Wills Trusts Estates

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Wills Trusts Estates - WTE Outline
Wills Trusts Estates (American University (USA))
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CLASS 1: 1-46
Will drafting exercise: October

Exam: Tuesday, December 10 at 2 pm
Calculator, textbook, and printed notes
Donative intent: who are you required to leave assets to?

- Your current spouse?
- The only person you cannot disinherit
- No obligation to leave assets to anyone else, just spouse
- Can be waived by a pre-nup/post-nup
- Spouse doesn’t have to take it, it’s their right
- Regardless of what will says, spouse still can say something and get it
- Anyone you owe money to?
- Creditors
- Probate process
Michael Jackson’s Will

- Wallace doesn’t like co-executors because it’s burdensome, but it probably makes sense
here
- Who’s getting what in that will?
- Went out of his way to say he wasn’t giving anything to his ex-wife
- Everything goes to the trust
- Not to the heirs
- Pour-over will--pours into the trust
- Dispositive in this case, because it’ll tell us who actually gets the assets
- Katherine Jackson is the guardian post Michael’s death, and if she can’t do it, Diana
Ross was nominated to do it
Wills become public records after death

- Trusts don’t become part of the public record
You don’t have to get permission to name someone as the guardian in a will
- Automatic appointment
Goals of Probate:
- Providing the will or establishing the decedent died intestte
- Gathering assets and managing until distributed
-
Introduction to Estate Planning and the Lawyer’s Roles

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A. General Intro
Early laws on the transmission of property at death were focused on formalistic requirements,
such as the rule that there be three witnesses in order for a will to be valid. They were also
characterized by a single-minded focus on wills as the only means by which an individual could
indicate how property should be distributed post-death.
Over the past 50 years, there have been dramatic changes in trusts and estates law.
● The laws of the 50 states are becoming more similar as a result of the efforts of both the
Uniform Law Commission (ULC), with its drafting of the Uniform Probate Code (UPC),
the Uniform Trust Code (UTC) and other laws, as well as the American Law Institute
(ALI) with its Restatements of Trusts and Wills and Donative Transfers.
● Estate planning now typically involves the use of instruments in addition to wills. Trusts
and beneficiary designation forms for life insurance and retirement plans are commonly
used to convey property at death outside of the traditional probate process.
● Medical directives and various forms of powers of attorney that allow individuals to make
advance arrangements for their incapacity have gained widespread legal and popular
acceptance.
● The judicial process for probating wills or administering estates has been vastly
simplified.
One core principle that has resisted change, however, is the significance of freedom of donative
intent, sometimes known as freedom of testation. The dominant norm in American trusts and
estates law has always been to allow property owners to do what they want with their property,
during life and at death. This norm has been—and continues to be—subject to relatively few
limitations. Property owners can:
● make present or future gifts,
● transfer their property in trust to benefit someone else (or even themselves),
● place restrictions on property they own, share their interests with other owners,
● and decide, upon death, who will own their property without the necessity of benefiting
anyone in particular.
This respect for freedom of donative intent manifests itself most clearly in the general principle
that a will or other “governing instrument” (a term defined in Appendix A) dictates outcomes
even if the choices made by the testator seem unfair. However, as you will see, even this
bedrock principle is in a state of transition because of changing cultural norms concerning
protection of dependent family members and various other public policy matters.
The respect for donative intent applies even when there is no explicit direction from the
decedent, such as when there is no written document or an estate planner failed to adequately
consider various contingencies when drafting documents. In these situations, state laws provide
a set of default rules designed to approximate what the decedent would have wanted. The
ultimate default rules are intestacy rules, establishing who gets the entire probate estate when
an individual dies without a will.

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B. The Legal System Governing Trusts and Estates
Questions
1. Look at the UPC definitions and the Glossary in Appendices A and B at the end
of this chapter. These are some of the essential terms that we will discuss
throughout the course. Which definitions are different from what you had
assumed they would be?
I’ve never heard of the word Ward before so I suppose that’s surprising in its own
way. Same goes for remainderman.
2. The guiding principle in estate planning and estate administration is effectuating

the transferor’s intent. UPC §1-102(b)(2) (“The underlying purposes and policies
of this Code are . . . to discover and make effective the intent of a decedent in
distribution of his property . . . ”). This requires that you fully understand the
client’s wishes when you are drafting the plan. Likewise, if litigation ensues, the
parties and the court must be able to interpret the property-devising document,
so the lawyer must draft the terms carefully. Consider how much advice and
counseling a lawyer should offer.
3. Call your parents or grandparents! Seriously. (They’ll love to hear from you.)
Have they written a will or created a trust? Have they done any planning in case
they have health problems or become disabled and cannot make financial or
medical decisions for themselves, such as having drafted a living will or durable
powers of attorney? Have you?
Nana, yes. Uncle Jessie, yes. Aunt Cathy, yes. My mother, no.
1. Wills
A will is a unilateral written disposition of property to take effect upon death. A will may
also nominate guardians, executors, and trustees, those individuals (or entities)—at
least to a certain extent—who perpetuate the legal existence of the testator.
The spoken, confessional nature has shaped our notions of the function of wills and left
a lasting mark on the written document. For example, the law of succession centers on
the individual, acknowledging the importance of the testator’s intent
2. The Emergence of Will Substitutes

Only property that is owned by the decedent at death is included in the probate estate
and disposed of by will or, in the absence of a will, through intestacy. Will substitutes can
dispose of either property or contractual rights have the effect of removing property from
the probate estate.
Will substitutes are established while the donor is still living, and they effectively “[shift]

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the right to possession or enjoyment of the property or to a contractual payment outside

of probate to the donee at the donor’s death; [while] . . . substantial lifetime rights of
dominion, control, possession, or enjoyment are retained by the donor.”
John Langbein, The Nonprobate Revolution and the Future of the Law of Succession
Institutions that administer noncourt modes of transfer are displacing the probate
system. Life insurance companies, pension plan operators, commercial banks, savings
banks, investment companies, brokerage houses, stock transfer agents, and a variety of
other financial intermediaries are functioning as free-market competitors of the probate
system and enabling property to pass on death without probate and without will. The law
of wills and the rules of descent no longer govern succession to most of the property of
most decedents. Increasingly, probate bears to the actual practice of succession about
the relation that bankruptcy bears to enterprise: it is an indispensable institution, but
hardly one that everybody need use.
[pure will substitutes/mass will substitutes] Four main will substitutes constitute the core
of the nonprobate system: life insurance, pension accounts, joint accounts, and
revocable trusts. When properly created, each is functionally indistinguishable from a will
—each reserves to the owner complete lifetime dominion, including the power to name
and to change beneficiaries until death. They are marketed by financial intermediaries
using standard form instruments with fill-in-the-blank beneficiary designations.
[imperfect will substitutes] joint tenancies, which closely resemble completed lifetime
transfers.
The will substitutes differ from the ordinary “last will and testament” in three main ways.
● First, most will substitutes—but not all—are asset-specific: each deals with a
single type of property, be it life insurance proceeds, a bank balance, mutual fund
shares, or whatever.
● Second, property that passes through a will substitute avoids probate. A financial
intermediary ordinarily takes the place of the probate court in effecting the
transfer.
● Third, the formal requirements of the Wills Act—attestation and so forth—do not
govern will substitutes and are not complied with. Of these differences, only
probate avoidance is a significant advantage that transferors might consciously
seek.
Modern practice supplies only one theory that can reconcile wills and will substitutes in a
workable and honest manner: the rule of transferor’s intent. The transferor who takes no
steps to form or disclose his intent will be remitted to probate, the state system. The
transferor who elects to use any of the devices of the nonprobate system will be
protected in his decision, provided that the mode of nonprobate transfer is sufficiently
formal to meet the burden of proof on the question of intent to transfer.

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3. The Probate Process

Probate is the process by which property from the estate is distributed to the appropriate
recipients. A decedent’s probate estate is administered under local law, although the
assets are subject to federal taxation.
The probate estate comprises

(i) all property that is owned by the decedent at death where the beneficiary is
not already determined by a will substitute, and
(ii) “property acquired by the decedent’s estate at or after the decedent’s death.”
Paula Monopoli, American Probate: Protecting the Public, Improving the Process
A majority of states “have no formal probate court structure.” The essential cases in a
probate court’s jurisdiction are wills, testamentary trusts, and decedents’ estates. In the
[]1 states and the District of Columbia that have a formal probate court organization, the
courts hear wills, trusts, and estate cases. Seventeen of these and the District of
Columbia hear guardianship cases in these courts. In eleven of them and the District of
Columbia, the courts also hear conservatorship cases.
In addition to these basic duties, probate courts may hear cases as varied as involuntary
civil commitment, adoptions, divorce, name changes, fish and game law violations,
proceedings involving cemetery lots, and trusts related to community mausoleums. But
when average Americans think of probate, it is the wills, trusts and estate cases that
come to mind, and the oversight of decedents’ estates in particular.
The probate process is intended to perform several useful functions. An executor is

supposed to
1. collect or “marshal” all the decedent’s assets and detail them on a list or
“inventory”;
2. manage those assets during the several months or years it might take to
administer the estate;
3. pay all those to whom the decedent owed debts, including hospital, doctor, and
funeral bills and state and federal tax authorities; and
4. distribute what remains in the estate to the persons named in the will.
These important functions are performed by a “personal representative,” either an
“executor” or “administrator.” Most probate courts oblige the decedent by making the
person the decedent nominates the executor, but the court is not bound to do this. If
someone objects, or if the court has misgivings about the nominee’s ability to perform as
a fiduciary, the court can name someone else. However, they rarely do.
If [someone dies] without a will, she would have died “intestate.” In the event of
intestacy, the probate court names an “administrator” rather than an “executor,” usually a
spouse, child or relative of the decedent. If there are no such relatives, then a lawyer or
other court appointee will serve in this role. All fiduciaries must answer to the probate
court, and judicial oversight is one of the major benefits the probate process offers. The

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requirement to account to the court is supposed to keep the personal representative

honest in handling the decedent’s cash, stocks and bonds, real estate, jewelry, and other
valuable personal and real property.
In the American system, the government makes the first claim on its part of the estate,
while the family must be content to wait for what is left. When the Internal Revenue
Service has taken its share, it issues a “closing letter,” indicating that all tax liabilities
have been satisfied.
C. Testamentary Freedom and Limitations on “Control From the Grave”

Lee-ford Tritt, Sperms and Estates: An Unadulterated Functionally Based Approach to
Parent-Child Property Succession
The principle of testamentary freedom, the governing principle underlying American
estates law, provides that individuals have the freedom (or right) to control the
disposition of their property at death. From this follows the generally accepted principle
that “succession law should reflect the desires of the ‘typical person,’ both with regard to
protecting expressions of desire and anticipating situations where those expressions are
inadequately presented.”
Outside of the statutorily created limitations or where the testator’s plan promotes illegal
conduct, courts are hesitant to limit testamentary freedom, and some suggest that
testamentary freedom has expanded.

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Feinberg v. Feinberg
Feinberg, the next case, shows a court struggling with where to draw the lines
between following the testator’s intent and fairness. The case concerns
grandparents who sought to control the marital choices of their grandchildren
through various means of estate planning. The laws of both wills and trusts (like
that of contracts) will not enforce provisions that are contrary to public policy.
Facts: Max Feinberg died leaving behind wife Erla, children Michael and Leila, and 5
grandkids. Max executed a will and created a trust before death. Will said upon his
death, all assets were to pour over into the trust.
“Upon Erla’s death, any assets remaining in [the trust] were then to be distributed to
Max’s descendants in accordance with a provision we shall call the “beneficiary
restriction clause.” This clause directed that 50% of the assets be held in trust for the
benefit of the then-living descendants of Michael and Leila during their lifetimes. . . .
However, any such descendant who married outside the Jewish faith or whose non-
Jewish spouse did not convert to Judaism within one year of marriage would be
“deemed deceased for all purposes of this instrument as of the date of such marriage”
and that descendant’s share of the trust would revert to Michael or Leila”
All five grandchildren married between 1990 and 2001. By the time of Erla’s death in
2003, all five grandchildren had been married for more than one year. Only Leila’s son,
Jon, met the conditions of the beneficiary restriction clause and was entitled to receive [a
distribution from the trust]. This litigation followed, pitting Michael’s daughter, Michele,
against Michael, coexecutor of the estates of both Max and Erla.
Issue: whether the provision excluding grandchildren from the trust who married outside
the jewish face was contrary to public policy
Holding: no
- Under the Probate Act, Max and Erla had no obligation to make any provision at
all for their grandchildren.
- Similarly, under the Trusts and Trustees Act, “[a] person establishing a trust may
specify in the instrument the rights, powers, duties, limitations and immunities
applicable to the trustee, beneficiary and others and those provisions where not
otherwise contrary to law shall control, notwithstanding this Act.” Thus, the
legislature intended that the settlor of a trust have the freedom to direct his
bounty as he sees fit, even to the point of giving effect to a provision regarding
the rights of beneficiaries that might depart from the standard provisions of the
Act, unless “otherwise contrary to law.”
- There is no question that a grandparent in Max’s situation is entirely free during
his lifetime to attempt to influence his grandchildren to marry within his family’s
religious tradition, even by offering financial incentives to do so.
- Because a testator or the settlor of a trust is not a state actor, there are no

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constitutional dimensions to his choice of beneficiaries.

- Equal protection does not require that all children be treated equally; due
process does not require notice of conditions precedent to potential
beneficiaries; and,
- the free exercise clause does not require a grandparent to treat
grandchildren who reject his religious beliefs and customs in the same
manner as he treats those who conform to his traditions.
- Michele argues that the beneficiary restriction clause is capable of
exerting an ongoing “disruptive influence” upon marriage and is,
therefore, void. She is mistaken. The provision cannot “disrupt” an
existing marriage because once the beneficiary determination was made
at the time of Erla’s death, it created no incentive to divorce.
Spencer’s Outline
Feinberg v. Feinberg: Feinberg’s trust excluded any grandchild who married outside the Jewish
faith.
o Held: Trust did not violate public policy.
o Reasoning: Emphasized: (1) decedent’s broad testamentary freedom (2) provisions created
an incentive with respect to marriage, not divorce, (3) while Max’s original terms might have been
construed to make certain choices regarding marriage, Erla’s revisions determined eligibility upon
her death and absence of prospective application rendered the provision valid, and (4) while
enforcement of the restriction resulted in family strife, it was not so unreasonable as to violate
Public Policy.
Notes
1. What happens to a family after cases like Feinberg? If the court had decided that
the clause at issue was contrary to public policy, would that have led to “game
playing” by people who wished to discriminate among beneficiaries but felt they
could not do so forthrightly in the document?
2. Dead hand control and public policy.
D. The Professional Standards Associated with Estate Planning
a. F
b. Privity
States have developed different approaches to the issue of when a third party
can sue an attorney for malpractice. In the following case, a court considers
whether an attorney who did not ensure the completion of a new estate plan
before the decedent’s death was liable to one of the intended beneficiaries. The
case involves Carlyle Hall, who was appointed as the conservator for Alexandra
Turner. Conservators are appointed by a court to protect the interests of
someone who is legally incompetent.

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Hall v. Kalfayan
Facts: Hall formed the belief that Ms. Turner was in need of a conservatorship.
She exhibited signs of dementia. [Lawrence Kalfayan, who was appointed as the
attorney to represent Ms. Turner’s interests with respect to the conservatorship
petition, recommended] a conservatorship, with Hall as conservator.
Under the terms of the conservatorship, any change in Ms. Turner’s estate plan
required court approval.Z
According to Kalfayan, Ms. Turner “expressed her desire to leave ‘more than half’
of her estate to Carlyle Hall and ‘less than half’ of her estate to her niece, Priscilla
Waring. The expressions ‘more than half’ and ‘less than half’ were Ms. Turner’s
words.” Asked to be more specific about the meaning of those terms, “Ms. Turner
said ‘a little more’ to Mr. Hall and ‘a little less’ to Ms. Waring. She refused to
discuss specifics beyond that, and made it clear that was all she cared to discuss
about the matter.”
When Turner died, the estate had not been approved by the court and Hall got
nothing. Hall sued for malpractice alleging that Kalfayan’s failure to perform his
duties deprived Hall of the majority of Turner’s estate.
PH: Kalfayan’s summary judgment motion was premised on the lack of duty to
Hall. He asserted as an alternative theory that Hall could not establish that
Kalfayan’s alleged negligence was the proximate cause of Hall’s damages. The
court granted the motion on the ground that there was no legal duty.
Issue: whether Kalfayan owed any legal duty to Hall to properly excecute
Turner’s will.
Holding: No, no duty.

- the traditional rule was that an attorney could be held liable for
professional negligence only to his or her own client. But this strict privity
test was rejected in a trio of cases involving testamentary instruments.
- Biakanja v. Irving: The determination whether in a specific case
the defendant will be held liable to a third person not in privity is a
matter of policy and involves the balancing of various factors,
among which are:
- the extent to which the transaction was intended to affect
the plaintiff,
- the foreseeability of harm to him,
- the degree of certainty that the plaintiff suffered injury,
- the closeness of the connection between the defendant’s
conduct and the injury suffered,

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- the moral blame attached to the defendant’s conduct, and

- the policy of preventing future harm.
- Lucas v. Hamm: added a factor^; whether the recognition of
liability to beneficiaries of wills negligently drawn by attorneys
would impose an undue burden on the profession.
- Although in some situations liability could be large and
unpredictable in amount, this is also true of an attorney’s
liability to his client.
- We are of the view that the extension of his liability to
beneficiaries injured by a negligently drawn will does not
place an undue burden on the profession, particularly
when we take into consideration that a contrary conclusion
would cause the innocent beneficiary to bear the loss.
- In these cases, the testamentary instrument had been executed; the
question was whether the will or trust had been negligently prepared so
as to frustrate the testator’s intent. But in cases where a potential
beneficiary seeks to recover for negligence where the will or trust has not
been executed, courts have refused to extend liability.
- Radovich v. Locke-Paddon: Although a potential testator may also
change his or her mind after a will is signed, we perceive
significantly stronger support for an inference of commitment in a
signature on testamentary documents than in a preliminary
direction to prepare such documents for signature. From a policy
standpoint, we must be sensitive to the potential for
misunderstanding and the difficulties of proof inherent in the fact
that disputes such as these will not arise until the decedent—the
only person who can say what he or she intended—has died.
Thus [w]e must as a policy matter insist on the clearest
manifestation of commitment the circumstances will permit.
-
We agree with the Radovich and [other] courts that there is a need for a clear delineation of an
attorney’s duty to nonclients. The essence of the claim in the case before this court is that
Kalfayan failed to complete the new estate plan for Ms. Turner and have it executed on her
behalf by her conservator before her death, thereby depriving Hall of his share of her estate. In
the absence of an executed (and in this instance, approved) testamentary document naming
Hall as a beneficiary, Hall is only a potential beneficiary. Kalfayan’s duty was to the
conservatorship on behalf of Ms. Turner; he did not owe Hall a duty of care with respect to the
preparation of an estate plan for Ms. Turner.
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Problems
Roberta Flick
1. Generally speaking, can she give varying amounts to her siblings, or must she give each
the same amount?
a. You can give different amounts
2. What if she wants to divide the money between Alex and Betty because?
a. Because they’ve been kind--that’s ok
b. Working low-paying jobs--fine
c. Religious differences--fine
d. KKK--not fine because the reasoning given is public policy cannot support
e. KKK, but requesting divorce--not fine
Dissatisfaction with the Attorney
Will contest--plaintiff trying to have all or part of the will declared invalid. Usually involves issues
of compliance with formalities, capacity, undue influence, fraud, duress, or will interpretation.
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CLASS 2
Chapter 2: Inheritance and Relationship
A. Introduction
Three types of statutes affect inheritance by family members.
1. First, each state has a default rule or set of “intestacy statutes” that governs who
is entitled to inherit from a decedent who dies without a will. These statutes
typically favor close family members over more distant relatives or non-relatives.
2. Second, each state has laws—”statutes of wills”—that allow citizens to opt out of
these default rules and draft a will. The will allows them to specify family
members as well as non-family individuals or organizations, for example, friends,
employees, and favorite charities, as the recipients of their property upon their
death.
3. Third, states provide “rules of construction” that help courts interpret those wills
and other instruments like trusts that transfer property gratuitously; these rules of
construction favor family members over others.
The question of who constitutes a “family member” is essentially a question of status.

American inheritance law is a status-based system. Certain people are entitled to inherit
from the decedent because they are connected by blood or legal recognition of their
status.
B. Who is a Child?
1. In General
With a few notable exceptions, behavior is not a significant factor in whether
someone may inherit. For example, whether a son will inherit from his mother
does not turn on whether he called her every Sunday or took care of her when
she became ill. Rather, it turns on his status as a biological or adopted child of
his mother.
We are family: the definition of parent and child for succession purposes
Purposes of Intestacy Statutes
● Drafters of intestacy statutes have considered decedent’s intent an
important, perhaps the most important, factor in creating patterns of
intestate distribution. Intestacy statutes assume that most decedents will
want property to go to “family.”
● Statutes provide financial and emotional support to surviving members
● Statutes serve as an expressive function in indicating society’s views as
to who “counts” as a family member
● The Uniform Parentage Act, approved by the Uniform Law Commission in
2000 and amended in 2002, sets forth rules for establishing the legal
parent-child relationship.
UPC Definition of a Child/Descendant/Issue
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(5) “Child” includes an individual entitled to take as a child under this Code by
intestate succession from the parent whose relationship is involved and excludes
a person who is only a stepchild, a foster child, a grandchild, or any more remote
descendant. . . .
(9) “Descendant” of an individual means all of his [or her] descendants of all
generations, with the relationship of parent and child at each generation being
determined by the definition of child and parent contained in this Code.
(24) “Issue” of an individual means descendant.
Note that the definition of “child” is limited to a person one step below the
decedent, while “descendant” is a multi-generational classification that
includes children, grandchildren, great-grandchildren, etc
To inherit from a parent as his or her child, a person must establish a parent-child
relationship. A child who is genetically related to the parent, who is legally adopted by
the parent, or whose parent has indicated his consent to be a parent to a child conceived
with reproductive technology, even if there is no genetic connection, can now establish
such a parent-child relationship.
The two UPC sections that follow illustrate why it is so important to be deemed a
descendant for purposes of inheritance, either because the decedent died intestate
(UPC §2-103) or because it is necessary to determine whether the child is a member of
a class to whom property was left in a will or trust (UPC §2-705).
UPC §2-103. Share of Heirs Other than Surviving Spouse.

Any part of the intestate estate not passing to a decedent’s surviving spouse
under Section 2-102, or the entire intestate estate if there is no surviving spouse,
passes in the following order to the individuals who survive the decedent:
(1) to the decedent’s descendants by representation; . . . [Emphasis added.]
UPC §2-705. Class Gifts Construed to Accord with Intestate Succession;

Exceptions.
(b) [Terms of Relationship.] A class gift [in a governing instrument] that uses a
term of relationship to identify the class members [such as “my children” or “my
descendants”] includes [those children or descendants determined] in
accordance with the rules for intestate succession regarding parent-child
relationships. [Emphasis added.]
….
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Posthumous Conception and Frozen Embryos

As UPA §204(a) provides, the law has traditionally presumed that a child who is
conceived before his father’s death and who is born within 300 days of that death will be
a child of that father for purposes of inheritance.
UPC §2-104(a)(2) provides that a child who is in gestation at the time of the parent’s
death and who survives 120 hours after birth is eligible to inherit from that parent.
UPC §2-120(k) was added in 2008 to broaden the definition of “in gestation” to include
ART [assisted reproductive tech] children in utero not later than 36 months or born not
later than 45 months after the parent’s death.
● The Comments explain that “[t]he 36-month period in subsection [(k)] is designed
to allow a surviving spouse or partner a period of grieving, time to make up his or
her mind about whether to go forward with assisted reproduction, and a
reasonable allowance for unsuccessful attempts to achieve a pregnancy. . . .
● Note also that [UPC] Section 3-703 gives the decedent’s personal representative
authority to take account of the possibility of posthumous conception in the timing
of the distribution of part or all of the estate.”
The status of posthumously conceived children affects their entitlement to Social

Security benefits. The United States Supreme Court has considered whether the plain
meaning of the Social Security Act allowed posthumously conceived children to qualify
or whether deference to state intestacy law is the appropriate approach.
Astrue v. Capato
Facts: Karen Capato married her husband Robert in 1999. Robert was diagnosed with
esophageal cancer and was told that his chemo could render him sterile. Before
undergoing chemo, Robert deposited his semen in a sperm bank, where it was frozen
and stored. His health deteriorating, he died in 2002. His will made no provision for
children conceived after Robert’s death even though the Capatos told their lawyer that
they wanted their future offspring to be on a par with existing children. 18 months after
Robert’s death, and after invitro fertilization using her husband’s frozen sperm, Karen
gave birth to twins.
Karen claimed survivors insurance benefits on behalf of the twins. The district court
affirmed the SSA’s denial of the application, having determined that the twins would
qualify for benefits only if they could inherit from the deceased wage earner under state
law. Under florida law, a child born posthumously may inherent only if conceived during
the decedent’s lifetime.
The third circuit reversed, concluding that the undisputed biological children of a
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deceased wage earner should qualify for survivors benefits regardless of any state
intestacy law.
Issue: whether an undisputed biological child of a deceased wage earner qualifies for
survivor benefits under the Social Security Act without regard to controlling state
intestacy law?
Holding: No--state law prevails

● An applicant for child benefits who does not meet [the] intestacy-law criterion
may nonetheless qualify for benefits under one of several other criteria the Act
prescribes.
○ First, an applicant who “is a son or daughter” of an insured individual, but
is not determined to be a “child” under the intestacy-law provision,
nevertheless ranks as a “child” if the insured and the other parent went
through a marriage ceremony that would have been valid but for certain
legal impediments.
○ Further, an applicant is deemed a “child” if, before death, the insured
acknowledged in writing that the applicant is his or her son or daughter, or
if the insured had been decreed by a court to be the father or mother of
the applicant, or had been ordered to pay child support.
○ In addition, an applicant may gain “child” status upon proof that the
insured individual was the applicant’s parent and “was living with or
contributing to the support of the applicant” when the insured individual
died.
● [T]he SSA finds a key textual cue in §416(h)(2)(A)’s opening instruction: “In
determining whether an applicant is the child . . . of [an] insured individual for
purposes of this subchapter,” the Commissioner shall apply state intestacy law.
○ Reference to state law to determine an applicant’s status as a “child” is
anything but anomalous. Quite the opposite. The Act commonly refers to
state law on matters of family status. For example, the Act initially defines
“wife” as “the wife of an [insured] individual,” if certain conditions are
satisfied. . . . Section 416(h)(1)(A) directs that, “for purposes of this
subchapter,” the law of the insured’s domicile determines whether “[the]
applicant and [the] insured individual were validly married,” and if they
were not, whether the applicant would nevertheless have “the same
status” as a wife under the State’s intestacy law. (Emphasis added.) The
Act similarly defines the terms “widow,” “husband,” and “widower.”
○ All wife, widow, child, and parent applicants thus had to satisfy the same
criterion. To be sure, children born during their parents’ marriage would
have readily qualified under the 1939 formulation because of their
eligibility to inherit under state law.
○ But requiring all “child” applicants to qualify under state intestacy law
installed a simple test, one that ensured benefits for persons plainly within
the legislators’ contemplation, while avoiding congressional entanglement
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in the traditional state-law realm of family relations.

● The law Congress enacted calls for resolution of Karen Capato’s application for
child’s insurance benefits by reference to state intestacy law.
Quimbee
Astrue v. Capato
United States Supreme Court
132 S. Ct. 2021 (2012)
Rule of Law
A child is entitled to survivors insurance benefits under the Social Security Act, 42 U.S.C.
§ 301 et seq., only if the child could inherit from the decedent under state intestacy law.
Facts
After Robert Capato was diagnosed with cancer, he deposited sperm in a sperm bank
because chemotherapy could cause sterility. Despite his treatment, Robert’s wife, Karen
Capato (plaintiff), became pregnant naturally and gave birth to the couple’s son. Robert
died in Florida soon afterward. Robert’s will, which was executed in Florida, named his
son as a beneficiary. The Capatos had informed their attorney that they wanted any
future children to be treated equitably with their son, but Robert’s will included no
provisions regarding children conceived posthumously. After Robert’s death, Karen
conceived and bore twins through in vitro fertilization using Robert’s sperm. Karen
applied to the Social Security Administration (SSA) (defendant) for survivors insurance
benefits on the twins’ behalf. The SSA denied her claim on the ground that the Social
Security Act (the Act), [42 U.S.C. § 301 et seq.], authorized benefits only if state
intestacy law would allow the children to inherit from the decedent; [because Florida law
disallowed posthumously conceived children from inheriting unless the decedent’s will
provided for such children], the twins were barred from receiving SSA benefits. The
United States District Court for the District of New Jersey affirmed. On appeal, the
United States Court of Appeals for the Third Circuit interpreted the Act differently,
concluding that state intestacy law was irrelevant if the children were biological and
legitimate. Because the twins were the biological children of married parents, the Third
Circuit reversed. The United States Supreme Court granted the SSA’s petition for
certiorari.
Issue
Is a legitimate, biological child entitled to survivors insurance benefits under the Social
Security Act, 42 U.S.C. § 301 et seq., regardless of whether the child could inherit from
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the decedent under state intestacy law?
Holding and Reasoning (Ginsburg, J.)

No. The Capato twins may not claim survivors insurance benefits under the Social
Security Act, because they are not entitled to inherit from Robert Capato under Florida
law. The Act allows a child to receive benefits upon the death of an insured parent. This
case requires the Court to resolve a conflict in the definition of “child” under the Act.
Section 416(e) tautologically defines “child” as a “child . . . of an individual.” Section
416(h)(2)(A), which comes under the heading: “Determination of family status,” states
that the SSA must apply the intestacy law of the state where the decedent was domiciled
in order to determine whether an applicant for benefits is a “child . . . of [an] insured
individual for purposes of this subchapter.” This Court agrees with the SSA that § 416(h)
(2)(A) governs the meaning of “child” under § 416(e). First, § 416(h)(2)(A) expressly
states that the provision applies “for purposes of this subchapter,” which includes §
416(e). Second, earlier versions of the Act defined “child” in reference to state law. Third,
the incorporation of state law in § 416(h)(2)(A) supports the underlying purpose behind
providing survivors benefits: If a child is entitled to inherit under state intestacy law, the
child is likely to have been dependent on the parent who died. Fourth, the Act similarly
defines “wife,” “husband,” “widow,” and “widower” in reference to state law. Contrary to
the position of the Third Circuit, § 416(h) does not suggest that the incorporation of state
law applies only to children who are not biological and legitimate. Furthermore, nothing
in § 416(e) implies that “child” means a biological, legitimate child. Thus, the decision of
the Third Circuit is reversed, and the case is remanded for further proceedings.
Notes:
1. As a result of Astrue v. Capato, a posthumously conceived child will only qualify
for Social Security benefits if the state in which his parent died domiciled has
recognized that children conceived and born after their parent’s death are eligible
to inherit from that parent.
2. Posthumous Consent?
3. The most difficult problem in drafting statutes governing posthumous children
and inheritance is balancing how long the estate will be left open for those
children to come to fruition. The goal of efficiency, timely payment of creditors,
and distribution to beneficiaries may conflict with the goal of providing that a
genetic child of the decedent be treated as her child for purposes of inheritance
Problems:
Dietrich and Gretchen were married in a valid marriage ceremony seven years ago and
they are domiciled in a UPC state. Dietrich died on August 21 of last year. At Dietrich’s
death, Gretchen was pregnant with Carol, who was born on January 11 of the current
year.
Does Carol qualify as a “child” of Dietrich for purposes of intestacy?
Yes, UPC allows this because she was in gestation at the time of death
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What if two years after Dietrich’s death, Gretchen became pregnant using his
sperm, frozen before his death? Carol was born two years and nine months after
Dietrich’s death.
Yes, under UPC §2-120(k). 24+9 = 33 months. It’s a 36 month time frame.
Exercise ???
Abdul leaves $100,000 to all the children of his sister Alia. Alia’s children are to inherit
this $100,000 regardless of whether they are born after Abdul’s death.
e. Foster and Stepchildren

UPC §1-201(5) provides that foster children and stepchildren are generally not included
in the term “child” for purposes of intestacy or construction of wills and trusts.
● A foster child is a child who is unrelated to either a husband or a wife but for
whom they provide care, typically as the result of a formal placement by a state
social services agency.
● A stepchild is a spouse’s child from a prior marriage or relationship who was not
legally adopted by the stepparent.
In some states, stepchildren may be eventual takers in intestacy when no other heirs
exist. But even in those cases, they do not take as “children.” For example, before
allowing an estate to be paid over, or “escheat,” to the state, UPC §2-103(b) gives a
stepchild and the stepchild’s descendants an intestate share if there are no other blood
relatives of the decedent within the first three degrees of relationship.
3. Interpreting Class Gifts in Wills and Trusts

When a decedent dies with a will or trust the court must interpret an instrument rather than a
statute. Most states and the UPC apply the same rules regarding who is a child for purposes of
intestacy to wills and trusts, but there are some differences.
a. Class Gifts from Parents

When a parent uses terms like “child” or “issue” as part of a class gift in a will or other
governing instrument, like a trust, UPC §2-705(b) provides that the term shall be
interpreted using the same rules used to interpret those terms in the intestacy statutes.
Whether a child is a member of a class gift from a parent turns on the very specific
language used by the parent in his will or trust. If a parent uses a broad term of
relationship like “children” or “descendants” without further information, a nonmarital
child will be included in the class gift.
b. Exception--Class Gifts from Nonparents
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The symmetry in definitions for the terms “child,” “descendants,” or “issue” between
intestacy and instruments may not hold if the decedent is someone other than the
parent.
● For example, if a grandmother leaves a gift in her will to “my grandchildren,” or if
a sister leaves a gift to “the children of my brother Carlos,” special rules apply
with respect to determining the members of the class.
Marital children are automatically included in the class under the marital presumption.
However, nonmarital children and adoptees who were not adopted as minors may need
to meet certain additional requirements in order to be included in a class under the UPC.
And the UPC has clarified that even though death ends a marriage, a posthumous child
born to the decedent’s spouse is still considered a child of the marriage. UPC §2-701
UPC §2-705. Class Gifts Construed to Accord with Intestate Succession;

Exceptions.
(e) [Transferor Not Genetic Parent.] In construing a dispositive provision of a

transferor who is not the genetic parent, a child of a genetic parent is not
considered the child of the genetic parent unless the genetic parent, a relative of
the genetic parent, or the spouse or surviving spouse of the genetic parent or of
a relative of the genetic parent functioned as a parent of the child before the child
reached [18] years of age.
When Status Matters -Intestacy

- Spouse doesn’t always get everything
- Descendant =/= descendent
To resolve whether someone is a family member, multiple factors/questions to consider
Different Issues RE children:

- Establish status
- Marital v. non-marital children
- Natural versus adopted versus ART
- Child versus grandchild
- Step children
- Foster children
Definition of genetic parents

- Genetic testing is complicated
- Its expensive and time confusing
Uniform Parentage Act
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201
Mother-child relationship is established
Giving birth
Adjudication of maternity
Adoption
Adjudication of maternity when another gestational parent RE surrogate
Father child relationship

- Unrebutted presumption of the man’s paternity under S 204
- An effective acknowledgement of paternity unless it has been rescinded or challenged
- Adjudication
- Adoption
- Consent to ART
● Voluntarily acknowledging paternity in a signed record. See a birth certificate.

● An adjudication of paternity whether during probate, support or other proceedings
● Adoption
● Written consent or adjudicated determination of intent to be a father to a child conceived
via ART
Problem on 63
- Yes
- No
- Assuming the succession laws allow him to
- No, cut off ties with biological
- Mario and Inez and their parents
- If Sebastian is in the will of his genetic parents, then he can get assets
Parents not married. Child born 5 days after the death of her father. After child born, Mother left
child with paternal grandmother. Paternal grandmother adopts the child the following year. 6
months after adoption, paternal grandmother dies. Child then adopted by an unrelated family at
age 3. At age 21, child receives a bequest of 2000 from paternal grandmother. Child discovers
that father died intestate with an ongoing fortune.
- Based on Hank Williams
- One court decided that because she was adopted out of the family, no dice
- Another court found that the child’s rights were secured at the birth. Court found that
sister fraudulently didn’t acknowledge child. Court found in child’s favor, and child got
50%.
If Ivan died this year, may Zoltan inherit from his estate? yes
If Dori died this year, may Zoltan inherit from her estate? yes
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If Sasha’s mother died this year, may Zoltan inherit from her estate? yes
If Ivan’s father died this year, may Zoltan inherit from his estate? No, it goes to Ivan
Lydia and Maria have been married for five years. They visit a fertility clinic, where Lydia is
artificially inseminated with sperm stored at the fertility clinic and donated by an anonymous
sperm donor. Maria signed a form that indicated she consented to the artificial insemination of
her wife. Nine months later, Lydia gives birth to a little girl, Samantha. Who are Samantha’s
parents? Why?
- Lydia and Maria because of the marital presumption
Steve and Ramona have been married for five years. They have been unable to conceive a
child. They visit a fertility clinic, where Ramona is impregnated with an embryo that is the
product of an anonymous third-party egg donor and an anonymous third-party sperm donor. The
egg and sperm have been fertilized in the lab. Steve signed a form that indicated he consented
to the transfer of the resulting embryo into Ramona. Nine months later, Ramona gives birth to a
little girl, Lucy. Who are Lucy’s parents?
- Steve and Ramona
When can a parent inherit from child?

