises the power only if the will manifests an
intention to exercise the power.
● The New York Statute. (Special or General)
○ EPTL § 10–6.1(a) provides that “an effective exercise of a power of
appointment does not require an express reference to such power,” and then
requires only a manifestation of the donee’s intent to exercise the power.
Such a manifestation exists when the donee “[l]eaves a will disposing of all
of his property or all of his property of the kind covered by the power, unless
the intention that the will is not to operate as an execution of the power
appears expressly or by necessary implication.”
■ Requirements: Specific Reference - (Requirement in Trust)
● Cessac v. Stevens (Whether a donee has validly exercised a power of appointment
depends not on the intent of the donee, but on whether the power was exercised in the
manner prescribed by the donor.)
● Section 2–704.Power of Appointment; Meaning of Specific Reference Requirement
○ If a governing instrument creating a power of appointment expressly requires
that the power be exercised by a reference, an express reference, or a specific
reference, to the power or its source, it is presumed that the donor’s
intention, in requiring that the donee exercise the power by making reference
to the particular power or to the creating instrument, was to prevent an
inadvertent exercise of the power.
● The Restatement takes a somewhat flexible “substantial compliance” approach to
specific reference requirements. Restatement (Third) of Property: Wills and Other
Donative Transfers, § 19.10, provides, in relevant part:
 ○ Substantial compliance with formal requirements of an appointment imposed
by the donor, including a requirement that the instrument of exercise make
reference or specific reference to the power, is sufficient if (i) the donee
knew of and intended to exercise the power, and (ii) the donee’s manner of
attempted exercise did not impair a material purpose of the donor in
imposing the requirement.
■ Interests
● Matter of Levitan :Defaults have a vested remainder interest which can divested if
donnee exercises the power of appointment by will
○ A donee has no obligation to appoint property
○ Failure to Exercise
■ General Power
● Takers in Default
● Donor’s Estate (Common Law)/Donee’s Estate (Restatement & NY)
■ Special Power
● Takes in Default
● Power in Trust
○ When we have a special power with a defined class of beneficiaries, if the
donee does not exercise the power and there are no takers in default, then
give the appointed property to the permissible appointees
○ Class need to be identifiable
■ Not clear and defined: “Among Abner’s relatives by blood or
marriage.”
● Donor’s Estate
○ Improper Exercise
■ Exercising a Power by Creating Another Trust
● Special Power
○ Hornung v. Stockall: Court held that there was an impermissible appointment
to Donee’s own trust where the donnee had a Special Power of Appointment.
Bleeding of Assets Occured.
○ Solution:
■ (1) Substantial Compliance
● Under the Restatement: Doctrine of substantial compliance
○ Under that doctrine, substantial compliance with the
formal requirements of an appointment imposed by
the donor is sufficient if (i) the donee knew of and
intended to exercise the power, and (ii) the donee’s
manner of attempted exercise did not impair a
material purpose of the donor in imposing the
requirement.
■ (2) Allocation & Special Power
● Hornung v. Stockall : The appointment is entirely invalid
and the appointive property passes to the takers in default.
 ● NY- if the donee has blended appointive assets with donee’s
own assets, the assets should be allocated to maximize the
effectiveness of donee’s intended dispositions
● Restatement
○ Doctrine of selective allocation (rule of
construction), Donor Trust A property, although
commingled with Donee’s own property, would be
allocated and accounted for according to Donor’s
intent.
○ Note - Rule of construction for interpreting a trust to
be applied only when the language of the trust is
unclear.
● UPC:
○ “If a powerholder exercises a power of appointment
in a disposition that also disposes of property the
powerholder owns, the owned property and the
appointive property must be allocated in the
permissible manner that best carries out the
powerholder’s intent.”
■ GENERAL POWER ONLY -- Capture Doctrine (for donee’s own estate):
● Since donee attempted to exercise power of power of appointment, (aka tried to
capture the property for her estate), even though the particular exercise could not be
effectuated because there is no one to give the property to, by attempting to exercise,
appointee capture the property for her own estate
● Donee’s Remainder take
● Note:
○ Donor can override capture doctrine
■ EX: express default
○ Contracts to Appoint and Releases
■ Special Powers
● Courts typically hold that when a power is special, a donee’s contract to appoint is
unenforceable, at least so long as the contract benefits a person outside the class of
permissible appointees.
■ General Powers
● Is a contract to appoint enforceable? Yes—but only if the power is presently
exercisable. Hence, for testamentary powers, and for other powers not presently
exercisable, contracts to appoint are not enforceable against the donee (unless the
donee was also the donor of the power).
● In New York, this doctrine is embodied in EPTL § 10–5.3
○ Contract to appoint; power not presently exercisable
■ (a)The donee of a power of appointment, which is not presently
exercisable, or of a postponed power which has not become
exercisable, cannot contract to make an appointment; except that this
 prohibition shall not apply if the donor and donee are the same
person.
● Such a prohibited contract, if made, cannot be the basis of
an action for specific performance or damages, but the
promisee can obtain restitution of the value given by him for
the promise unless the donee has exercised the power
pursuant to the contract
○ Breached Contract: Contracted party - no remedy against appointed property
but does have action against donee’s estate.
○ Complied with Contract:
■ Benjamin v. Morgan Guaranty Trust Co.: No remedy by any other
party (includes takers in default)
■ Releases:
● Release do no generate litigation
○ If Complete Release Upheld, Who Takes?
■ Takes in Default
● Issue: Partial Release
○ (1) Release to appoint part of the property
■ Does not generate much litigation
■ Valid under NY
○ (2) Release that limits the people from whom the donee can appoint
■ Under a Partial Release - donne still has the choice whether or not to
exercise power of appointment
■ Aoki v. Aoki Any power of appointment is releasable, with or
without consideration, and may be limited in such a manner as to
reduce the appointees or classes of appointees in whose favor the
power is exercisable.
■ Seidel v. Werner The court found a contract to appoint
(unenforceable because testamentary) as opposed to a release
because default different
○ NY statue (made in response to Seidel)
■ If you are going to have a partial release, partial release has to
benefit ALL the takers in default not just some
■ Reaffirms result in Seidel
■ Power of Appointment -- Rights of Creditors
● Special Powers: Creditors Can’t Reach
● General Presently Exercisable Powers:
○ Equitable Assets: Reachable if Exercised
○ Restatements, NY, California: Always Reachable
● General Testamentary Powers:
○ Equitable Assets: Reachable if Exercised
○ Restatements: Reachable, but not until donee’s death
○ New York: Not Reachable by Creditors
● Revocation of Trust
 ○ REVOCABLE TRUSTS
■ Can a provision in a subsequent WILL revoke a revocable trust?
● Common Law: No
● Many Jurisdiction hold: Yes
○ The court discusses section 63 of the Restatement (Third) of Trusts, which
provides: “Absent contrary provision in the terms of the trust, the settlor’s
power to revoke or modify the trust can be exercised in any way that
provides clear and convincing evidence of the settlor’s intention to do so.”
○ Section 603 of The Uniform Trust Code provides, in part:
■ (c)The settlor may revoke or amend a revocable trust:
● (1)by substantial compliance with a method provided in the
terms of the trust; or
● (2)if the terms of the trust do not provide a method or the
method provided in the terms is not expressly made
exclusive, by:
○ (A) a later will or codicil that expressly refers to the
trust or specifically devises property that would
otherwise have passed according to the terms of the
trust; or
○ (B) any other method manifesting clear and
convincing evidence of the settlor’s intent.
● Change in Circumstances Trusts and Retirement Assets
○ Irrevocable trust - trust would simply be distributed in accordance with terms of the trust
○ Revocable trust:
■ Because revocable living trusts are will substitutes, courts have begun to apply will
construction doctrines, such as abatement, apportionment, antilapse, and simultaneous death
statutes, to the interpretation of revocable trusts.
■ Uniform Probate Code
● Section 2–804 provides that divorce revokes all revocable dispositions to the ex-
spouse, whether the disposition is made in a will or a non-probate instrument.

● Disposition of Property in Irrevocable Trust (see future interest material?)

○ Common Law
■ Goes to Deceased Beneficiaries Estate
○ UPC
■ Deceased Beneficiary --- Gift saved --- goes to issue
● Disposition of Property in Revocable Trusts
○ No Condition of survival
■ First National Bank of Bar Harbor v. Anthony (Holding: John’s interest vested at the time the
trust was created, the grandchildren win. The Rule is that because a will is not operative until
the death of the testator, an interest in a testamentary trust cannot vest prior to that event, but
an inter vivos trust is operative from the date of its creation)
● Vested interest --- goes to deceased beneficiaries estate
 ■ Restatement: Treat Revocable trust as will (Restatement (Third) of Property (Wills and Other
Donative Transfers) § 7.2)
● Apply standard anti-lapse provisions
■ UPC
● Treat Revocable trust as irrevocable trust or treat as a will --- Result the same
○ Create a substitute gift in surviving issue of deceased beneficiary
○ Interest in deceased child would never vest
○ Express Condition of Survival
■ Matter of Kroos: The rule is that the language in a will that defeats the vesting of a remainder
must be as clear and definite as the language that created the remainder.