- Parent and other members (siblings) may inherit via intestacy from or through child
- True regardless whether marital or nonmarital in most states
- Statute provides an exception where parental rights were terminated
- More difficult for fathers than mothers esp when nonmarital
What would be the result if Dom and Xandra had a valid marriage ceremony 35 years ago?
spouse
What would be the result if Dom and Xandra went through a marriage ceremony 35 years ago
but, after Dom’s death, Xandra discovers he was never divorced from his first wife, Sara?
- Sara is legal spouse, Xandra is the putative spouse, court can allocate assets differently
Would Sara be entitled to anything from Dom’s estate? If so, how much?
What would be the result if Dom and Xandra lived in a state where common law marriage is
recognized and they meet the criteria for a common law marriage?
- If they acted with the intent of being a married couple, then yes
What would be the result if Dom and Xandra lived in a state where common law marriage is not
recognized?
a. If Dom and Xandra came to you for advice as their attorney under these circumstances,
what would you have advised them about how to ensure that Xandra would receive
Dom’s property at his death? -- a will/trust; or get married
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b. What other issues, in addition to inheritance, would you have advised them to plan for?
What would be the result if Dom and Xandra were legally married but had been separated for
five years at the time of Dom’s death?
-
What would be the result if Dom and Xandra were legally married for 32 of the last 35 years but
were divorced three years before Dom’s death?
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CLASS 3: Intestacy
Intestacy rules designed to presumed intent of the decedent. Based on only direct relationship--
not in behavior during lifetime, etc.
Only probate estate is at issue--

- Successful nonprobate transfers are disposed of according to the terms of the governing
instrument
- No premarital or marital agreements
A. Introduction
The “central goal” of intestacy statutes “is to approximate the donative intent of
decedents dying without wills.”
The Limitations of Intestate Succession—Not All Things to All People

- With the minor exception of stepchildren of a deceased spouse per UPC §2-
103(b), the only persons eligible to take under intestacy are spouses (including
domestic partners) and relatives by blood or adoption; friends and charities do
not take.
- Moreover, intestacy statutes generally give the decedent’s property to the family
members closest to the decedent, i.e., the decedent’s surviving spouse and
descendants, and only if none of them survive the decedent, to more distant
family members, such as siblings and their offspring.
- And, if a decedent has no relatives alive to inherit, the property will revert to the
state under “escheat.” UPC §1-201(2).
The Intestate Estate

- The intestacy laws apply only to probate property and then only to the extent a
will does not effectively dispose of that property.
- Property passing via a valid will or a will substitute, like a life insurance policy
naming an individual as the beneficiary, is not affected by intestacy rules.
Requirement of Survival
- Whether property is distributed by intestacy or by will, the heir or beneficiary must
survive the decedent in order to inherit. When a testator drafts a will, the number
of days that the person must survive is left to the testator, with 120 hours being
the default if the instrument is silent.
- However, since there is no will when someone dies intestate, the statute provides
a default rule. UPC §2-104 requires anyone taking by intestacy to survive the
decedent by at least 120 hours (the equivalent of five days).
B. Share for Surviving Spouse

1. Introduction and Share in Non-UPC States
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- Intestacy favors spouses and descendants

- Usually, spouses get some bite of the “probate estate apple” before
anyone else, even the decedent’s children and grandchildren. Whatever
is not given to the spouse “off the top” goes into the “intestate pot” for
sharing among descendants, ancestors, and/or more distant heirs.
- The amount spouses receive is different from state to state
2. The UPC Share for Surviving Spouses

- The current version of the UPC is far more complicated than the 1969
section, and several variables affect the amount the surviving spouse will
receive.
- The surviving spouse is entitled to differing amounts, depending on
whether the decedent was survived by parents, descendants who are
also issue of the surviving spouse, descendants who are not also issue of
the surviving spouse, and descendants of the surviving spouse who are
not also issue of the decedent.
UPC §2-102. Share of Spouse.

The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if:
(i) no descendant or parent of the decedent survives the
decedent; or
(ii) all of the decedent’s surviving descendants are also
descendants of the surviving spouse and there is no other
descendant of the surviving spouse who survives the decedent;
(2) the first $300,000 [+ COLA], plus three-fourths of any balance of the
intestate estate, if no descendant of the decedent survives the decedent,
but a parent of the decedent survives the decedent;
(3) the first $225,000 [+ COLA], plus one-half of any balance of the intestate
estate, if all of the decedent’s surviving descendants are also
descendants of the surviving spouse and the surviving spouse has one or
more surviving descendants who are not descendants of the decedent;
estate, if one or more of the decedent’s surviving descendants are not
descendants of the surviving spouse.
Decedent survived by spouse or spouse and “joint descendants”

UPC 2-102(1) gives the surviving spouse 100% of the decedent’s estate where
either of the following is the situation:
- The decedent is not survived by any descendants or parents
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- The only descendants of either the decedent or the surviving spouse that
are alive at decedent’s death are the descendants of their relationship
(joint children/joint descendants)
Decedent survived by spouse and parent(s)

UPC 2-102(2) deals with the situation where, at death, the decedent is survived
by her spouse and parents but not by any descendants.
In this scenario, the spouse gets a large portion of the probate estate (300k) plus
¾ of the amount in excess of 300k, with the one remaining quarter going to the
parents
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Blended families
a. Decedent survived by spouse, joint descendants, and spouse’s
descendants
- In addition to being survived by her spouse, if the decedent is
survived by both joint descendants and step-descendants, UPC
§2-102(3) gives the surviving spouse $225,000 plus 50% of the
amount in excess of $225,000.
- The other half of the excess goes into the intestate pot for
distribution to the descendants of the decedent.
- Nothing goes to the step-descendants.
b. Decedent survived by spouse and descendants who are not joint

descendants
- UPC 2-102(4) gives the smallest amount to the surviving spouse,
only 150k plus 50% of the balance, and places the greatest
amount into the intestate pot for the decedent’s descendants.
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Problems
How much does the statute give to the surviving spouse in each of the following problems?
1. Donna dies without a valid will and with an ownership interest in the following property
- Donna had a joint tenancy with right of survivorship (a nonprobate asset) with her
daughter, Pam, in land worth $500,000,
Pam gets the 500k because its a nonprobate asset
- A $250,000 life insurance policy on her life with her son, Liam, designated as the
primary beneficiary and her estate as the secondary beneficiary,
Liam gets 250k so long as he survives Donna. If he does not survive Donna,
then the 250k goes to the estate and is distributed accordingly
- A $500,000 retirement account that designated her husband Steve as the

beneficiary,
If Steve survives Donna, then Steve gets 500k because this seems to me like a
nonprobate asset
- $75,000 in her separate checking account.
a. To what is Donna’s surviving husband, Steve, entitled under UPC §2-102? Can
you answer this without knowing whether Pam and Liam are joint children?
You can certainly answer what he’s not going to get. The only thing in question
without knowing whether Pam and Liam are joint children is the 500k. We don’t
know what’s happening to the 75k. If they’re both his children, he gets the entire
thing. If they’re not his children, I have no idea but I still think he gets everything.
If we’re looking only at the $75k (and applying Maryland Code), it doesn’t
meet the minimum limit ($150k in Maryland). Steve gets all of it regardless of
who his kids are.
b. How would your answer to Question a change if Liam had predeceased Donna?
Can you answer this question without knowing whether Pam and Liam are joint
children?
If Pam is steve’s child, Steve still gets everything. If Pam is not Steve’s child,
Steve gets 150 + 87,500 [150k + 50% of the pot] = 237,500 . Pam would get the
remaining 87,500.
[250+75k] = 325,000
325-150=175k
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2. Dominic and Sally were married for seven years before Dominic’s recent death. Persons
involved in Dominic’s life in one manner or another are as follows:
Dominic died without a valid will and with a net probate estate of $1,000,000. Determine
the dollar value of Sally’s share under UPC §2-102. Be sure that you can identify the
subsection that is applicable.
Assume Dominic is survived Determine amount of Who do you think receives

ONLY by: distribution to Sally under the balance and in what
UPC and give cite amounts?
1. Sally Entire estate (102(1)(i))
2. Sally bob and carlos Entire estate (102(1)(ii))
3. Sally alice and fanny 150 + 50% of remainder per Fanny gets nothing
102(4)
Alice gets 425
150+425 = 575
4. Sally and richard Entire estate (102(1)(i) Richard gets nothing because
he’s not Dom’s kid
5. Sally alice bob and 102(4) Alice: 141, 666

carlos
Sally gets 575 Bob: 141, 666
Carlos: 141, 666
6. Sally alice and richard 102(4) Richard gets nothing
575 to Sally Alice gets 425
7. Sally bob and richard Sally gets everything per Richard gets nothing
102(1)(i)
8. Sally alice bob carlos 102(4) Richard gets nothing
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and richard
Sally gets 575 Alice: 141, 666
Bob: 141, 666
Carlos: 141, 666
9. Sally and dominic's 102(2) Mom gets 175k

mother
Sally gets 300k + 75% of
entire estate (525)
Sally gets 825k
10. Sally dominic's mother Everything to Sally 0

bob and carlos
C. Share to Lineal Descendants

- After the portion reserved for the surviving spouse is trimmed off the top,
distribution of the remaining probate estate is next made to the decedent’s
surviving lineal descendants (or issue—the terms are synonymous), if there are
any.
- If the decedent dies without a surviving spouse, the surviving lineal descendants
share the entire probate estate.
- If there is no surviving spouse and there are no surviving lineal descendants,
then the estate is distributed to ancestors and other heirs, referred to as
“collateral heirs.”
- Stepchildren are not “children” or “descendants” of the decedent for purposes of
being eligible to take under UPC §2-103(a)(1), so they are typically not entitled to
a share in the intestate estate.
- In the highly unlikely event that the decedent was not survived by even
one blood relative, however, the UPC allows stepchildren to inherit. See
UPC §2-103(b).
D. Share to Ancestors and Collateral Heirs and Escheat to the State

- If the decedent does not have a surviving spouse or descendants, the estate
passes to ancestors and collateral relatives of the decedent.
- A collateral heir is one who descends from both of the ancestors (parents or
grandparents) of the decedent (in which case they are of the whole blood) or
from only one of the ancestors of the decedent (in which case they are of the
half-blood).
- Table of Consanguinity
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- Decedent is at the top of the column on the left. This column of relatives is
frequently referred to as the first “parentela”
- If there are no descendants, most statutes move to the next (or second)
parentela--this column is headed by the decedent’s parents.
-
Per stirpes = per bloodlines

Per capita = per person
E. The Representation Models
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There are many representational variations throughout the states. However, there are
three basic models:
a. Strict Per Stirpes,
b. Modified Per Stirpes (“Per Capita with Representation”) and a slight variation, the
1969 UPC System of Per Stirpes; and,
c. The Current UPC Method—”Per Capita at Each Generation.”
If members of the family die “out of order,” in other words, some children or
grandchildren die before their parent, it becomes important to decide who is entitled to
share in the decedent’s probate estate.
There are a few rules common to all the systems:

● If there is a surviving spouse, other heirs are only entitled to a share of the
probate estate that was not reserved for the surviving spouse.
● If there is at least one descendant, then the decedent’s ancestors and remote
collateral heirs do not take.
● If all of the decedent’s children survive the decedent, the representation rules are
not necessary as the children do not need to be represented by others.
○ The children will share the portion of the estate to which they are entitled
equally, per capita.
○ Thus, if the decedent is survived by all of her children (first-generation
descendants), the entire portion of the decedent’s intestate estate not
going to the surviving spouse is divided equally among them.
○ In the example illustrated below, A, B, and C each get one-third of the

intestate estate of the decedent available to the descendants regardless
which representation model is the law of the decedent’s state.
○ If the decedent is survived by only some of her children (first-generation

descendants) and if the child(ren) who predeceased the decedent did not
leave any descendants of their own (as is true for child C below), the
share of decedent’s intestate estate available to descendants is divided
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equally among the surviving children.
○ An heir who predeceases the decedent cannot be represented by his

spouse or stepchildren. Only an heir’s children and grandchildren can
stand in his shoes as representatives. The representation rules require
relationships by blood (consanguinity) or adoption, not marriage (affinity).
1. Strict Per Stirpes

- Still in use in about a third of states
- The strict per stirpes method establishes the number of shares based on the
represented bloodlines at the first (or child) generation, even if none of the
children are alive at decedent’s death
- All persons receiving an inheritance through a parent or grandparent who
predeceased the decedent divide the portion that the deceased parent or
grandparent would have taken.
- People who prefer this approach believe each child and his descendants should
get the same total amount as the other children and their descendants.
- They are less concerned with whether every person in a particular
generation gets the same amount because the goal is to divide up the
estate into equal shares at the first generation, regardless of the number
of people in subsequent generations.
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a. Procedure for Determining Per Stirpes Share

Step One: Determine the number of shares by dividing the estate into as many
equal shares as there are:
(1) living children of the decedent, if any, and
(2) deceased children with descendants then living who will represent them.
This “slicing of the pie” determines the number of bloodlines. Each bloodline will
get an equal amount, no matter how many grandchildren or great-grandchildren
of the decedent there are in a given bloodline.
Step Two: Distribute one share to each living member of the highest generation.
Step Three: For the children who were not alive but whose bloodlines were
entitled to a share because they have descendants, determine the portion
allocated to that bloodline in the same manner as Step One above and distribute
the probate property in the same manner as in Step Two.
- Repeat this generation by generation, putting each descendant who is
represented at the top of the chart as if it was that person who was the
decedent and whose property was being distributed.
In the above example, if C predeceased D, X would get all of C’s ½
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2. Modern Per Stirpes

The “modified per stirpes” model of representation distributes the decedent’s property
per capita at the first generation where there are survivors and then by representation for
descendants at lower generations.
Shares are not created for a generation if everyone in that generation is dead.
- Once the starting generation and primary shares are determined, the lower
generations who represent their parents are locked into the share determined for
their parent.
- If all takers are of the same generation, they take per capita, receiving equal
amounts.
- If they are of different generations, they take per stirpes determining bloodlines
based on the highest generation with survivors, the root generation.
a. Procedure for determining the shares employing the Per Capita with
Representation (Modified Per Stirpes) and the 1969 UPC Per Stirpes Systems
Step One: find the first generation where there are living descendants. At
that generation, determine the number of shares by dividing the estate into as
many equal shares as there are:
(1) Living descendants of the decedent, if any, and
(2) Deceased descendants in the same generation who are represented by

their living descendants
Do not determine the initial number of shares at a generation where

there are no living descendants and everyone is merely represented.
There must be a living descendant at a generation to justify the
share determination.
Step Two: Distribute one share to each living member of the highest generation.
Step Three: It is at Step Three that the modified per stirpes and the 1969 UPC
per stirpes systems diverge.
● With the modified per stirpes method, Step Three is the same as Step
Three for strict per stirpes. In other words, for lower generations, it is not
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necessary to find at least one living member.

● However, for the 1969 UPC per stirpes model, we repeat Steps One and
Two above for each generation.
In re Estate of Evans
Facts: Donald Evans died intestate. He had no surviving children or issue, and was not
married. He had three brothers, who all died before him. Robert had no children. Stewart
was survived by 2 kids, Mary and Susan. Fredrick was survived by one child, Ted. Trial
court determined that each surviving relative would split Evans’s estate equally- ⅓ would
go to each.
Issue: whether the strict per stirpes or the modern per stirpes applies to Evans’s estate?
Holding: the modern per stirpes applies and as such, each of Evans’s parents’
grandchildren receive ⅓ of the estate
- Ted wanted to apply strict per stirpes and thus he would receive ½, while Mary
and Susan would each receive ¼
- The court interpreted that his application of the law was wrong--strict per stirpes
has been moved away from in modern US law
- Nebraska adopted UPC, and UPC has a form of modern per stirpes
- Therefore, in the end, it is clear that the county court applied the incorrect
statutory provision, but achieved the correct result. The probate court applied
§30-2303(5) when it should have applied §30-2303(3), because the parents of
Donald did have surviving issue as defined in §30-2209(23). Susan, Mary, and
Ted each take a one-third share of the estate, as they take by representation as
defined in §30-2306. Therefore, we affirm the county court’s division of Donald’s
estate.
3. The Current UPC Method--”Per Capita at Each Generation”

The majority of states that have adopted the current version of the UPC have accepted
the system intact or with only minor variations.
UPC §2-106. Representation.(b) [Decedent’s Descendants.]

If, under Section 2103(a)(1), a decedent’s intestate estate or a part thereof passes “by
representation” to the decedent’s descendants, the estate or part thereof is divided into
as many equal shares as there are (i) surviving descendants in the generation nearest to
the decedent which contains one or more surviving descendants and (ii) deceased
descendants in the same generation who left surviving descendants, if any. Each
surviving descendant in the nearest generation is allocated one share. The remaining
shares, if any, are combined and then divided in the same manner among the surviving
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descendants of the deceased descendants as if the surviving descendants who were

allocated a share and their surviving descendants had predeceased the decedent.
a. Procedure
Step One: Find the first generation where there are living descendants. Determine
the number of shares by dividing the estate into as many equal shares as there are:
(1) Living children of the decedent, if any, and
(2) Deceased children in the same generation with descendants then living.
Step One is identical to the modified per stirpes method. In other words, perform
Step One at the highest generation where someone is alive.
Step Two: Distribute one share per capita to each living member of the first generation
where there are living members.
Step Three: Combine the remaining shares, if any, into a pot for sharing by lower
generations.
Step Four: Move down to the next generation and repeat steps one to three until the
entire estate is distributed.
F. Reducing the Intestate Share for Advancements

1. Is an inter vivos transfer a gift, an advancement, or a loan?
A gift is an absolute and unconditional transfer, which need not be repaid and does not
diminish the donee’s share of her inheritance from the estate. This characterization of
the transfer is the one most favorable to the recipient.
By contrast, a loan from the decedent, if not repaid during the decedent’s life, is an
asset of the decedent’s estate. Like any other property of the estate, the personal
representative should take possession of the note, seek payment from the debtor, and
distribute that payment/asset to the appropriate heir(s). This is the characterization least
favorable to the recipient of the funds because the recipient must pay back the money.
Between a gift and a loan is an advancement. While one who receives an advancement
is not obligated to return it to the estate, it is treated as a prepayment of some or all of
the recipient’s inheritance. It reduces the amount the heir would have otherwise
received. The transfer may have been made in fee simple to the recipient or in the form
of a nonprobate transfer, such as through a gift of a joint tenancy interest, or through
being named the beneficiary of a life insurance policy.
Determining whether a transfer is a gift or an advance is treated differently:

- Under the common law, which is based on the English Statute of Distribution of
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1670, and is still in effect in some states today, all such transfers are treated as
advancements unless the evidence establishes otherwise.
- The UPC takes the opposite position: all lifetime transfers to heirs are presumed
to be gifts. In order to overcome the presumption of a gift, the UPC requires a
very specific kind of evidence to establish that the inter vivos transfer was an
advancement.
2. How do these transfers affect the shares to the heirs?

Since a gift is an unqualified transfer and does not include an expectation of
repayment in any way, the amount due the recipient heir under either UPC §2-
102 or §2-103 is not disturbed by a finding that the transfer was a gift. The fact
that the donee died prior to the decedent is irrelevant.
An advancement, being a prepayment of some or all of the recipient’s share of

the intestate estate, is treated differently. The value of the advancement will be
brought into a “hotchpot” calculation to determine if the recipient’s share has
already been fully satisfied by the advance or if she is still entitled to more.
- If advancement exceeds value of share of estate, recipient will not receive
more but has no obligation to return the excess unless the decedent’s
contemporaneous writing requires it
- if the person to whom the advance was made predeceases the decedent,
the descendants of the advancee are entitled to their share as if the
advancement was never made.
- In other words, the descendants of the advancee do not “step into
the shoes” of the advancee.
3. Advancements and the “Hotchpot” calculation.

If the inter vivos transfer is determined to be an advancement, a calculation must
be made to determine whether the heir who received the advance has already
received the amount to which she is entitled or whether she is entitled to more.
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CLASS 4
Nonprobate Transfers--Passing Property by Will Substitutes and Gifts
A. Introduction
Life insurance, bank accounts, brokerage accounts holding stocks and securities,
retirement plans, and joint tenancies, including tenancies by the entirety. For many
people, the majority of their wealth is in these types of assets.
B. The Different Laws of Wills and Will Substitutes

Will substitutes have fewer requirements: will substitutes are controlled either by contract
law (since many are commercial agreements between a company and the customer,
such as life insurance policies and financial accounts), by property law (such as joint
tenancies with the right of survivorship), or by trust law.
The differing sets of laws also affect other matters, such as the level of competency one
must possess in order to execute the documents and, more importantly, the process for
distributing the property that is subject to their provisions.
UPC §6-101. Nonprobate Transfers on Death.

A provision for a nonprobate transfer on death in an insurance policy, contract of
employment, bond, mortgage, promissory note, certificated or uncertificated security,
account agreement, custodial agreement, deposit agreement, compensation plan,
pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed
of gift, marital property agreement, or other instrument of a similar nature is
nontestamentary.
C. Why Use Will Substitutes?

1. The Unity of Will Substitutes
Benefits to jointly having a bank account, naming another on a life insurance
policy, etc.
2. Probate Avoidance
Will substitutes do avoid probate and that is the reason most often given for
using revocable living trusts as part of estate planning
A WILL SUBSTITUTE MIGHT NOT BYPASS PROBATE

While property subject to will substitutes normally bypasses the probate estate,
there are situations that might result in the property being included in the
decedent’s probate estate. The most likely culprits include:
(i) the naming of the estate as the beneficiary in a designation form;
(ii) the severance of a joint tenancy by the inter vivos actions of one of the
tenants;
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(iii) the murder of the owner or joint tenant by the beneficiary or other joint tenant;
(iv) a divorce between the beneficiary and the owner or one joint tenant and the
other tenant; or
(v) the simultaneous death of the owner and designated beneficiary or joint
tenant.
a. Benefits of Avoiding Probate

- A decedent can be more certain about the validity of a will
substitute
- It may be easier and less costly to transfer out-of-state realty
- For high profile folks, since a will is a public document, will
substitutes are more private
- Some statutory protections and restrictions apply to wills only
- Depending on the nonprobate instrument used, transferees may
not be liable to the decedent’s creditors
b. Myths About the Utility of Will Substitutes

- Trusts are less expensive than wills
- Trust costs could be greater than drafting a will
- Revokable trust fees
- Probating a will is expensive

- Cost and time are not significant
- In most states, fees are hourly
- Estate taxes can be reduced if probate is avoided

- Most assets are subject to estate tax regardless of whether
they’re probated or not
c. Advantages to Going Through Probate

- Claims of creditors are addressed/resolved during probate
- Because the decedent’s debts must be paid before the
property of the estate is distributed to the beneficiaries,
property that passes through a probated estate is
distributed to heirs and devisees free of the claims of
unsecured creditors if the statutory directives are followed.
- Creditors normally have a limited period to prove their
claims after which the claims are no longer valid. Passing
clear title to property can prevent many future headaches
and legal expenses.
- Inheritance defense associated with acquiring superfund property
- The inheritance defense allows a beneficiary to avoid the
costs of cleanup on ‘‘superfund’’ toxic sites.
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- The defense is not available for property acquired outside

probate.
- Proceedings controlled by a judge
- Personal rep is required to prep an accounting report of her
activities
d. Other Matters to Consider

- Documents used to avoid probate may be confusing to an
“unsophisticated” person
- Some planning devices are forever
- Intervivos gifts
- Irrevocable trusts
- Eve if one carefully plans to avoid probate, it is difficult to avoid it
completely
- Jointly owned property presents special problems
D. Determining Which Property Is Probated and Which Is Not

Whether an ownership interest in property is probate or nonprobate property depends on
the existence of a will substitute.
If there is a valid will substitute, the will substitute controls the passing of property,
leaving nothing to be added to the probate estate.
While revocable living trusts and, to a lesser degree, joint tenancies in real property tend
to be drafted by attorneys, most other will substitutes are prepared by financial
institutions, insurance companies, or employers.
As part of the package that accompanies the product they offer, companies provide the
owner with the right to designate who should receive the property at death.
This is accomplished on a beneficiary designation form.

- These forms perform the same function as bequests in a will by directing
distribution of the property upon the death of the decedent.
On presentation of a death certificate, the insurance company, retirement plan

administrator, bank, or other third party must pay the contracted amount to the primary
or secondary beneficiary.
Governing instrument
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1. Trusts
- A trust is a legal relationship that separates legal ownership (the property
is titled in the name of ‘‘trustee’’) from beneficial ownership (the present
and future interests are held by the ‘‘beneficiaries’’).
- The transferor (the ‘‘settlor’’) transfers title to the property (known as the
‘‘res,’’ ‘‘principal,’’ or ‘‘corpus’’ when in the trust) to the trustee to hold for
the benefit of the present and future beneficiaries.
- Trusts are categorized based on what rights or powers the settlor retained
and when they were created.
- As to the former, trusts are either irrevocable (cannot be revoked
or modified) or revocable (can be revoked and amended).
- Trusts are either inter vivos (created during life) or testamentary
(created in the will and funded with property of the estate).
- Revocable living trusts are a common estate planning technique.
- From the perspective of ownership under state property law, the settlor no
longer owns property that has been transferred into trust; the trustee
does.
- Thus, regardless of whether the trust is revocable or irrevocable,
the property owned by an inter vivos (or living) trust is not probate
property of the settlor.
- By contrast, the property that funds a testamentary trust created in
a will does go through probate.
2. Joint Tenancies with Rights of Survivorship and Tenancies by the Entirety

- Joint tenancies, which are typically used for both real property and
financial interests, assume a right of survivorship.
- They have sometimes been referred to as the ‘‘poor person’s will
(substitute)’’ because most of them are created without legal
advice.
- A joint tenancy is probably the most commonly used device that
avoids probate because it is easy to understand and inexpensive
to create.
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- The distinguishing trait of a joint tenancy is that, assuming no

previous severance, on the death of one of the joint tenants, title
passes by operation of property law exclusively to the surviving
joint tenant or tenants.
- (By contrast, a tenancy in common does not have a survivorship
element and the interest of a co-tenant is probate property.)
- Joint tenancies are a type of common ownership distinguished by
the coexistence of what are referred to as the four unities:
- the unity of interest,
- the unity of title,
- the unity of time, and
- the unity of possession.
- Most states have modified this and instead provides that an estate
with all the characteristics of a common law joint tenancy can be
created through a conveyance from the grantor directly to herself
and others as grantees, without the intervention of a third party.
- A joint tenancy can be destroyed by one of the tenants conveying his

interest to a third party, by creditors of one of the tenants obtaining a
judgment and levying the interest, by a court granting partition, and, if the
joint tenancy was between spouses, by divorce. If the tenancy is
defeated, the result is that the owners hold title as tenants in common
- Tenancy by the entirety

- Reserved for married people with the property treated as being
owned by the marriage.
- One tenant cannot unilaterally convey his interest in the property
to a third party nor can courts order partition on the motion of only
one tenant.
- Property cannot be levied upon by a creditor unless the creditor
has a judgment against both spouses. In many states, if a creditor
has a judgment against only one spouse, the creditor can get a
lien against the property but cannot foreclose on it; the creditor is
entitled to take half the proceeds only if and when it is sold.
- Divorce terminates a tenancy by the entirety, converting ownership
into a tenancy in common
3. Life Insurance
So long as the beneficiary is not the decedent’s estate, the proceeds of a life
insurance policy are not probated. Anyone who has an insurable interest in a
person may take out a policy on that person’s life. Normally, the insured buys the
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policy on her own life. However, a family member or a trust whose beneficiaries
are family members may also buy a policy on someone’s life. The owner of the
policy decides who the beneficiaries are. The owner may borrow against the
policy if there’s an investment component to it.
4. Annuities and Retirement Accounts

Significant wealth resides in annuities and retirement plans, such as 401(k),
403(b), Keogh, pension, profit-sharing, self-employed plans (SEP), and individual
retirement accounts (IRA). Like insurance contracts, the individual designates the
beneficiary on a form provided by the investment company or retirement plan
administrator.
5. Contracts of Deposit with Financial Institutions

a. Single-party accounts
If a deposit account is owned by an individual and does not include a
payable-on-death beneficiary designation, the balance in the account
passes as probate property.
b. Multiple-party Accounts--Joint Tenancy with Right of Survivorship

A multiple-party account is defined in UPC §6-201(5) as ‘‘an account
payable on request to one or more of two or more parties, whether or not
a right of survivorship is mentioned.”
A bank can permit four different types of multiple-party accounts:

- Tenancy in common -- rare; the share of the account by the
decedent is probate property assuming no POD provision
- True joint tenancy
- An account with a pay-on-death designation
- Convenience account
A joint tenancy account is one that provides each person on the account
the right to make withdrawals while both are alive and provides that at the
death of one joint tenant, the other becomes the owner of the entire
account.
gift
c. Payable-on-Death Beneficiary Designation

The owner designates who should receive payment from the account
upon her death. Generally employed with single-party accounts. The POD
designation converts what would otherwise have been a probate asset of
the owner into a nonprobate one. The beneficiary stated on the POD
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designation form is not a party to the account and cannot withdraw funds
during the life of the owner, and the owner can revoke the designation at
any time.
d. Convenience Accounts
- A ‘‘depositor’’ (primary account holder) can create such an
account for the purpose of permitting a ‘‘convenience depositor’’
access to the funds in the account, both to make deposits and to
withdraw funds.
- The convenience depositor is essentially a fiduciary, having
neither an ownership interest in the account nor rights to the
balance in the account upon the death of the depositor, which
distinguishes it from a joint account or a POD account.
- Doesn’t transform a probate asset into a nonprobate one.
Estate of Helen Butta (N.Y. Supreme Court 2002)

Facts: Helen Butta executed her will on June 23, 1999 and died on August 18 of
the same year. Her grand-nephew, Nicholas Pagani, was not a beneficiary of the
estate which is valued at almost 4 million$. Before her death, Pagani testified at
the bench trial that, after the death of her husband, he would go to the
decedent’s residence about once a week, he’d do various chores for her, write
checks, make minor repairs, and collect rent.
About three and a half years before she died, Butta opened up an account at JP
Morgan Chase in her name and in her grand-nephew’s name.
When the account was opened, 240k was deposited into the account. At her
death, there was about 151k in the account. All of the withdrawals from the
account were made by Pagani solely for his own benefit. All of the statements
were mailed to the decedent, and the decedent reported all of the interest earned
on the account in her income tax returns.
Chase was unable to produce the original signature card, but the estate was able
to find Victoria Linton, the customer service rep at the bank when the account
was opened, to testify. Linto testified that she told the decedent and the petitioner
that the account would be payable to the survivor of them upon the death of the
other. In any event, she stated that she knows that she advised the petitioner and
the decedent that this was a survivorship account because in January of 1996
Chase would not open an account in two names unless it was a survivorship
account.
Although unable to find the original signature, the bank was able to produce an
electronic signature card summary which is a redacted version of the original.
The summary contained the account number, the names of both the decedent
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and the petitioner, the letter “J” next to “Account Type,” and the electronic
signatures of both the decedent and the petitioner.
Issue: whether the bank account was a convenience account or joint with the
right of survivorship
Holding: Joint with the right of survivorship

- Rebuttable presumption that “the making of [a] deposit [in the name of the
depositor and another person to be paid to either or the survivor of them]
shall, in absence of fraud, be prima facie evidence in any action of the
intention of both depositors to vest title to such deposit and additions and
accruals thereon
- Executor didn’t rebut presumption -- instead says the presumption can’t
apply because the signature card (prima facie evidence) wasn’t produce,
and that there was undue influence in the form of a private relationship
and communication between Pagani and decedent
- This court . . . holds that while survivorship language on the
signature card itself is the best evidence to give rise to the statutory
presumption, and, perhaps, in most cases the only practical way, it
is not the exclusive way. The statutory presumption arises upon any
proof that clearly establishes the deposit was made and credited in
the name of both parties to be paid to either or the survivor of them.
- Under these circumstances it cannot be presumed that the
signature card signed by the decedent and the petitioner did or did
not contain survivorship language.
- However, the uncontroverted proof adduced established: that the
redacted electronic signature card reflects that the type of account
was ‘‘J,’’ a joint account; that the only type of account that the
bank would open at the time that this account was opened in the
names of two depositors was a joint account with survivorship
rights; and that the bank employee who opened the account told
the decedent and the petitioner that the account upon the death of
one of them was payable to the survivor
- The bank statements and canceled checks for the account that
are in evidence do not support the respondent’s contention that
the account was opened for the convenience of the decedent.
Instead, they indicate that the decedent knew that the petitioner
was using the account for his own benefit and that she did not
object.
6. Security Accounts
A security account, like one someone might have with Charles Schwab or
e*trade, is an account held at a brokerage company that may include securities
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(stocks and bonds), cash, and interest and dividends earned on securities in the
account.
Transfer-on-death (TOD) beneficiary designations are to security accounts what

POD beneficiary designations are to contracts of deposit with financial
institutions. While TOD is the term usually used regarding security accounts, the
UPC recognizes that the term POD may also be used because of the ‘‘familiarity,
rooted in experience with certificates of deposit and other deposit accounts in
banks, with the abbreviation POD as signaling a valid nonprobate death benefit
or transfer on death.’’
7. Transfer-on-Death Deeds for Real Estate

The ability to transfer assets using a TOD designation also can be useful for
transferring real estate and avoiding probate in states that have authorized
transfer-on-death deeds or TOD deeds, known in some states as “beneficiary
deeds.”
An owner of real property can use a TOD deed to name the beneficiary who will
succeed to ownership at the owner’s death. Like other POD/TOD situations, the
execution of a TOD deed creates no current interest in the beneficiary and is not
a completed gift for property or tax purposes.
Property subject to a TOD deed remains subject to the creditors of the property
owner and the beneficiary takes the property subject to any claims, mortgages,
or liens
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E. Gifting—Not Exactly a Will Substitute

While the effect of gifting is that the property avoids probate, gifting is not normally done
for that reason.
Methods of Gifting
Fee Simple: The most common way for someone who owns property to give it away is to
do so outright in fee simple. In this manner, the donee acquires all the ownership rights
and the donor no longer has any.
Gifts into Trusts: Rather than making gifts directly to the donee in fee simple, donors
sometimes make inter vivos transfers using a trust. With some gifts in trust, the settlor
retains no interest in the trust; in others, the settlor does.
Was the Gift Successfully Made?

If the issue of the success of the gift arises, the donee has the burden of establishing
every element of a valid gift by clear and convincing evidence: an intention on the part of
the donor to transfer the property, a delivery by the donor, and an acceptance by the
donee. The donee’s burden can be especially difficult to meet if the donor retained
possession of the item, such as a valuable painting: Did the donor not intend to make a
gift at all? Did the donor intend to make a gift but had not yet parted with possession
though transferring title? Or did the donor intend to make a gift of the remainder interest
while retaining a present possessory interest?
F. Developing a Comprehensive Estate Plan Incorporating Will Substitutes
G. Which Controls? The Will or the Will Substitute?