● Facts: Herman Krooss’s will gave his wife, Eliese, a life interest in his residuary
estate. The will provided that the remainder would be divided between his two
children, John (D) and Florence. If one of the children predeceased Eliese, that
child’s share would go to his or her descendants, if any.
● Holding: Only one of the specified conditions was fulfilled; although Florence did
predecease her mother, she did not leave descendants. Consequently, her absolute gift
remained vested and was not defeated.
● Classification and Construction of Future Interest - Disposition of Property
○ Language:
■ “Income to Y for life, remainder to Z”
○ Intro
■ Antilapse Statute applies when the beneficiary fails to survive a testator
■ Usually, in this case, the beneficiary does survive the testor
● We are worried about survivorship to some other point
○ Case:
■ Uchtorff v. Hanson ( Holding: The will vested interest at time of Alfred’s death. Thus,
Richard did not need not be alive to enjoy remainder interest in the trust. The rule is that a
remainder may be vested even if it is postponed until the happening of some certain
condition; it is contingent only if its existence depends on some dubious circumstance
through which it may be defeated.)
● The court held that the Iowa Statute does not apply because the provision of a trust
takes precedence over the provision of trust code. Here “in the event Richard
survived the testator!”
○ The Law
■ (1) Common Law
● Common law courts developed the presumption in favor of early vesting
○ Ex: “Income to Y for life, remainder to Z” = interested was vested
■ The property would go to Z’s estate
○ EX: SURVIVAL LANGUAGE
■ “Income to Pearl, and in the event that my son, Richard shall
survive until the happening of the first of the stated events, I
appoint the trust fund to Richard as an indefeasibly vested interest in
fee” = contingent interest
● Grant fails
 ● See if there is Alternative
● Go to Residuary Clause of Donee
● Figure out how donor’s estate would be distributed
○ Contingent Interest
■ Survivorship contingent on the happening of first event
■ Alternative for non survival
■ (2) Iowa Statute
● Does two things:
○ (1) We will not treat Z’s interested as vested
■ “Income to Y for life, remainder to Z” = contingent of survivorship
of Y
○ (2) Still Contingent BUT IF Z fails to survive Y, (and no alternative is named
in the trust) then property goes to Z’s issue rather than beneficiary of Z’s
estate.
■ EX: “Income to Pearl, and in the event that my son, Richard shall
survive until the happening of the first of the stated events, I appoint
the trust fund to Richard as an indefeasibly vested interest in fee” =
contingent interest
● No alternative
● Children take
○ This is true even if there is a residuary clause
○ Survival Language precludes the IOWA statute from applying
■ Note that the language of wills control
● so : “to my daughter, D, if she survives S.”
○ DOES NOT GO TO ISSUE
○ Grant fails
○ See if there is Alternative
○ Go to Residuary Clause of Donee
○ Figure out how donor’s estate would be distributed
■ (3) Uniform Probate Code § 2–707
● (1) Starts with a presumption that if grantor creates a future interest, that future
interest is contingent on survership until time of distribution
● (2)Still Contingent BUT IF Z fails to survive until time of distribution 2-707(b)
○ A substitute gift is created in Z’s issue (descendants).2-707(b)(1)
■ Issue > Alternative gift --- 2-707(b)(4)
● ONLY IF:
○ (1) Alternative devisee is in the form of a class gift
and one or more members of the class is entitled to
take in possession or enjoyment
● Otherwise alternative takes
○ No Issue:
■ Go to Residuary Clause of Donee
■ Figure out how donor’s estate would be distributed
 ● (3) If there is a condition of survivorship imposed, that language fo survership
would not prevent the substitute gift from taking effect 2-707(b)(3)
● (4) 1st appointee survived by children but is deceased; the is a 2nd alternative but
also deceased
○ 1st appointee’s issue would take 2-707(b)(4)(B)
● (4) 1st appointee deceased (w/o children); the is a 2nd alternative but also deceased
(w/o) children
○ Go to Residuary Clause of Donee
○ Figure out how donor’s estate would be distributed
● Class Gifts
○ A. Increase in Class Membership
■ General rule (Class Closing Rule): when a grantor makes a class gift, membership in the class
may continue to increase until at least one member of the class becomes entitled to
possession of the property that is the subject of the class gift.