Lincoln Life and Annuity Co. of NY v. Caswell
Facts:
● April 1985, Aetna Life Ins. & Annuity Co issued a life ins. policy to Martha
Hubbard (insured) (‘854 policy) for 200,000.
● the policy outlines a detailed way to change the beneficiary through signed
request, and Aetna’s written acceptance
● on 2 occasions Hubbard changed the beneficiary designation per the
policy, the last time Hubbard’s son, Robert Jr. was named primary
beneficiary and def. Bennie Caswell as contingent beneficiary
● Robert Jr. predeceased the insured, giving effect to the beneficiary
designation making Caswell the sole beneficiary of the policy BUT 15yrs
after Hubbard filed the ben. desig. policy, Hubbard executed last will and
testament.
● this will specifically refered to the ‘854 policy, and purports to “devise and
bequeath” portions of that policy to various individuals and charities but
those were not designated as beneficiaries per the policy.
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● Hubbard died and her will was filed in probate proceedings

Proc. Hist.
● Caswell’s summary judgement motion was denied. The court believed that
the dispositive consideration was the insured’s intent
● On appeal the court, grant Caswell’s summary judgement motion to the
extent of declaring him the sole beneficiary of the ‘854 policy and
=otherwise affirm
Issue: Whether a will of a decedent or the prior beneficiary designation made in
accordance with the terms of the policy governs, when the will specifically
identifies the policy in question and purports to require a disposition of its
proceeds inconsistent with the beneficiary designation under the policy.
● *whether the insured’s specific testamentary disposition of the ‘854 policy I
n her will can be deemed to constitute “substantial compliance” with the
policy’s requirements
● *Answer=NO
Holding: the testamentary disposition of the policy proceeds does not constitute
“substantial compliance” with the policy, and therefore cannot be given effect
over the policy’s beneficiary designation.
● (Caswell should get payment)
● -general rule is per McCarthy v. Aetna: that “the method prescribed by the
ins. contract must be followed in order to effect a change of beneficiary.”
● -there has been some relaxation to the requirement of strict compliance
over the years
● -the primary purpose of specifying a procedure for changing beneficiaries
is to protect the insurer from double liability
● -¶2, p. 17- “mere intent is not enough”
● -the controlling consideration as to whether a change of beneficiary has
been effectuated in such cases is whether there has been “substantial
compliance with the terms of the policy”
● -the making of the was plainly was not an attempt to comply with the
simple change of beneficiary procedure set forth in the policy- in fact she
did nothing to comply with that policy, which she had followed in the past
● * The policy consideration the McCarthy court invoked in support of its
holding that a general testamentary statement in a will does not constitute
substantial compliance–avoiding uncertainty on the part of the insurers
that could lead to the delay of payment on the life ins. policies- applies as
much to specific testamentary bequests as to general testamentary
bequests as to general testamentary statements
H. Does Divorce Revoke a Beneficiary Designation to Spouse?
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Caswell shows the need to comply with a will substitute contract to change the
beneficiary rather than rely on a will to identify who should take. But is the result the
same when there has been a divorce and the owner did not change the beneficiary form
from his ex-spouse to someone else?
The answer will depend on two factors:
First, did the parties enter into a property settlement disavowing rights to the
other’s property?
Second, has the state adopted a statute that revokes all revocable governing
instruments upon divorce?
In re Estate of Johnson Colo. App. 2012

Facts: Johnson and Christensen married in 2000. In 2001, Johnson purchased a life
insurance policy naming Christensen the primary and his mother the contingent
beneficiary. His mother died in 2006, he divorced in 2008, and he died in 2010. No
surviving children or parents, but at least one sibling. The insurance policy provided that:
“ if there is no designated beneficiary living at the death of the insured, the insurer will
pay the proceeds to the owner’s estate.”
Trial court held in favor of the Estate after Christensen filed a claim to the proceeds of
Johnson’s insurance policy. Appellate court affirms trial court.
Issue: whether divorce terminates a named beneficiary’s right to proceeds of an

insurance policy?
Holding: yes.
- Despite Christensen’s argument that federal/state law does not modify the terms
of the insurance policy, it does, and Johnson should have reasonably expected
UPC 2804(b) to apply to his policy.
- [UPC §2-804(b)] was enacted to give effect to the presumptive intent of
insured-decedents, namely that a person would not want his former
spouse to remain a beneficiary of his life insurance policy.
- [UPC §2-804(b)] applies to Johnson’s insurance policy because it does not
impair any rights or obligations of the parties to the insurance contract. As a
beneficiary to a life insurance policy, Christensen had no vested rights in
Johnson’s insurance policy.
- UPC 2804b applies to only the donative transfer portion of insurance
policies, and it doesn’t impair other parts of the contract between Johnson
and the insurance company
- Thus, there was no conflict between [UPC §2-804(b)] and the provision in
the policy protecting the insurance company’s rights to insist on written
notice to change the owner or the beneficiary and on approving
modifications to the policy.
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- Finally, the insurance policy provisions Christensen relies upon are not express
or explicit enough to trigger application of the limited exceptions in [UPC §2-
804(b)]. The policy contains no express language exempting former spouses
from automatic revocation of beneficiary status upon divorce, as the law requires.
Though not dispositive, we also note that Johnson and Christensen’s dissolution order
specified that they would no longer hold any claims on each other’s life insurance
policies. Specifically, they were “awarded their respective life insurance polic[ies] as their
sole and separate property, including any cash value, free and clear of any claim on the
part of the other party.”
Will Validity
A. Introduction
The hallmark of American inheritance law is “freedom of testation.” People can decide to
opt out of the default system of intestacy by executing a will. A will is a donative
instrument that is custom-tailored to reflect how an individual (the testator) wants her
property distributed at death.
B. Legal Requirements for the Testator

States typically require that the testator be age 18, have testamentary capacity (be “of
sound mind”), and have testamentary intent to make a will.
To have testamentary capacity, the testator: (i) must understand she is making a will; (ii)
must know the extent and character of her property; and (iii) must know the natural
objects of her bounty, who are generally recognized as the testator’s close relatives.
Testamentary intent means that the decedent intended the actual document she signed
to be a will and to become operative on her death.
- A strong but rebuttable presumption of testamentary intent exists if the will
contains language to that effect, such as “This is my last will and testament.”
- If such language is absent, a court may infer testamentary intent from other
words in the document itself.
C. Formalities Required in the Will

The statutory formalities required by most states include that the will be in writing, be
signed by the testator, and be attested to by two or three witnesses.
Formalities serve four functions:

Evidentiary function: they assure that permanent reliable evidence of the
testator’s intent exists.
Channelling function: They assure that the testator’s intent is expressed in a way
that is understood by those who need to interpret it. Formalism also assures that
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the document enters the legal system in a manner that courts (and personal
representatives) can process routinely and without litigation.
Ritual (cautionary) function: They assure that the testator’s intent to dispose of
property is serious and that the testator understands this is a will. The formal
requirements assure that the document is final and not a draft.
Protective function: They assure that the testator is protected from her own lack
of capacity. They assure that testator’s intent is not the product of undue
influence, fraud, delusion or coercion. The formal requirements also assure that
the document and signatures are not the products of forgery or perjury.
1. The Writing Requirement

States generally require that a will be in writing, although a few states recognize
nuncupative, i.e. oral, wills. If oral wills are allowed, they generally must be
executed while in fear of imminent death, often on the battlefield, in order to be
valid. Courts prefer paper writings, but the writing requirement has been broadly
construed to include a “medium that allows the markings to be detected.”
- Relatively low burden is on the party presenting the will to the court to
prove that the will is written; burden shifts to the opponent to prove
otherwise once a court finds that a will is valid
2. The Signature Requirement
a. Where to Sign?
b. How to sign?
c. Who can sign?
3. Publication
4. The witness requirement
a. Who maybe a witness
b. Where must the testator and witnesses be?

The requirement in UPC §2-502(a)(3)(A) that two individuals “witness” the
will means they must either observe the testator sign the will, or the
testator must acknowledge to them that it is either his signature or his will.
i. Must the testator sign or acknowledge in the witnesses’ presence?
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Kirkeby v. Covenant House

[appeal and cross appeal?]
Facts: In May 1989 Margaret Kirkeby (testator) executed a will
that provided that the proceeds of her estate were to be placed in
trust, with “income earnings” to be distributed to her husband
during his life, then to the other beneficiaries for a period not
exceeding five years, and then corpus to Millie Lacs (a charitable
beneficiary)
In 1992, Margaret drafted a handwritten codicil that included a

specific bequest of their home, including 5 acres of land, to two
neighbors in exchange for them providing physical care for
Margaret and Orrin until their deaths. This codicil was not properly
executed.
Margaret edited her will and gave her neighbor handwritten notes
and an instruction to type them up. Margaret signed the new will
which changed the named charitable beneficiary to Covenant
House and implemented the bequest that was set out in the
previous codicil.
Margaret had the neighbor bring the signature page to a notary,

the notary notarized the page, but she did so without having the
will attached. The notary did not know she was notarizing a will.
The will was also not originally witnessed--Margaret then had the
neighbor add a witness line on the second page
Procedural History: -Orin’s brother filed a petition in probate alleging

that the1992 will was invalid as “not properly attested in that the
decedent did not sign her Will in the presence of the witnesses nor did
she acknowledge to said witnesses that she had signed her will.” -the
beneficiaries of the 1992 will (Covenant House, Lyman, and Curtis) filed
objections on the grounds that it was valid.
Issue: whether the will was invalid because it was not

acknowledged “in the presence” of witnesses?
Holding: Yes, the trial court’s ruling is affirmed
- the Supreme Court in Demaris’ Estateconstrued the meaning of
“in the presence” requirement to be valid so long as the
witnesses were in the testator’s “conscious presence”
- -there the testator made out his will with the assistance of his
doctor, the Dr. and Dr.’s wife were present when the testator
signed the will, however, they signed the will 20-30 min later in
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a different room. The testator could not physically see the the Dr.
witness the will but could see the wife.
- -the Court noted that “sight is not the only test of presence”à any
of the senses that the testator possesses, which enable him to
know whether another is near at hand and what he is doing, may
be employed in determining whether the attesters are in his
presence as they sign his will. *doesn’t need to be in the same
room
- -to satisfy the "in presence” requirement of the Oregon statute,
the will, bearing the signature of the testator acknowledges, must
be before the witnesses at the time of the acknowledgement
- -but, an “acknowledgement” is meaningless if the person is not
aware of what is being “acknowledged”
- *it must require at least the “concurrence” of the
testator’s acknowledgement and the witnesses’
“perception”
- -neither Horton nor Ortega validly witnessed Margaret’s
“acknowledgement”; neither had the 1992 will before
them at the time Margaret spoke with them; neither was
close enough at hand to have known that the instrument
that was later presented to them was the instrument that
Margaret had previously “acknowledged”
ii. Must the witnesses sign in the testator’s presence?

Under the UPC, the witness must be in the testator’s presence
when the testator signs or acknowledges the will, but the testator
need not be in the witness’s presence when the witness signs it.
iii. When must the witnesses sign?
In re Estate of Peters
Facts: Two wills -- Peters’s sister in law copied Peters’s will and
prepped an indentical one for her sister, Marie Peters (testator’s
wife). The wills were drawn up at the request of Marie Peters, who
apparently had discussed the need for these wills with her
husband in mid-December, 1983.
The dispositive provisions of the two wills complemented each

other. Each provided for the distribution of the entire estate, after
payment of debts and funeral expenses, to the surviving spouse.
Both appointed the surviving spouse as executor. Additionally,
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both wills named Joseph Skrok, Marie Peters’ son, as the

alternate beneficiary and alternate executor.
Will was read and signed by the testator in front of Gall, her
husband, and Marie Peters, but none of them were witnesses.
Gall waited for two of her employees to sign as witnesses. Even
though peters acknowledged his signature in front of the
witnesses, they never signed.
Procedural History: The trial court found that the proffered

instrument “was properly executed” because it was signed by the
testator in the presence of two individuals, who were in his
presence and that of each other...According to the court, the
failure of the intended witnesses to subscribe the instrument could
be ignored as a mere “quirk,” which should not be allowed to
frustrate the obvious testamentary intent of the decedent....
Appellate court reversed.
Issue: whether a witness’s formal signatory function mandates that

witnesses sign a will before it is executed.
Holding: Yes.
- The witnesses’ signature has significance as an
evidentiary requirement or probative element, serving both
to demonstrate and to confirm the fulfillment of the
observatory function by the witnesses. There is nothing,
therefore, to suggest that in retaining the requirement that
a will’s execution be witnessed, the Legislature meant to
imply that either witnessing function is dispensable.
- Because, as noted, the signatory function serves an
evidentiary purpose, the signatures of the witnesses would
lose probative worth and tend to fail of this purpose if the
witnesses were permitted to sign at a time remote from
their required observations as witnesses.
- Witness must sign within a “reasonable amount of time”
Problems pg. 200
Tia, who is unmarried, prepared a will. Her son, Shaun, and her daughter, Dolores, acted
as witnesses to Tia’s will. In each case below, have the execution formalities been met?
1. Tia was unable to sign her will because she had had a stroke. She asked Shaun
to sign her name, and he did. Dolores was also there, watched Shaun sign their
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mother’s name, and then both Shaun and Dolores signed the document as
witnesses.
Writing: yes?
Signature: yes
Witness: yes
2. Shaun and Dolores watched Tia sign her will. Several weeks later, while she was
still alive, they signed as witnesses.
Writing: yes?
Signature: yes
Witness: so long as “several weeks” was a reasonable amount of time
3. Shaun and Dolores watched Tia sign her will. Tia died several weeks later, and
Shaun and Delores each signed it a few days after her death in front of the
director of the funeral home.
Writing: yes
Signature: yes
Witness: yes
4. Tia signed her will. A week later, Shaun came to visit. Tia pulled out the will and
asked him to sign it, which he did. A week after that, Tia called Dolores, who
came over to Tia’s house and signed the will. In both cases, Tia acknowledged to
Shaun and Dolores that the signature on the will was hers.
Writing: yes
Signature: yes
Witness:that sounds fine to me?
5. Shaun and Dolores watched Tia sign her will, and her lawyer was present.
Although neither Shaun nor Dolores signed the will, when the will was offered in
court after Tia’s death, both swore under oath that they had witnessed Tia sign
the will.
Writing: yes
Signature: yes
Witness: no--it was never signed by the witnesses
6. Tia bequeathed three-fourths of her estate to Dolores and one-fourth of her

estate to Shaun. Both Shaun and Dolores witnessed the will. How will the estate
be distributed under: (i) the UPC; (ii) the common law voiding approach; and (iii)
a purging statute?
i. Dolores would get ¾ and Shaun ¼--The UPC has abandoned the
“interested witness” rule altogether. See UPC §2-505(b). The
general policy supporting this approach is that many bequests,
which are not in fact the product of undue influence, may fail
unjustly if an interested witness rule is applied.
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ii. Historically, if one or both required witnesses were also

beneficiaries of a will, then the entire will was void for failing to
have the required number of witnesses. A beneficiary could not be
a witness because that person was presumed to have an inherent
conflict of interest and might provide false testimony about the
matter in court.
iii. Under a purging statute, Shaun and Dolores wouldn’t get anything
because they are interested witnesses
NO NOTARY NECESSARY FOR VALIDITY

- Remember that the notarization is not necessary to validate the will itself; the signatures
of the testator and the witnesses are all that is required for a valid will.
PROBLEM Pg. 202

Claudia and Elizabeth witnessed Ralph’s will. Ralph’s will included an affidavit similar to the one
included in UPC §2-504. The affidavit was executed and notarized. Ralph’s cousin contests the
will and alleges that Ralph was not of a sound mind at the time of the signing of the will and that
the witnesses were not in Ralph’s conscious presence when he signed the will. You are the
attorney for the proponents of the will. What objection(s) would you make to Claudia and
Elizabeth being called as witnesses to testify about the execution formalities? To what other
areas of inquiry might Claudia and Elizabeth have to testify, regardless of the self-proved
affidavit?
- Objection because the will is self-proved; affidavit executed and notarized
- Facts are devoid of it being notarized by one of the witnesses, so I’d be arguing
that the will is self-proving with the affidavits
Self-proved Will:-to begin the probate process, the proponent must “prove” the will before it can be
admitted to probate
-proving a will typically required the testimony of the witnesses, either in court or by
affidavit
-self-proving affidavits- that could be prepared at the time the testator executes the will
-UPC §2-504. Self-Proved Will (p. 201)
*some courts have held that a notary may not simultaneously act as both notary and
witness;seeEstate of Meyer(p. 202)
-UPC §3-406. Formal Testacy Proceedings; Contested Cases
-Problem(p. 202)
-Claudia and Elizabeth witnessed Ralph’s will
d. The Notarized Will

-UPC §2-502(a)(3)(B)- a will can be valid if the testator acknowledges the will before a
notary, even if there are not two witnesses to the will.
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-normally, notarization alone, without two witnesses would not validate a will.
-UPC §3-406(2), in contested cases, a notarized will raises a rebuttable presumption of
proper execution, while an attested will still requires a witness
*best practice- have two witnesses
e. Putting formalities into practice

-David K. Johns, Will Execution Ceremonies: Securing a Client’s Last Wishes (p. 203)
-includes guidelines that if followed, will not only increase the acceptability of a will but
will also serve to safeguard against challenges based on fraud, undue influence, and lack of
mental capacity
-p. 205 questions
D. Holographic Wills
-Exceptions to the traditional requirement of two witnessesà
-if a will or a material portion f the will is written in the testator’s handwriting
then the will may be validated without any witnesses as a holographic will
-UPC §2-502(b)
-doesn’t require that the will be dated
-Rest. Third of Property: Wills & Other Donative Transfers §3.2, cmt. A (1999)
-notes that the statutory approaches to validating holographic wills can be divided
into three “generations” (1) requires that the will be entirely written, dated, and
signed by the hand of the testator in order to be a valid holographic will; (2)
require that the signature and the material provisions be in the handwriting of the
testator in order to be valid; (3)= UPC §2-502(B), requires that the signature and
the material portionsof the document be in the handwriting of the testator
-“surplusage” theory of validating holographs
*the material portion of a dispositive provision––which must be in the testator’s
handwriting under the UPC–– consists of the words identifying the property and the devisee
*a document written entirely by the decedent need not be witnessed to be a will, but not
every handwritten document is intended to serve as a will
In re Estate of Edward Frank Muder

Ariz. 1988 (p. 206)
Facts:
-Edward Muder died on March 15, 1984
-Sept. 1986, his surviving spouse, Retha Muder submitted a purported will dated Jan. 26, 1984 to
the probate court; the purported will was on a preprinted will form
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Proc. Hist:
-Muder’s daughters from another wife contested the will, they were unsuccessful in the trial court
and appealed; a divided court of appeals reversed
Issue: Whether a purported will is a valid holographic will pursuant to ARS 14-2503
Holding: A testator 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. Such handwritten provisions may draw testamentary context from both the
printed and the handwritten language on the form.
-there is no need to ignore the preprinted words when the testator clearly did not and the statute
does not require us to do so
*vacating the court of appeals opinion and affirming the trial court decision admitting the will to
probate
Reasoning:
-Was the document a valid will under ARS 14-2502?
-no, it was not a proper formal will pursuant to statute because only one will signed
-Is the document a valid holographic will?
-to serve as a will, the doc. Must indicated that the testator had testamentary intent
-test. intent= that the writing, together w/ w/e extrinsic evidence may be admissible, establish that
the testator intended such writing to dispose of his property upon death
-under ARS 14-2502, it’s a valid holographic will if the signature and the material provisions are
in the testator’s handwriting
-evolved from harsher statute previously, that no printed matter (i.e. a letterhead) was allowed on
the document
-“surplusage” theory- the theory that the statutory words “wholly” or “entirely” were satisfied
when the material provisions of the will were “wholly” or “entirely” in the testator’s handwriting,
and other written or printed material could accordingly be disregarded as surplusage
-surplusage theory disregards any printed matter and looks to see if what was left made sense and
could be considered a valid will
*HERE- there is no question as the testator’s intent
Dissent:
-the majority expands the statute and reads into the statute a provision that printed portions of a
form may be “incorporated into the handwritten provisions so as to meet the statutory requirements
-In re Estate of Johnson, earlier case, compels the conclusion that the instrument in this case is not
a valid holographic will.
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In re Estate of Charles Kuralt
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Facts:
-Charles Kuralt and Elizabeth Shannon were in a long-term and intimate personal relationship that
was kept secret (even Kuralt’s wife, Petie, while knowing he owned property in Montana, did not
know of his relationship w/ Shannon)
-over 30yrs Kuralt and Shannon saw each other regularly and stayed in contact by phone and email;
he had a close relationship with Shannon’s 3 children
-Kuralt was the primary source of financial support for Shannon, and had provided financial support
for a joint business venture managed by Shannon; he also gifted a home in Ireland to her
-In 1985, Kuralt bought a 20 acre parcel of land in Madison County, Mont.- he and Shannon built a
cabin on this piece of land
-In 1987, he purchased two additional parcels along the Big Hole River which adjoined the larger
parcel, creating a parcel of approx. 90 acres
-On May 3, 1989, he executed a holographic will which stated that in the event of his death, he
bequeathed to Patricia Elizabeth Shannon all his interest in land, buildings, furnishing and personal
belongings on Burma Rd, Twin Bridges Mont.
-he mailed a copy of this holographic will to Shannon, and also executed a formal will on May 4th,
1994 in NYC, which named his wife Petie and their two children as beneficiaries of that will.
-this will did not mention any of the real property owned by Kuralt
-neither Shannon nor her children are mentioned in the formal will; Shannon also did not know
about the formal will
-April 9, 1997, Kuralt deeded his interest in the original 20 acre piece of land w/ the cabin, to
Shannon- the transaction was disguised as a sale
-the second transaction for the remaining property was to take place in Sept. 1997 but Kuralt
became ill and was hospitalized in June.
-While in the hospital, Kuralt wrote a letter to Shannon that includes the statement “I’ll have a
lawyer visit the hospital to be sure you inherit the rest of the place in MT if it comes to that.”
-enclosed with the letter were two checks made payable to Shannon, one for $8000 and one for
$9000.
-Kuralt did not seek the assistance of an attorney at this time- he died 2 wks later
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Proc. Hist:
-Shannon sought to probate the letter of June 18, 1997 as a valid holographic codicil to Kuralt’s
formal 1994 will.
-the Estate argued that the letter only expressed a future intent to make a will
-the district court granted partial summary judgement; Shannon appealed
-this court in Kuralt I, reversed the district court and remanded the case
-the district court held that the June 18, 1997 letter was a valid holographic codicil to Kuralt’s formal
will and entered judgement in favor of Shannon
-the Estate appealed
Issue: Whether the district court erred when it found that the letter expressed a present testamentary
intent to transfer property in Madison County, Mont.
Holding: the letter expressed Kuralt’s testamentary intention to effect a posthumous transfer of his
Mont. Property to Shannon. (transfer property)
Reasoning:
-Montana courts are guided by the principle of honoring the intent of the testator
-on remand the court resolved the factual question of whether Kuralt intended the letter to effect a
testamentary disposition of the property
-if the factual findings of the district court are supported by substantial credible evidence and are not
otherwise clearly erroneous, they will not be reversed
*Kuralt and Shannon enjoyed a long, close personal relationship which continued up to the last letter
he wrote her; her children had a long, family-like relationship which included a significant financial
support
-that Kuralt wrote the letter in extremis is supported by the fact that he died 2 wks later
-he may not have consulted an attorney at the time because he wanted to keep their relationship
secret
-the word “inherit” underlined by Kuralt reflected his intention to make a posthumous disposition of
the property
Problems p. 215
1.
-First Generation (written, dated, signed)
-not valid, not written, in his handwriting
-Second Generation (signed and material provisions)
-
-Third Generation (signed and material portions)
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-*the material portion of a dispositive provision––which must be in the testator’s

handwriting under the UPC–– consists of the words identifying the property and the devisee
*here more likely to be valid
2.
a.
b.
c.
d.
e.
f.
Problem 215:
1. First generation it wouldn’t be valid because it has to be written, dated, and signed in the
testators handwriting. It wasn’t written in his handwriting. Entire will needs to be written--
can’t even have a printed letterhead. Second generation, would not be valid because the
material provisions aren’t in his handwriting--no specific property bequethed. It could go
either way; he didn’t fill in the blank for that. Third generation, because the divisees
2. Assume that on a flight from New York City to Paris the pilot has just announced that the
plane is having mechanical trouble and may need to land in the ocean. After the shock
wears off, many of the passengers begin to realize that they have not written, or finished
writing, a will.
Except for the bishop and the pastors in subpart c, assume all the passengers die as a
result of the crash. How would you analyze the validity of each will under the UPC?
a. Passenger #1 pulls out her laptop and types out her last will and testament and
saves it on the hard drive. The laptop is found after her death with the hard drive
still intact. The will does not contain an electronic signature, although the laptop
is equipped with a biometric thumbprint scan that allows only Passenger #1
access to the laptop. What if the laptop did not contain a biometric thumbprint
scan and the only requirement for access was a password?
If access via thumbprint is viewed like a signature, the will must include
property and divisees.
nO BECAUSE IT’S NOT IN A WRITTEN MEDIUM
b. Passenger #2 writes out her will on a smart-phone. She signs the “document”
with her stylus, and the two people in the seats next to her sign it as witnesses
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Because the will in its entirety is written by the decedent, it need not be
witnessed under the UPC anyway. I would say that this is a valid will.
Samsung galaxy will.
c. Passenger #3 tells her fellow passenger, a bishop, within the hearing of two
pastors, that she wants all her property to go to Sally, one of her two children.
The bishop and pastors survive the crash and inform Passenger #3's attorney of
her dying wish.
In some states, oral wills are allowed, but they generally must be
executed while in fear of imminent death, often on the battlefield, in order
to be valid. (see pg. 183)
d. Passenger #4 turns on his cell phone, calls his attorney, and leaves a lengthy
message on the attorney’s voicemail that includes all the terms of his will.
See above--this is probably more likely to be valid if there’s a recording of
it as there’s more proof that these are actually the terms of the will.
e. Passenger #5 writes her will on the wall of the cabin with a permanent marker
and then signs and dates it. The person in the seat next to her signs as a
witness. The cabin wall and the markings on it are found intact.
Yes because, although odd, the writing is on a “medium that allows the
markings to be detected.”
f. Passenger #6 remembers a draft will sitting at her lawyer’s office, waiting for her
signature. On the plane, she pulls out a scrap of paper and writes: “I confirm that
the draft will at the law offices of Appiah, Donovan & Howard is my final will,
although I have not yet signed it. If I die in this plane crash and this note is found,
please probate that will.” Then she signs her name. She dies in the crash and the
scrap of paper is miraculously found at her death.
Valid. “In keeping with the relaxation of formalities embodied in the UPC,
UPC §2-502(a)(2), by its silence, does not require that the testator’s
signature be at the end of the will. The Restatement (Third) of Property:
Wills & Other Donative Transfers §3.1, cmt. k (1999) notes that courts
should not deem a name in an exordium adequate to meet the signature
requirement unless there is additional evidence that the person “adopted
the document as his or her will.”
E. Dispensing with Formalities

1. Substantial Compliance
● Holographic wills are, in some sense, the most common exception to the rule that
wills must comply with rigid formalities to be valid.
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● Part of the impetus for courts to evaluate whether a document “substantially

complies” with the statute of wills was the rise of will substitutes and the
nonprobate revolution
● Courts came to the view that they should not interpret wills statutes in a manner
that is “intent-defeating.”
Substantial Compliance with the Wills Act

● Proper compliance with the Wills Act, so-called due execution, is the basis in
modern law for certain presumptions which shift the burden of proof from the
proponents of a will to any contestants.
● Unless the contestants advance disproof, the proponents need establish no more
than due execution.
● Because there are usually no contestants, the effect of the presumptions is to
limit the proofs in the probate proceeding to the question of due execution, and
there are further presumptions which allow due execution to be easily inferred
from seeming regularity of signature and attestation.
● The substantial compliance doctrine would permit the proponents in cases
of defective execution to prove what they are now entitled to presume from
due execution—the existence of testamentary intent and the fulfillment of
the Wills Act purposes.
● The substantial compliance doctrine necessarily impairs something of the
channeling function of the Wills Act, because it permits the proponents to litigate
issues which would otherwise be foreclosed.
In Re Snide (NY COA 1981)

Facts: Harvey Snide (decedent) and his wife, Rose Snide, had intended to execute mutual wills
at a common execution ceremony. By mistake, they each executed the will intended for the
other. There are no other issues concerning the formalities. In all respects other than the names
of the donors and beneficiaries on the wills, the wills were identicial.
- When Harvey died, Rose offered for probate the will drafted for her but bearing Harvey’s
signature. Harvey and Rose’s children signed waivers and consented to probate of the
will, but the guardian ad litem (objector) representing the interests of their minor child
objected to probate because the minor child would inherit a portion of the estate through
the intestacy laws if the will was void, but nothing under the will.
- Procedural History: The Surrogate’s Court admitted the will to probate, decreeing that
the will be reformed to transpose Harvey’s and Rose’s names throughout the document.
The Appellate Division reversed, relying on a historical review of lower court cases
denying probate under such circumstances. Rose appealed to the Court of Appeals of
New York. Court of Appeals reversed
Issue: whether the will was properly admitted at the Surrogate Court’s level
Holding: Yes, appellate term reversed
- This is a case of a genuine mistake
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- The gist of the objectant’s argument is that Harvey Snide lacked the required
testamentary intent because he never intended to execute the document he actually
signed.
- Although Harvey mistakenly signed the will prepared for his wife, it is significant that the
dispositive provisions in both wills, except for the names, were identical.
- Not only did the two instruments constitute reciprocal elements of a unified testamentary
plan, they both were executed with statutory formality, including the same attesting
witnesses, at a contemporaneous execution ceremony. There is absolutely no danger of
fraud, and the refusal to read these wills together would serve merely to unnecessarily
expand formalism, without any corresponding benefit. On these narrow facts we decline
this unjust course.
- Again, we are dealing here solely with identical mutual wills both simultaneously
executed with statutory formality.
Dissent: Judge Jones

- Would affirm the Appellate Division’s reversal of the Surrogate Court’s ruling
- Analysis should start that any wills statute operates frequently to frustrate the intentions
of the decedent
- The statutes historically have been designed for the protection of testators,
particularly against fraudulent changes in or additions to wills.
- Next it must be recognized that what is admitted to probate is a paper writing, a single
integrated instrument (codicils are considered integral components of the decedent’s
“will”)
- Intentioned must be focused on the paper writing of the will itself, not the
substantive content of the will
- Snide didn’t intend as his will the only document that he signed
- “Counsel for appellant has uncovered a total of 17 available reported cases involving
mutual wills mistakenly signed by the wrong testator... In these cases it appears that
the court has been moved by the transparency of the obvious error and the
egregious frustration of undisputed intention which would ensue from failure to
correct that error.”
- Under doctrines both of judicial responsibility not to allow the prospect of unfortunate
consequence in an individual case to twist the application of unquestioned substantive
legal principle and of stare decisis, I perceive no jurisprudential justification to reach out
for the disposition adopted by the majority.
Notes and Questions

1. Significant departure from the rule? In the Snide case, the court was deeply
divided and it chose to make a significant departure from accepted norms about
dispensing with the formalities. Consider whether the dissent in Snide is correct
in terms of the risks of validating a will that did not comply with strict formalities.
2. Proper forum for change? do you think that Judge Wachtler was true to his
convictions about the importance of consensus and the judicial deference to the
legislature in this case? No. As a policy matter, should the court have created
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such novel and expansive policy changes, or should they have deferred to the
legislature to do so? Deferring to the NYS legislature is what should have
happened procedurally, but I’m happy it didn’t.
3. New Jersey and Substantial Compliance.
2. Excusing Harmless Error
In Re Estate of Wiltfong (Colo. App. 2006)

Facts: Proponent and decedent were domestic partners for twenty years until decedent’s death.
They lived together and intermingled most of their finances. On proponent’s birthday, the
decedent gave proponent a birthday card that had a signed letter from the decedent. The card
and letter were opened in front of two friends. The letter expressed the decedent’s wish that if
anything happened to him, everything the decedent owned should go to the proponent.
Decedent told proponent and the friends the letter represented his wishes. Decedent died the
following year.
Procedural History: letter was petitioned to enter probate as the decedent’s will. Contestant, the
mother of decedent’s three nephews, objected to the petition. The nephews would’ve been heirs
had the decedent died intestate. Trial court ruled that the letter was not a will because it didn’t
meet the requirements of CPC wills statute. Appellate court concludes that further proceedings
are necessary to resolve this question.
Issue: whether a letter that doesn’t meet the statutory requirements can still be admitted as a
will to probate?
Holding: Maybe
- On remand, the court should determine whether the defects in decedent’s letter were
technical drafting mistakes that should not be allowed to frustrate decedent’s
testamentary intent and, thus, harmless error under §15-11-503(1) and (2).
- As relevant here, §15-11-502(1) establishes three requirements for a will: (1) it
must be in writing; (2) it must bear the testator’s signature or be signed in the
testator’s name; and (3) it must also bear the signatures of at least two persons
who witnessed either the testator’s signature or the testator’s acknowledgment of
the signature.
- While scrupulous adherence to the formalities associated with executing wills
serves the important purpose of preventing fraud, it can also “defeat intention
. . . [or] work unjust enrichment.”
- Under a proper formulation of the harmless error analysis, once a court determines a
decedent has signed or acknowledged a document as a will, as the trial court did here,
the issue becomes whether the proponent can establish by clear and convincing
evidence the decedent intended the document to be a will.
- This proof may take the form of extrinsic evidence, such as decedent’s
statements to others about the letter
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- The language of the letter is also relevant evidence, including, for example,
whether the letter disposes of all decedent’s property and whether the letter
identifies a beneficiary
- Thus, the question is whether a defect is harmless in light of the statutory purposes, not
in light of the satisfaction of each statutory formality, viewed in isolation.
- To achieve those purposes, the issue is whether the evidence of the conduct
proves the decedent intended the document to be a will.
- Certain errors cannot be excused as harmless, like the failure of a proponent to
produce a document.
- Other errors are difficult, although not impossible, to excuse as harmless,
like the absence of a signature on a document
- The kinds of errors viewed as harmless in Colorado are technical drafting
mistakes that frustrate the testator’s intent.
- The trial court found decedent signed the letter, but did not acknowledge the letter as his
will. The court ruled the phrase “signed or acknowledged” must be read in the
conjunctive and therefore, the letter could not be admitted to probate. We conclude the
court’s interpretation was erroneous
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CLASS 8
Interpreting the Will
A. Introduction
The goal of each person involved in the probate process, from the drafting attorney to
the personal representative of the estate to the courts, is to carry out the testator’s intent.
B. What constitutes the Will?

1. Integration
- The document being probated must consist of the pages that were
present at the execution ceremony that the testator intended to constitute
the will
-
2. Incorporation by Reference
- The “incorporation by reference” doctrine permits the court to include an
additional document as part of the testator’s will if:
- (i) the testator intends it to be so included;
- (ii) the document is in existence at the time the will is executed;
and
- (iii) it is sufficiently described so it can be readily identified.
- If the doctrine applies, the incorporated document—as it existed on the
day the will was executed—is deemed to be part of the will, as if the
document were literally typed into the will or attached to it as an exhibit.
Problem [249]: Alice executed her will on January 2, 2016. Her will
contains the provisions listed in (a) to (e). For each provision, decide
whether the external writing referred to in the provision could be properly
recognized by a court as part of the will.
a. I leave Bob Kenner all the African coins listed on the appraisal by
Coin Collectors, Inc., dated July 23, 2014, which is located in my
safe deposit box at Wells Fargo, 1666 Broadway St., Denver, CO.
Yes incorporated by reference.
b. I leave Ray Jones all the European coins on the appraisal by

Coins-R-Us that is located in my safe deposit box at Wells Fargo,
1666 Broadway St., Denver, CO.
A little less clear--we don’t know whether this is in
existence by the time the will is executed. It’s likely to be
fine, but it’s less clear than a.
c. I leave Dylan Nemour the South American coins listed in a

notebook labeled “Coins for Dylan,” which I now keep in my safe
deposit box at Wells Fargo, 1666 Broadway St., Denver, CO.
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Similar to b, but more susceptible to change because it’s a

notebook and not a formal appraisal. We’d need proof that
it was in writing at the time of the execution and determine
whether any new coins were added.
d. I leave Liam Erlich all Confederate coins listed in a notebook to be

labeled “Coins for Liam.”
No--theres no sufficient description as to where the
notebook is. Additionally, the notebook says “to be labeled”
e. In addition to all of the above powers, my personal representative

and my trustee may exercise those powers set forth in the
Colorado statutes relating to fiduciaries, as amended after the
date of this instrument. I incorporate such Act, specifically Title 3B
Chapters 4 and 20 or successor provisions, by reference and
make it a part of this instrument.
i. Yes this works--you can cite the law that the
executor/trustee to have powers from. You can point to the
code like they did here
4. Events of Independent Significance

- The doctrine of “events [or acts or facts] of independent significance” allows the
probate court to look to events or acts outside the four corners of the will to
determine which property goes to which beneficiaries.
- “traditional rule that all the provisions governing which property is to be
distributed to whom must be clearly stated in the four corners of the will
itself.”
- Typical events include the birth, death, and adoption of a child as well as the act
of acquiring or disposing of property.
- The execution or revocation of another individual’s will is such an event.
- While the events will clearly affect which beneficiaries get what property, the key
to the application of this doctrine is that these events or facts must occur
independently of the testator’s dispositive plan.
Problem
a. It’s not an event of independent significance because it’s not independent of his
testamentary purpose--he’s directly trying to avoid the formalities of executing the wills.
b. Occurs independently of the testator’s dispositive plan--part of the will; referenced the
specific schwab account--independent significance
c. Yes this is fine actually--Keeping the rings in the safe because of “Safe keeping”--
independent significance
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d. That’s fine?
i. Acts of independent significance in having children--you’re not having kids with
the thought of how it’ll effect your estate
Independent significance makes it seem like the testator’s actions are going around the
formalities. But look at why there’s reasons as to how the act changes their lives. Updating a
watch because it works better, not because their kid will get a nicer watch after they die.
Tangible property are good examples because there are reasons why people get newer things
to impact their lives
5. Memorandum at Death--needs a statute to be proper, UPC, etc.