■ Hypo
● I leave 50,000 to be divided among my grandchildren
○ Closes at death of Testator
○ Children born after death of testator CANNOT take
● “distributed to her husband, H, for life, remainder at H’s death “to my nieces and
nephews who reach age 21.”
○ Closes when a niece or nephew reaches age 21
■ Ask who is alive at this time?
● THERE ARE ELIGIBLE TO TAKE does not mean they
actually take
○ Those children, of closed class, that die before age 21 ---
■ Common Law Approach
● There share gets divided to surviving takers (of closed class)
■ In re Evans’ Estate (Holding: When a gift is made to a class of persons, membership in the
class closes at the time the first distribution is made. The time of the distribution of the
principle settles the question of maximum membership.
● Facts: Evans’s will created a trust to benefit his grandchildren. The will did not
identify or describe the grandchildren. The trust provided for distribution of the
income from each grandchild’s share of the principal when he or she became “of
age.” The income was to be paid annually until the grandchild reached the age of
thirty. Upon reaching thirty, the grandchild was to receive his or her share of the
principal, together with the interest thereon.
● Holding: Class closes when oldest child reaches the age of 30
○ B. Decrease in Class Membership: Survivorship Again
■ Issue: A member of a class had died before the time of distribution
■ Testamentary Trust:
● “Husband for life, remainder to my children”
■ There are three realistic solutions:
● COMMON LAW 1.“Children” means “children,” but we impose no survivorship
requirement. In other words, we treat the class gift to children in the same way we
 would treat a gift to three individual children: the three children have an indefeasibly
vested interest as soon as their mother dies. As a result, B and C each take one-third
of the trust principal; E and Valparaiso share the final third.
● 2.“Children” means “children,” but we impose a survivorship requirement. Since A
did not survive H, she did not qualify to take as a child. B and C share the trust
principal.
● UPC: 3.“Children” really means “issue.” Therefore, A’s child steps into A’s shoes
and takes A’s share. The trust principal is divided equally among B, C, and A’s child.
○ UPC: SURVIVE LANGUAGE NOT ENOUGH to displace UPC
■ Need to make alternative
■ Drafting problem:
● Avoid single generation class gift
● Use “Issue”
■ Usry v. Farr (Rule: In light of the preference for early vesting of a remainder interest,
language that imposes a survivorship requirement on the remainder must be clear and
unambiguous)
● COMMON LAW 1.“Children” means “children,” but we impose no survivorship
requirement.
■ Matter of Marine Midland Bank, N.A. (Holding: A testator’s intent regarding members of a
class of beneficiaries is ascertained from the words used in the will according to their
everyday and ordinary meanings)
● Elective Share
○ Elective share” statutes, which permitted the surviving spouse to elect to take a statutory percentage
(generally one-third) of the decedent spouse’s probate estate even if the decedent spouse had tried to
limit the surviving spouse to a smaller share.
○ Sullivan v. Burkin Wife
■ NEW RULE: A decedent’s estate includes assets held in an inter vivos trust created and
controlled by the decedent during his or her lifetime (The settlor gave himself general power
of appointment -- he reserved the right to dispose of the property as the settlor wished). The
assets were effectively his assets.
● The court did not set aside trust itself
○ Modern Elective Statute
ABSOLUTE GIFTS ARE INCLUDED ONLY IF THEY ARE ABOVE GIFT TAX EXCLUSION (15,000 per
year)
■ New York
● Notice
○ Although the elective share is smaller than the UPC, the surviving spouse
assets do not count
● Steps:
○ Step 1: Compute The Value Of The Decedent’s Estate 5-1.1-a(A)(1)
■ Include...decedent’s probate estate
■ Decedent’s “testamentary substitutes” 5-1.1-A (b)
● Any gifts made within one year of death
● Totten Trust (b)(1)(C)
 ● Joint Accounts
○ How much of property was provided by decedent -
that is the part that gets included
● Joint Tenancy: (b)(1)(E) & (b)(2)
○ How much of property was provided by decedent
(50%?) - that is the part that gets included
● Trust:
○ (1) where decedent had life interest even if
irrevocable (b)(1)(F)(i)
○ (2) Power to revoke
● Retirement plan
● Any interest in which the descendant has a presently
exercisable power of appointment
● NOT INCLUDED: Life insurance
○ STEP 2: COMPUTE ELECTIVE SHARE5-1.1-A(a)(2)
■ Elective share is ...1/3 or $50,000, whichever is greater.