- A testator may draft a memorandum after executing the will that leaves tangible
personal property to certain people.
- This exception to testamentary formalities enables a testator to make some
changes to his estate plan after executing the will without formally executing a
new instrument.
- For the memo to be enforceable, the testator must comply with certain
requirements. Note that a testator can use a memorandum only for tangible
personal property and not for intangible property (e.g., stocks) or real property
(e.g., a house).
- 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.
Limitations--the will
- May reger to a written statement or list
- Dispose of items of tangible personal property
- Not otherwise specifically disposed of by the will, other than money
- Though will can also say that memo overrides provision in will
- The memo must comply with a few mini-formalitiies
- Must be in writing
- Signed by the testator
- And describe the items and the devisees with reasonable certainty
- Note that without the statute, a memorandum executed after the date of the will
cannot be given effect
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- The doctrine of incorporation by reference could apply to a memorandum

executed before the will, but not to revisions made after the date of the will.
- That being said, the memorandum does need to satisfy mini-formalities; while
witnesses are not required, the memorandum must be in writing, the testator
must sign it, and the items of tangible personal property must be described “with
reasonable certainty.”
- If the will doesn’t include the specific tangible property, the memo would
supercede the will anyway
- Unless the testator specifies otherwise, the will itself takes precedence over an
external memorandum if the two conflict.
Problems [254]
1. Susan’s will devised her antique desk to her granddaughter, Anaka. It also
contained a clause like the one above. After Susan’s death, Susan’s
personal representative looked through Susan’s antique desk and
discovered in the top drawer both her will and an undated, typed piece of
paper signed by Susan that says: “Antique desk to granddaughter, Betsy.”
Who will receive the desk, Anaka or Betsy? Why?
- Because the will contained a clause like the one above, the desk
would go to Betsy. It’s in writing, the testator signed it, and it
describes the personal property with reasonable certainty.
2. Assume the facts are the same as in Problem 1 above except that the
clause in Susan’s will did not state that the list “is to take precedence over
any contrary devise or devises of the same item or items of property in
this will.” Who will receive the desk? Why?
- Unless the testator specifies otherwise, the will itself takes
precedence over an external memorandum if the two conflict. That
said, Anaka would get the desk.
6. Pour-over wills
- A provision in a will that transfers “pours over” some 9or all) of the estate (usually
the residue) into a trust
- Trust may be a previously funded and operating trust or a standby trust
that is only minimally funded (or, in some states and UTC) not previously
funded at all
- Trust becomes the dispositive document and since changes to a non-
testamentary trust do not require the formalities that changes to a will do, it
allows changes more easily
- Lets entire estate plan be accomplished with one nonprobate document--the trust
- Michael jackson will
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Now that we know what constitutes the will, it’s time to interpret it
- Plain meaning rule: historically courts could only interpret the actual written language
- Plain meaning today is a starting point. If testator’s intent can’t be divined from the words
of the document, if it’s wording is ambiguous (patent) or its application is ambiguous
(latent), the court is allowed to consider a wide range of extrinsic evidence.
- Most courts hold that there must be an ambiguity before extrinsic evidence is
permitted to resolve it. If the will is clear on its face and in its application, no
extrinsic evidence.
-
C. Interpreting the Meaning of a Will Using Extrinsic Evidence

-generally, the courts have begun with the plain meaning of the words in the will
-then they will consider extrinsic evidence and rules of construction
1. The Plain Meaning Rule

-plain meaning rule: requires the court to first give the words of the will their common
meaning
-concern about the credibility of parol evidenceàcourts are reluctant to consider anything
beyond the written document offered for probate
-the court is not allowed to use extrinsic evidence until it has first tried to divine the
testator’s intent from the four corners of the will itself
-if the court is unable to divine the testator’s intent, if the will contains an ambiguityà it
may consider extrinsic evidence
2. Modern Approaches
-the more modern approach is to look for the donor’s intent both in the document itself
and through extrinsic evidence
-Rest. (Third) of Property: Wills & Other Donative Transfers §10.2 (2003), cmts.
(d) surrounding circumstances- extrinsic evidence of the circumstances
surrounding the execution of the donative document
Ex. evidence of the donor’s occupation, property at the time of the
document’s execution, relationships with family members and with other
persons
(e) surrounding circumstances- skill of the drafter- whether the drafter of the
document was a layperson (usually the donor) or a person experienced in the use
of legal or other specialized terminology (i.e. the donor’s lawyer)
(f) direct evidence of intention-direct evidence relevant to the donor’s intention
includes documents and testimony evidencing the donor’s intention
Ex. the donor’s own declaration of intention (written or oral), content of
the drafting agent’s files, written or oral statements made to the donor by
the drafting agent or another concerning the contents or effect of the
document, to the extent that the donor acquiesced, silently or expressly, in
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the other person’s statement

(g) extrinsic evidence- time to which evidence relates- post-execution events can
sometimes be relevant in determining the donor’s intent. Post-execution
statements of the donor, for example, can relate to the donor’s intention at the
time of execution
3. Resolving Ambiguities
-patent ambiguity- one that appears on the face of the will itself
-extrinsic evidence was not allowed
-Ex. “I leave all my property as follows: 1/4 to Alice, 1/4 to Bob, 1/4 to Carl”
-result: remaining 1/4 goes by intestacy
-latent ambiguity-a provision that is not apparent upon reading the will but rather becomes
apparent when the provisions are applied
-Ex. “I leave $10,000 to John Smith” (but the testator knew two John Smith’s- his
brother and his nephew)
Estate of Hinz (CA 2016)

Facts:
-the decedent (Esther) and her husband had 2 children (Leseth and Lester); Lester died and was
survived by his wife, Maria Orlando-Hinz. Leseth died and was survived by her two children,
Malisa and Leslee.
-the decedent left a will, dated Nov. 29, 1991 in which she named her son as Executor, indicating
that he would “subscribe to my wishes, along lines that were discussed previously and privately
in the past.”
-Another provision stated “I name my son Lester F. Hinz, Jr., as sole heir and executor to
manage estate affairs”
-Lester’s widow, Maria, argued that “heir” should be read to mean “beneficiary”
-Respondents (Malisa and Leslee) opposed the petition, arguing that decedent’s will is
ambiguous and as a result, her estate must be distributed according to the laws of intestate
succession
-they argued that the will named Lester as executor but not as beneficiary claiming the term
“heir” in the phrase “I, name, my son, Lester Hinz, Jr., as sole heir” should be read to mean
“child”
(the respondents argue that the will was written shortly after Hinz’ daughter died, leaving Lester
as her sole surviving child)
*Lester lived w/ his mother for much of his life; she supported him financially; Lester was
unmarried and had no childrenà he subsequently married Maria Orlando-Hinz
Proc. Hist:
-The Trial Court found the will contained 2 ambiguities: (1) the meaning of the word “heir” could
mean beneficiary, surviving child, or person entitled to take property by intestate succession; (2)
the “wishes” clause is ambiguous because there is no evidence as to the content of the decedent’s
private discussions w/ Lester
-bc the will was ambiguous, the court admitted the extrinsic evidence offered by the parties in an
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effort to determine the decedent’s intent, however, the court concluded the evidence did not
clarify her intentàtherefore the will failed and ordered decedent’s estate distributed according to
the law of intestate succession
Issue: Whether the term “heir” as it is used in decedent’s will, is susceptible to the construction
respondents propose: “surviving child.”
Holding: The word “heir” as it is used in the will is not ambiguous and is not reasonably
susceptible to the construction “surviving child.” The meaning is susceptible to only one
construction –“beneficiary”
*reversedà100% of Estate should be distributed to the Estate of Lester Hinz, Jr.
Reasoning:
-before resorting to legal presumptions. . . the court must attempt to
ascertain the intent of the testator by examining the will as a whole and
the circumstances at the time of its execution
*having already identified Lester as her “son,” decedent had no reason
to further identify him as her “child”
-there was no reason for her to take any action to designate Lester as
her “sole surviving child.”
-evidence that respondents and decedent had a close relationship does
not prove the word “heir” is susceptible of two or more constructions
-the court acknowledges that the decedent would have been
disappointed to see any portion of her entire estate go to a non-relative,
BUT
the question is whether the decedent intended to leave her entire estate
to Lester or intended to split it up between Lester and respondents
***our job is to determine the decedent’s intention as expressed in the
instrument, not to reform the will to account for unanticipated events,
such as Lester’s subsequent marriage
-see court’s evaluation of the word “heir” per the technical definition
(bottom p. 260)
*question 3 after case??? (p. 261)
Problem(p. 261)
-it appears as though the intent at the time of the executed will was to include all 4 grandchildren
-at the time the will was executed- Dean did not have any granddaughters
-while the term “grandsons” is not ambiguous, it could be argued that . . .
*this would be a latent ambiguity, correct?
***SEE “rules of construction” p. 265- the book says rules of construction may be used
when circumstances change over time and the testator’s will did not anticipate those
changes
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[261]
PROBLEM
Dean had four grandsons, Alex, Bob, Chris, and Dan, when he executed his will in 2010.
Dean’s will provided that his residuary estate should go to his “then living grandsons.”
Before Dean died in January 2016, Alex transitioned from male to female. After Alex
transitioned, Dean continued to visit Alex at her college and sent her encouraging letters
each month. Dean attended Alex’s graduation in May 2015 and told the assembled
family members that he “was very proud of Alex.” When Dean died, the probate court
was faced with the question of whether Alex could be a residuary beneficiary since she
was arguably no longer Dean’s “grandson.” How should the court resolve this issue? Is
there an ambiguity in the will? What if there were no evidence of how Dean felt about
Alex after her transition? How might the will have been drafted that would have avoided
the problem?
Historically, extrinsic evidence cannot correct mistakes. This is still the rule in many jurisdictions.
UPC requires clear and convincing evidence.
- Fear with mistakes is malpractice--so that’s how mistakes can be remedied without
extrinsic evidence
-
Exercise(p.261)
4. Mistake- Reformation of Wills

Ex. In re Snide- in which the court expressly reformed the will but treated the situation as
a mere exception
*the Rest. and the UPC adopted the view that reformation for mistake should be allowed
-UPC § 2-805. Reformation to Correct Mistakes
Problem (p. 265)

1. This appears to be an ambiguity rather than a mistake
-I think the court can decide strictly by the plain meaning because UCLA is the
common acronym for the later school as opposed to USC
-the court should consider extrinsic evidence as to whether Cora had any ties to
either school
2. The lawyer could argue that this was a mistake and therefore the court should permit a
reformation per UPC §2-805, so long as the lawyer could show the mistake of fact (that he
wrote intestate heirs rather than cousins)
3. Plain meaning approach- yes, I dont think the property would go to charities
Modern approach
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Rules of construction are layed out in statutes

- Only apply when testator intent is unclear or if the will is silent
- If the will gives clarification and direction, it controls. If not, then the statute is default
- If the rule of construction doesn’t apply or it gives a rebuttable presumption, the court can
look at extrinsic evidence
D. Interpreting the Meaning of a Will Using the Rules of Construction

-courts generally construe an ambiguous phrase or term first, before applying a rule of
construction
-rules of construction are either statutes or judicial doctrines that assist the court in giving
meaning where the testator’s intent is not clear
Adam J. Hirsch, Text and Time: A Theory of Testamentary Obsolescence

-the problem of testamentary obsolescence or, the “stale will”
-whenever a court is called upon to apply the performative words of others, it
must decide whether to read those words statically or dynamically, in spite of or
in light of evolving facts
-contingency clauses, fallback provisions, and indexing provisions
[267]
1. Classification of Devises
Devises in a will can be classified into four categories: specific devises, general devises,
demonstrative devises, and residuary devises.
Specific devises: A specific devise is a gift of a particular asset, specifically identified in

the will.
- For example, a gift of “my Volvo,” “my grandmother’s diamond ring,” or “all my
books” is each a specific devise.
General devises: A general devise is a gift of money or value. A gift of “$100" is a general
devise. The devise is a gift of that value, and if the estate does not contain cash when
the testator dies, the beneficiary can receive property worth that amount or the personal
representative can sell assets and distribute cash.
Demonstrative devises: A demonstrative devise is a gift of money or value payable from

a specified source, but if that source is insufficient, then from other assets.
- For example, a gift of “$1,000 from my bank account at Trustworthy Bank” will be
made first from any amounts on deposit at the specified bank, but if no account
exists or the account has less than $1,000, the devise will be made from other
assets.
Residuary devises: The residue is everything else. Any property in the probate estate not
distributed as a specific, general, or demonstrative devise is considered the residue.
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Example: Taylor leaves a will that makes the following bequests: my house at 123 Main
Street to Lulu (specific devise); $100,000 to the Red Cross (general devise); $25,000
from the proceeds of the sale of my IBM stock (demonstrative devise) to Elise; and the
rest, residue, and remainder of my estate to Beth (residuary devise).
2. Rules of Construction Applicable Only to Wills

a. What Happens when a Devise Fails?
There are a number of situations when a devise fails, e.g., when the intended
beneficiary predeceased the testator or when a devise is revoked or was the
subject of undue influence.
UPC §2-604 addresses this and provides that a failed specific or general devise
“falls into” and is distributed with the residue.
A residuary devise that fails is distributed ratably to the other residuary

beneficiaries or, if none, via intestacy.
b. Lapse and Antilapse--what happens to a bequest when the beneficiary

predeceases the testator?
i. General Rule--Lapse
A bequest to an individual fails or “lapses” when that person dies before
the testator.
- The bequest will go to an alternate beneficiary if the will names an
alternate taker.
- If no alternate taker is named and if the antilapse rules do not
apply, the gift fails and passes to the residue pursuant to UPC §2-
604
ii. Exception--Antilapse
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Antilapse established because if the bequest were to a family member,

the testator realistically would prefer that the descendants of the intended
beneficiary take the bequest instead of letting the gift lapse and go to
other beneficiaries.
- In essence, the bequest was construed to mean “to my relative,
but if my relative predeceases me, to my relative’s descendants.”
- UPC §2-603 reflects this modern approach and assumes a
preference that the descendants of a predeceased beneficiary
who is a family member take a bequest rather than let the bequest
lapse to others.
- There are four elements that must be met in order for the
antilapse rule of UPC §2-603 to apply:
- The intended beneficiary must predecease the testator or
be deemed to have predeceased the testator.
- The intended beneficiary must leave living descendants.
- The intended beneficiary must be a family member,
defined as the testator’s grandparents, a descendant of the
grandparents, or the testator’s stepchild
- The will must neither provide for an alternative gift (to a
“taker in default”) nor state specifically that the antilapse
rules are not to apply, because such a statement of intent
supersedes application of the default rules
- If all of these requirements are met, a substitute gift is

created in favor of the surviving descendants of the
intended beneficiary, with the amount each descendant
receives determined by the rules of representation
iii. Class gifts

A class gift is a gift made to a group of people identified as a group by the
testator and typically with each member of the group bearing the same
relationship to the testator.
- Examples include “my children,” “my employees,” or “my cousins.”
The class members divide the property that is the subject of the gift.
Under the common law, if a class member predeceases the testator, the
remaining members of the class divide the gift. That common law rule
continues to apply to people not covered by the antilapse statute.
However, if the class gift is made to a group covered by the antilapse

statute, there are two possibilities.
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- First, if the gift is to “issue” or a similar group that contains several

generations, there is no substitute gift. This is because the class is
phrased so that it automatically substitutes a member of the
younger generation if an ancestor predeceases.
- If, however, the class gift is not a “multi-generational” gift, then the
antilapse statute creates a substitute gift so that each surviving
member of the class takes a share and the descendants of the
deceased class member take her share.
- If the deceased class member has no descendants, the antilapse

conditions are not satisfied, and the remaining class members benefit
from her share pursuant to the common law. In the example above,
Alberto would receive $15,000 if Martha had died without descendants.
iv. Contrary intent and words of survivorship

The antilapse rules are default rules. They are not mandatory and can be
“drafted around” by the inclusion of a clear statement of the testator’s
contrary intent that they not apply. Silence requires courts to apply the
rules of construction. The alternate beneficiary is generally referred to as
a “taker in default.”
There is a trend to deem the mere inclusion of survivorship words

insufficient to override the application of the antilapse statute.
“In the absence of persuasive evidence of a contrary intent,
however, the antilapse statute, being remedial in nature, and
tending to preserve equality among different lines of succession,
should be given the widest possible chance to operate and should
be defeated only by a finding of intention that directly contradicts
the substitute gift created by the statute. Mere words of
survivorship—by themselves—do not directly contradict the
statutory substitute gift to the descendants of a deceased
devisee.”
UPC 2-603(b)(3) -- Comment
Essentially, If survivorship is intended to defeat antilapse, the testator

should say something like, “to my surviving children and not to the
descendants of a deceased child.”
Estate of Tolman v. Jennings (California Court of Appeals 2010)

Facts: Nellie Tolman and Lloyd Tolman were married and had two children, Lloyd Tolman and
Betty Joe Miller. Lloyd Sr. predeceased Nellie. Debroah Tomlinson (appellant) and Laurie Onan
are the surviving children of Lloyd Jr, and thus granddaugters of the decedent. Michael Jennings
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(respondent) is the surviving son of Miller and the grandson of the deceased. Tolman was also
survived by three-great grandchildren), who are children of Jennings’ deceased sisters and
Miller’s grandchildren.
Tolman’s 1981 will gave all of her property to her husband. If he predeceased her, however, her
granddaughters, the appellant, and Onan would each receive $10k, with the remainder of the
estate to Miller. The bequests to appellant and Onan each provided that if the designee
predeceased Tolman, “this gift shall lapse.” No such provision, or any alternative disposition,
appeared in the residual bequest to Miller.
Appellant’s petition estimated the value of the estate’s property at slightly under $1 million.
Shortly after filing the petition for probate, appellant filed under section 11700 a petition to
determine persons entitled to distribution. The petition alleged that neither Jennings nor Miller’s
grandchildren were entitled to inherit under the will, which did not provide for them.
However, they were asserting entitlement under a subdivision that provided that if a transferee
by will fails to survive the transferor, “the issue of the deceased transferee take in the
transferee’s place.” where also “The issue of a deceased transferee do not take in the
transferee’s place if the instrument expresses a contrary intention or a substitute
disposition. . . . ”
Appellant argued that the will’s paragraph seven expressed Tolman’s intention that an heir she
had not named should not inherit. That paragraph stated “except as otherwise specifically
provided herein, I have intentionally omitted to provide for any of my heirs who are living at the
time of my demise.” She left them $1 if they could prove to be an heir of Tolman’s.
PH: trial court ruled in favor of Jennings & Miller’s grandchildren. The residue gift to Miller did
not provide for lapse should Miller not survive Tolman, an omission that did not express an
intention that the issue of Miller not succeed to her share. The court ruled that paragraph seven
“did not contain specific language that would be sufficient to bar a lineal descendant’s right to
inherit as the issue of a named deceased beneficiary,” and therefore respondent and Miller’s
grandchildren should take under section 21110. Affirmed.
Issue: whether paragraph seven bars Jennings & Miller’s grandchildren from getting the residue
gift to Miller even if the will did not specifically name Jennings & Miller’s grandchildren
Holding: No, affirmed lower court ruling

- The trial court ruled that paragraph seven did not manifest an intention to preclude
Miller’s issue from succeeding to the residue of the estate under section 21110,
subdivision (a).
- The court’s ruling is strongly supported by the facts and reasoning of the two
decisions on which it principally relied.
- Pfadenhauer--The court explained that the will’s language sought to provide that
no claim by an unmentioned relative would displace the specific gifts made to
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named relatives. There was no expressed intention flatly to exclude the

descendants of those legatees, per se.
- Both cases support the contention that exclusion of unmentioned heirs or relatives from
the will’s dispositions, or an intent to disinherit those who contest those dispositions,
does not sufficiently express or manifest an intent to arrest the operation of the anti-
lapse law following a legatee’s death
[277] Problems
In the following problems, Talia is the decedent. She died on July 4, 2016, having been hit in the
heart with a stray firecracker. Her will, executed in 2002, includes the provisions set out below.
1. Talia left $100,000 to Art and $150,000 to Bertha, with the residue to Coty. Art died on
January 2, 2016. Bertha and Coty survived both deaths
a. Identify who gets what pursuant to (i) without an antilapse statute; and (ii) with
the UPC’s antilapse statute:
i. Art is survived by two children, Xerxes and Yolanda, and Art is a friend of
Talia’s.
No anti-lapse--100k to Coty and 150k to bertha
Antilapse: Art’s children get nothing because Art is not related to

Talia in anyway that is required in the antilapse statute. Bertha
would get 150k, and Coty would get the residue (100k)
ii. Art is survived by two children, Xerxes and Yolanda, and Art is Talia’s
spouse. Xerxes and Yolanda are Art’s children from a prior marriage.
No anti-lapse: --100k to Coty and 150k to bertha
Xerxes and Yolanda would split the $100 as they are stepchildren
of the testator; Bertha would get 150k, and Coty would get
whatever residue is in the estate, if any.
iii. Art is survived by two children, Xerxes and Yolanda, and Art is Talia’s
nephew.
No anti-lapse: --100k to Coty and 150k to bertha
Because Xerxes and Yolanda are descendants of grandparents,

they would split the $100, Bertha would get 150k, and Coty would
get whatever residue, if any.
b. How would your answers differ if Art left no descendants?

Answer to i would not differ; answer to ii would mean that Coty would get
the residue of 100k; same for iii.
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2. In her will, Talia left the residue of her estate to Coty. Coty died in 2007. Coty’s two
children survived Talia. Applying §2-603, how would the estate be distributed if Coty
were Talia’s son? What if Coty were Talia’s friend?
If Coty were Talia’s son, Coty’s two children would be entitled to the residue of
the estate and would have to split it. If Coty were simply Talia’s friend, Coty’s
children would not be entitled to the residue under the antilapse statute.
3. Talia left $90,000 total to Art, Bertha, and Coty. Assume this is NOT a class gift. Art died
in 2007. At Talia’s death, Bertha and Coty are alive. Applying §2-603, identify who would
be entitled to the $90,000, assuming Art left two children and (i) Art is a first cousin of
Talia’s; and (ii) Art is Talia’s friend.
i. If Art is Talia’s first cousin, then his two children would be required to
share the 30k he’d receive, and Bertha would get 30k, and Coty would
get 30 k.
ii. Art’s children would get nothing under the statute because he is not a
relative. Bertha and Coty would get 45k each.
4. Talia left $90,000 total to “my children.” Assume this is a class gift, and the class is
closed. Talia had three children, Art, Bertha, and Coty, when the will was executed. Art
died in 2012. At Talia’s death, Bertha and Coty are alive as are Art’s two children.
Applying §2-603, identify who would be entitled to the $90,000. Who gets the $90,000 if
Art left no descendants?
i. Bertha and Coty would get 30k each, and then Art’s 2 kids would split the
remainder
ii. If Art left no descendants, Bertha and Coty would each get 45k
5. Talia left $90,000 total to “my college roommates.” Assume this is a class gift. Talia had
three roommates during college: Anne, Benita, and Corinne. Anne died in 2008. At
Talia’s death, Benita and Corinne are alive as are Anne’s two children. Applying §2-603,
identify who would be entitled to the $90,000. Who gets the $90,000 if Anne left no
descendants?
i. Benita and Corinne would get 45k each--antilapse statute requires that
the devisees are related for the statute to apply, so Anne’s kids would be
SOL
ii. Benita and Corrine would get 45k each
6. Talia left $100,000 “to Ari, if he survives me; if he does not survive me, then the
$100,000 should go to Bess.” Ari died in 2010. Who gets what, assuming Ari is Talia’s
first cousin and that he left three children? What if instead Ari is Talia’s friend? What if
the $100,000 devise said simply “to Ari if he survives me”?
i. I think that Bess would get the 100k because it sounds like the “if he does
not survive me” clause is a “taker in default” and that Talia has overridden
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the anti lapse provision, if it would even apply here because the problem
doesn’t mention applying the UPC
ii. According to the UPC, “mere words of survivorship do not directly
contradict the statutory substitute gift to the descendants of a deceased
devisee.” as such, i have no idea because the prompt doesnt say under
the UPC….--under the common law I think it just goes to Bess
c. Ademption by Extinction and Nonademption

What happens when the devised property is not in the testator’s estate on death?
It’s common, but wills are often silent on this issue.
If this happens, the question for the court is whether to ignore the bequest and let
it “adeem” (fail) or to substitute other property and give that property to the
beneficiary. A court will use the default rule of “ademption by extinction” to
answer this question. Note that ademption by extinction only applies to
specific devises and not to general or residuary devises.
Example: Jonah’s will, executed in 1980, says only, “I leave Billy my 1956
Mercedes.” When Jonah died in 2016, he did not own a 1956 Mercedes.
The court will first look at whether Jonah expressed his intent as to what
should happen if he did not own the Mercedes at death. Since he did not,
the court will apply the doctrine of ademption by extinction to evaluate
whether Billy should receive any property in lieu of the Mercedes or
nothing at all.
Two theories of ademption by extinction
Identity: Majority state approach. A specific devise is adeemed (rendered

ineffective and fails) if the property is not owned by the testator at death.
- Courts won’t inquire into the testator’s intent
- Only thing that matters is that the property is no longer owned at death
and cannot be identified
- Harsh results
Intent: New approach that “many courts” have sought to implement. They try to
determine what the testator would have preferred to happen.
- Recognizes that in limited situations that the property that was the subject
of the gift has “merely changed its form”
- In such cases, the “new form” should be substituted for the “old form.”
- Similar to “events of independent significance”
- Adopted by the UPC
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UPC §2-606 provides guidance to courts as to how they should handle various
“change in form” scenarios.
- Subsections (a)(1)-(3) cover situations where the specifically devised
property was disposed of and a balance is owed to the testator at his
death. These subsections give the beneficiary the right to collect the
balance due in lieu of the property. (Any amounts already collected are
not covered by the rule.)
- Subsections (a)(4) and (a)(5) apply where it appears the property that
was the subject of the gift was replaced with other property either as the
result of a foreclosure or by the testator herself.
- Finally, subsection (a)(6) applies when the testator manifested a plan of
distribution at the time she executed the will and letting the gift adeem
would frustrate that plan.
Replacement property must be of the same character!
d. Accessions
UPC §2-605 addresses questions that arise in connection with specific and
general bequests of securities.
If a will contains a bequest of shares of stock in a specific company, the shares

may not be in the estate because another company purchased the shares and
the estate instead owns shares in the acquiring company.
The statute provides for a substitute gift of the shares of stock that replaced the
specifically identified shares. Alternatively, the testator may own a different
number of shares of stock than the number originally devised.
To the extent the additional stock shares owned by the shareholders are the
result of “stock splits” or stock dividends, the statute gives the beneficiary the
increased number of shares.
In Re Estate of Magnus (Minn. Ct. App. 1989)

Facts: Dorothy B. Magnus died with a will on August 17, 1988, at the age of 85.
By order dated October 5, 1988, Magnus’ last will and testament and the first
codicil thereto (hereinafter, the “will”), were formally admitted to probate.
Under the terms of Article 3 of the will, Magnus bequeathed all of the shares of
the capital stock of Heileman Brewing Company to Donald and Gerald Sweeney
in equal shares and to their survivor. Upon the death of the survivor, the stock
shall be distributed to Saint Mary’s College in Winona, Minnesota, to be added to
the scholarship endowment fund that Magnus established.
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In late 1987, Amber Acquisition Corp and Heileman completed a sale whereby
Amber controlled 92.8% of Heileman’s shares. In February 1988, Heiliman
shareholders approved a reverse stock split [a reverse stock split or reverse
split is a process by which shares of corporate stock are effectively merged to
form a smaller number of proportionally more valuable shares] and paid each
remaining shareholder 40.75$ for each share held.
The new ownership made funds available at various banks so that former
shareholders can present their certificates and receive the cash payments.
Before Magnus died, she tendered 17,549 shares for 715,121.75$. After she
passed away, the personal representative found an additional 6,749 shares in a
safe deposit box and surrendered the certificates, receiving proceeds of
$275,021.75
PH: probate court found that the bequest regarding the stocks was fully adeemed
and failed under a Minn statute because the decedent had no ownership interest
in Heileman Brewing at the time of her death, and that the proceeds for the
heileman stock received by the estate are part of the residue of the estate
Issue: whether the probate court properly applied the minnesota statute.
Holding:
- The Heileman stocks were securities within the meaning of the statute
- Statute includes a provision avoiding ademption when the amounts are
owed “by reason of action initiated by the entity.”
Pg. 306 problems
a. Aniken died three days after David died, as a result of a car accident
i. Didn’t survive 520 hours as required by UPC, so the bequest to Aniken would
lapse and, if aniken doesn’t have descendants, it would fall into the residuary and
go to sarah--if this was a class gift (it’s not because it says “to each of my
children” not “my children”)--class gift aniken’s descendants would take it. If not,
members of the class would share.
ii. Under the UPC didnt survive by 120 hours--joint tenancy is severed and they’d
be tenants in common. Half would go to david’s estate, half would go to aniken’s
estate
b. Sara wishes to disclaim all interests she has in the estate
i. ?
ii. Lapse and go to the intestacy
iii. She cannot accomplish this--disclaimant has no ability to direct where the assets
go--its like they predeceased the decedent
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CLASS 11
Chapter 7 Revoking the Will and Will Contests
A. Introduction
You should always put in a revocation clause as a CYA.
Codicil is a will but it only addresses a portion of the previous documents.
B. Revocation by Subsequent Instrument or by Physical Act
1. General
A testator may affirmatively revoke her will in one of two general ways:
(i) by documentary means, either explicitly or implicitly; or
(ii) through a physical act.
In order to have a valid revocation, whether by subsequent document (express or

implied by inconsistency) or by physical act, it must be established that the
testator:
(i) had the capacity to revoke;
(ii) had the intent to revoke; and
(iii) revoked in a legally effective manner.
Extrinsic evidence is generally needed to resolve questions about intent.
2. Revocation by Subsequent Instrument
A subsequent instrument may revoke the previous will explicitly (expressly) or

implicitly (impliedly)
Express Revocation: express revocation clause in the will. Clearest articulation

of intent and leaves no room for a challenge by a will contestant on this basis.
E.g., “I revoke any prior wills and codicils made by me”
Implied Revocation: testators may also revoke a will by executing a subsequent

will that is inconsistent with the first, either in whole or in part. Less preferable
because the intent to revoke depends on presumptions rather than a clear
expression by the testator. If the new will disposes of all of the testator’s property,
the previous will is presumed to be revoked in its entirety; if the new will or codicil
only disposes of a particular asset, the previous will is presumed to be revoked
only as to that asset. Under the UPC, these presumptions can only be rebutted
by clear and convincing evidence.
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Cash Devises
Under the common law, cash bequests under codicils were presumed to be
cumulative rather than substitutional. The UPC does not establish a presumption
one way or another, so a court must interpret the testator’s intent. The court may
consider extrinsic evidence in divining the testator’s intent.
If Clara’s first will provided that $50,000 should go to her neighbor,
Dakota, and her second will provides that $25,000 should go to Dakota,
an inquiry is needed to determine Clara’s intent as to whether Dakota is
to receive $25,000 or $75,000
Problems [323]
1. Yes, so long as she had the capacity and intent to revoke.
2. In her will executed in 2010, Tallulah left her Picasso to her friend, Xavier;
her Monet to her friend, Yolanda; $50,000 to her niece, Zelda; and the
rest of her property to her children by right of representation.
a. In a subsequent instrument executed in 2015, Tallulah left her
Picasso to her friend, Paul; her Monet to her friend, Mary; and the
rest of her property to her son, Carl, without stating explicitly that
she was revoking the earlier bequests. Under the UPC, who gets
what?
She is presumed to have impliedly revoked her will
because she disposed of her entire estate (“the rest of her
property to her son”).
Yes--they all get what the new will says
b. Assume there was no 2015 instrument. Rather, in a subsequent

instrument executed in 2016, Tallulah left $75,000 to her niece,
Zelda, without stating explicitly that she was revoking the earlier
bequests. Under the common law and UPC, how much would
Zelda get?
Common law: With cash devises, cash bequests under
codicils were presumed to be cumulative rather than
substitutional. Under common law then, 125K.
UPC: With cash devises, the UPC is silent, so a court

would need to look at extrinsic evidence to determine the
testator’s intent to see how much exactly she was getting.
c. Assume the facts in (b), and that if the probate court ruled that the
increased bequest to Zelda was cumulative, no residue would
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remain. Carl enlists your services to advocate for his devised

share of Tallulah’s estate. As Carl’s attorney, what extrinsic
evidence would you look for in ascertaining Tallulah’s intent with
regard to this question?
If she had told anyone or written down anything regarding
her intent to give Zelda only 75k, not 75+50k. If she had
Carl managing some of these assets for her already.
3. Revocation by Physical Act

A will may also be revoked by physical acts performed by the testator, or another
individual if performed in the testator’s conscious presence and at the testator’s
direction.
Whether the will is effectively revoked depends upon whether the testator
undertook the act with the intent to revoke it. Accidental acts should not be given
revocatory effect since they are not done with the proper intent.
The physical acts may be done to the will or on it. Complete revocation may be
accomplished by doing something to the document, such as burning it, tearing it
up, throwing it away, or writing “revoked” across it or across the testator’s
signature.
A testator may also decide to revoke only a part of the will. She may do this by
“canceling” a provision, i.e., by lining through a provision of the will or writing: “I
revoke this gift.”
Harmless error rule can help us here per 2-503 with clear and convincing
evidence
A Dual Problem
● If you revoke an individual bequest, that bequest will fall into the residue
per UPC 2-604 unless the testator specifically names a new beneficiary.
Problems [324]
1. Your client, Trey, is leaving tomorrow for Europe. He calls and says the
plan of distribution in the will you drafted for him many years ago is no
longer what he wants. He would like to revoke several of the bequests he
made to some people and make new bequests to others. He says he is
too busy packing to come into your office.
a. If Trey has the will in his possession, what would you recommend
he do? Think “outside the box”—what would be some practical
suggestions? How might UPC §2-507 be helpful?
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Trey can cross out and handwrite the new bequests on the will
and sign and date those markings.
b. Assume you kept the original of the will and that Trey only took a
copy. What would you recommend he do? Can you make the
changes for him without his coming in? How might UPC §2-507 be
helpful?
Under UPC 2-507(a)(2), parts of a will can be revoked if the

testator performed the act with the intent of and for the purpose of
revoking the will or part or if another individual performed the act
in the testator’s conscious presence and by the testator’s
direction. The act need not be performed in the testator’s line of
sight, but under the UPC, I think that it would be safer for him to
come in.
Phones aren’t conscious presence--perhaps he would write a new

will in his handwriting that includes a statement revoking his
previous will.
2. Tommy had a six-page will, executed in 2015, that left “$100,000 to my

child, Alice; $100,000 to my child, Bob; two-thirds of the residue to my
wife, Margaret; and one-third of the residue to my mother, Ruth.” Are the
following acts deemed to be an effective revocation? How will the
property be distributed if they are?
a. Tommy burned all six pieces of paper representing the will.
Assuming the burning of the will is not accidental and is instead
intentional and assuming that Tommy had the capacity to intend to
burn the will, that will has been physically revoked.
Intestate
b. Tommy wrote the word “revoked” across only the first page of the
will. What if he did so across each of the six pages? What if he did
so across only his signature?
Across the first page leaves room for argument that the entire
thing is revoked, but I think that the courts will likely end up only
finding that the first page is revoked as I’m not sure that it alone
rises to the level of clear and convincing evidence. If it was across
all six pages, then I think that the will would be revoked
completely. Same for across his signature, so long as he’s made it
clear that he did all of these revokings himself.
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c. Tommy drew a line through the words “$100,000 to my child,

Alice.” How will the $100,000 be distributed?
Per UPC, it would go to the residue: ⅔ to wife Margaret, and ⅓ to
mother Ruth
d. Tommy drew a line through the number “$100,000" in the bequest

to Bob, wrote $200,000 above it, and initialed and dated the
change. Ask yourself,
(i) is the revocation of the $100,000 effective;
Yes; that part of the Will has clearly been revoked as it
expressed the intent to revoke and it seems as if Tommy
has the capacity to make that decision. Additionally,
Tommy changed the bequest to a new number further
expressing his intent to revoke the 100k????
(ii) is the bequest of $200,000 in compliance with attested

or holographic will formalities; and
It’s not in compliance with attested will formalities as there
aren’t witness signatures to his alteration; however, the
new bequest is in compliance with third-generation
holographic will statutes as the material provisions and the
signature is in the testator’s handwriting????
(iii) can the formalities be waived per UPC §2-503, the

harmless error rule?
Yes????
2-503(iii): proponent of the document or writing establishes
by clear and convincing evidence that the decedent
intended the document or writing to constitute an addition
to or an alteration of the will
e. Tommy drew a line through the words “and one-third of the

residue to my mother, Ruth.” Look at UPC §2-604(b).
It would go to wife Margaret.
4. Presumptions with Regard to Revocatory Acts

a. Mutilated Will
If the will is found with revocatory marks, the law creates a rebuttable
presumption that the testator intended to revoke the will. The presumption
can be rebutted by evidence that establishes that the testator did not
mutilate the will with the intent to revoke it.
For example, a single mark or tear could be the result of a mishap if the
will was not stored in a protected place. Lots of annotations on the will
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could represent changes the testator had considered but did not make. It
is also possible someone else made the marks.
b. Lost Will
If the will is missing and was last in the possession of the testator, the
common law creates a presumption that the testator destroyed the will
with the intent to revoke it. Extrinsic evidence can be used to overcome
the presumption.
In re Estate of Beauregard (Mass 2010)

Facts/PH: The decedent died on July 19, 2003, at 40 y/o, unmarried, and
without kids; his parents were his sole heirs and next of kin. After the
decedent died, the probate court appointed his father as administrator of
his estate. Steven Knight had the same residential address as the
decedent and filed a petition for probate of a “copy of a will.”
The decedent’s original will, which had been executed on June 11, 2003,
just five weeks before he was murdered, had been lost. That will
bequeathed significant assets to Knight.
PH: Because Knight proffered only a copy of the decedent’s will, the
judge applied the evidentiary presumption that “where a will once known
to exist cannot be found after the death of the testator, there is a
presumption that it was destroyed by the maker with an intent to revoke
it.” The judge concluded that Knight had failed to rebut the presumption,
and dismissed his petition. Appeals affirmed. Supreme court affirmed in
this decision.
Issue:
Holding: No, the presumption is evidentiary, not an affirmative defense

that must be pleaded by opponents.
- When a will is traced to the testator’s possession or to where he
had ready access to it and the original cannot be located after his
death, there are three plausible explanations for the will’s
absence: (1) the testator destroyed it with the intent to revoke it;
(2) the will was accidentally destroyed or lost; or (3) the will was
wrongfully destroyed or suppressed by someone who was
dissatisfied with its terms.
- Of these, Massachusetts law presumes the first
- Accordingly, the proponent of a will that has been traced to the
testator’s possession (or to which the testator had ready access),
but cannot be found after his death must demonstrate by a
preponderance of the evidence that the testator did not destroy
the will with the intent of revoking it.
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- It is not necessary that the proponent establish that the will was in
fact accidentally lost or destroyed, or that it was wrongfully
suppressed by someone who was dissatisfied with its terms. The
presumption is rebutted if a preponderance of the evidence
demonstrates that the testator did not intend to revoke his will
- In this case, the judge concluded that he “could not draw any
inference that the will was accidentally lost by the decedent.”
- The judge first reasoned that the decedent was young, healthy,
and fully competent at the time of his death, so it would have been
unlikely that he would have lost the original will accidentally.
- The temporal proximity between execution of the will and death
provided little time for the decedent to change his mind; However,
it is “not enough to show that a different conclusion might well
have been reached.”
- Our examination of the evidence does not lead to the inevitable
conclusion that the judge’s findings, based on his view of the
evidence and his evaluation of the witnesses’ credibility, are
clearly erroneous
C. Revocation by Changed Circumstances

If the person dies with a will or will substitute that gives property to a former spouse or
fails to give property to a new spouse, the law may provide default rules that revise the
instrument based on the new circumstances. The testator can override these rules, but
they assume the testator did not anticipate these changes. In addition, the law revokes
gifts to someone who killed the testator, not only because the testator would not likely
want the killer to inherit from him but also because we want to deter such behavior.
1. Revocation by Marriage--Omitted Spouse

Most states and the UPC no longer revoke a testator’s pre-existing will upon a
subsequent marriage. Rather, UPC §§2-201 and 2-301 provide the spouse with
either the right to elect a share of the marital property portion of the decedent’s
augmented estate or an amount equal to what she would have received had the
decedent died intestate.
2. Revocation on Divorce
In most states, statutes revoke bequests to a former spouse and any nomination
of the former spouse as a fiduciary. Some statutes, including the UPC, go further,
and also prevent family members of the former spouse from receiving property.
The former spouse and her family members are deemed to have disclaimed the
property or have predeceased the decedent and are precluded from taking or
serving as a fiduciary. This partial revocation occurs by statute without the
testator having to take any affirmative action.
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UPC §2-804 would revoke such a bequest to stepchildren. And because

revocation-on-divorce statutes apply in many states, a testator should always
execute a new will after divorce to clarify his wishes.
a. Will Substitutes
A number of states have statutes that revoke a bequest to an ex-spouse
in a will, but have not extended that rule to will substitutes. This approach
can easily cause inconsistent results. UPC §2-804(b) follows a different
approach and extends the revocation-upon-divorce doctrine to any
governing instrument, i.e., a will or will substitute. In addition, the statute
converts interests in jointly held property with rights of survivorship to
tenancies in common.
b. ERISA Preempts State Law

401ks need to be addressed--federal law trumps state law
3. Revocation Due to Homicide

UPC §2-803 revokes any bequest to the decedent’s killer and the revoked
provisions are given effect as if the killer disclaimed them. Although the UPC
prevents the killer from taking, the fact that it treats the killer as having disclaimed
his interest means that the killer’s descendants may take the property, either
under the document or the antilapse rules
UPC §2-803 revokes a bequest if the killing was “felonious and intentional.”
Other statutes may use different language, but they typically apply only to killings
that could be prosecuted as felonies and that involve the element of intent. The
revocation statute is a civil law, so application of the statute does not require a
criminal conviction, and the evidentiary standard is lower than that required under
criminal law. Under the UPC, if the killer is convicted of a felonious and
intentional killing in a criminal proceeding, that conviction is sufficient to trigger
the application of UPC §2-803. Even if the killer is not convicted, or if the
conviction is not final, an interested person (someone who will take if the killer
does not) can petition the probate court to conduct a separate proceeding to
determine whether under the civil standard—a preponderance of the evidence
standard—the killer would be found criminally accountable for the killing.
a. Will Substitutes
While “no consensus exists [among the states] about the applicability of
so-called ‘slayer statutes’ to inter vivos trusts or other will substitutes,”
UPC §2-803 applies both to wills and will substitutes.
[Problems 336]
1. What is the result under each of the following scenarios?
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a. One of Harry’s children (Alice) paid a killer to “knock off” Harry.

The killer was successful. Under what circumstances will this have
an effect on the distribution of the estate?
i. Alice has two children—could they be affected? Does it
matter whether she is treated as having murdered Harry
under UPC §2-803?
Under the UPC, descendants of Alice are fine. No, it does

not matter, as the UPC does not bar descendants of a
killer from taking from the estate if they are bequeathed
something or due to antilapse rules.
b. Harry died in a car accident while a passenger in Alice’s car. Alice

survived the accident. Assume Alice was 22 years old.
i. Alice is convicted of involuntary manslaughter based on a
jury finding that she was incoherent due to drug use when
the accident occurred. What effect does this have on the
distribution of the estate?
Because involuntary manslaughter is not intentional in the

way that murder is, I think that she should still be able to
receive from Harry’s estate. UPC requires “felonious and
intentional killing.”
ii. It can be determined that Alice had tampered with the

brakes so they did not work around a vicious curve.
Nevertheless, Alice was acquitted of all charges in her
criminal trial because the police performed an
unconstitutional search of Alice’s home where the plans
were discovered. What effect does this have on the
distribution of the estate?
Under the UPC, in the absence of a conviction, the court,

upon the petition of an interested person, must determine
whether, under the preponderance of evidence standard,
the individual would be found criminally accountable for
the felonius and intentional killing of the decedent. If the
court finds that the individual is established as the
decedent’s killer for the purposes of UPC 2-803 and would
not receive from the estate.
Under the UPC standard, Alice probably cannot receive or

be a personal rep for the estate????
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iii. If Alice had received a distribution and later it was

determined that she had murdered Harry, what legal
doctrine(s) might you employ to seek its return to the
rightful beneficiaries?
2. Wanda and Harry divorced several years after the will was drafted, and
Harry did not draft a new will. What effect does this have on the
distribution of the estate to Wanda and anyone else?
Under the UPC and most state statutes, the bequest would be revoked
upon divorce.
Under the UPC lapse statutes, those bequests would go to the
residue?????
3. Wanda is the named beneficiary on Harry’s $1 million life insurance policy

and his $500,000 401(k) account. She and Harry are joint owners with
rights of survivorship in the $2 million family home.
a. If Wanda divorces Harry before he dies, who takes what?

Under the UPC, the life insurance policy and 401k would
go to alternative beneficiary under the policy. The UPC
statute coverts interest in jointly held property with rights of
survivorship to tenancies in common.
b. If Wanda is found guilty of killing Harry, who takes what?

Under the UPC, the life insurance policy and 401k would
go to alternative beneficiary under the policy. I’m not sure
what would happen to the property.
4. Revocation Due to Abuse

Some states have adopted statutes that bar inheritance by someone who abused
the decedent, for example, an adult child who abuses an elderly parent. These
states include California, Pennsylvania, Illinois, Oregon, Maryland, and Michigan.
Problem [338]
You are advising your state legislature’s probate committee.
Would you recommend adopting a statute that bars inheritance based on abuse?
If the court conducts an inquiry as to whether there was abuse by clear and
convincing evidence.
Should the legislation cover abuse other than elder abuse?
See Estate of Lowrie, 12 Cal. Rptr. 3d 828 (Ct. App. 2004), where the
granddaughter, who was the beneficiary of her grandmother’s trust, filed a
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petition seeking damages for elder abuse of the grandmother by her son, the
granddaughter’s uncle. The granddaughter also requested a statutory order
disinheriting her uncle. The court found that the uncle was guilty of elder abuse
and disinherited him from the grandmother’s estate.
D. Impact of Revocation
1. What Happens to a Previously Revoked Will When the Revoking Will Is Itself
Revoked?
Kirkeby v. Covenant House

Under the doctrine of dependent relative revocation, a court can probate a will that was
revoked by a testator through the execution of a subsequent will where that subsequent
will is later declared invalid. The applicable principle is that the court may declare the
revoked will valid, if it determines that the testator did not intend to die intestate and
would not have revoked the prior will if he or she had known that the subsequent will
would prove to be invalid.
Problems [347]
Gertrude executed Will #1 eight years ago. Five years ago, she executed Will #2, which
expressly revoked Will #1. In each situation below, answer the following: Which will or
testamentary scheme, if any, controls, and why?
1. Last year, Gertrude executed Will #3, which expressly revoked all prior wills.
a. Recently, Gertrude revoked Will #3 by tearing it up. There is no evidence
suggesting that Gertrude wished Will #1 or Will #2 to control.
Intestate? It’s not close in time…so I’m not sure
b. What if Gertrude revoked Will #3 by tearing it up because she was told by

her accountant that by tearing Will #3, Will #2 would become her
operative will again?
Yes?
2. Last year, Gertrude executed Will #3, which expressly revoked all prior wills. Will
#3 lacked Gertrude’s signature.
a. What if Will #3 instead lacked the signature of one of the two required
witnesses?
3. Last year, Gertrude executed Will #3, which was a codicil that redirected the gift
of her house from Xavier (as provided in Will #2) to Yolanda. Recently, Gertrude
revoked the codicil by writing “revoked” on it.
4. What if it can be established that Gertrude revoked Will #3, believing that the
property that was the subject of Will #3 would pass by intestacy?
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CLASS 12
E. Will Contests
Most will contests end in settlements
Petitioners who seek to establish intestacy have the burden of establishing a prima facie proof
of death, venue, and heirship [and that there is no will]
[Testacy] Proponents of a will have the burden of establishing prima facie proof of due execution
in all cases, and, if they are also petitioners, prima facie proof of death and venue
If the will is notarized but not self-proved, there is a rebuttable presumption that the will satisfies
the requirements for execution the filing the will
POPI
- Property she owns and wishes to give away
- Who the objects of her bounty are
- The fact that she is engaged in a plan to dispose of her property on her death
- And the interrelationship of all three
Those contesting wills reply on one more of the following theories:
1. Improper Execution
Proponent of will has burden of presenting properly executed document. If the will
appears to be regular on its face, i.e., if it is in writing and all the requisite signatures of
the testator and the witnesses exist, then it will be presumed properly executed. If
someone wants to challenge the validity of the will based on a failure to comply with the
execution requirement, the burden shifts to the contestant to establish that the requisite
legal requirements and formalities were not satisfied.
2. Testamentary Capacity--General Capacity and Insane Delusion
Videotaping can sometimes go against you
General capacity: invalidates the entire will

Insane delusion: invalidates only the bequests related to that particular beneficiary (that
beneficiary may have gotten less due to the testator’s insane delusion)
a. General Capacity
In order to have testamentary capacity, the testator must understand:
i. who the natural objects of his bounty are;
ii. that he is making a will; and
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iii. the extent of his property.
The testator’s understanding of these three things must exist at the moment of
execution. The testator may be a bit unsure of these things prior to or after
execution, but as long as he is aware of them at the moment he signs his will,
then he has met the standard of testamentary capacity.
Lucid Moments: Will is valid so long as person executed it in a lucid interval in

which the person meets the standard for mental capacity.
b. Insane Delusion
A testator may meet the test for general mental capacity, but a contestant may
base a challenge on a specific delusion allegedly held by the testator.
The contestant must show that the delusion had no basis in reality and that
there was a connection between the delusion and the testator’s bequests in
the will.
Breeden v. Stone (Colo. 2000)

Facts: Decedent died from a self-inflicted gunshot wound on March 19, 1996.
Two days before his death, he was involved in a highly publicized hit-and-run
accident that killed the driver of the other vehicle. Before he killed himself, he
executed a holographic will that gave everything to Sydney Stone.
Sydney offered the handwritten will for probate as the holographic will of the
decedent. The decedent had a previously executed will from 1991 and a
holographic codicil leaving his estate to persons other than Sydney. Petitioners,
Breeden’s family members, filed objections to the will, alleging a lack of
testamentary capacity, both general and insane delusions about “threats against
himself and his dog from government agents, friends, and others”
PH: appeal from probate court
Issue: whether the probate court applied the insane delusion and Cunningham
elements tests properly?
Holding: an objector may challenge a testator’s soundness of mind based on

both or either of the Cunningham and insane delusion tests; In sum, the probate
court order reflects that the court thoroughly considered all of the evidence
presented by the parties and concluded that (1) the testator met the Cunningham
test for sound mind and (2) the insane delusions from which the decedent was
suffering did not materially affect or influence his testamentary disposition.
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- A person has testamentary capacity if he is 18 y/o or older and is of

sound mind
- Once a proponent of a will offers prima facie proof that the will was duly
executed, any contestant then assumes the burden of proving a lack of
testamentary capacity, including a lack of sound mind, by a
preponderance
- Colorado has two tests for testamentary capacity:
- Cunningham Test (general capacity test)
- mental capacity to make a will requires that: (1) the testator
understands the nature of her act; (2) she knows the extent of her
property; (3) she understands the proposed testamentary
disposition; (4) she knows the natural objects of her bounty; and
(5) the will represents her wishes
- test is most commonly applied in cases in which the objectors
argue that the testator lacked general testamentary capacity due
to a number of possible causes such as mental illness, physical
infirmity, senile dementia, and general insanity
- The Insane Delusion Test (for sound mind)

- This court has also held that a person who was suffering from an
insane delusion at the time he executed the will may lack
testamentary capacity. An insane delusion is “a persistent belief in
that which has no existence in fact, and which is adhered to
against all evidence.”
- Colorado has held contractual capacity and testamentary capacity
as the same: you can have delusions and be insane about one
thing, but not what you’re contracting;
- insanity does not make one incompetent to contract unless
the subject matter of the contract is so connected with an
insane delusion as to render the afflicted party incapable
of understanding the nature and effect of the agreement or
of acting rationally in the transaction.
-
3. Lack of Testamentary Intent

Problems [355]
1. Review the Marjorie Black will in the appendix of Chapter 6. If you were
representing the proponent of the will, what three phrases or sections of the will
would help you establish present, unconditional testamentary intent? When one
says that testamentary intent is required, what exactly must the client intend?
i. The exordium clause as a whole offers considerable evidence of
testamentary intent. Black explicitly revokes her previous wills and
codicils to bequeath her estate as set out in the new will, showing
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intent to give. She also makes clear her intent to have a prior will
revived if this will should fail for any reason.
ii. Article I - family information specifically notes the present status of
her relationship with all of her family members and explicitly says
that should the present situation change (if she gets married) it will
not affect this will.
iii. Article II - Specific & general gifts section shows that she has
knowledge of the extent of her property
In order to have testamentary capacity, the testator must understand (i)

who the natural objects of his bounty are; (ii) that he is making a will; and
(iii) the extent of his property.
2. Your client, Mary Jane, lives in an assisted care facility. She has been diagnosed
with Alzheimer’s disease, but she is in an assisted living facility due to physical
problems. When you met with her, you determined that she still has the capacity
to execute her will. You have now drafted her will as she directed, which gives
her estate to two of her children. How should you prepare for the execution of the
will? What can you do to protect her from the will contest that you worry will
come?
i. Could potentially quash any will contests by showing how you
decided she had capacity. Ex., ask her questions about what day
it is, when she last saw you, what you’re there to do for her, the
names of her children, significant dates in her life, etc. that
establish that she has at least enough lucidity to draft the will.
Alternatively, maybe a medical professional can certify that she is
not in an assisted living facility for her Alzheimer’s and that she
has a sound mind?
4. Undue Influence
Undue influence requires the contestant to prove the following elements: (i) the
existence and exertion of an influence; (ii) the effective operation of that influence so as
to subvert or overpower the testator’s mind at the time of the execution of the will; and
(iii) the execution of a will which the maker would not have executed but for such
influence.
Estate of Sharis
Facts: Alice, decedent, died on February 13, 2010. She had three daughters, sixteen
surviving grandchildren, and several great-grandchildren. 13 months before she died,
her second husband Peter died.
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Spinelli, appellant, is one of Alice’s grandchildren. Back in 2003 he moved into Alice and
Peter’s home, and remained there until after Alice died. He drove Alice to medical
appointments and elsewhere, but he did not financially contribute to the home.
Spinelli was nearly in complete control of Alice and Peter’s checking account between
2006 and 2008. Spinelli signed Peter’s name to 119 checks between March 4, 2006, and
February 4, 2008. Alice complained to one of her daughters and a granddaughter that
she did not know where her money or checks were. On June 30, 2007, Alice signed a
durable power of attorney, prepared by Spinelli, that took effect immediately and gave
Spinelli broad powers.
Spinelli did not inform other family members of the power of attorney, or that he was
signing checks on his grandparents’ accounts.
Spinelli contacted an attorney in Feb/March of 2008 to see if the attorney could draft a
will for Alice. The attorney never met with Alice in person and then assigned the actual
drafting of the will to an associate in his office who only communicated with Spinelli via
email. Once the will was drafted and sent to Alice, the attorney conducted a brief, two-
minute telephone conversation with her. No attorney reviewed the terms of the will in
person with Alice, nor did an attorney attend the execution of the will. There is no
evidence that either the attorney or the associate inquired, or that Alice explained, why
she would favor Spinelli over her daughters and other grandchildren.
On July 23, 2008, Spinelli took Alice to the nursing home where her husband was a
patient. She executed her will there, with nursing home staff as witnesses. Spinelli was
nearby when the will was executed but was not in the room. The employees who
witnessed the will did not observe any behavior that caused them to question whether
Alice executed the will of her own free will.
Terms of the will: house and assets/property/stocks/securities to peter if he survives her,

and if not, to Spinelli. Savings and checkings would be distributed equally to three
daughters. Reside to three daughters and to Spinelli.
PH: Richard Spinelli appeals from a decision of a judge of the Probate and Family Court
disallowing the will of his grandmother, Alice R. Sharis (Alice), on the grounds of lack of
testamentary capacity and Spinelli’s undue influence. Affirmed.
Following the execution of the will, in September of 2008, Spinelli opened a checking
account in his name in trust for Peter and Alice. Between September, 2008, and the date
Alice died in February of 2010, the judge found, and Spinelli does not dispute, that he
transferred $71,450 from the checking account to the trust account, and that substantial
sums were then expended from the trust account. The judge found these transfers had
the effect of disrupting Alice’s bequest of her checking and savings accounts to her
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daughters. The judge found that Spinelli, who testified at trial, was not credible on key
issues, including his control over bank accounts, his control over Alice’s finances, and
the circumstances under which he obtained the power of attorney.
One of the decedent’s daughters, Florence, brought this action contesting the will on
grounds of lack of testamentary capacity and undue influence. [Because the court
affirmed the finding that the will was a result of undue influence, it found it unnecessary
to address the lack of testamentary capacity claim.—EDS.]
Issue: whether Spinelli unduly influenced Alice into signing the will?
Holding: Yes. Affirmed.

- A claim of undue influence is comprised of four elements:
- (1) an unnatural disposition has been made
- (2) by a person susceptible to undue influence to the advantage of
someone
- (3) with an opportunity to exercise undue influence and
- (4) who in fact has used that opportunity to procure the contested
disposition through improper means.
- While the burden of proof ordinarily rests with the party contesting the will, a
“fiduciary who benefits in a transaction with the person for whom he is a fiduciary
bears the burden of establishing that the transaction did not violate his
obligations.”
-
-
5. Fraud and Duress

6. Tortious Interference with an Expectancy
F. Preventing Challenges--In Terrorem or “no-contest” clauses
G. Alternative Dispute Resolution in Probate

1. The Benefits
2. The Challenges
3. Are mediation and arbitration clauses enforceable?
H. Contracts Concerning Wills

The beneficiaries may claim that the decedent (i) promised specifically to leave them property,
often in exchange for services or as part of a prenuptial agreement; or (ii) promised not to
revoke a will, typically brought when a couple has executed mutual wills that have reciprocal
provisions, and the decedent has changed the will.
1. Contract to Make a Will
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While disappointed beneficiaries may be able to use a prior will to support their claims,
they may also claim the existence of an oral contract that induced them to change their
behavior in the expectation of an inheritance. Where state law requires a writing, courts
have been hostile to finding the existence of an enforceable contract.
2. Contracts not to revoke wills
Problems [372]
Example: Ralph and Rhonda marry late in life, and they want to provide for each other,
but ultimately they want their combined property to be divided into four equal shares:
one for each of Ralph’s two sons and one for each of Rhonda’s two daughters. They
execute wills leaving a life estate to the surviving spouse, with the remainder to the four
children; they also sign a contract, drafted by their lawyer, in which they each agree not
to revoke the will after the first spouse dies. After Rhonda dies, Ralph executes a new
will, leaving his estate to his sons. He is in breach of his contract with Rhonda, and her
daughters can sue the executor of Ralph’s estate.
1. As noted in the example above, Ralph is in breach of his contract with Rhonda
for executing a new will after Rhonda dies, and her daughters can sue the
executor in Ralph’s estate. But what if Ralph transfers his property to a revocable
living trust that leaves the property to his sons when he dies? Has he breached
the will contract? And what if Ralph simply gives the property to his sons before
his death?
i. Yes, he has breached the will contract, since the transfer of the
property to the revocable living trust was designed specifically to
defeat the contract in the will not to revoke. The court should
mandate that the trust be ignored and that the initial will control.
ii. If he gives property to his sons before his death, the court should
hold the value of this property aside when the will is executed and
the remainder of the estate is parceled out. In the instance where
the entirety of the estate had been transferred to his sons during
his life and there was no residue of the estate to be gifted, it
seems the court should act somehow, but I’m not sure how????
2. Sarah and Elizabeth are intimate partners, and Sarah was recently diagnosed
with a terminal illness. She has asked Elizabeth to care for her throughout her
illness, and has promised to leave Elizabeth a $200,000 bequest in her will. What
steps should Elizabeth take to ensure that she receives the bequest?
i. Elizabeth should get the bequest in writing as a codicil to the will,
then document (with a signature from both parties) exactly how
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she will be caring for Sarah. Every time Elizabeth does something
that falls under the “care” that they agreed to, she should make a
note of it that she keeps, as well as any official documentation of
medical treatment. She should also ensure that the terminal
illness doesn’t cause mental defect or deficiency, and if it does,
should have an attorney properly ensure that Sarah is of sound
mind, or at least lucid, when she makes the will codicil.
3. Mildred, age 88, fell recently and broke her hip. After some months in rehab, she
has moved in with her daughter, Denise. Mildred has two children, Denise and
Stan. Denise lives with her partner, Katrina, and their two children, Ann and
Barry. Stan has never married and has no children. Stan lives in Idaho and
cannot visit his mother very often, but he calls her every Sunday evening. Mildred
knows that Denise spends a lot of time taking care of her and wants to
compensate Denise by leaving her three-quarters of her estate. The other one-
quarter will go to Stan. Mildred has come to talk with you about a new will. (Her
current will gives her estate “to my descendants, by representation.”) She worries
that Stan will be hurt and will contest the will, but she wants to do it this way.
Advise Mildred.
i. Mildred should explicitly state why she is compensating her
daughter more - housing, care, etc. to show that there is not any
undue influence from her daughter at her advanced age. I would
meet with Mildred separately from her daughter or extended
family and confirm both that she has her own capacity and that
her desires in the will were her own. I would also advise Mildred to
put a conditional clause in place that acknowledges the last time
she saw her son in person and substitutes the amount of the
estate given to Stan if he should move closer or come to visit his
mother ‘X’ amount of times in ‘Y’ years so that he is adequately
compensated if circumstances change and she doesn’t have
capacity to amend her will later.
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Class 13
Exercise 373
1) We’d want to clarify whether Andrew wants a secondary beneficiary or if Andrew would
want the anti-lapse statute to apply
a) Thats for a, b, and c
2) Add a successor personal representative to Linda in case she predeceases Andrew
3) Establish trust with successors in case Linda predeceases Andrew
a) Can be testamentary or not
4) Specify any real property in the will
5) “Divided between them as they may agree” -- could encourage conflict; just divide
equally; establish that they must have agreed on the division of the assets within 90
days after a representative is named in the probate process or the representative will
begin to divide the assets as they feel is fair.
375-409
A. Introduction
1. What is a trust?
Fiduciary relationship
Settlor: creates the trust
Trustee: manages the trust
Beneficiary: benefits from the trust
Settlor control
- A settlor can dictate the terms of a trust because the property being used
to create the trust belongs to the settlor
Trust law establishes mandatory and default rules

Mandatory: applies to all trusts and cannot be changed by the settlor; quite
limited and serve to safeguard the interests of the beneficiaries
Much of trust law is default law; the settlor can establish the terms of the trust in
a written document.
Trusts are incredibly flexible estate planning tools, but once a trust becomes
irrevocable, the trust can be difficult to change.
Estate planning lawyers use trusts for a variety of purposes—protecting assets

from a spendthrift family member, managing assets for a minor child or a
beneficiary unsophisticated with financial and investment matters, holding assets
in a way that will provide estate tax benefits, or setting aside assets for a special
needs child in a manner that will not cause the loss of government benefits.
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Lawyers create most of the trusts we will discuss, but sometimes a person will
create a trust relationship, governed by trust law, without realizing she has done
so
2. Terminology for Trusts
a. Settlor
● Person who creates the trusts
● Transfers legal property to the trustee to hold for the benefit of the
beneficiaries
● Settlor can be referred to as: “trustor” and “grantor”
○ Trustor is antiquated, but still correct
○ Grantor is only used for tax-planning purposes
b. Trustee
● Trustee holds legal title to the property
● Manage the property for the beneficiaries
● Trustees can be an individual or a corporation
● Trusts can have more than one trustee
● Strict duties to protect beneficiaries, e.g.,
○ These fiduciary responsibilities include the duty not to self-
deal and duties connected with the management and
investment of the trust property.
c. Trust protector: person authorized by settlor to exercise one or more
powers over the trust; supersedes that of the trustee to the extent of the
specified powers.
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d. Beneficiary: person with beneficial or equitable title to the trust property.

Can be a present or future interest.
e. Qualified beneficiary
● From the Uniform Trust Code:
○ Due to the difficulty of identifying beneficiaries whose
interests are remote and contingent, and because such
beneficiaries are not likely to have much interest in the
day-to-day affairs of the trust, the Uniform Trust Code uses
the concept of “qualified beneficiary” (paragraph (13)) to
limit the class of beneficiaries to whom certain notices
must be given or consents received.
○
f. Corpus (property or res)

● Corpus or res of a trust is the property held and managed by the
trustee.
● Can also be referred to as the trust estate.
● There is no minimum amount to fund a trust.
g. Inter vivos and testamentary trusts
Trusts can be created during the settlor’s lifetime (inter vivos trusts) or
upon the settlor’s death, through her will (testamentary trusts).
i. Inter vivos trusts: settlor creates while still alive
ii. Testamentary trusts: settlor can create one or more trusts in her
will
● Will directs personal rep to distribute the residuary to the
trustee in the will
● Will has embedded the terms of the trust
● Like an inter vivos trust, a testamentary trust can provide
for one or more beneficiaries, can be set up for a short
time, or can last as long as state law permits, and it can
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provide whatever directions about distributions seem best

for the purposes of the trust.
h. Revocable and irrevocable trusts

A trust can be either revocable, if the settlor retains the power to modify or
amend the terms of the trust or revoke it, or irrevocable, if the settlor
cannot modify, amend, or revoke the trust.
i. Revocable
● If the settlor retains the power to modify or revoke the trust,
the trust is revocable.
● The default under the UTC is that all trusts created after its
enactment are revocable unless the terms of the trust
“expressly provide that the trust is irrevocable.”
● Although a settlor can retain the power to revoke any trust,
a revocable trust is most commonly a “revocable living
trust.”
● Revocable living trusts hold the settlor’s assets during the
settlor’s life, distributes to the settlor whatever income or
corpus the settlor needs or requests, and then at the
settlor’s death, distributes the remaining assets to
beneficiaries named in the trust instrument.
● A settlor can create a revocable trust by transferring the
property to another individual or corporation as trustee or
by declaring that he holds the property as trustee and no
longer holds the property in his individual capacity.
● When the settlor of a revocable trust becomes
incapacitated, the successor trustee will assume the duties
of managing the assets for the settlor.
● When the settlor dies, the trust serves as a will substitute
so that probate of the trust property is not necessary.
ii. Irrevocable
● Irrevocable trusts are typically used for tax planning, and
lawyers are usually involved when a property owner
creates an irrevocable trust.
● Irrevocable trusts arise in one of several ways: (i) all
testamentary trusts are irrevocable; (ii) a settlor may create
an inter vivos irrevocable trust; and (iii) revocable living
trusts become irrevocable when the settlor dies.
● irrevocable trusts, whether inter vivos or testamentary, are
frequently created in lieu of giving the property outright to
the donee.
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● This is preferred when the donee is either too young or too

inexperienced to manage the property or because the
settlor is interested in having someone else (the trustee)
make decisions about the needs of the donee at a later
time.
i. Charitable trusts: has a charitable purpose or a charity of the beneficiary
j. Private express trusts: trust created intentionally by the owner of property

for private beneficiaries (and not for charity)
k. Trust agreement/declaration of trust: two types of trust instruments

(documents) that are used to create an inter vivos trust.
● If the settlor is going to be the original trustee, the settlor declares
himself trustee using a “Declaration of Trust.” He declares that he
now holds the property as trustee and not in his individual
capacity.
● If another person is going to be the trustee, the settlor transfers
property pursuant to a “Trust Agreement.”
l. Constructive trusts
● Equitable remedy created by a court for the limited purpose of
getting property to the correct (in the view of the court) owner.
● The division of title—legal title to one person and equitable title to
another—allows the court to transfer title as required by law to the
legal owner but direct that the legal owner holds the property
subject to a constructive trust, with the duty to transfer the
property to the rightful owner.
● Prevents unjust enrichment; remedy, not really a trust
● The UTC does not apply.
m. Resulting trusts
● Equitable remedy
● When an express trust makes an incomplete disposition of the
property in the trust or the trust fails because it no longer has a
valid purpose
● Property in trust either returns to the settlor or is distributed
through the settlor’s estate
● Similar to a revisionary interest
● UTC does not discuss resulting trusts
n. Merger
● When a trustee and the trust’s only beneficiary are the same
person, the legal and equitable interests merge and the trust
terminates.
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● Merger will occur even though not all of the trust’s purposes have
been accomplished.
● UTC: The doctrine of merger is properly applicable only if all
beneficial interests, both life interests and remainders, are vested
in the same person, whether in the settlor or someone else. An
example of a trust to which the doctrine of merger would apply is a
trust of which the settlor is sole trustee, sole beneficiary for life,
and with the remainder payable to the settlor’s probate estate.
● Creditors of a beneficiary may seek to terminate a trust using the
merger doctrine so that impediments to collection are eliminated
Revocable is default under the UTC

Inter vivos -- terms are usually in a separate trust agreement
B. Creation--Elements of a Trust
In determining whether a trust exists, courts focus on what the settlor intended when the
settlor transferred property to someone else. Elements of a trust:
● The trust must be established for a valid, legal purpose.
● The settlor must be competent when creating the trust.
● The trust must have a trustee.
● The settlor must have intended to create a trust.
● The trust must be funded, i.e., must have some corpus (property or res).
● The settlor must identify an ascertainable beneficiary. (As we will see, the UTC
modifies this requirement.)
A few states require the terms of a trust to be in writing. If there is real property in the
trust, most states require a writing.
A trust will not fail for lack of a trustee because a court will appoint a trustee for the trust.
Each of the other requirements must be met before a trust will be created.
1. Valid, Legal Purpose

A trust must have a valid purpose—a reason the trustee holds and manages the
property.
If the purpose is accomplished and a valid purpose no longer exists for the trust,
the trust terminates. At that point, the trustee will distribute the trust assets as
directed by the terms of the trust, or if the terms do not state where the assets
should go, the trust will become a resulting trust and revert to the settlor or the
settlor’s estate.
Purpose of trust can’t be against public policy. A decision that a trust term is
invalid cuts against the deference usually paid to the settlor’s ability to do what
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he wants with his property. Courts rarely use public policy to invalidate a trust
provision.
- Can’t encourage to commit crimes
- Can’t restrict religious freedom
- Can’t really interfere with family relationships by encouraging divorce,
discouraging marriage, encouraging neglect of parental duties, etc.
- The Comments to §29 of Restatement (Third) of Trusts suggest that a
provision that limits the freedom to obtain a divorce or to marry should
ordinarily be invalid.
Problem [388]
Sophia was concerned about the logging of old-growth forests. In her will she
created a testamentary trust (i) to educate the public about the importance of old-
growth forests; (ii) to organize protests against logging in old-growth forests; and
(iii) to pay the legal costs of anyone arrested for civil disobedience in connection
with protests against logging in old-growth forests. Is this trust valid?
- Charitable trust
- I think it is arguable that it is because protesting on its face is not illegal--
she’s not encouraging rioting in the street, but if she intended to
encourage something along those lines then it would be invalid because
she’s encouraging her beneficiaries to commit crimes ????
- If anything, the third provision would be invalidated
2. Competent Settlor
● Because a testamentary trust is created in a will, the standard of capacity
required to create a testamentary trust is the same as the standard to
execute a will.
● For an irrevocable inter vivos trust, the level of capacity required is the
standard to make a gratuitous transfer: the settlor must not only have the
understanding required for wills but also understand the effect that
creating a trust has on her future financial security and ability to support
any dependents.
● The law imposes this requirement because a decision to part with
property during life affects the settlor’s ability to care for herself and any
dependents.
● Thus, the standard is higher than the standard to execute a will or create
a testamentary trust.
● For revocable trusts, the question of what standard to use is complicated
by the fact that a revocable trust serves both lifetime and testamentary
functions.
○ The UTC applies the wills standard to revocable trusts.
Notes and Questions:
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1. Risky standard? Should the standard for a revocable trust be

higher than for a will? A revocable trust is often used to manage
property during the settlor’s lifetime and is likely to serve as more
than a will substitute. If a settlor transfers all of her property to the
control of the trustee, the settlor will depend on the assets in the
revocable trust for the remainder of her life.
2. Other options. Although the lower standard for revocable trusts
may create some risk, it is helpful to remember that a trust can be
set aside on the same grounds used to invalidate a will: undue
influence, fraud, or duress. In addition, as long as the settlor has
capacity, she can revoke the trust if problems develop.
3. Trustee
A trustee holds title to the property interests held in trust. The roles of the trustee
are many, including managing and investing the property and making either
mandatory or discretionary distributions to the beneficiaries.
A trust must have a trustee, but a trust will not fail for lack of a trustee because a
court will appoint a trustee if necessary.
Usually, the trust instrument names a trustee and successor trustees in case the
named trustee cannot or will not serve, dies, resigns, or is removed. The trust
instrument may appoint more than one trustee to serve as co-trustees at the
same time.
A trust created without a written document usually involves the transfer of

property by the settlor to the trustee.
a. Choose a Trustee
● In deciding who should serve as trustee, the settlor must consider
possible conflicts of interest and family dynamics.
● A trustee has to act impartially with respect to all beneficiaries,
which becomes more challenging if the trustee is also a
beneficiary of the trust.
● A family member often is an ideal trustee because she knows the
needs of the beneficiaries firsthand.
● Banks with trust departments and trust companies serve as
trustees, providing a variety of services, including accounting and
investment management, in addition to managing distributions for
beneficiaries.
○ Referred to as corporate trustees, a bank or trust company
may be appropriate for a large trust.
○ Each corporate trustee has minimum asset requirements
before it will agree to accept a position as trustee.
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○ Banks and trust companies are regulated by state law.
b. Acceptance
● No formal acceptance of the position is required, so if the person
named in the trust document takes control of the property, the
person may be deemed to have accepted responsibilities as
trustee.
● In drafting trust instruments, lawyers typically provide for the
signatures of the settlor (to signify intent) and the trustee (to
signify acceptance), but the settlor’s intent and the trustee’s
acceptance can be established in other ways even if either fails to
sign the document.
● The terms of the trust may provide a method of acceptance by the
trustee, but that method may not be exclusive and even if it is,
substantial compliance is sufficient.
● To encourage protection of trust property, without imposing the
responsibility to act as a trustee, a person designated as trustee
can act to protect the property without that action being
considered an acceptance.
○ If the person takes actions with respect to the property, the
person must send a refusal of the trusteeship to the settlor,
or if the settlor is dead or incapacitated, to a beneficiary.
○ A person can be held to be the trustee by “indicating”
acceptance
c. Resignation of a Trustee
● A trustee can resign from the position, but the trustee remains
liable for any acts or omissions that occurred while he was acting
as trustee.
● Usually, the trust instrument gives a trustee the right to resign,
identifies the procedures involved, and names a successor
trustee.
● If the trust instrument is silent on trustee resignation, then the
trustee must look to common law or statutes.
● Under the common law, a trustee had to get court approval to
resign.
● UTC permits the trustee to resign after 30 days notice to the
qualified beneficiaries, the settlor, and any co-trustees;
alternatively, can get court approval for resignation
● After a trustee resigns, the successor trustee named in the trust
instrument will become the trustee. The trust instrument may,
instead of naming a successor, direct the beneficiaries to appoint
a successor. If the trust instrument neither names a successor nor
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provides a way to name a successor, the court will appoint a

successor.
Problems [395]
1. Martin lives across the country from his mother and has not been
able to see her as often as he would like. Martin gives Kelsey, a
friend who lives near his mother and visits her frequently, a check
for $10,000 and tells Kelsey to use the money to buy flowers for
his mother on holidays and to take her out to dinner at least once
a month. Kelsey puts the money in a separate bank account but
makes no withdrawals from the account. She continues to visit
Martin’s mother, but does not spend the money as Martin directed.
Martin dies a year after transferring the money to Kelsey. Martin’s

only heir is his husband, Brian. What are Kelsey’s duties with
respect to the money?
As the trustee, her duties are to use the money as Martin intended
as he set up a valid trust with a valid purpose. Her act of making a
bank account can be seen as acceptance of her trustee duty to
Martin. If she is not interested in being a trustee, she should see if
she can resign from her duties as a trustee and whether
statutory/common law dictates who her successor could be.
2. Nicole has an estate valued at $5 million. She has no spouse, no

partner, and no children. She wants to create a trust under her will
to provide for her mother for the rest of her mother’s life and then
to be distributed to her nieces and nephews. While her mother is
alive, the trustee can distribute trust principal to her mother and to
her nieces and nephews for their health, education, maintenance,
and support. Nicole is considering three possible trustees: her
sister (Kate), her brother (Edward), and the local bank. Kate is a
full-time homemaker who cares for her three young children.
Kate’s husband is a high school teacher. Edward is an investment
banker. His wife is a banking lawyer, and they have two children.
Nicole lives in a small town, and the bank is the one she uses for
her personal banking business. How would you advise Nicole on
choosing a trustee (the possible advantages and disadvantages of
each of the three options she is considering)?
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I would tell Nicole to choose the bank as her trustee. While family
is always an option, I think that her siblings could have an interest
in benefitting their own children over their siblings children.
Trustees are supposed to act neutrally toward beneficiaries and
not favor some over the other. Disadvantage to a bank though is
that sometimes there are minimum asset requirements, but I
doubt that her $5 million is too little.
3. For the last five years, Jeffrey J. Williams has acted as trustee of
Chatfield Family Trust, his cousin Kurt’s testamentary trust. Kurt
died, leaving a wife, Amelia, and two adult children from a
previous marriage as beneficiaries of the trust. Jeffrey is tired of
the squabbling among the beneficiaries, and wants to resign as
trustee. The trust document (Kurt’s will) did not provide for a
successor trustee. What would you advise Jeffrey to do?
Jeffrey Williams should check the terms of the will to see if there
are any terms there directing to who the successor trustee would
be. If it is silent, Jeffrey would have to look at the common
law/statutes to see how that goes. A court may appoint a
successor. Alternatively, the will may lay out terms on how a new
successor should be appointed or whether the beneficiaries have
to appoint their own successor.
Drafting
- Trustee
- Replacement of trustee
- Payment for trust expenses; attys, CPAs, financial advisors
4. Intent to create a trust

The creation of a trust requires a “manifestation of intention” to create the trust.
When a court decides whether the settlor intended to create a trust, the court
may consider various forms of evidence in addition to written evidence, and can
consider any admissible extrinsic evidence, such as documents or testimony of
witnesses.
A settlor’s undisclosed intent is irrelevant; a court cannot consider bare

assumptions about why a deceased settlor transferred property to someone.
If another person is going to be the trustee (or a co-trustee with the settlor), the
settlor transfers property pursuant to a Trust Agreement; if the settlor is going to
be the original trustee, the settlor declares himself trustee using a Declaration of
Trust. A document labeled in one of these ways usually suffices to establish
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intent to create the trust, although the trust may fail for some other reason or
questions may arise as to the property that constitutes the trust.
Without such lawyer-created documents, the intent of the property owner may
not be clear and they may have intended something else: the property owner
may have intended
● to retain ownership and transfer the property at death using a
testamentary transfer,
● to make an outright gift with explanatory or precatory language,
● to make a promise to make a gift in the future, or
● to create a power of appointment over the property
A determination the property owner’s intent establishes whether a trust exists,

which in turn will affect the ultimate ownership of the property: (i) the property
may still belong to the property owner; (ii) the property may have been
transferred to someone else who now owns the property outright; or (iii) the
property may have been transferred to someone as a trustee to hold for a
beneficiary.
a. Inter vivos Gift in Trust or Ownership Retained?