○ STEP 3: SATISFY THE ELECTIVE SHARE5-1.1-A(a)(4)
■ 1. Absolute amounts due surviving spouse from probate estate.
■ 2. Absolute amounts due surviving spouse from decedent’s spouse
testamentary substitutes
■ 3. From non-probate transfer to surviving spouse
● Joint tenancy
■ Note:
● Interest in Trust
○ Does Not Count against the husband’s share
○ But if the spouse decides to elect, they would have
to disclaim interest in the trust
○ STEP 3: SATISFY THE ELECTIVE SHARE5-1.1-A(a)(4)
■ 1. Absolute amounts due surviving spouse from probate estate.
■ 2. Absolute amounts due surviving spouse from decedent’s spouse
testamentary substitutes
■ If sum of 1 + 2 > elective share amount: no right to elect additional
assets
○ STEP 3: SATISFY THE ELECTIVE SHARE5-1.1-A(a)(4)
■ 1. Absolute amounts due surviving spouse from probate estate.
■ 2. Absolute amounts due surviving spouse from decedent’s spouse
testamentary substitutesIf sum of 1 + 2 < elective share amount:
right to elect
■ UPC
● (1) Marriage is a partnership
○ However, marriage is not a complete partnership until marriage last more
than 15 years
■ In marriage of 15 years of longer, each spouse owns 50% of the
marital assets
● Steps
○ Step 1: Compute the value of the augmented estate:
■ 2-204: decedent’s probate estate
■ 2-205: decedent’s nonprobate transfers to others (not to surviving
spouse)
● (1) Property Owned In Substance by Decedent
○ Presently Exercisable Power of Appointment
■ Decedent dies not having exercised POA,
treat that property as substitute for will and
gets included as property own in substance
○ Decedent’s Interest in Joint Tenancy or Joint
Account (JUST THEIR PORTION)
○ Life Insurance Policies Owned by Decedent
○ Property subject to payable upon death
■ Totten Trust
○ A retirement account in which the decedent is free to
change the beneficiaries
● (2) Property Transferred During Marriage
○ AKA TRUST
■ (1) In which decedent held a life interest
■ (2) Over which decedent created a general
Power of Appointment in himself (even if
power of appointment not exercised and
even if trustee created an irrevocable trust in
which he leaves a remainder interest after
his life time in others)
● (3) Outright Gifts within Two Years of Death
■ 2-206: decedent’s nonprobate transfers to surviving spouse
● (same as above)
○ Includes life insure got from deceased spouse
○ Includes just portion transfered of house by tenant of
the entirety
■ 2-207: surviving spouse’s property and non-probate transfers to
others.
● Includes portion of joint tenancy
○ Step 2: Compute The Value Of The Marital Property Portion Of The
Augmented Estate 2-203 (b)
■ Number from step 1 X % = Marital Property Portion

■ Less than 1 year ....................................................... 3%

■ 1 year but less than 2 .............................................. 6%
■ 2 years but less than 3 ........................................... 12%
■ 3 years but less than 4 ........................................... 18%
■ 4 years but less than 5 .......................................... 24%
■ 5 years but less than 6 .......................................... 30%
 ■ 6 years but less than 7 .......................................... 36%
■ 7 years but less than 8 .......................................... 42%
■ 8 years but less than 9 .......................................... 48%
■ 9 years but less than 10 ......................................... 54%
■ 10 years but less than 11 ......................................... 60%
■ 11 years but less than 12 ..........................................68%
■ 12 years but less than 13 ..........................................76%
■ 13 years but less than 14 ..........................................84%
■ 14 years but less than 15 ..........................................92%
■ 15 years or more ........................................................100%
○ Step 3: Compute The “Elective Share Amount” 2-202(a):
■ ELECTIVE SHARE AMOUNT = 50% of marital property portion
of augmented estate
■ Number from step 2 divided by 2
○ Step 4: Satisfy The Elective Share
■ 2-209(a)(1): Apply amounts spouse is already entitled to receive:
● From intestacy distribution, if any;
● From the will, if any;
Interest in Trust
● Does Not Count against the husband’s share
● But if the spouse decides to elect,
they would have to
Disclaim interest in the trust
● From non-probate transfers by deceased spouse to the
surviving spouse (2-206)
○ Includes joint tenancy portion
○ Includes life insurance
■ 2-209(a)(2): Apply the marital-property portion of surviving
spouse’s assets (under section 2-207).