A court may be asked to decide whether the owner of property transferred
the property in trust during life or retained ownership and intended for the
transfer to occur at death. The question often arises in connection with a
declaration of trust, because in that situation the owner is “transferring”
the property to herself as trustee, and confusion over her motive is
possible. The property owner may not take steps to retitle the property in
the name of the trustee or record deeds to real property.
Palozie v. Palozie
Facts: On Feb 23, 1988, Sophie Palozie asked her grandson, David
Palozie (plaintiff Donald Palozie’s son), to visit her. David went to go visit
his grandmother at her home with his wife Susan. It was his birthday.
While they were visiting, Sophie asked David and Susan to witness her
signature on a Declaration of Trust, and they did so. David did not know
what the document purported to be at the time, and there’s no evidence
that Susan did either.
At the same time, Sophie asked David and Susan to witness a second
document purporting to be a quitclaim deed to the Crane Road Property
in Ellington. The deed conveys Sophie as the trustee under the terms of
the Declaration of Trust, of the Crane Road property. The quitclaim deed
and the declaration of trust was not recorded on the land records.
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Sophie was the only person aware of the nature of these documents. She
kept them in either a small metal box or a suitcase in her home. She died
on March 13, 1991, intestate. When she died, Donald and Sophie’s
daughter Gaye Reyes examined the contents of the metal box, and
Donald took them to his house.
Reyes was appointed administratrix of the estate and filed an inventory

on March 24, 1992, which included the Crane Road property as an asset
of the estate.
Ten years later, Reyes was removed from her position because the
administration of the estate was not proceedings. Two other of Sophie’s
grandchildren, Richard and Joanne, appointed as successor
coadministrators in June 2002. In January 2003, they filed an application
to sell the Crane Road property. Donald objected to the sale because he
held legal title to the property by virtue of the purported trust.
PH: Probate Court denied the plaintiff’s application for title and right of
possession to a 23 acre parcel of land situated in Ellington, CT. Trial court
affirmed the judgment. On appeal, Plaintiff Donald Palozie claims that the
trial court improperly concluded that a declaration of trust executed by his
dead mother Sophie Palozie was invalid and unenforceable because the
decedent hadn’t manifested an unequivocal intent to create a trust and to
impose herself the enforeceabble duties of a trustee. Connecticut
supreme court affirms trial court judgment.
Trial court concluded that the plaintiff had failed to prove that the
decedent had adequately manifested an intent to create a trust and
accept the enforceable duties of the trustee. Trial court concluded that
she kept it secret and wished to retain total control of the property during
her lifetime for her own benefit, not as a trustee for Donald. The Trust
Instrument was a poorly designed effort to establish a testamentary
document, rather than a trust. Trial court noted that Sophie and Donald
were not always on the best of terms [family violence protective ordered
against the plaintiff in 1990] and that the quitclaim deed was never
recorded or properly acknowledged.
Trial court determined that the declaration of trust was void and
unenforceable and, therefore, rendered judgment in favor of the
defendants.
Issue: whether the declaration of trust was properly executed, thereby

giving the Crane Road property to Donald upon her death?
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Holding: No.
- The plaintiff claims that the trial court improperly found that the
decedent had not manifested an intent to create a trust, or to
impose upon herself the enforceable duties of a trustee, based on
her failure to communicate her intent and on her exclusive
retention and control of the trust instrument and quitclaim deed
during her lifetime.
- The requisite elements of a valid and enforceable trust are: “(1) a
trustee, who holds the trust property and is subject to duties to
deal with it for the benefit of one or more others; (2) one or more
beneficiaries, to whom and for whose benefit the trustee owes the
duties with respect to the trust property; and (3) trust property,
which is held by the trustee for the beneficiaries.”
- Settlors must unequivocally manifest an intent to impose upon
herself enforceable duties of a trust nature
- If what’s done falls short of showing the complete
establishment of a fiduciary relationship, the proof fails to
show more than a promise without consideration
- To determine whether Sophie manifested an intent to create a
trust and to impose upon herself the enforceable duties of a
trustee, the court must look at the language of the trust instrument
itself
- If the trust is an incomplete expression of the settlor’s intent, or if
the meaning of the writing is ambiguous, evidence of the
circumstances and other indications of the transferor’s intent are
admissible to clarify the meaning of the instruments.
- Trust instrument in this case is ambiguous with respect to whether

Sophie intended to create a trust and to impose upon herself the
enforceable duties of a trustee.
- Sophie characterized this trust as her “last private verbal act,”
which makes the document ambiguous
- This makes it unclear whether Sophie intended to create a
presently enforceable trust, with all the rights, duties, and
responsibilities that such a trust entails, or whether she
intended to execute a testamentary document, which
would only go into effect after she died
- Sophie never informed the beneficiaries of the trust or anyone that
she intended to hold the Crane Road property in trust. She never
delivered the trust instrument or the quitclaim deed to the
beneficiaries or any other third party, and that she never recorded
the instrument or deed on the town land records.
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- Sophie had not arrived at a final and definitive intention to create a

trust and to impose upon herself the enforceable duties of a
trustee.
b. Gift in Trust or Outright Gift with Explanatory or Precatory Language?

In re Estate of Bolinger
Facts:
Harry Albert Bolinger, III, (Decedent), died March 23, 1995
-his November 15, 1984 will offered for probate devised all of his estate to
Hal [Bolinger, his father], or, in the event that Hal predeceased him, to
Hal’s wife (his step-mother), Marian.
-the 5th ¶ of the will, the language of which is at issue here, provides: I
intentionally give all of my property and estate to my said father, H.A.
Bolinger, in the event that he shall survive me, and in the event he shall
not survive me, I intentionally give all of my property and estate to my
step-mother, Marian Bolinger, in the event she shall survive me, and in
that event, I intentionally give nothing to my three children, namely:
Harry Albert Bolinger, IV, Wyetta Bolinger and Travis Bolinger, or to any
children of any child who shall not survive me. I make this provision for
the reason that I feel confident that any property which either my father or
my step-mother, Marian Bolinger, receive from my estate will be used in
the best interests of my said children as my said beneficiaries may
determine in their exclusive discretion.
-The will nominated Hal as personal representative with Marian as the
alternate.
PH: -Hal renounced his right to serve as personal representative and

suggested the appointment of Marian, who petitioned to be appointed on
November 6, 1995. -Decedent’s children objected, arguing that the will
was void as a matter of law because of undue influence or constructive
fraud on the part of Hal and that the will created a trust on behalf of the
children.
[The court found no undue influence or constructive fraud.]
-the District Court found that both Hal and Marian believed that the
language in the 5th ¶ of Decedent’s will created a trust.
-The court also found that Marian believed that at the time Decedent’s will
was drafted and executed, the children were minors and that Decedent
used the language in the will to prevent his ex-wife from obtaining control
over his estate.
-The court also agreed with Professor Folsom [an expert witness] that,
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when read in its entirety, the 5th ¶ of the will expressed Decedent’s
intention that all of his property must be used in the best interests of his
children.
-The court found that the subject or res of the trust was all of Decedent’s
property and that the testator’s purpose in creating the trust was to ensure
that his assets would be used in his children’s best interests.
-The court then concluded that the second sentence of the 5th ¶ created an
express trust in favor of the children
-Marian appeals- arguing that proof of an express trust requires clear and
convincing evidence that the trustor intended to create a trustand that
devises, bequests and gifts that do not contain any restrictions on use or
disposition of the property involved do not create an express trust; she
contends that the use of “precatory” words by a testator (words which
express only a wish or recommendation as to the disposition of property),
are not sufficient to establish an intention to create a trust.
-the children argue- that where the testator manifests his intention to create
a trust, no particular form of words or conduct is necessary; providing that
the trustor indicates with reasonable certainty the subject, purpose and
beneficiary of the trust, an express trust is created; they also contend that
the language used by Decedent in the 5th ¶ created an express trust in their
favor; and that a trust must be construed in a manner so as to implement
the trustor’s intent and that, here, the decedent clearly expressed his
intention that his property be used for the benefit of his childrenà used
argument from NY case People v. Powers, “for the proposition that a
testator’s expression of “confidence” that a bequest will be used to benefit
another is sufficient to create a trust”
*the burden of proof to establish the existence of a trust is upon the
party who claims it and must be founded on evidence which is
unmistakable, clear, satisfactory and convincing. . .
Issue: Whether the precatory language in the 5th ¶ established a trust for
the children
Holding: The precatory language in the 5th ¶ did not establish a trust, it
left Hal and Marian discretion as to how to use the property given them
outright.
-The District Court erred in its conclusion that the 5th ¶ of Decedent’s will
created an express trust for the benefit of Decedent’s three children.
-we reverse and remand
Reasoning:
-per Common Law, it is clear that a trust is created only if the testator
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demonstrates that he or she intends that a trust be created

- Under Trust Code the law is that “[a] trust is created only if the trust or
properly manifests an intention to create a trust.” § 72-33-202, MCA.
-the general rule that in the construction of trusts it is the trustor’s intent
that controls and that to determine that intent we look to the language of
the trust agreement.
-rules of construction- words used in the instrument are to be taken in
their ordinary and grammatical sense unless a clear intention to use them
in another sense can be ascertained; in cases of uncertainty, the testator’s
intention is to be ascertained from the words of the instrument, taking into
view the circumstances under which it was made, exclusive of his oral
declarations.
-the object of judicial interpretation of a will is to ascertain the intention of
the testator, according to the meaning of the words he has used,
considering the whole instrument and a comparison of its various parts in
the light of the circumstances which surrounded the testator when the
instrument was framed.
- “words of trusteeship are not necessarily conclusive”
- we have held that “express trusts depend for their creation upon a clear
and direct expression of intent by the trustor”
-it is clear that Decedent intended to accomplish several thingsunder this
paragraph of his will: (1) he “intentionally” devised outright all of his
property and estate to his father, and then to Marian; (2) clear that
Decedent “intentionally” devised nothing to his three children; (3)
Decedent desired to make some explanation as to why he disposed of his
estate in the foregoing manner
- he added to the otherwise unequivocal language of the first sentence of
the 5th ¶, a sentence with an explanation why
-qualifying language in a will or instrument is referred to as “precatory”
language; this language is generally construed not to create a trust but
instead to create at most an ethical obligation.
-weighing the effect of precatory expressions the courts consider the entire
document and the circumstances of the donor, his family, and other
interested parties.
-the main question in considering precatory language is whether the
testator meant to advise or influence the discretion of the devisee, or
control or direct the disposition intended
- “was it natural and probable that the donor intended the donee to be
bound by an enforceable obligation or was he to be free to use his
judgment and discretion?”
***“[w]here a donor first makes an absolute gift of property, without
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restriction or limitation, and later inserts precatory language in a separate

sentence or paragraph, the courts are apt to find that there was no intent to
have a trust.”
-Stapleton- the decedent’s will provided as follows:
“I give, devise and bequeath to my beloved wife, Amanda DeVries, all the
balance, residue and remainder of my property of whatever nature, kind or
character which I may own at the time of my death to have and to hold as
her sole and separate property. I do this with the knowledge that she will be
fair and equitable to all of my children, the issue of myself and my former
wife as well as the issue of herself and myself.”
- Amanda died leaving all her property to her children and nothing to the
decedent’s children by his first marriage, the latter sued claiming that a
constructive trust was created by decedent’s will in their favor.
- we held that the language was clear on its face—Amanda was given
decedent’s property outright and the remaining precatory language did not
create a trust for the benefit of the children by decedent’s first marriage
-similarly, here- the language used by Decedent clearly and
unambiguously makes an outright gift to his father, and in default of that
gift, to his step-mother and specifically excludes his children.
-the language does not impose any sort of clear directive or obligation
(maybe a moral/ethical one) on either Hal or Marian; it does not provide
any guidance as to what the “best interests” of the children might include;
he imposes no restrictions on the purported trustee, but, leaves “exclusive
discretion” to Hal/Marian expressing his “confidence” that will be
accomplished.
*** under the precatory language used by Decedent, his devisees had
complete discretion as to how to use the property given them outright.
c. Transfer into Trust or a Promise to Make a Gift in the Future?

● A gift requires intent and delivery of property.
● Courts are reluctant to abrogate the requirement of delivery by
finding a declaration of trust any time an inter vivos gift fails due to
lack of delivery.
● Delivery can be constructive or symbolic, and sometimes a court
will refuse to find a trust but use constructive or symbolic delivery
to fix the problem.
Problems [409]
1. Sofia owns several bonds. She writes “These bonds are for Marco
when he turns 22'’ on the outside of an envelope and puts the
bonds inside.
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a. Sofia dies, and the envelope with the bonds in it is found in

her safe deposit box. Sofia’s intestate heirs seek the
bonds. Advise Marco. What if Marco is 19 when Sofia
dies? What if he is 40?
i. I’d ask Marco if he knew anything about the bonds
or if Sofia sent him anything about them
ii. If he has some evidence of constructive delivery, I
think that 19 y/o Marco would have a better shot at
getting the bonds than 40 y/o Marco
b. Before Sofia’s death, she tears up the envelope and sells
the bonds. What rights does Marco have if he is 20? If he
is 25?
i. No right to the bonds
2. Dana writes a letter to Stan that says, “Stan, I want you to have
my grand piano when I die. I will keep it for you until you have a
house big enough for it, but you should consider it yours.” When
Dana dies, the piano is still in Dana’s house. Dana’s will leaves
her personal effects to Justin. Advise Stan.
a. I would introduce the letter as evidence of constructive
delivery. Additionally, it could serve as a memorandum RE
giving that specific gift, so long as it’s signed by Dana?
3. Alan devises Blackacre to Jennifer “hoping she will continue it in
the family.” Assume there exists no other evidence of Alan’s
intention. Jennifer sells Blackacre and keeps the proceeds. Alan’s
heirs sue Jennifer for breach of her fiduciary duty to manage
Blackacre for the family. Advise Jennifer.
a. I have no fucking idea
5. Corpus (Property or Res)

A trust must have corpus to be a valid trust. Trust corpus is usually the property
the settlor transfers to the trustee for management in the trust. Until the settlor
transfers property to the trust, even if there is a signed trust instrument, the trust
doesn’t exist.
The lack of corpus is rarely an issue for a testamentary trust, unless no property
remains at death to transfer into the trust, but with an inter vivos trust a settlor
sometimes forgets to transfer property into the trust, and then the trust does not
exist.
Any interest in property can be considered trust corpus. A settlor can transfer to
the trustee the right to receive income from a contract, as long as the settlor has
an enforceable right and the settlor makes an irrevocable transfer of the interest.
A mere expectancy, however, is not a property right, and the transfer of an
expectancy will not serve to create a valid trust.
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Property held in trust that can be titled (such as real estate, bank and securities
accounts, vehicles, patents, and copyrights) should be retitled in the name of the
trustee because the trustee, not the trust, has legal ownership of the property.
The best practice for transferring property to a trust is to change the title to
indicate that the property is now held by the trustee.
Tangible items such as personal property like furniture and jewelry can be
“scheduled” to show that they have been transferred into the trust. A schedule will
be attached to the trust instrument identifying these personal assets being
transferred to the trust. The schedule should be sufficient to establish that her
tangibles are now the property of the trustee.
If the settlor creates a trust with someone else as trustee, title must be
transferred to the name of the trustee. If, however, the settlor declares that she
now holds the property as trustee and does not change title, is Schedule A
sufficient to establish that the property is now held in the trust? The answer
depends on state law.
Cases in several states suggest that scheduling may be enough, but the results
are not sufficiently conclusive that a good lawyer would rely on a schedule when
helping a settlor establish a trust. In each of the cases, a settlor declared himself
trustee of assets listed on Schedule A attached to the trust document.
Problems [412]
For each question, indicate whether a trust was created under UTC §401.
1. At a time when her father is alive but terminally ill, Elena writes and signs
a document that says: “I hereby transfer all my rights and interests in the
estate of my father to my friend, Terry, as trustee for my son, Liam, for life,
remainder to Liam’s issue.” She gives the document to Terry.
a. This would be a mere expectancy, as Elena has not received the
benefit of her father’s estate and she has no enforceable right to
the property yet, and therefore non-transferrable and not a valid
trust???
2. The same facts as in Problem 1 except that Elena’s father died shortly
before she signed the document and gave it to Terry.
a. Elena didn’t register any of her father’s property nor did she attach
a schedule to the document detailing any tangible or real property
to be given to Terry in her role as a trustee. As such, it’s likely not
valid under the UTC.
b. Apparently this is valid????
3. Elena writes and signs a document that says: “I hold the property listed
on the attached Schedule A and all property I acquire in the future as
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trustee, in trust for my son Liam for life, remainder to Liam’s issue.” On
Schedule A she writes: “the furnishings of my house, my bank account in
Central Bank, my house.” She does not have the document witnessed,
and she puts the document in her safe deposit box. When Elena dies ten
years later, unmarried, what happens to the property? In addition to Liam,
Elena has two other children.
a. I don’t think a trust was created with respect to the later items
because Elena needed some later indication that any property she
obtained after writing that document was intended to go into the
trust.
6. A Beneficiary
Without someone with the legal authority to force the trustee to comply with the
terms of the trust, a trust fails.
A trust without a named beneficiary may nonetheless exist if (i) the court is willing
to find an honorary trust; (ii) under the UTC, the trust is an animal trust or a trust
for a purpose; or (iii) the trust qualifies as a charitable trust.
a. Identifiable Person or Class

Under the common law, a beneficiary has to be either an identifiable
person or a class of identifiable persons so that the court knows who has
the authority to enforce the trust. A class like “children” or “descendants”
works because the members of those classes can be identified, even if
the membership will change over time and even if some members are not
yet born. Other people can represent minor and unborn beneficiaries and
can enforce the trust on their behalf.
“Friends” does not work under the common law because a court cannot
determine that or therefore who has rights in trust.
Clark v. Cambell (N.H. 1926)
Facts: Deceased’s will gives various items of personal property to his

trustees to give to his “friends,” but does not explicitly name either.
Issue: whether his will created a valid trust for his friends?
Holding: no
- Common law -- no bequest to an indefinite person
- There must be a beneficiary or class of beneficiaries capable of
coming into court and claiming the benefit of the bequest.
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- Where a gift is impressed with a trust, ineffectively declared, and

incapable of taking effect because of the indefiniteness of the
cestui que trust, the donee will hold the property in trust for the
next taker under the will, or for the next of kin by way of a resulting
trust.
- The trustees therefore hold title to the property enumerated in the
paragraph under consideration to be disposed of as a part of the
residue, and the trustees are so advised
Question and Problem

1. In Clark v. Campbell, the court concluded that the testator had
attempted to create a trust but the trust failed for want of
identifiable beneficiaries. Why do you think the following
arguments failed?
a. The testator was making an outright gift to the three
trustees (named earlier in the document) in their individual
capacities, with the precatory request that the property be
distributed to his friends.
i. Because without knowing who the intended
beneficiaries are, how is the court supposed to
figure out who has rights in the trust?
b. The testator was creating a power of appointment, in the
three trustees, giving them the power to appoint the
property to his friends.
i. If the testator wanted to give things to his friends,
he should have named them because that puts a
lot on the trustees to figure out who really was the
testator’s friends
ii. Insert precatory language: trustees “with the hope
that” they’ll give my property to other people, etc.
2. How would you redraft the ninth clause to make the gift an
absolute gift to the persons named as trustees so that they could
give the property to the testator’s friends?
a. I would list what specific friends the testator wanted to give
things to
b. Honorary Trusts
Under the common law, trusts without ascertainable beneficiaries fail. A
court will sometimes find an “honorary trust” when the owner of property
attempts to transfer the property to a devisee in trust for a noncharitable
purpose and without an identifiable beneficiary.
An honorary trust must be established by a court; a settlor of an improper

trust cannot be assured that an honorary trust will be created.
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If a court creates an honorary trust, the devisee holds the property for the
benefit of the persons who would take the property owner’s estate as
beneficiaries or heirs with a nonmandatory power to make distributions to
carry out the settlor’s wishes.
Thus, the person the owner intended to make the trustee is actually
trustee for the benefit of the persons who will take the owner’s estate, but
can also carry out the owner’s wishes if the person chooses to do so.
The intended trust cannot be enforced if the trustee chooses not to carry
out its terms and then holds the property for the takers of the would-be
settlor’s estate.
c. Trust for a Purpose

Under the common law, beneficiaries of a private trust must be sufficiently
specific so that the court knows who can enforce the trust. A charitable
trust, by contrast, need not have an identifiable beneficiary.
The UTC now permits the creation of a “trust for a noncharitable purpose”
without an ascertainable beneficiary.
- UTC §409 provides that the trust cannot last longer than the
state’s Rule Against Perpetuities (and a state that has abolished
its Rule Against Perpetuities would need no restriction on
duration).
- UTC §409(2) provides for enforcement of the trust by a person
designated by the settlor or, if the trust document does not
designate someone, then a person appointed by the court.
7. Formalities--Written Trusts vs. Oral Trusts and Secret Trusts

a.
[Problem on 419]
George gave $100,000 to his friends Yvette and Joseph. He died 5 years later. Joseph
tells you: “When George gave me the money he told me to hold it for him, and when he died, to
give it to his sister, Sandra. I knew he had two sisters, so I asked about his other sister, Opal.
He said that Sandra needed the money more than Opal.” Yvette says: “About a year after
George gave us the money, I asked if he wanted us to keep holding the money for him. He said
yes, and that the money should go to Sandra.”
Opal’s daughter gives Joseph a letter that says “I spoke with Uncle George a year
before his death and he said the money should go to my mom and Sanda.” George died with a
properly executed will that left his estate in equal shares to Sandra and Opal, both who survived
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him. Can Joseph give the money to Sandra? What argument will Opal make that the money
belongs to the estate?
I. There is not clear and convincing evidence that an oral trust was created to
specifically give money to Sandra, and there is at least equally convincing evidence that George
intended to give money to Opal before his death. As such, Joseph likely cannot give the money
to just Sandra. Opal will make the same argument as above to establish that the estate should
take the $100,000 and divide it evenly between them.
b. Oral Trusts to Be Given Effect at Death--Secret and Semi-Secret Trusts

References to oral instructions do not fit within any of these doctrines,
and oral instructions cannot be given effect because the instructions do
not comply with the formalities required for a will.
Secret trust is a trust in which property is left to a person under a will on

the understanding that they will hold the property as trustee for the benefit
of beneficiaries who are not named in the will.
- Person receiving the property holds it for the beneficiary
Semi-secret trusts refer to a trust in which beneficiaries are not

designated. The instrument indicates who is to serve as a trustee but fails
to identify either the beneficiary or the terms of the trust, or both.
- Treated as a resulting trust; goes to the settlor themselves or the
estate of the settlor
Under Oliffe v. Wells (Mass. 1881), a secret trust will be enforced and the
person named to take the property will, as trustee, only acquire legal title
to the property and will hold it for the beneficiaries of the trust.
A semi-secret trust will not be enforced. The trustee will hold the property
as a resulting trust, and the property will be distributed through the estate
of the person who attempted to create the trust—generally to the
residuary takers under the will or to the decedent’s heirs.
The rationale for the distinction is that if the trust is a secret trust, the
person named to take the property will acquire both legal and beneficial
title unless the court enforces the trust, in which case the named person
will acquire only legal title.
A trustee of a semi-secret trust is identified as a trustee and thus has only

legal title. If the trust fails, the person named in the will as trustee is not
unjustly enriched.
Pickelner v. Adler (Tex. App. 2007)
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Facts: Shirley executed a will in May 1997. Her friend and attorney,
Pickener, drafted the will and was named the sole devisee. The relevant
portions read:
The instructions that she gave Pickelner were verbal, and Shirley never
put them in writing. Trial court found that out of all of her instructions,
Shirley did not cover all of the property she bequeathed him. Among her
verbal instructions, Shirley required that Pickelner receive one of her
homes and that Hurwitz, Shirley’s friend and portfolio manager, receive
the other. Neither person was related to Shirley.
Issue: whether Shirley’s will created a valid testamentary trust?
Holding: No--Shirley’s heirs will take

- The only reasonable interpretation of the devise in Shirley’s will of
all of her property to Pickelner “to be distributed in accordance
with the specific instructions which I have provided him” is that
Shirley intended for Pickelner to receive only legal title to her
property, i.e., to hold her property in some kind of trust, rather than
outright.
- the trust that Shirley attempted to create in her will was a semi-
secret trust because it lacked essential terms, in particular
because it completely failed to identify the beneficiaries. A semi-
secret trust is, in essence, a failed express testamentary trust.
- Trust terms can’t be proved by parol evidence because the trust
failed
- Because the semi-secret trust could not be proved by parol
evidence, and because the will contained no residuary clause,
Pickelner held all devised property under the remedy of a resulting
trust for the benefit of Shirley’s heirs at law. That is, her heirs at
law take under her will.
- Court declines to follow Hurwitz’s argument urging the court to
follow the Third Restatement, which states a court should impose
a constructive trust on behalf of the intended beneficiaries whether
the trust was secret or semi-secret
Problem [426]
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Charles wants to leave $10,000 to his friend David, but he does not want
knowledge of the gift to be public. In his will, he gives the money to his
sibling, Brandon, as an outright gift. Privately, Charles explains to
Brandon that although Brandon will receive the money, he expects
Brandon to give the money to David. He asks Brandon not to tell their
sister, Zoe, because she dislikes David. Charles also tells David about the
gift and assures him that Brandon will follow through as promised.
1. After Charles dies, Brandon tells David that Brandon intends to
keep the money. What can David do?
a. David can ask the court to enforce the secret trust which is
practice under common law.
i. If the trust is a secret trust, the person named to
take the property will acquire both legal and
beneficial title unless the court enforces the trust, in
which case the named person will acquire only
legal title.
2. Assume that the will said, “I give $20,000 to Brandon, not for
Brandon personally but to distribute as the two of us have
discussed.” The problem now is that although the intent to create
a trust is clear, the identity of the beneficiary is not. What can
David do?
a. Nothing because only a minority of states enforce semi-
secret trusts? It goes to Charles’s estate
b. As David’s counsel, I’d encourage him to argue the
restatement position in that he should still get the 20k
Clients need to know about exoneration clauses--Wallace has them initial next to a paragraph
- Drafting attorney needs to be able to prove client was aware of that
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CLASS 15
C. Revocable Trusts
Given their role as a will substitute, revocable trusts are governed by some rules from
wills law.
Can be changed anytime so long as the settlor has capacity. Put a provision in there that
the trust can be fully amended and revoked. You can do simple amendments to these
types of trusts.
1. Typical Structure
● A settlor creates a revocable trust during life, and the settlor retains
control over the property, often serving as the trustee.
● The trust typically provides that a successor trustee can step in if the
settlor becomes incapacitated.
● Thus, revocable trusts can be used to plan for the possibility of incapacity
as a more effective—but more expensive—alternative to a durable power
of attorney.
● When the settlor dies, the trust becomes irrevocable
A revocable trust has three parts, the terms for management and disposition of
the trust
i) during the lifetime of the settlor while she is not incapacitated
ii) during the lifetime of the settlor while she is incapacitated
iii) after the settlor’s death
During the settlor’s lifetime, the trust will direct the trustee to distribute trust
assets to or for the benefit of the settlor (and perhaps family members of the
settlor) under a broad standard and will allow the settlor to withdraw assets from
the trust. After the settlor’s death, the trust terms typically direct the payment of
claims and taxes (and should be coordinated with the will if the settlor also has
probate property) and then direct the distribution of the assets or the creation of
further trusts to be held for beneficiaries.
2. Funding the Trust

When a settlor creates a revocable trust, the settlor should fund the trust with
something, even if most of the assets will be transferred later.
Sometimes a settlor creates a revocable trust as a “standby trust,” to be funded

primarily at death. The settlor funds the trust with a small amount of money or
other assets, so that the trust is created, but then provides for the rest of the
funding to occur at death. The settlor might name the trustee as the beneficiary
of a life insurance policy or other will substitutes, or the settlor might rely on a will
to distribute probate property to the trustee.
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An estate planning lawyer will almost always pair a revocable trust with a “pour-
over will.” A pour-over will is a will that distributes the residue of the probate
estate to the trustee of the revocable trust, to be held in the trust. It “pours” those
assets into the revocable trust.
If the trust exists (i.e., if the settlor funded the trust with at least some property
before the settlor’s death), any property transferred to the trust through a pour-
over will can be distributed through the trust because the trust is then an “event
of independent significance” with respect to the will.
If a revocable trust remains unfunded at the settlor’s death (no assets at all), then
the trust does not exist. If the trust does not exist at the settlor’s death, the
doctrine of incorporation by reference might be used to incorporate the written
trust instrument into the will. However, only the document in existence at the time
the will is executed can be incorporated by reference. Therefore, if the will was
executed before the trust document was prepared or if the trust document was
amended after the will was executed, the document or changes written after the
execution of the will cannot be given effect.
A revocable trust will be considered an inter vivos trust as long as the will
identifies the trust and the trust is funded either during the settlor’s life or at the
settlor’s death. This means that although the trust did not exist at the settlor’s
death (because it had no corpus), it will be treated for purposes of distributions
after death as if it did.
[Exercise 433]
Names of trusts for exercise

Sal Brown Revocable Trust, dated [date that it’s signed]
Charlene Brown Revocable Trust, dated [date that it’s signed]
Our clients, Salvatore and Charlene Brown, have various interests in property.
Here is information about their assets:
- They own a house and one checking account in joint tenancy;
- Leave the joint checking account alone--mention it in the will but
not in the trust
- Same with the joint tenancy--leave it alone, it can probably get into
tenants by the entireties depending on the state law, which would
protect that asset
- Each has, in his or her own name, a separate checking account and a
car;
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- Put the checking accounts in the trust; the cars shouldn’t go in the
trust????
- Need to change the deed to the car
- Loanholder wont let you do it
- DMV is going to ask questions
- It’s a pain in the ass don’t waste your time unless it was a
special needs trust
- Each owns a life insurance policy that names the other as the primary
beneficiary;
- Name the trust as the secondary beneficiary
- Salvatore has a brokerage account with Charles Schwab, held in his

individual name with Charlene named as the “transfer on death”
beneficiary; and
- Transfer ownership to the trust. Ideal to be owned by the
revocable trust--successor trustee can manage. Brokerage
account can be owned by a revocable trust.
- Charlene has an IRA and a 401(k) in her name, with Salvatore named as
the primary beneficiary and their two children named as equal secondary
beneficiaries.
- Leave it alone
- IRA & 401(K) cannot be owned by revocable trusts
- You can make the trust the beneficiary of those, but don’t do that
here because it’s really complicated. For the trust to be a
designated beneficiary, we have to have very specific provisions,
but it’s complicated. For a spouse, it’s much more simple to own
the account in her own name.
3. Purposes and Advantages

a. Lifetime Purpose--Planning for Incapacity
A revocable trust provides a means to manage property if the settlor
becomes incapacitated. If a person has done no advance planning and
begins to lose mental capacity, a family member or other person may
need to file a conservatorship over the property, so that someone else—a
court-appointed conservator—can manage the property for the
incapacitated person.
An advantage of a revocable trust is that a trustee can manage the

person’s property and no conservatorship will be needed. The person can
choose the successor trustee and can provide guidance in the terms of
the trust as to how the determination of incapacity is to be made and how
the property should be managed and used thereafter.
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b. After-Death Purposes--Avoiding Probate

Although all will substitutes avoid probate, a revocable trust is the only will
substitute that can provide a comprehensive plan for the disposition of a
person’s assets, operating at death much like a will.
● Costs. Transferring property through probate may cost more than
transferring property using a revocable trust, depending on the
type of property and the state rules on probate. The concerns over
the cost of probate must be balanced with the greater cost at the
front end: drafting a revocable trust typically costs more than
preparing a will.
● Privacy. If a person wants to keep the identity of the recipients of
his gifts private, a revocable trust can do that because it will not be
filed with the court.
● Challenges. An unhappy heir can challenge a revocable trust on
the same grounds used to challenge a will: lack of capacity, undue
influence, fraud, or duress. It is, however, much more difficult to
invalidate a revocable trust than a will because the trust is an
ongoing relationship, and the transactions involved in a trust
continue from the time the settlor establishes the trust until the
settlor dies.
● Avoiding delays. Administering a revocable trust takes time, but
often distributions can be made more quickly than under a will.
● Avoiding ancillary probate. Real property must be probated where
it is located. Property held in a revocable trust will not be subject
to probate, so any real property located in another state will not be
subject to ancillary probate if held in a revocable trust.
● Avoiding the elective share. In a few states, the elective share
(property available to the surviving spouse if she is disinherited) is
determined based on the value of the probate estate. In those
states, a spouse can shield his estate from the elective share by
putting property into a revocable trust.
4. Disadvantage--Statute of Limitations for Creditors

Probate may provide greater creditor protection than using a revocable trust,
because the probate process includes a short statute of limitations for claims
against the decedent’s estate
5. Misconception--Taxes
Revocable trusts have no income or transfer tax benefits. Promotional material
discussing revocable trusts is sometimes misleading in this respect. A revocable
trust will be taxed for income tax purposes with the rest of the settlor’s income,
and the assets held in a revocable trust will be included in the settlor’s gross
estate for estate tax purposes.
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6. Rules for Revocable Trusts that Differ from Those Applicable to Other Trusts
a. Capacity
Capacity under the UTC is the same standard for will execution. Inter
vivos trusts are subject to higher contract standard.
b. Duty to Beneficiaries
While the settlor is alive, the trustee owes fiduciary duties only to the
settlor/beneficiary.
This provision changes the common law and differs from the rule
applicable to other trusts, because for other trusts the trustee owes
fiduciary duties to all beneficiaries, not merely the current beneficiaries.
c. Rules that Apply to Wills

In some states, certain rules that apply to wills also apply to revocable
trusts, but not to any other type of trust. The UPC takes this approach by
applying a number of provisions relating to probate transfers to
nonprobate transfers, including revocable trusts.
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Joint Revocable Trusts

A joint revocable trust is one in which two settlors contribute property to a
single trust. The two settlors may contribute the same amount of property
or different amounts of property, and they may contribute property they
hold as community property or as separate property. The settlors may
both serve as trustees, or one may serve or neither may serve. The trust
remains completely revocable as long as both settlors are alive, but when
the first settlor dies, half the trust usually becomes irrevocable.
Problem [437]
Lisa executed a will stating that the residue of her estate should “be
added to and become part of the Lisa Family Trust, if I have created such
trust during my lifetime, and be managed in accordance with the
provisions of the trust as they exist at my death.” Immediately after she
executed the will, Lisa signed a declaration of trust establishing the Lisa
Family Trust. She named the trust as the beneficiary of her life insurance
policy. The trust provided that on Lisa’s death the assets in the trust would
be distributed to her three children. Lisa subsequently amended the
dispositive provisions of the trust so that the remainder interest was no
longer to be distributed to all three of her children but rather was given to
only one of them. When Lisa dies, who will take the residue of Lisa’s
probate estate—her husband as her intestate heir (he is the father of the
three children), the three children under the terms of the trust at the date
the will was executed, or the one child identified when the trust was
amended?
Three children?
Exercise 437
1. Flora is 70 years old. Her husband died several years ago. She is
in good health, experiencing only the usual aches and pains that
come with being 70. She has two children, Rita, who lives in town
near her, and Alberto, who lives in another state. Alberto has had
some problems with drug abuse, and she intends to put his share
of her estate into a trust for his benefit. Flora was mayor of her
small town and is something of a public figure. She has managed
to keep Alberto’s problems private because he lives so far away.
Flora has assets with a current value of $400,000. She has a bank
account in joint tenancy with Rita; a stock account that names Rita
and Alberto as the payable-on-death (POD) beneficiaries; her
house, which is in her name; and a condo that Alberto lives in, but
which she owns and has kept in her name.
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Explain to Flora whether you recommend a will or a revocable

trust for her, and why. You should provide her with an
understanding of the comparative benefits of each. Your professor
will indicate whether you should draft a memo for Flora, prepare
for a class discussion of the exercise, or be ready to present the
exercise as a role-play.
Chapter 9: Fiduciary Duties

A. Introduction
A trust divides title between the trustee, who holds legal title, and the beneficiary, who
holds equitable title. Because the trustee controls the trust property, strict duties
developed in trust law to govern the behavior of the trustee and to ensure that the
trustee is accountable to the beneficiary. Without these fiduciary duties, a trustee might
be tempted to use the property for her own benefit or to manage the property in a way
that would privilege the interests of one beneficiary over another or harm the interests of
all beneficiaries.
These duties also apply to personal representatives of decedents’ estates, and in

modified forms to directors of for-profit and nonprofit corporations. Fiduciary duties apply
to trust protectors as well, although the law as it applies to trust protectors has not been
fully resolved.
The extent of a trustee’s powers and fiduciary duties depends on the trust instrument,
statutory law, and the common law.
Trusts must create enforceable duties. A settlor may not negate the responsibilities of a
trustee that the trustee would no longer be acting in a fiduciary capacity--if so, the
beneficiary would have no enforceable interest.
Default rule: loyalty, impartiality, and the duty of prudence

- Duty to administer the trust solely in the interests of the beneficiaries
- Duty of due regard to the interests of all the beneficiaries of a trust
- Duty of prudence in the conduct of trust administration (care norm, requiring the
exercise of reasonable care, skill, and caution)
Trust law allows the settlor to conclude that particular fiduciary rules would overprotect or
otherwise complicate the particular trust and its purposes; hence, the beneficiaries would
be better served by abridging them.
Settlor can draft around the default rules, but the settlor may not abrogate them all
because that would make the trust illusory.
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Uniform Trust Code is adopted more commonly than the Uniform Probate Code
Fiduciary duties--common law

- Rarely spelled out in the document
- While you’re explicit about powers in a trust document, you’re not always explicit
about the duties in the actual document
-
B. Duty of Obedience
A trustee must carry out the terms of the trust as the settlor directs in the trust instrument
and based on the trustee’s knowledge of the settlor’s intent.
The trustee must also comply with the law.
This duty has received little attention because it seems obvious. The duty of obedience
underlies the other two primary fiduciary duties: the duty of loyalty and the duty of care
or prudence.
UTC §801. Duty to Administer Trust.

Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in
accordance with its terms and purposes and the interests of the beneficiaries, and in
accordance with this [Code].
Obedience as the Foundation of Fiduciary Duty

The root of the fiduciary relationship is this directive from the principal to the fiduciary:
Serve the one the principal designates, as the principal designates. The fiduciary must,
at the most basic level, obey that directive; that directive is the duty of obedience.
If fiduciaries are to benefit the parties designated by their principals, the core of the duty
of obedience, then they must not violate the duty of care by stealing or diverting the
assets in their hands, and they must not violate the duty of care [loyalty] by affirmatively
wasting or unreasonably jeopardizing those assets. These are the three analytic
essentials; you cannot have a fiduciary relationship without them, any more than you can
have a triangle without three sides. And at the base of the fiduciary triangle is the duty of
obedience: to benefit those designated by another, one must be both loyal and careful.
C. Duty of Loyalty
The duty of loyalty, simply put, is the trustee’s duty to “administer the trust solely in the
interests of the beneficiaries.”
This duty means that the trustee must not put his own interests above those of the
beneficiaries. The law of trusts developed strict rules governing these transactions
based on the power and information imbalance between the trustee and the
beneficiaries. The trustee has legal title to the property and control over management of
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the property, while beneficiaries might be unborn or incapacitated, or otherwise unable to

monitor the trustees.
Conflicts of interests transactions:

First, if a trustee enters into a transaction involving the trustee’s personal account, the
transaction is voidable by the beneficiaries.
Second, if the transaction involves someone with whom the trustee has a close personal
or business relationship, the transaction is presumptively voidable, and the trustee can
overcome the presumption by establishing the fairness of the transaction.
1. Conflicts of Interests--Transactions for the Trustee’s Personal Account (Self-

Dealing)
Hosey v. Burgess
Facts:
-After the death of his 1st wife, Julian J. Watkins, married Florence Robinson
-Julian owned a farm in Phillips County, Arkansas
-About 5 yrs later when he retired, he entered into a 25 yr lease of his property with his
daughter, appellant Leneva Judy Hosey (from his first marriage to Lonnette), and her
husband N.R. Hosey, who owned a substantial farming operation.
-The lease, provided that the property must be used “for the purpose of planting,
cultivating and harvesting agricultural crops and for no other uses or purposes.”
-Mr. and Mrs. Hosey (lessees) agreed to make annual payments of $35 per acre for the
approximately 400 acres of cultivated land. ($14,000)
- Among the conditions set forth in the lease was a requirement that the lessees “not
assign or sublet said premises, or any part thereof, without the consent, in writing, of
Lessor first obtained”
- On March 25, 1982, Julian Watkins executed his last will and testament and a codicil-
he named Mr. and Mrs. Hosey his co-executors; created a testamentary trust consisting
of his land holdings, including the 400 leased acres, to be administered by Mr. and Mrs.
Hosey, as trustees, on behalf of his wife:
5.1. If my spouse, Florence R. Watkins, survives me, I give, devise, and bequeath all
the balance and residue of the real property of which I die seized and possessed to my
trustees herein named, in trust, to hold, manage, and invest the same, to collect the
income thereon, and to pay to, or apply for the benefit of, my spouse the net income
thereof in quarterly or other convenient installments, but at least annually, for and
during the term of my spouse’s life.5.2. Upon the death of my spouse, my trustees shall
assign, transfer, and pay over the then principal of this trust to my then living issue,
per stirpes. . . .
-In 1989, Mr. Hosey, whose health was declining, ceased active farming.
-He and Mrs. Hosey, as lessors, entered into a lease with Dixie Hill Farms, a partnership
composed of Chris Kale and Clark Hall, as lessee.
-The lease, which embraced the farmlands owned by Mr. and Mrs. Hosey and involved a
sublease of the 400 acres of Julian Watkins’s farm, was to run for a 3 yr term from
January 1, 1989, to December 31, 1991.
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-The lease did not specify any rental on a per-acre basis for the two farms, which
together contained approximately 1,316.5 acres; instead, the annual rental for all of the
property was set at $88,000.
-Mr. Hosey died on August 14, 1991, leaving his wife as the surviving trustee of the
Watkins trust.
-In 1992, she entered into another 3yr sublease of the trust land, extending through 1994,
for the same rental amount.
-On November 24, 1992, Mrs. Watkins died, leaving her daughter, appellee Marysue
Robinson Burgess, as her sole beneficiary and executrix of her estate.
Proc. Hist:
-Mrs. Burgess filed suit against Mrs. Hosey on March 5, 1993, seeking to recover the pro
rata (proportional) portion of the 1992 trust income and the difference between the rental
under the twenty-five year lease and the amount received “at a rental greatly in excess of
the rental paid to Florence R. Watkins” under the sublease for the years 1989, 1990, and
1991. . . .
-the Phillips County Chancery Court, found that appellant Leneva Judy Hosey and her
late husband, N.R. Hosey, as trustees for the late Florence R. Watkins (whose executrix
was appellee Marysue Robinson Burgess), were guilty of self-dealing to the detriment of
Mrs. Watkins by subleasing a farm and not giving Mrs. Watkins as the trust beneficiary
the benefit of the enhanced rental
Issue: whether the trustees engaged in self-dealing behavior?

Holding: We hold that the chancellor’s findings that Mrs. Hosey and her husband
engaged in self-dealing, albeit innocent and unintentional, were not clearly erroneous.
Affirmed
Reasoning:
-Self-dealing by a trustee or any fiduciary is always suspect; it is a universal rule of
equity that a trustee shall not deal w/ trust property to his own advantage without the
knowledge or consent of the beneficiary.
-Mrs. Hosey cites the following exception to the general rule, stated in 76 Am. Jur. 2d
Trusts §380 (1992), that a trustee, in administering a trust, is under the duty of acting
exclusively and solely in the interest of the trust estate or the beneficiaries within the
terms of the trust and is not to act in his or her own interest by taking part in any
transaction concerning the trust where he or she has an interest adverse to that of the
beneficiary: An exception exists to the well-recognized rule that a trustee may not place
himself in a position where his interest may conflict with the interest of the trust property.
When the conflict of interest is contemplated, created, and expressly sanctioned by the
instrument, the conflict may be permitted. Thus, there is an exception when the trust
clearly evidences the settlor’s intent that there be identity between trustees and a
corporation partially owned by the trust.
-“In some cases where the settlor knew when his trust was drawn that the trustee whom
he proposed to name was then in a position which, after acceptance of the trust, would
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expose him to a conflict between personal and representative interests, it has been held
that there was an implied exemption from the duty of loyalty in so far as that transaction
was concerned.”
- HERE- Mrs. Hosey was simultaneously trustee of the Watkins trust and remainder
beneficiary under the testamentary trust established in the Watkins will.
-the duality of identity is not enough, in itself, to establish a violation of fiduciary duty,
however, the circumstances of this case placed the trustee outside the bounds of fiduciary
responsibility.
-The benefit to Mrs. Hosey was a breach of an explicitly defined duty to pay proceeds
from the trust property to Mrs. Burgess.
-the powers given to Mrs. Hosey as trustee were exceedingly broadàshe was, for
instance, empowered to “dispose of any property, real or personal, to any person in such
manner, and upon such terms and conditions as the executor or trustee shall deem
advisable”
-BUT this general language was subject to the specific, overriding terms of §5.1 in Mr.
Watkins’s will, in which he clearly set forth the extent of the duties of the trustees of the
testamentary trust: “to hold, manage, and invest the same [real property], to collect the
income thereon, and to pay to, or apply for the benefit of, my spouse the net income
thereof. . . . ’’
-This court held, in Hardy v. Hardy, that: A trustee is at all times disabled from
obtaining any personal benefit, advantage, gain, or profit out of his administration of the
trust. Any benefit or profit obtained by the trustee inures to the trust estate, even though
no injury was intended and none was in fact done to the trust estate
-HERE- Mrs. Hosey and her late husband, however innocently, failed to adhere to the
creating instrument’s express directive that they apply the entire net income of the subject
property to the benefit of Mrs. Watkins for her life.
-By the terms of the will, they were prohibited from deriving any personal monetary
benefit from the 400 acres.
Problems 455
1. Savannah established a trust under her will, making her son, Tristan, the trustee. The
trust directs the trustee to distribute income from the trust to Savannah’s second
husband, Ralph, for his life and then on Ralph’s death to distribute the remaining assets
to Savannah’s descendants. Savannah and her first husband had two children, Tristan
and William, and each of the sons has children. Ralph has a daughter from his prior
marriage. After Savannah’s death, Tristan comes to you with the following questions:
a. Tristan would like to buy the family home from the trust. Ralph has moved in with
his daughter and is happy to have the house sold and the proceeds used for
investments that will produce income. Can Tristan buy the house? How should
he proceed if William supports Tristan’s buying the house? What if William is
opposed and wants to buy the house for himself?
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All of the beneficiaries must consent to the purchase of the home from the trust.
UTC §802(b)(4). If William supports the purchase of the home, then Tristian can
purchase the home on the condition that the proceeds are used for investments,
and on the condition that their children consent. If William is opposed and wants
to buy the house for himself, all beneficiaries must consent for Tristan to enter
into a divided-loyalty transaction.
b. Savannah and her first husband owned a dry cleaning business. Tristan has
managed the business for many years; his brother is not involved in the
business. The trust owns 60% of the voting stock of the business, and Tristan
and William each own 20%. Can Tristan vote the shares held in the trust? Can
Tristan vote not to declare dividends (the business has paid dividends each year
for the past eight years)? Can Tristan buy stock from the trust?
Yes can vote the shares--but must vote in the best interest of the beneficiaries
and can be different then his own vote.
Personally, yes. For the trust, if that vote benefits all the beneficiaries.
With consent or if its in the terms of the trust. Otherwise it’s self-dealing.
c. Tristan is spending a lot of time managing the portfolio of assets held in the trust.
Can he pay himself a salary?
Yes, so long as it’s reasonable. UTC §802(h)(2).
d. Now assume that Savannah comes to you before her death, with a will drafted by
another lawyer, creating the trust described above. What provisions might
Savannah want to include in her will with respect to the trustee’s duties under the
trust?
Could include some wording that would exempt Tristian from liability for specific
transactions.
2. When Elmer died, his will created a testamentary trust for his widow, Clara. He named
his granddaughter, Tamara, as trustee, and directed the trustee to pay all the income
from the trust to Clara, during her life, and then to distribute the remaining property to
Tamara. One asset of the trust is land Elmer farmed when he was alive. Tamara, as
trustee, leased the land to her spouse, Randi, to farm. When Clara found out, she told
Tamara to terminate the lease and Tamara refused. Clara wants the court to cancel the
lease because the trustee breached her duty of loyalty. What information would you
need in order to decide the case?
If the proceeds of the farm were going to Clara, I don’t think it breached the duty of
loyalty because “all the income from the trust” was going to Clara anyway.
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CLASS 16
D. Duty to Inform and Report
1. Common Law Duty
For a beneficiary to enforce her interests in the trust, the beneficiary must have
information about the trust, including its assets, transactions engaged in by the trustee,
and income earned by the trust. Trustees must respond to requests from beneficiaries.
The duty is a reactive one--the beneficiary has to know to ask.
Best Practices
Most trustees, particularly those advised by lawyers, provide annual accountings to the
beneficiaries of the trusts they manage. Statutes of limitation begin to run once the
beneficiaries have info about the trust.
Categories of beneficiaries
The duties the trustee owes to beneficiaries depends on the category: Permissible
distributee, qualified beneficiary, or beneficiary.
- All permissible distributees are qualified beneficiaries and beneficiaries. All
qualified beneficiaries are beneficiaries.
- “Qualified beneficiaries” means beneficiaries currently receiving or eligible to
receive distributions (“permissible distributees”), beneficiaries who would step
into that status if the interests of the permissible distributees ended, and
beneficiaries who would be eligible to receive distributions if the trust terminated.
2. Expanded Duties under the Uniform Trust Code

UTC §813 incorporates the common law rule in paragraph (a) and then adds affirmative
notification and reporting duties in (b) and (c). Under UTC §§105(b)(8) and (9), certain of
these duties are mandatory and cannot be removed by the settlor.
Although the UTC imposes a duty to provide annual reports to certain beneficiaries,
sometimes a settlor may prefer that a beneficiary not know too much about a trust. Even
then, the beneficiary must have information about the trust so that they can enforce it.
Questions and notes:

1. Should a settlor be able to create a secret trust?
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No, I think that because the trustee has such control over the funds in the trust, it
would be unwise to have a secret trust
3. To Whom to Report?
For those who lack legal capacity or not yet born, the UTC permits representation by
fiduciaries, which is consistent with older law. In addition, the UTC provides for
representation of minor and unborn children by a parent and representation by a person
who has an interest “substantially identical to” the interest of the person being
represented. The representation provisions apply only if the person representing another
beneficiary does not have a conflict of interest that would affect the representation.
Example: Henry created a testamentary trust that provides a life estate for Stephanie,
Henry’s surviving spouse, and then on her death directs the trustee to distribute the trust
to Henry’s descendants. Henry had two p. 463children, Andrew (the child of Henry’s first
marriage) and Bart (the son of Henry and Stephanie). Andrew is 35 and Bart is 30. Bart
has a child, Clarice. Depending on the particular need for representation, Bart may be
able to represent Andrew, because his interest is substantially identical to Andrew’s
interest. Bart may also be able to represent Clarice, as her parent. Representation for
the purposes of receiving annual reports should not create a conflict of interest in either
situation. However, because Bart is Stephanie’s son and Andrew is not, Bart could not
represent Andrew if the trustee wanted to terminate the trust and distribute the assets to
Stephanie outright. If Bart is the trustee and wants to engage in a self-dealing
transaction, he cannot represent Andrew even though their interests as beneficiaries are
substantially identical.
Problems [463]
Suri creates a trust for her child, Cynthia. The trust provides income for Cynthia for life, with the
remainder at her death to her then living descendants, by representation. Cynthia has two
children, Darlene and Eloise. Darlene has two children, Frieda and Gabrielle. To answer the
questions, you will need to apply the definition of “qualified beneficiary.”
Beneficiaries: Cynthia, Frieda, and Gabrielle

Qualified: Darlene, Eloise
1. Who must receive an annual report?

Cynthia. Darlene Eloise Frieda and Gabrielle can request an annual report--section 813
of the UTC
2. Who may request a copy of the trust document?

Cynthia, Darlene, Eloise, Frieda, and Gabrielle--section 813 of the UTC
3. If a trustee resigns and a successor becomes trustee, to whom must the new trustee
give notice?
Cynthia, Darlene, Eloise, Frieda, and Gabrielle--Section 704 of the UTC
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4. If Cynthia becomes incapacitated, who can represent her to receive annual reports?
Darlene or Eloise? A third party?
5. If Gabrielle is a minor, who can represent her to approve a self-dealing transaction if

Darlene is the trustee? If Cynthia’s cousin is the trustee? Who can represent Gabrielle in
connection with a petition to modify the trust to permit different investments? To
terminate the trust early?
The UTC provides for representation by a person who has an interest “substantially
identical to” the interest of the person being represented. Because Darlene, Gabrielle’s
mom wants to approve a self-dealing transaction, could Frieda be Gabrielle’s
representative?
If Cynthia’s cousin is the trustee, I think it would be the same analysis--anyone who’s got
an interest substantially identical to Gabrielle, so her mother or her sister in this option?
Petition to modify the trust to permit different investments/terminate the trust--anyone

with a substantially identical interest--permitting different investments and terminating
the trust would affect all beneficiaries and qualified beneficiaries, so again, her mother or
sister?
E. Duty of Impartiality
UTC 803
- If two or more beneficiaries, the fiduciary should act impartially giving due regard to the
beneficiaries respective interests
A trust typically provides for more than one beneficiary, and the beneficiaries’ interests may
occur at different times.
The duty of impartiality means that the trustee must manage the trust in a way that keeps the
interests of all current beneficiaries and future beneficiaries in mind before making investment
decisions or making distributions to any one beneficiary. The duty is central to fiduciary
responsibility. The duty of impartiality is not, however, a duty to treat all beneficiaries in the same
way.
The trustee must treat the beneficiaries equitably in light of the purposes and terms of the trust.
A settlor who prefers that the trustee, when making decisions, generally favor the interests of
one beneficiary over those of others should provide appropriate guidance in the terms of the
trust.
F. Duty of Care or Prudence

This duty, in general terms, is the duty to manage trust property and to administer the trust with
“reasonable care, skill, and caution.” This duty includes the duties to gather and protect the
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property, to keep proper records, to keep the property separate from the trustee’s own property,
and to invest prudently.
1. Managing the Property

The rules relating to the management of trust property address the trustee’s duty to pay
proper attention to the trust and to treat the property of the trust in a way that protects
the property for the beneficiaries.
All the duties laid out in 809, 811, and 812 are subject to a reasonableness standard and
a cost-benefit analysis belongs in a decision about what is reasonable.
To reassure the trustee, the settlor may want to provide in the terms of the trust that a
trustee need not pursue a claim available to the estate, including a suit by a successor
trustee against a prior trustee, if the costs of doing so outweigh the potential benefits.
The trustee is also under a duty to keep the property separate from the trustee’s own
property. Property that is commingled with the trustee’s own property or property for
which adequate records are not kept may be vulnerable to misuse by the trustee or to
claims by the trustee’s personal creditors. The duty to keep the property separate from
the trustee’s property is also referred to as the duty not to commingle, and the duty to
label trust property as belonging to the trustee in a fiduciary capacity is often referred to
as the duty to earmark. See UTC 810
Trustee is liable if the failure to earmark caused the loss.
2. Investing the Property

a. Types of Investments
What is Trust Accounting?
Trust accounting allocates receipts and expenses to either the income
account or the principal account. The allocations will affect the shares of
the income beneficiary and the remainder beneficiary. The Uniform
Principal and Income Act is the statutory source of these rules.
Any investment will, the trustee hopes, generate revenue. If the revenue is
considered income, then the income beneficiary gets a distribution. If the revenue
is classified as principal, then the remainder beneficiary will get more when the
trust terminates. (Of course, the trustee may have discretion to distribute
principal to one or more beneficiaries before the trust terminates.)
Principal Income
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- Appreciation in the value of - Any receipts currently

stocks, bonds, businesses, generated
and real estate - Less associated expenses
- Regardless of realized including taxes
or unrealized - Not including capital
- If a stock is sold, that’s gains
principal for trust accounting - Interest on bonds and on
purposes savings/checking accounts
- even though it’s a - Dividends paid by corporations
capital gain and - Annual net profits from a
therefore income for business
income tax purposes. - Rents from real estate
As a broad statement, investments that generate a lot of income tend to

appreciate slowly (thus benefiting the present interest holders) while fast
appreciating investments often do not generate much income (thus benefiting the
remainder beneficiaries).
b. The Prudent Investor Standard

A trustee must manage the trust’s assets in a way that protects the value of the
assets over time. For most trusts, the trustee will invest the assets with two
goals: to produce income for the income beneficiaries and to increase the value
of the trust property for the remainder beneficiaries.
In 1994, the ULC adopted the Uniform Prudent Investor Act (UPIA), which
codifies the prudent investor rule, and it is based in the Modern Portfolio Theory
(MPT).
- Act articulates a higher duty to diversify trust investments
- the Act directs the trustee to invest for “risk and return objectives
reasonably suited to the trust.”
- The Act actually encourages trustees to delegate investment
responsibilities to professionals
- Emphasis on diversification underlies the Uniform Act, the portfolio
standard of care in section 2(b), which reads: “A trustee’s investment and
management decisions respecting individual assets must be evaluated
not in isolation but in the context of the trust portfolio as a whole. . . . ”
In Re Trust created by Inman

Facts:
-The now deceased, Harold Inman, created a revocable trust- naming Bracket (grandson)
as trustee
-the trust instrument gave the trustee broad powers in dealing with trust assets, including
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the power “[t]o receive, hold, manage and care for the property held in trust,” and “[t]o
sell publicly or privately for cash or on time, property, real or personal, held in trust.”
-the trust instrument also include a provision that said-With respect to assets originally
placed in trust, this provision modifies the general duty to diversify by authorizing the
trustee to retain non-diversified assets if retention would be in the best interests of the
beneficiaries.
-Bracket wanted to acquire the 42-acre parcel from the trust.
-Brackett described himself as one who invests, remodels, and sells real estate, testified
that he moved the farmhouse which he had purchased at auction to the trust property
because he had “nowhere else to put it.”
- He further acknowledged that he sought more land than was necessary for a home site
because “I wanted my kids to have a good-sized piece of land. I’ve always worked the
land when I was a kid there and played up there. And it has some sentimental value, and I
wanted more of a farmstead for my kids to grow up on.”
-He claimed that investment of the proceeds in something other than agricultural real
estate would provide diversification of trust assets in a manner consistent with the
prudent investor rule, thereby benefiting all the beneficiaries.
* Dr. David Volkman testified on behalf of Brackett [trustee of as an expert in economics
and finance. Volkman reviewed the trust instrument, the assets held and income earned by
the trust, etc. and opined that because the assets of the trust were not diversified, the
standards of the Nebraska Uniform Prudent Investor Act were not met.
Proc. Hist:
-5 beneficiaries filed a written objection to the sale arguing that excising a 42-acre parcel
from the 189-acre farm would have a detrimental effect upon their special relationship
with the asset without achieving any appreciable benefità
-Maryann Tremaine (Inman’s other surviving daughter) testified as a spokesperson
for beneficiaries. She opposed the sale because of her belief that Inman intended the
farmland to remain in trust for all of the beneficiaries and that it would increase in
value over time;
-Two additional beneficiaries who did not file written objections also testified in
opposition to the sale.
-Peters opposed the sale because she believed the property should remain “in the
family” and was satisfied with the current income.
- One of Inman’s granddaughters who is a beneficiary of the trust testified that she
opposed the sale because she “believed my grandfather left the property for
everybody to enjoy. It has sentimental value to the whole family, not just one
person.”
-Bracket argues that by denying him authority to sell the trust property to himself, the
court (1) failed to allow him to diversify the assets of the trust in compliance with the
Nebraska Uniform Prudent Investor Act and (2) erroneously allowed principles against
self-dealing to trump statutory law and trust provisions that authorized the requested sale
Issue:
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Holding: We conclude that the judgment of the county court conforms to the law and
there was no absolute duty to diversify the trust assets which would compel court
approval of the proposed sale.
-Affirm
Reasoning:
-the court compared the trustee’s duties of loyalty and compliance with the prudent
investor rule
-included in the prudent investment rule is the principle that a “trustee shall diversify the
investments of the trust unless the trustee reasonably determines that, because of special
circumstances, the purposes of the trust are better served without diversifying.”
*its a “default rule” which “may be expanded, restricted, eliminated, or otherwise altered
by the provisions of a trust.”
-the trustee’s statutory duty to diversify is subject to the general “prudent investor”
standard of care which requires a trustee to consider various circumstancesrelevant to the
trust or its beneficiaries, including “[a]n asset’s special relationship or special value, if
any, to the purposes of the trust or to one or more of the beneficiaries.”
**a similar provision in the Nebraska Uniform Prudent Investor Act could be used as a
basis for justifying “non-diversification” of a family farm or ranch held in trust in favor
of retaining the asset “for future generations of the family.”
-HERE- Brackett’s professed “sentimental” attachment to the farmland which has been in
his family for many years is clearly shared by the other family members who are
beneficiaries of the trust.
Problems [477]
Jerry and Sandy ran their family store for many years. A fixture in the community,
the store provided income for the family and also constituted the bulk of the
family assets. Their children all work in the business and draw salaries from it.
When Jerry died, his will created a trust for Sandy and the children. Jerry and
Sandy had each owned one-half of the business, and his shares were distributed
to the trust created under his will. The trust holds the stock and a small amount of
cash.
1. Should the trustee diversify the assets?
Under the UPIA, the uniform trustee shall diversify the investments of the
trust unless the trustee reasonably determines that, because of special
circumstances, the purposes of the trust are better served without
diversifying.
If the sale of the trust is a self-dealing, the trustee would need approval
before selling the assets for the purpose of diversification anyway?
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Additionally, if the terms of the trust say that the business should be kept
as a family business, then it should probably stay in the trust.
2. Must the trustee diversify the assets?

Under the UPIA, the trustee is encouraged to diversify assets. must
diversify the assets unless the terms of the trust say otherwise.
Falls in the special relationship rule?????
3. If you had drafted Jerry’s will, what provisions might you have
recommended for the trust?
I would recommend that Jerry specifically lay out whether he wants the
business to remain in the family trust for the benefit of the beneficiaries or
if he would rather the trustee diversify all the assets of the trust for the
benefit of the beneficiaries.
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Class 17
G. Allocation of Principal and Income
I don’t know what any of this means

The conventional principal-and-income rules drive that trustee to accept a lower total return in
order to obtain a particular form of return—interest rather than capital appreciation. In many
trust portfolios that could prudently tolerate greater risk by holding a higher proportion of
equities, the trustees have refrained from investing appropriately in equities because such a
portfolio commonly produces less current income.
Instead, the trustee should first invest to maximize total return, and then, in a separate and
subsequent step, “allocate the return as fairly as possible.”
Our traditional notion that the current beneficiary automatically receives all the “income” has
concealed from us the truth that the trustee’s investment policy largely determines how much
that income will be.
Accordingly, a modern portfolio theory-regime that would allow the trustee to invest for the
maximum return suitable to the trust, regardless of form, and then to allocate to income that
portion that the trustee determines to be appropriate for discharging the duty of impartiality,
would involve no fundamental departure from the inner functional balance of the present law.
Under either scheme, the trustee decides how much of the trust’s investment return to devote to
the income interest. But greater candor about the relationship between investing and allocating
would allow the trustee to follow investment practices that would produce superior returns for
both current and remainder beneficiaries.
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H. Remedies for Breach of Trust
Uzyel v. Kadisha
Facts:
-Dafna Uzyel’s husband died when she was 28.
-She had two children, a tenth-grade education, and limited ability to communicate in English.
-Neil Kadisha was a family friend who became involved in a number of financial and legal dealings with
Uzyel and served as trustee of two trusts created by Uzyel shortly after her husband’s death- the
beneficiaries were Dafna Uzyel and her children Izzet and Joelle Uzyel (collectively the Uzyels)
-Kadisha sold 37,500 shares of Qualcomm stock in May ’92.
-The stock value later appreciated dramatically.
Proc. Hist:
- The beneficiaries, the Uzyels, filed petitions for breach of trust against Kadisha and terminated the
trusts.
Uzyel’s: sought to recover the profits that [one of the trusts] would have earned on shares of Qualcomm
stock had Kadisha not sold them
-they argued that Kadisha sold the shares solely for his own benefit and funneled the sale proceeds to
himself through a fictitious loan, breaching his duty of loyalty, and that the sale was imprudent.
-They argued that they were entitled to recover the trust’s lost profits pursuant to the California statutes.
Kadisha:
-Kadisha contends Qualcomm stock was a risky investment in May ‘92, in light of the fact that
Qualcomm stock constituted a high percentage of the trust’s assets.
-he argues the stock was an inappropriate investment for the trust, so he had a duty to sell the shares and
cannot be held liable for discharging that duty with an improper motive.
(Kadisha does not challenge the trial court’s finding that he sold the shares solely to raise cash for his own
use)
-After a nonjury trial, the trial court awarded the Uzyels over $59 million in compensatory damages and
disgorgement of profits, plus $5 million in punitive damages and over $13 million in attorney fees.
Issue: Whether Kadisha as the trustee breached his duty of loyalty

Holding: Yes, he did
-we conclude that the fact that the sale might have been in the best interests of the trust, or even
compelled by the duty to invest prudently, does not excuse Kadisha from liability for his breach of the
duty of loyalty
- Kadisha breached his duty of loyalty by selling the shares of Qualcomm stock in solely for his own
benefit and w/out regard to the interests of the beneficiaries.
[The court awarded “appreciation damages” for the breach based, in general, on the amount the stock
appreciated from the date of sale to the date of trial—EDS.]
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Reasoning:
-the most fundamental duty of a trustee=the duty of loyalty- requiring a trustee to administer the trust
solely in the interest of the beneficiaries; its principal purpose is to protect the best interests of the
beneficiaries.
-this duty requires a trustee to subordinate his interests to those of the beneficiaries in every regard- and is
prohibited from engaging in transactions in which the trustee’s personal interests may conflict with those
of the beneficiaries w/out express authorization from the trust instrument, the court, or the beneficiaries.
-No defense- that the trustee acted in good faith, that the terms of the transaction were fair, or that the
trust suffered no loss or the trustee received no profit.
-Beneficiaries often lack the financial sophistication necessary to monitor the trustee’s investment
decisions and discover abuses.
-The confidentiality of trust management decisions and lack of public information concerning the trust’s
performance shield trustees from market forces and other external pressures that can curb the abuses of
fiduciaries in other contexts.
-Moreover, the cost and difficulty of ending the trust relationship, which ordinarily requires litigation to
remove a trustee for cause, distinguish trusts from other confidential relationships that can be terminated
more readily.
-These circumstances explain why the law is more protective of trust beneficiaries than of participants in
other fiduciary relationships, such as corporate shareholders.
* If the original purchase of an asset was a breach of the duty of prudent investing, the beneficiaries are
entitled to affirm that transaction, waiving the breach, and enforce their remedies for a separate breach of
the duty of loyalty in connection with the sale of the asset.
HERE-
**Kadisha breached his duty of loyalty by selling the shares solely for his own benefit and without regard
to the interests of the beneficiaries, regardless of whether a faithful trustee exercising reasonable care and
acting in the best interests of the beneficiaries would have sold the shares at the same time.
-to allow a trustee to attempt to justify a breach of the duty of loyalty by showing that the transaction was
consistent with, or even compelled by, the duty to invest prudently would seriously undermine the duty of
loyalty and impair its deterrent value.
-A court may excuse a trustee from liability for a breach of trust if the trustee acted reasonably and in
good faith under the circumstances known to the trustee BUT we are aware of no authority to excuse from
the statutory measure of liability for a breach of trust a trustee who acted in bad faith by serving his own
interests
-Kadisha also challenges the calculation of damages: he argues that the damages for a breach of the duty
of loyalty must be based on what a prudent investor would have done with the sharesàcourt rejects that
-Damages for breach of duty of prudent investing= a calculation reflecting what would have occurred if
Kadisha had complied with the duty of prudent investing and would show the amount of profits lost as
“the result of the breach of trust.”
-i.e., but for the breach of the duty of prudent investing
-Damages for a breach of the duty of loyalty= based on what would have occurred if the trustee had
complied with the duty of loyalty
-i.e., but for the breach of the duty of loyalty
-Policy: the remedy for a breach of trust should be adapted “to fit the nature and gravity of the breach and
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the consequences to the beneficiaries and trustee.”

-the goals are not only to compensate the beneficiaries for their loss, but also deterrence/preventative
(from others committing similar acts in the future)
I. Removal of Trustees
The most important basis for removal, both under the common law and the UTC, is a serious
breach of trust. Failing to care for trust property, self-dealing with trust property to the detriment
of the beneficiaries, or refusing to provide information to beneficiaries despite repeated requests
(over a period of time) can be grounds for removal. The more serious the breach, the more
likely the court will be to remove the trustee. A pattern of smaller breaches may also result in
removal.
A court may consider removing a trustee if co-trustees cannot or will not cooperate in managing
the trust. Removal for lack of cooperation need not involve a breach of trust, but the failure to
cooperate must significantly affect the management of the trust.
The court needs to determine that removal is in the best interests of the beneficiaries and that
removal is not inconsistent with a material purpose of the trust.
Courts should consider the following factors when determining whether a current trustee or a
proposed successor trustee best serves the interests of the beneficiaries:
- personalization of service;
- cost of administration;
- convenience to the beneficiaries;
- efficiency of service;
- personal knowledge of trusts’ and beneficiaries’ financial situations;
- location of trustee as it affects trust income tax;
- experience;
- qualifications;
- personal relationship with beneficiaries;
- settlor’s intent as expressed in the trust document;
- and any other material circumstances.
No one factor in this nonexhaustive list will outweigh the others. In re McKinney, 67 A.3d 824,
834 (Pa. Super. 2013)
The McKinney court stated that while removal of an individual trustee selected by the settlor
based on changed circumstances would be unlikely, when a bank trustee had merged multiple
times, removing the bank trustee was not contrary to a material purpose.
When the chosen trustee no longer exists, the only material purpose that can be served
through designating a trustee is that the trustee effectively administers the trusts. Where
both the trustee and the proposed successor trustee are qualified to serve that purpose,
we will not find that removal violates a material purpose of the trust.
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J. Trust Protectors and Powers to Direct

The term “trust protector” is typically used when someone other than the trustee is given broad,
discretionary powers over the trust, while a “power to direct” is typically a power to direct the
trustee’s actions with respect to a specific duty.
For a revocable trust, the duty the trustee has is to the settlor not the beneficiaries.
P I
Capital gains--any appreciation on an asset Receipts

Rent
Dividends
Interests
Step-up in basis:
Basis is what you buy an asset
Step-up in basis of the fair market value
Bonds are better for income beneficiaries--they don’t appreciate so they’re not good for the
remainder beneficiary
Aggressive investment in stocks is better for remainderment beneficiary and not the income
beneficiaries
UPIA 104--trustee’s power to adjust--helps trustees better act toward benefiting their
beneficiaries
E.g., surviving spouse lives off income, trustee must act in her best interest at generating
income from trust
1. Trust Protector
Lawyers created the concept of a trust protector—someone with the power to remove
the trustee and appoint a successor (other than the trust protector himself) or to modify
or terminate the trust. Although the concept developed in connection with offshore trusts,
lawyers have become increasingly likely to include trust protectors in domestic trusts.
A settlor can give a trust protector one or many powers. For example, the power:
● to remove the trustee and appoint a new trustee;
● to make, direct, or veto investment decisions;
● to allocate sale proceeds between income and principal;
● to change the situs of the trust; and
● to terminate the trust under specified conditions.
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A settlor might also give a trust protector, rather than the trustee, the power to rearrange
beneficial interests in keeping with the settlor’s general intent.
2. Power to Direct
UTC §808 permits the settlor to give powers to direct to a person (a corporation or
individual) who is not a trustee. The trustee must follow the directions, and the trustee is
usually protected from liability for following the directions, either in the terms of the trust
or by statute. The trustee will still have overall responsibility for the trust. The terms “trust
protector” and “power to direct” have overlapping meanings and are often not used
precisely in practice.
If the trustee has overall fiduciary responsibilities for the management of the trust and
someone with a power to direct has fiduciary duties with respect to the particular function
she serves, the coordination of those duties may create conflict or uncertainty. In
general, the trustee must follow the directions of the person holding the power to direct,
but the trustee continues to be responsible for carrying out the settlor’s intent and
preventing actions that would be a “serious breach” of a fiduciary duty.
Problems [491]
1. Evan is the trustee of a trust created under the will of his wife, Miranda. (Miranda died
two years ago.) Evan receives the income of the trust for his life, and on his death the
remaining principal will be distributed to Miranda’s descendants. Miranda had three
children: Jesse (her son from a prior marriage) and two children with Evan.
a. Evan invests the trust property in two rental houses. He does the work himself on
the rentals and then distributes income based on the rents received, less the
costs of maintaining the houses. He pays himself a fee for managing the houses
but takes no fee as trustee.
i. Is Evan acting as a prudent investor? (What additional information would
you want to know?)
On its face, I don’t if he’s acting as a prudent investor without more info.
We’d need to know how much of the trust property has gone into the
rental houses and what the returns are. If the rental properties are
depreciating over time but still making money, then that’s not a prudent
investment because the beneficiaries have lost money which isn’t
prudent.
Also it’s not diversified, so we’d need to know the terms of the trust
regarding how the settlor wanted the assets to be managed.
ii. Is Evan complying with his duty of impartiality?
I think we’d need more info, but I’m inclined to say no because the duty of
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impartiality means that the trustee must manage the trust in a way that
keeps the interests of all current beneficiaries and future beneficiaries in
mind before making investment decisions or making distributions to any
one beneficiary. It seems as if Evan made this decision without
considering the interests of Miranda’s children.
iii. If Jesse requests a copy of the trust instrument, must Evan give him a
copy?
Yes because he requested it--regardless of qualified status
b. Assume that Evan resigns as trustee. Pursuant to the terms of the trust, a family
friend, Lewis, becomes trustee. Lewis sells the houses and invests the proceeds
in government bonds.
i. How should the receipts from the house sales be reported for accounting
purposes—as income or principal?
The appreciation in the value from the sale is principal, but the receipts
currently generated is income?
ii. Is Lewis complying with his duty of impartiality?
Yes so long as it is in the best interests of the beneficiaries, within the

terms of the trust.
iii. To whom should Lewis send annual reports?
Evan and all children
iv. Can Lewis hire an investment advisor to assist him?
Yes, especially if Lewis doesn’t have any investment experience and it

would only incur necessary costs on the trust.
2. When Maxine and Cyrus died in an automobile crash, their wills created a trust for their
two children, who were eight and nine years old. The terms of the trust direct the trustee
to use income and principal for the health, education, maintenance, and support of the
two children. When neither child is under the age of 25, the trust terminates and the
trustee distributes the property to the then living descendants of Maxine and Cyrus.
Maxine’s brother, Ira, is the trustee and is also the legal guardian for the children. With
respect to each of the following additional facts, indicate whether Ira has breached any
of his fiduciary duties, and, if so, which one(s). If you find a breach, what remedy might
the court impose?
a. Ira has had good success with investments, so he puts the trust’s money
($500,000) in his investment account. With the additional funds and economies
of scale, the account makes an even better return that it had before.
UTC 810--a trustee shall keep property separate from the trustee’s own.
Because there was no loss, there’s no remedy?
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Per UTC 1001, a court could enjoin the trustee to avoid a breach of trust
in the future???
b. Two years after the accident, Ira’s broker tells him about a start-up company that
is a “sure thing.” Ira takes $100,000 of the trust’s money and invests in the new
company. Unfortunately, the company goes under and the investment is basically
worthless.
This could be a breach of the duty of prudence/care depending on the the

circumstances that the trustee must consider under UPIA 2
(1) general economic conditions;
(2) the possible effect of inflation or deflation;
(3) the expected tax consequences of investment decisions or strategies;
(4) the role that each investment or course of action plays within the overall trust
portfolio, which may include financial assets, interests in closely held enterprises,
tangible and intangible personal property, and real property;
(5) the expected total return from income and the appreciation of capital;
(6) other resources of the beneficiaries;
(7) needs for liquidity, regularity of income, and preservation or appreciation of

capital; and
(8) an asset’s special relationship or special value, if any, to the purposes of the
trust or to one or more of the beneficiaries.
c. When the younger child turns 25, Ira gives each child $25,000 and says that he
has spent the rest of the trust money taking care of them. He notes that he gave
them each $10,000 a year for college and that the rest of the money had been
spent on housing, food, and clothing costs before they left for college.
This doesn’t seem like a breach of any kind?
3. Keisha set up a trust for her son, Luke. She named her sister, Cassandra, as trustee,
and she gave her friend and longtime investment advisor, Isaac, the power to make
decisions about investments for the trust. The trust is to distribute income to Luke, and
on Luke’s death the trust will be distributed to the Deschutes River Fund (a nonprofit
charity that works to keep the Deschutes River clean). Cassandra asks for advice on the
following questions:
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a. Isaac has invested the trust assets in technology stocks, and the stocks have not
done well. They have paid no dividends and have depreciated in value.
Cassandra would like to allocate some money currently in the principal account
to the income account so she can make a distribution to Luke. Can she do so?
b. Is there any risk of liability for Cassandra because the stocks have performed so
poorly? What should she do?
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Class 18
Beneficiaries’ rights depend on provisions in a trust. There are three types: Mandatory,
Discretionary, and Sprinkle/Spray.
Mandatory provisions require a distribution without discretion towards amount or timing.