● Includes his own interest in a house (joint tenancy)
■ If the combined value of these amounts is > the elective-share
amount, STOP(unless the surviving spouse is entitled to a
supplemental elective share amount under Section 2-202(b)).
■ If the combined value of these amounts is < the elective-share
amount . . .the surviving spouse is entitled to contribution from other
beneficiaries of -- probate assets, and -- decedent’s non-probate
transfers to others under 2-205(1), (2), and (3)(B).
● -- contribution is made proportionately
● -- DOES NOT INCLUDE OUT - RIGHT GIFTS
■ If the elective share amount is still unsatisfied, the surviving spouse
is entitled to contribution from beneficiaries of decedent’s remaining
non-probate transfers to others.
● -- contribution is made proportionately
● Includes outright gifts
● WAIVERS
 ○ Geddings v. Geddings
■ Rule: The right of a surviving spouse to elect against his or her spouse’s estate may be
waived by a written contract after disclosure of the other spouse’s assets
● Mrs. Geddings did not have own lawyer when she waived. This probably matters in
holding that the waiver was invalid.
○ Section 2–213.Waiver of Right to Elect and of Other Rights
■ The UPC does not require fair disclosure assets.
● Causes to much litigation about what continents full and fair disclosure
■ A surviving spouse’s waiver is not enforceable if the surviving spouse proves that:
● (1)he [or she] did not execute the waiver voluntarily; or
● (2)the waiver was unconscionable when it was executed and, before execution of the
waiver, he [or she]:
○ (A)was not provided a fair and reasonable disclosure of the property or
financial obligations of the decedent;
○ (B)did not voluntarily and expressly waive, in writing, any right to disclosure
of the property or financial obligations of the decedent beyond the disclosure
provided; and
○ (C)did not have, or reasonably could not have had, an adequate knowledge of
the property or financial obligations of the decedent.
● Inadvertent Disinheritance
○ Protection Against Inadvertent Disinheritance: The Problem of the Pre-Marital
■ Introduction
● Legislation embodies three different approaches to this problem.
○ (1) In a few states, legislatures have assumed that testators who
fail to change their pre-marital wills do so inadvertently. Statutes
in those states provide that marriage automatically revokes a pre-
marital will. As a result, decedent dies intestate, and the
surviving spouse takes his intestate share.
○ (2) Many state deal with the problem by saying we have an
elective share in place
○ (3) UPC Section 2–301: Limited revocation of will
■ Prestie v. Prestie Pour Over will
● Statute:
○ Nevada law provides that if a person marries after making a will
and the spouse survives the maker, the will is revoked as to that
spouse (spouse can take her intestate share, the rest of the will
proceeds) unless they entered into a marriage contract, or the
will specifically provides for the spouse or indicates an intent not
to provide for the spouse, and no evidence to rebut the
presumption of revocation is received.
● Rule: An amendment to an inter vivos trust (in which spouse is provided
for) does not rebut the presumption of a will’s revocation as to an
unintentionally omitted spouse.
■ UPC Section 2–301
 ● (1) Figure out balance of testator's estate is
○ The estate is reduced by the amount given to issue/children VIA
WILL (does not say anything about trusts).
● (2) The UPC gives to the surviving spouse an instate share to remainder
of testator’s estate
● Exceptions:
○ Was will made in contemplation of marriage?
○ Protection of Children: Pretermitted Child Statutes
■ Protection of all Children not named in will - only oklahoma
● Estate of Glomset OKLAHOMA
○ Rule: A child who was omitted from his or her parent’s will is
allowed to take the same share he or she would have had if the
parent died intestate, unless the failure to include the child was
intentional.
■ Protection for Children born after the execution of the will NY and UPC
● UPC Section 2–302. Omitted Children
○ (a)(1) If the testor had no children living at the time he executed
will
■ Forgotten child gets intestate share
● Unless
○ unless the will devised all or
substantially all of the estate to the other
parent of the omitted child and that other
parent survives the testator and is
entitled to take under the will.
○ (a)(2) If the testor had children living at the time he executed
will
■ The POOL
● Forgotten child share comes from out of the
share testator left to other children
■ Out of the pool Forgotten child takes like if testator had
the pool into equal parts as if he had children
■ What happens to remaining children?
● Abate ratably (proportionately)

● Other Non-Probate Assets

○ IRA or 401K account are contract assets not probate assets
■ Distribution of assets is governed by contact/forms
● IRA form does not have anti lapse provision, (divide non-surviving beneficiary share
among other beneficiaries proportionately)
○ UPC section 2–706, which applies to life insurance, retirement plans, and accounts with P.O.D. and
T.O.D. designations, includes provisions analogous to those in the antilapse statute.
■ Section 2–706 creates substitute gifts for issue of deceased beneficiaries only when the
dispositive instrument does not create an alternative beneficiary designation.
 ○ P.O.D. Account
■ Araiza v. Younkin
● The issue in Araiza was whether a revocable trust would effectively revoke a Totten
Trust designation (yes)
● In California (unlike jurisdictions adopting the Uniform Trust Code), a will cannot
revoke a revocable trust unless the revocable trust expressly authorizes revocation by
will. Cal. Prob. Code § 15401(a).
○ If we allowed a will to revoke the designations in a bank account, then bank
is potentially liable if make payment to designated beneficiary
● In New York, by statute, an explicit provision in decedent’s will overrides a
beneficiary designation. N.Y. EPTL§ 7–5.2(2).
○ In NY - bank is isolated from liability if it pays money out
○ Retirement Accounts
■ Nunnenman v. Estate of Grubbs (Nunnenman takes as opposed to Mother because Will did
not mention IRA. The takeaway is that IN ARKANSA --- IRA can be changed by will as
long as the language of the will is sufficient to identify their and the intent to change the
beneficiary.
■ Kennedy v. Plan Administrator for DuPont Savings and Investment Plan (Ex Wife, who
waiver rights, gets money under SIP an ERISA plan because designation was never changed.
Although a waiver of ERISA benefits in a divorce decree is not rendered invalid by ERISA’s
anti-alienation provision, a plan administrator has the duty to act in accordance with the
documents and instruments that control the transaction.)
○ EIRISA
■ Employer-sponsored retirement accounts and many employer-sponsored life insurance
policies are governed by ERISA, a federal statute, which pre-empts any contrary state law.
The Supreme Court has read ERISA to require distribution of account assets in accordance
with the beneficiary designation, even if state law would provide a different distribution.
■ 401k is governed by ERISA
■ BENEFICIARY DESIGNATION CONTROLS NO MATTER WHAT
● Preempts everything even UPC
● Creditors Rights
○ Depends on kind of trust
■ (1) Mandatory Right to Income
● The rule that allows creditors to attach the debtor beneficiary’s interest in mandatory
distributions exists in almost all states. See UTC § 501
○ A trust creditor can generally attach the beneficiary’s interest in the hands of
the trustee, requiring the trustee to make the mandatory payments to the
creditor instead of the trust beneficiary.
■ (2) Support Trust
● Under the law of any state, then, a support trust provides a beneficiary with
substantial protection against creditor claims. In all states, only providers of
necessaries can attach trust assets.
 ○ EX: Creditor could compel payments from trustee for rent, however if not a
provider of necessaries, the creditor does not have a right to attach the
beneficiaries interest in the trust
● In UTC states, even providers of necessaries have no legal right to compel a reluctant
trustee to pay a debt.
■ (3) The Trust Instrument confers on the trustee discretion to distribute as much income and
principal as the trustee deems appropriate.
● Note: There is no way to compel the trustee to make payments to the credit card
company.
● Can the credit card company garnish the beneficiaries interest in the hands of the
trustee?
○ Yes:
■ The trustee has 2 choices
● Pay the credit card
○ The credit card company cannot make payments to
the beneficiary without first satisfying the debt to
credit card company
■ Or do not make payments
● UTC silent on this issue
○ Spendthrift Clause
■ Normal Spendthrift Clause
● Spendthrift provisions are valid only if they prevent both voluntary assignments and
involuntary garnishment by the beneficiary’s creditors. See UTC § 502(a)
● In virtually every jurisdiction need language like ( The interests of my trust
beneficiary, whether in trust income or trust principal, shall not be capable of
assignment, anticipation, or seizure by legal process.”) in order to create a spendthrift
trust.
○ EXCEPTION: NY --- The default rule is that every trust is spendthrift
■ Limits on Spendthrift Clause
● In virtually every jurisdiction, the beneficiary of a spendthrift trust cannot avoid child
support and spousal support obligations
●
■ Self-Settled Spendthrift Clause
● The settlor creates a trust for his or her own benefit
● Creditors’ Rights in Self-Settled Trusts, Including Offshore and Domestic Asset
Protection Trusts
● Uniform Trust Code: Section 505.Creditor’s Claim Against Settlor
○ (a) Whether or not the terms of a trust contain a spendthrift provision, the
following rules apply:
■ (1) During the lifetime of the settlor, the property of a revocable
trust is subject to claims of the settlor’s creditors.
■ (2) With respect to an irrevocable trust, a creditor or assignee of the
settlor may reach the maximum amount that can be distributed to or
for the settlor’s benefit. If a trust has more than one settlor, the
 amount the creditor or assignee of a particular settlor may reach may
not exceed the settlor’s interest in the portion of the trust attributable
to that settlor’s contribution.

● Incapacity
○ What does Alice need to prove to get the conservator appointed?
■ UPC Section 5–401.Protective Proceeding
● Upon petition and after notice and hearing, the court may appoint a limited or unlimited
conservator or make any other protective order provided in this part in relation to the estate
and affairs of:
○ (1)a minor, if the court determines that the minor owns money or property requiring
management or protection that cannot otherwise be provided or has or may have
business affairs that may be put at risk or prevented because of the minor’s age, or
that money is needed for support and education and that protection is necessary or
desirable to obtain or provide money; or
○ (2)any individual, including a minor, if the court determines that, for reasons other
than age:
■ (A)by clear and convincing evidence, the individual is unable to manage
property and business affairs because of an impairment in the ability to
receive and evaluate information or make decisions, even with the use of
appropriate technological assistance, or because the individual is missing,
detained, or unable to return to the United States; and
■ (B)by a preponderance of evidence, the individual has property that will
be wasted or dissipated unless management is provided or money is needed
for the support, care, education, health, and welfare of the individual or of
individuals who are entitled to the individual’s support and that protection is
necessary or desirable to obtain or provide money.
■ In re Maher (Rule: Incapacity requires a showing that a person is likely to suffer harm
because he is unable to manage his property and cannot adequately understand and appreciate
the nature and consequences of such inability)
● Holding: Maher not incapacitated. Here, the evidence demonstrates only that Maher
suffers certain limitations in speaking and writing, but none from which he will likely
suffer financial harm due to the inability to manage his affairs.
● Note: Maher execute power of attorney - so less likely to need conservatorship
■ GRANDFATHER WILL PRESENT DURING PROCEEDING
● Court may appoint someone to represent grandfather’s interest
○ Power of Attorney
■ The power of attorney is operative as soon as it is executed.
■ Can have multiple power of attorney (but bad idea)
■ Who owns the principal’s property?
● It it still the principle property
○ So settlor can also continue to act
■ How long does the power of attorney lasts?
● It DOES NOT last past death of settlor
● Durable power of attorney
 ○ One the settlor loses capacity - a settlor can no longer revoke the power of
attorney
○ UPA - creates a presumption of durable power of attorney
● NonDurable power of attorney
○ Power expires at time of incapacity
■ Form
●Pg 1079 -1080
○ General Power
■ All power for decedent's benefit
■ These powers do not give to the power of attorney the power to alter
beneficiaries of the properties that would otherwise flow to decedent
○ Specific Power
■ Grants additional authority
■ Estate of Huston
● Facts: With Huston’s consent, Amberg (P) purchased under power of attorney an
annuity in Huston’s name, naming Amberg (P) as annuitant and Huston’s estate as
beneficiaries in the event of Huston’s death.
● Holding: The gift of condominium is void because it was not in writing (language
that give you power to make gifts to yourself)
● Rule: A power of attorney is a written authorization to an agent to perform specified
acts on behalf of the principal.
● Lawsuit for Lawyers
○ Rules of Ethics
■ Rule 1.6 Confidentiality
○ Brining a suit
■ Barcelo v. Eliott BENEFICIARIES CANNOT BRING CLAIM - PRIVITY RULE
● Rule: An attorney owes no duty to the beneficiaries of a will or trust that could give
rise to malpractice liability.
■ Who can bring suit?
● The executor (in privity with the decedent) can bring any claims that are available to
the decedent. BUT the executor can only bring claims that result from harm to the
estate (makes estate size smaller)
● Note in Barcelo, the executor could not have brought an action because no reduction
in the size of estate as the result of the alleged malpractice
● Privity Rule - Beneficiaries cannot bring claim
○ (New York takes this position)
■ Other approaches to Privity (Barcelo Dissenting Justice)
● Justice Cornyn
○ Any intended beneficiary should be granted a cause of action.
● Justice Spector
○ A limited cause of action should be recognized for the intended beneficiaries
of wills and trusts, but a broad cause of action in favor of those not named in
a will or trust agreement is likely to frustrate the intention of the testator.