“Trustee shall distribute life income to Margaret and corpus to Louis after Margaret’s death.”
Discretionary provisions allow for the trustee to decide on distribution amount and timing. “The
trustee may distribute what they see fit to each of my children to assist in the child’s health and
education.”
Spray or Sprinkle: These terms are sometimes used interchangeably, but spray usually means
the trustee can give to a group of beneficiaries while sprinkle means they can give to just one
beneficiary.
Spray – “The trustee shall distribute all income of the trust quarterly to one or more of my
children, in such shares as the trustee determines.” May decide how much to give to many.
Doesn’t require distribution.
Sprinkle – “The trustee may distribute so much or all of the principal of the trust to my daughter
as is necessary for her health, education, etc.” How much to give to one. Court more likely to
require a distribution, because the provision wouldn’t be in the will if that wasn’t the plan of the
settlor.
Interpreting Discretion
Remember: Trustee must act with prudence and care, has a duty of loyalty and impartiality to
the trustee, and may only work to benefit the beneficiary.
When it comes to accessing the discretion a Trustee uses in making distributions, a court will
only intervene in a trustee’s actions/inactions to prevent misinterpretation or abuse of discretion.
Typically, because abuse of discretion is hard to describe, the courts rely on generic
“reasonableness” or “good faith” standards, or sometimes both.
Ex. Joan is the trustee for her sister’s children. She has sole discretion of the distributions.
When the youngest child turns 18, she disburses the money to all of them. This may be in good
faith because she thought they were good children, but may not be reasonable. The children
could sue later claiming that she violated her duty of reasonableness.
When Making Distributions…
Trustees should be diligent. They have a duty to inquire. A trustee must attempt to find out a
beneficiary’s resources and needs, and consider the size of the trust and the other beneficiaries.
They may consider the beneficiary’s other assets, but are not required to.
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There are several different discretionary provisions that would allow a trustee to make
determinations about the size and frequency of a distribution:
a. Support and Maintenance (and comfort): Goes beyond adequate food and housing.
Typically, this will refer to the beneficiary’s accustomed standard of living. Give them what is
necessary for them to carry on living how they have been.
- Courts typically look to the amount of property the settlor placed in the trust, the
relationship between the settlor and the beneficiary, and the settlor’s intent as expressed
in the document. Unless there is a reason to find otherwise, the terms will usually be
interpreted to imply the beneficiary’s accustomed standard of living.
- Not the most minimal -- it means more than the bare essentials
- UTC 814--GOOD FAITH STANDARD
b. Education: Typically seen as a reference to tuition for college, technical school, or

graduate-level education. Things normally included are room & board, books, fees, etc.; things
that are not included are typically the cost of a private high school, study abroad programs,
music lessons, sport instruction, etc. – things that are not seen as necessary in the furtherance
of the education of the beneficiary.
- Should specify what kind of education--higher ed? Private primary school? Etc. needs to
be specific.
- Look to pattern of the trust, how much $ is leftover, etc.
c. Emergency: Usually defined as “a sudden or unexpected happening that calls for

immediate action.” No concrete definition, but is one of those “you know it when you see it”
standards.
d. Welfare, Best Interest, Happiness: Considered non-ascertainable by the court and is left
to the discretion of the trustee. May make no distributions, or may make distributions for any
purpose.
Beneficiary’s other assets: Absent specific direction in the trust, it is not clear whether a
beneficiary’s other assets should be a factor in the trustee’s decision to make distributions. The
Restatement (Third) of Trusts adopts as a default view that a trustee should consider other
resources, but the Comment to the section indicates that no clear trend exists.
Duty to inquire: Related to the question of whether and to what extent to consider the
beneficiary’s other resources in deciding whether to make distributions, another issue is the
scope of the trustee’s duty to affirmatively inquire into the needs of the beneficiary rather than
wait for the beneficiary to request distributions.
O’Riley v. U.S. Bank, N.A.

[the settlor’s children sued the trustee for breach of the duty of impartiality. The trustee
was authorized to make distributions of income to the settlor’s widow and two children.
The children argued that the trustee had not exercised that duty reasonably, because the
trustee had made distributions primarily to the settlor’s widow.]
Facts: Donald & Arlene ORiley married in 1956 had 2 children: Terrence and Gerald. Donald, as
a grantor, executed a trust with American National Bank (later U.S. Bank) in January 1978. ANB
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was named the trustee. Donald died in 1982.
Pursuant to the trust agreement, the trust estate would be broken up into 2 trusts on his death:
Marital Trust and Non-Marital Trust. Arlene was the primary beneficiary and then Terrence &
Gerald were her children, who would receive from the non-marital trust the remainder of the
trust estate as her then living descendants upon Arlene’s death.
The non-marital trust said that if Arlene didn’t remarry, she would be the preferred beneficiary in
that the trustee should pay all trust income to support her care, support, maintenance, and
welfare. Subject to the provisions in favor of Arlene as the preferred beneficiary, any income not
paid to Arlene should be paid to the grantor’s descendants then living to support their education,
care, support, maintenance, and welfare. The trustee may may consider other income and
assets of beneficiaries. The trustee has the right in its absolute discretion to exclude any or all of
them at any time and from time to time to make unequal distributions among them. Any net
income not so distributed by the Trustee during any calendar year shall be accumulated and
added to the principal of the trust.
Also said that the trustee had the power to pay out as much of the principal as it wanted to the
beneficiaries, favoring the benefit of Arlene before others.
Issue: Whether the trustee breached their duty of impartiality?
Holding: No
- When determining the meaning of trust provisions, it is essential to look towards the
grantor’s intent.
- Generally, where a grantor vests sole discretion of a matter in a trustee and supplies no
objective standard by which to evaluate the reasonableness of its conduct, a court will
not interfere in the exercise of that discretion unless the trustee willfully abuses its
discretion or acts arbitrarily, fraudulently, dishonestly, or with an improper motive.
- In determining whether the trustee properly distributed the estate of a trust, the
Restatement (2nd) of Trusts lists several factors relevant for seeing if discretion was
abused.”
- Extent of discretion conferred by the trust.
- Purpose of trust
- Nature of the power
- Existence or non-existence or an external standard against which the choices
may be judged.
- Motive of the trustee in exercising or refraining from exercising their power.
- Existence or non-existence of a conflict between trustee’s interest and
beneficiary interest.
- (Beneficiaries arguing that Bank breached duty): Terrence & Gerald asserts US Bank
failed to distribute trust according to its terms, and argued that the trustee failed to use
reasonable process to make distribution decisions.
- Distributions were put on “auto pilot” in favor of Arlene
- Trustee failed to examine and balance all of Arlene’s and their needs before
making distribution decisions
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- How the court concludes that it was reasonable for the trustee to distribute to Arlene
- Under the terms of the trust, income distributions to Donald’s sons were
specifically limited to any income left over after distributions were made to Arlene.
Similarly, in conferring to the trustee the power to “invade” the principal, the Trust
Agreement provided that “the interests of [the Grantor] and his wife be preferred
to the interests of other beneficiaries.”
- the term “advisable” in the support provisions of the Trust Agreement has been
found to be synonymous with the term “desirable,” and providing that which is
“desirable” has been found to mean providing that which is “reasonably
necessary.”
- the trustee “shall have the right, in its absolute discretion, to exclude any or all of
them at any time and from time to time and to make unequal distributions among
them.” Thus, the trustee was permitted, but not required, to consider other
resources in exercising its discretionary distribution powers.
- Substantial evidence was presented that Trustee’s distribution decisions were not
beyond the bounds of reasonable judgment.
- William Mytton, who managed the trust, said he did not violate the
reasonableness standard. He noted that he asked Arlene for her financial info,
considered her income and assets, the standard of living, and necessary things
to maintain her personal welfare. Arlene had a country club membership, lake
house, boat, took multiple trips, made charitable donations to her church, and
gave financial assistance to her sons. Arlene’s income after Donald’s death, even
with the marital and non-marital trusts, was less than when he was alive, and had
additional expenses that her husband’s work covered before he died.
- Beneficiaries argue that the trustee did not always seek their financial information before
making payments to their mother. However, the trust did not require that. Arlene was the
preferred beneficiary.
- Trustee also did have knowledge about beneficiaries. Specifically, knew that Terrence
struggled with drug and alcohol abuse.
When the Trustee is a Beneficiary
The trustee must act in the interests of all the beneficiaries (duty of loyalty) and must treat all
beneficiaries equitably (duty of impartiality).
Mesler v. Holly
Facts: On April 9, 1970, Fred Way, the settlor, established two inter vivos trusts. One of the
trusts was a Florida trust for the joint benefit of himself for life and appellee, Elaine Holly. He and
Elaine were co-trustees. The other trust was a Massachusetts Fund under which Plaintiffs-
appellants, the settlor’s great grandchildren, were the principal beneficiaries.
Florida trust: upon the death of the settlor, Elaine Holly would be the sole beneficiary with
remainder over to the Massachusetts trust. The residue of Fred’s estate, according to his will,
would pour over into the Florida trust. Appellee, O. Ray Gussler, is a successor to the decedent
as a co-trustee of the Florida trust.
Fred died on October 20, 1972. Between then and 1975, Elaine and Ray have acted as co-
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trustees under the Florida trust.
PH: Plaintiffs-Appellants filed an amended complaint for declaratory judgment connected with
the removal of Elaine Holly as the trustee for the Florida Trust. Dismissed for failure to state a
cause of action at the trial court level. Appellate court reverses. This is the relevant part of the
trust:
-
- Appellants contend that this paragraph does not give unbridled discretion to the co-
trustees to determine or establish a standard of living for Elaine, rather that the
discretion relates solely to the manner, mode, and extent of distributing trust assets to
maintain Elaine’s standard of living to which she’s already become accustomed.
- Appellees argued that “absolute discretion” is all inclusive--trial court agreed
- “Absolute discretion” does not relieve a trustee from the exercise of good faith or
from being judicious in his administration of the trust
- Trustee is always subject to accountability to remaindermen where discretion is
improperly exercised
Issue: whether a trustee who is the sole lifetime that gives nothing to remaindermen abuses
their discretion?
Holding: Maybe.
- We hold, therefore, that allegations that a trustee is the sole lifetime beneficiary, that she
has not furnished any accounts or reports of her administration to the remaindermen and
that she is not confining her invasions of principal to reasonable limits, as may be set out
in the complaint, give rise to an inference of abuse of discretion by the trustee and are
sufficient to require the trustee to respond.
- Clearly, a trustee who is also a beneficiary and who is given a power, or discretion, to
invade the trust principal has a fiduciary obligation to the remaindermen to keep her
demands within reasonable limits. Even an unlimited power of invasion is subject to
implied limitations to protect the remaindermen.
Austin’s Brief
Reverse trial court’s dismissal.
Fred Way established 2 inter vivos trusts: Florida Trust and Massachusetts Trust.
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Florida trust was for him and his wife, Elaine. He and Elaine were trustees.
Massachusetts Trust listed his great grandchildren as principal beneficiaries.
Florida Trust said that when Fred died, Elaine would become the sole beneficiary of the Florida
Trust, with remainder to the Mass. Trust.
In his will, executed 1 day after the trust, he said that his estate would pour over into the Florida
trust.
The trust had a provision that said the co-trustees, Elaine and O. Ray Gussler, had the absolute
discretion to make distributions however they felt was necessary to maintain the lifestyle to
which Elaine was accustomed.
Appellant great-grandchildren said that the “lifestyle to which Elaine was accustomed” was
ascertainable, and that the payments the trust had made to her far exceeded that amount.
In response, Elaine said that she had absolute discretion.
However, absolute discretion does not relieve a trustee from their duty of good faith or from
properly administering the trust. Moreover, when a trustee is influential in making distributions to
their own benefit, their discretion may more easily be called into question.
A trustee who is also a beneficiary has a fiduciary duty to the remaindermen of a trust to keep
her demands with reasonable limits. Even unlimited power of invasion is subject to the implied
limitations to protect the remaindermen.
Therefore, the allegations that Elaine is failing to provide financial documents or any documents
detailing her of the trust of the remaindermen, and is overindulging, give rise to an inference of
abuse and are sufficient to require the trustee to respond.
Problems [513]
1. A trust provides: “The trustee shall distribute all the income to my son, Jeremy, and on
Jeremy’s death, distribute whatever remains in the trust to my daughter, Kristyn.” What
discretion does the trustee have with respect to the amounts Jeremy and Kristyn will
receive?
It is a mandatory provision that provides little to no discretion at all.
2. A trust provides: “The trustee may make distributions from principal for the education of
my grandchildren.” What information would be helpful in advising the trustee?
Information that would be helpful: how much of the principal does the trustee
have the power to use? Does the settlor expect their grandchildren to go to trade
school, college, or graduate school? How many grandchildren are there, what is
the size of the trust, can the grandchildren’s educations be paid for without
seriously impinging upon or eliminating the interests of other beneficiaries?
a. Can the trustee pay tuition for a grandchild who is attending law school?
It would depend on the external factors, though in a vacuum, paying for
graduate school is normally an appropriate expense.
b. Can the trustee pay the expenses of a one-year trip around the world for a
grandchild who wants to educate himself through travel?
Typically, no. This is not typically included in the “educational necessities”
of a child. If the trust is large enough and the trustee has the appropriate
discretion and makes a reasonable, good faith effort to support the child’s
education through the travel, then it may be permissible.
c. For each of the requested distributions in (a) and (b), what due diligence would
be required to establish reasonableness and good faith rather than an abuse of
discretion for a decision to distribute or a decision not to distribute?
Look to the beneficiary’s other assets, resources, needs, size of the trust,
number of beneficiaries, and specific distributions to those beneficiaries.
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3. A trust provides: “The trustee shall distribute so much or all of the trust principal as is
necessary for the health, education, maintenance, and support of my spouse. On my
spouse’s death, the trustee shall distribute the corpus of the trust to my descendants, by
right of representation.” For each request below, indicate whether the trustee must make
the distribution and, if not, whether the trustee can make the distribution. For each
answer, discuss the analytical method the trustee should use to reach his conclusion. If
the trustee makes the distribution, would you advise the other beneficiaries to sue and, if
so, on what legal basis?
a. Elective, cosmetic surgery for the spouse – Trustee is not required to
distribute this money, though there’s a chance that they may. Because
this is elective and cosmetic it is not for the purposes of health. As such,
we would want to see whether the spouse was accustomed to getting
cosmetic surgery to satisfy the maintenance and support prong. A
beneficiary should not sue unless this is far outside what the spouse is
normally accustomed to.
b. Distribution to pay expenses at beach house she and her husband visited
before his death – Likely may, and not must. Again, we would look to see
whether this type of trip was something that the spouse was accustomed
to doing by herself or with her husband. Beneficiaries should not sue
unless this trip is far out of the norm and was only previously done for a
special occasion (anniversary, once-in-a-lifetime trip, etc.).
c. Distribution to pay for aerobics classes – Depends on health and
accustomed lifestyle. For example, if a doctor tells spouse that she is
overweight and must do aerobics for her health, then this distribution
must be made. However, if it is not necessary for her health, and she is
not accustomed to taking classes like this, then the trustee may not make
this distribution without violating their duty. Beneficiaries could sue if this
sort of thing is outside the norm, though the cost of an aerobics class may
be less than the cost of litigating the issue.
d. Distribution of $1,000/mo to pay household expenses – also dependent
on more info. This would be support and maintenance. If $1,000/mo is an
appropriate amount to maintain the house in a condition similar to what it
has been for the time the settlor and his spouse lived there, the trustee
must pay this. If this is far out of the norm and $1,000 is more than
required to maintain the property, the trustee must not make this
distribution and remaindermen should sue.
4. A trust provides: “The trustee shall distribute such amounts as the trustee determines, in
the trustee’s sole discretion, to be appropriate for Francine’s happiness and welfare.”
(Francine is a niece of the settlor.) Must the trustee make distributions to cover the costs
of a vacation for Francine? Could the trustee make a distribution for that purpose?
a. Relatively small corpus: They probably shouldn’t.
b. Substantial Corpus: Don’t have
c. What additional information you’d want: Number of beneficiaries, her
assets and resources, any additional information about Francine.
5. Marisa created a trust for her husband, Keenan. Keenan is the trustee, and the trust
provides, “the trustee shall, in the trustee’s sole and absolute discretion, make such
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distributions as the trustee sees fit for my spouse’s health, education, maintenance, or
support. On the death of my husband, the trustee shall distribute all remaining corpus to
my niece, Elizabeth Jane Smith.” Keenan made distributions for lengthy trips to exotic
locations, a Maserati convertible, and lots of designer clothes. Elizabeth Jane has come
to you to ask whether she can curb his distributions. She asked Keenan to distribute
less, but he pointed out that he has broad discretion and can distribute whatever he
thinks best. Advise Elizabeth Jane.
When a beneficiary is also the sole trustee, even if they have absolute power,
they are still required to act reasonably under the implied limitations to protect the
remaindermen. Elizabeth should request documents from Keenan on how he is
administering the trust, and it is possible that there is a claim to be made that
Keenan’s spending is far from reasonable and is excessive and impinging upon
her interest as a remaindermen.
6. If you had been the lawyer for Marisa in Problem 5, what additional language might you
have included in the trust? First assume that Marisa wanted Keenan to be able to
distribute as much as he wanted without challenge by Elizabeth Jane. Alternatively,
assume that she did not want him to be able to distribute excessive amounts.
If we don’t want Marissa to challenge - Maybe there should be more language
making clear that Keenan can spend as much as he wants for whatever purpose
he wants. For example, include that he may spend for his happiness and comfort
as he sees fit. Additionally, rather than saying “remainder of corpus to Marissa,” it
could say “remainder of corpus, if there is any, to Marissa.”
If we want to ensure that Keenan doesn’t overspend, we should tailor his

discretion and only allow him to spend the money on himself to maintain his
health and the lifestyle he was accustomed to before Marissa died.
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CLASS 19
Rights of Creditors and Planning to Protect the Asset in a Trust

1. General
A matter of great concern to the settlor and the beneficiaries is whether their creditors
may require the trustee to turn over trust assets to pay off outstanding debts.
Creditors typically have many sources from which to satisfy a claim, such as checking
accounts, wages, stocks and securities, insurance, and so on.
A trust in which a debtor has an interest as a settlor or beneficiary is certainly another

source.
Creditors frequently do not, however, attempt to attach an interest of a settlor or

beneficiary because it is difficult--asset protection planning
A creditor essentially “steps into the shoes” of the debtor and can garnish only what the
debtor owns. If the debtor owns property in fee simple, a creditor can take possession of
the property itself. If the debtor owns less than a fee simple interest—for example, an
income interest—a creditor may only attach the income interest.
With the exception of a settlor of a revocable trust, beneficiaries are not deemed to be
the outright owners of trust assets, and because the rights of beneficiaries differ,
depending on whether the trust contains mandatory or discretionary distribution clauses,
so too do the rights of their creditors. Regardless of the existence of a trust, however,
creditors are free to pursue a beneficiary’s other assets.
Tenancy of the entirety--marriage owns the home, account, etc. -- creditors cannot
attach to whats owned in that way unless the claim of the creditors is owned by both in
the marriage
Other assets difficult to attach--401k plans,
IRAs/529 -- difficult, but depends on state law
Disclaimer provisions--if parent dies and you have judgments against you; you could
disclaim assets and never receive them. Therefore, they’re not vulnerable to the
creditors but stays within the family unit
If the liability has already occurred--it's too late to do asset protection
2. Creditors of a Beneficiary Who Is Not the Settlor

a. Mandatory Distributions
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A trustee has no discretion over mandatory distributions, and a beneficiary

entitled to mandatory distributions can force the trustee to make the distributions.
For example, if the terms of the trust require the trustee to “pay income monthly
to my wife and, on her death, to pay the remaining principal to my son, William,”
the distributions of income and principal are both mandatory.
Absent a spendthrift clause covering such distributions, a creditor can get a court
order attaching present or future mandatory distributions to or for the benefit of
the beneficiary. Trustee pays the creditor directly.
b. Discretionary Distributions
In contrast to mandatory distributions, the beneficiary’s interests in distributions
that are subject to the trustee’s exercise of discretionary powers are difficult for a
creditor to reach.
Under UTC §504(b), a creditor is in a worse position than a beneficiary, because

a creditor cannot seek judicial redress for an abuse of the trustee’s discretion.
The creditor is left to go after distributions in the hands of the beneficiary once
the trustee actually makes the distributions. Unless the creditor is monitoring the
situation closely, many distributions will go unnoticed and not be seized.
Certain creditors are preferred in the law--If an individual is in arrears in paying

child or spousal support, UTC §504(c) says a court can order the trustee to make
a distribution from the trust to the spouse, former spouse, or children even if the
trustee’s power is discretionary, if it can be shown that the trustee “has not
complied with a standard of distribution or has abused a discretion.”
c. Spendthrift Clauses
A "spendthrift provision" is a provision in a Trust or a Will that protects a
beneficiary from assigning away his or her inheritance and it also protects
against a creditor attaching the beneficiary's inheritance.
Prevents both voluntary and involuntary alienation of trust interests by the

beneficiary.
An effective spendthrift clause adopts a two-pronged approach: it precludes a

beneficiary from assigning or selling her interest in a trust, and it prevents a
creditor of the beneficiary from attaching the beneficiary’s interest.
The result is that the creditor must wait until after the payment is made and then
attempt to collect from the beneficiary.
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The Comment to UTC §506 adds: “The effect of a spendthrift provision is

generally to insulate totally a beneficiary’s interest until a distribution is made and
received by the beneficiary.”
Spendthrift clauses generally affect both mandatory and discretionary

distributions.
Mandatory: to prevent a trustee and beneficiary from collaborating to avoid a

creditor, UTC §506 allows a creditor to reach a mandatory distribution if it has not
been made “within a reasonable time after the designated distribution date.”
Needless to say, creditors do not like spendthrift clauses. Third parties relying on
payment from someone who is a beneficiary of a trust do so at their peril since
lawyers typically include spendthrift clauses in trusts they draft.
d. Exceptions to Spendthrift Protection--Super Creditors

Some creditors’ claims do not arise voluntarily after a period of evaluation of the
debtor’s creditworthiness. For this reason, the common law of numerous states
has created exceptions to the spendthrift rule for these creditors. A child trying to
enforce a court order for child support makes a sympathetic plaintiff, as does a
former spouse trying to enforce an order for alimony.
Shelley v. Shelley
Facts: Grant Shelley was first married to defendant, Patricia C. Shelley. They had
2 children. Patricia divorced Grant in 1951, Grant was to pay child support but
not alimony. Grant then married the plaintiff, Betty Shelley. They also had 2
children. Grant and Betty got divorced in August, 1958; he was required to pay
both alimony and monthly child support. Some time after his marriage to the
plaintiff (Betty), Grant disappeared and his whereabouts was not known at the
time of this suit. The defendant bank, as trustee, invested the trust assets in
securities which are now held by it, together with undisbursed income from the
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trust estate. The plaintiff obtained an injunction restraining the defendant trustee
from disbursing any of the trust assets. Patricia Shelley brought a garnishment
proceeding against the trustee, by which she sought to subject the trust to the
claim for support money provided for in her 1951 divorce settlement
Trust: United States National Bank as trustee to pay all income to Grant, as long
as he lives, to be paid in intervals not less than 3 months a part. When he turns
30, the trustee may, from time to time, distribute to Grant absolutely all or any
part of the principal.
PH: The trial court entered a decree subjecting the accrued income of the trust to
the existing claims of the plaintiff and Patricia Shelley; subjecting future income of
the trust to the periodic obligations subsequently accruing by the terms of the
decrees in the divorce proceedings brought by plaintiff and Patricia Shelley; and
further providing that in the event that the trust income was insufficient to satisfy
such claims, the corpus of the trust was subject to invasion.
Issue: Whether the income and principal of the Shelley Trust can be reached by
Grant Shelley’s former wives and children; whether the spendthrift provision will
be given effect to bar the claims of the beneficiary’s children for support and the
plaintiff’s claim for alimony
Holding: The decree of the lower court in making the corpus of the Shelley Trust
subject to the plaintiff’s claim for alimony was erroneous.
- The trust places no conditions upon the right of Grant to receive the trust
income during his lifetime, so plaintiff and Patricia Shelley may reach
such income unless the spendthrift provision of the trust precludes them
- *Should a person should be entitled to enjoy the benefits of a trust and at
the same time refuse to pay the obligations arising out of his marriage?
- -public policy: requires that the interest of the beneficiary of a trust should
be subject to the claims for support of his children OR we have “the
spectacle of a man enjoying the benefits of a trust immune from claims
which are justly due, while the community pays for the support of his
children.”
- -To endorse such a policy and to permit the spectacle which we have
described above would be to invite disrespect for the administration of
justice.
- -Re: Alimony- the adjustment of the economic interests of the parties to a
divorce may depend upon a variety of factors, including the respective
fault of the parties, the ability of the wife to support herself, the duration of
the marriage, and other considerations.
- -It is probably fair to say that the duties created by the marriage relation,
at least as they are evaluated upon the termination of the marriage, are
conceived of as more qualified than those arising out of the paternal
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relationship.
- -On the theory that divorce terminates the husband’s duty to support his
former wife and that she stands in no better position than other creditors,
some courts have held that the spendthrift provision insulates the
beneficiary’s interest in the trust from her claim.
- * it has been held that a spendthrift trust is subject to the claims for the
support of children but free from the claims of the former wife. A majority
of the cases, however, hold that a spendthrift provision will not bar a claim
for alimony. BUT The duty of the husband to support his former wife
should override the restriction called for by the spendthrift provision.
- ** We hold that the beneficiary’s interest in the income of the Shelley
Trust is subject to the claims of the plaintiff for alimony and to the claims
for the support of Grant Shelley’s children as provided for under both
decrees for divorce
- -These claims are not without limità the claimants may reach only that
much of the income which the trial court deems reasonable under the
circumstances, having in mind the needs of the husband and wife, the
needs of the children, the amount of the trust income, the availability of
the corpus for the various needs, and any other factors which are relevant
in adjusting equitably the interests of the claimants and the beneficiary. . .
- *Grant Shelley’s right to receive any part of the corpus does not arise until
the trustee has exercised his discretion/decided to invade the corpus,
therefore, the plaintiff and Patricia Shelley cannot reach the corpus of the
trust because the beneficiary has no realizable interest in it.
A tort judgment creditor would also seem like a sympathetic creditor because one
does not choose one’s tortfeasor, but the law has not looked upon tort creditors
with the same favor as children and former spouses.
When presented with the opportunity to create an exception for a tortfeasor, the
majority in the following Maryland case, Duvall v. McGee, refused to do so.
However, the strong dissent suggests reasons that courts should reconsider this
question. Here is the dissent.
Duvall v. McGee [dissenting]

Facts: Katherine Ryon was beaten to death during the course of a robbery that
occurred in her home. James Calvert McGee was convicted of felony-murder for
his participation in the robbery and murder of Ms. Ryon. A money judgment was
entered against him pursuant to a settlement agreement, in which McGee
compromised civil claims brought against him by Robert Duvall, the Personal
Representative of the Estate of Ms. Ryon.
Majority: The majority concluded that Ms. Ryon’s estate could not enforce its
judgment against McGee’s interest in an $877,000.00 spendthrift trust
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established for him by his deceased mother. The majority acknowledges that
claimants seeking alimony, child support, and unpaid taxes may attach a
beneficiary’s interest in a spendthrift trust, BUT concludes that the victim of a
violent tort may not, reasoning that such a victim is only “a mere judgment
creditor.”
Dissent: The majority concedes that tort creditors do not have the benefit of
notice, which, as was discussed in Smith, is a primary purpose for not allowing
the invasion of spendthrift trusts. Despite this, the majority concludes that Ms.
Ryon’s estate cannot reach the corpus of the spendthrift trust because its claim is
nothing other “than a debt” and that “its exemption from the bar of a spendthrift
trust” is not “a matter of public policy.”
Dissent: The majority, in my opinion, is wrong
- This Court has held that a beneficiary’s interest in a spendthrift trust may
be attached to satisfy claims for alimony arrearages and for child support
and for the payment of federal income taxes
- Dissent: The fundamental difference is essentially that these obligations
were premised upon judicial intervention and determination of sound
public policy.
- Just as it is sound public policy to permit the attachment of a
spendthrift trust for alimony, child support, and taxes, it is also as
sound to permit invasion to make victims of tortious conduct whole
- a tortfeasor may be liable not only for compensatory damages, but
also punitive damages, which we allow in order to “punish the
wrongdoer and to deter such conduct by the wrongdoer and
others in the future.”
- **to equate victims of tortious conduct with contract creditors and
distinguish them from recipients of alimony, child support, and tax claims,
is without merit.
- -As the majority concedes, spendthrift trusts are considered valid in MD in
large part because, by virtue of filing requirements, creditors are put on at
least constructive notice of the limited interest of the beneficiary of such a
trust.
- - Such notice allows creditors to protect themselves, something that Ms.
Ryon could not have done.
- *Moreover, the “duty-debt” distinction set forth by the majority as the basis
for its holding is unavailing.
- -The obligation to restitute a wrong is commensurate with the obligations
to pay alimony, child support, and taxes.
- -I agree with the commentators that “it is against public policy to permit
the beneficiary of a spendthrift trust to enjoy an income under the trust
without discharging his tort liabilities to others.”
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Problems [528]
1. Nitai created an irrevocable, inter vivos trust for his nephew, Dashiel. The
trust directs the trustee to distribute all the income to Dashiel, at least
annually, and also directs the trustee to distribute the amounts the trustee
determines to be necessary for Dashiel’s health, education, maintenance,
and support. Answer each of the following questions twice, first assuming
that the trust agreement does not include a spendthrift clause and then
assuming that the trust agreement includes a spendthrift clause.
a. Dashiel has fallen behind on a bank loan he took out personally to
help pay for law school. Can the bank look to the trust to satisfy
Dashiel’s outstanding debt and, if so, in what manner and to what
extent?
Without the spendthrift clause: a creditor can get a writ of
attachment with respect to the payment of the mandatory
distributions; namely, the income that is distributed to Dashiel. The
creditor cannot force discretionary distributions, and a trustee is
unlikely to make distributions to avoid the creditor.
With a spendthrift clause: Mandatory distributions are protected

unless the creditor is a child or former spouse. So no. Can’t
compel anything?
b. Dashiel used his credit card primarily to buy food, clothing, and
other necessities. He also used it to travel to Hawaii for Christmas.
He has fallen behind and cannot even make the monthly minimum
payments. Can the bank look to the trust to satisfy Dashiel’s
outstanding debt and, if so, in what manner and to what extent?
Without a spendthrift clause: Yes to the mandatory distribution

payments but nothing else.
With a spendthrift clause: it depends. On its face, the creditor can’t

access the trust to satisfy the outstanding debt unless the
distributions have not been made within a reasonable time after
the designated distribution date. ????
To prevent a trustee and a beneficiary from collaborating to avoid

a creditor by withholding a mandatory distribution of income or
principal (including a distribution on termination of the trust to a
remainder person), UTC §506 allows a creditor to reach a
mandatory distribution if it has not been made “within a
reasonable time after the designated distribution date.” In
essence, at this point, “payments mandated by the express
terms of the trust are in effect being held by the trustee as
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agent for the beneficiary and should be treated as part of the

beneficiary’s personal assets.” UTC §506, cmt.
c. Dashiel was married and had a child. He dissolved the marriage

three years ago and was ordered to pay child and spousal
support. He has not paid either for two years. Can his child and
former spouse look to the trust to satisfy Dashiel’s outstanding
debt and, if so, in what manner and to what extent?
Without spendthrift: yes-- courts will often compel trusts to

distribute what beneficiaries owe to these kind of super creditors.
Mandatory there wouldn’t be a problem.
With spendthrift: These super creditors will be able to attach

mandatory distributions. Under UTC 504, these super creditors
may be able to compel discretionary distributions as well, but only
if the trustee abused the discretion or failed to comply with the
standard.
d. Dashiel asks the trustee to distribute some of the principal of the

trust so that he can travel to his sister’s wedding. Can the trustee
do so? If the trustee makes a distribution, can the bank reach the
money distributed?
Yes, it’s within the trustees discretion under support and

maintenance?
Without spendthrift: yes, once the money has been distributed.
With spendthrift: yes, once the money has been distributed.
2. Now assume that the trust in Problem 1 included the following provision:
“My trustee may distribute to any child of Dashiel the amount the trustee
determines to be necessary for the child’s support in reasonable comfort.”
Does that provision change any of your answers?
C because it makes the children from C beneficiaries to the trust
3. Creditors of a Beneficiary Who is Also a Settlor

a. Revocable Trusts
b. Irrevocable Trusts
c. Asset Protection Trusts--Foregin and Domestic
Problem [534]
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1. Your new client, Chelsea Raymond, is a successful physician. She

worries about malpractice suits and wants to know about ways she could
protect her assets. Advise Chelsea about her options, including the risks
and costs of each option.
Put stuff in a trust with a spendthrift provision and/or discretionary
distributions, and do so as early as possible.
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CLASS 20
D. Modification and Termination of Trusts
Recent cases and the UTC, however, provide the beneficiaries with greater opportunities for
amendment or early termination of a trust, even when doing so appears to be inconsistent with
the settlor’s intent. In addition, “decanting” statutes (discussed at the end of the chapter) provide
another means for modification and sometimes a settlor gives a trust protector (discussed in
Chapter 9) the power to modify the trust.
1. Revocable Trusts
Problem [537]
William Grant created the William Grant Revocable Trust, which states:
“The settlor reserves the right to revoke or modify this trust at any time, by
delivery of a written statement of revocation to the then acting trustee.”
William’s will, executed after the revocable trust, includes the following provision:
“I hereby revoke the William Grant Revocable Trust.”
Is this effective to revoke the trust as of the date the will is executed or the date William
dies? Does it matter whether William or First Bank is the trustee? Is revoking a
revocable trust more or less difficult than revoking a beneficiary designation with an
insurance company?
2. Irrevocable Trusts
a. Making Modification Unnecessary
b. Termination According to the Terms of the Trust
c. Modification or Termination with Settlor’s Consent
d. Modification or Termination Without Settlor’s Consent (usually after settlor’s
death)
i. Material Purpose Doctrine
Successive Interests:
Spendthrift Provisions:
Another Material Purpose:
ii. Modification or Termination by Consent of the Beneficiaries
Question [543]
iii. Modification or Termination Due to Changed Circumstances--Equitable

Deviation
In re Riddell
iv. Modification (Reformation) to Fix a Mistake
v. Statutory Provisions that Correspond with Best Practices
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Uneconomic Trust:
Modification to Achieve Tax Objectives:
Combining Trusts or Dividing a Trust:
Problems [552]
1. Cyrus created an irrevocable trust for his nephew, Gideon. The
trust provides for distributions for Gideon’s health, support,
maintenance, and education until he turns 30, when the entire
trust is distributed to him. If Gideon dies before reaching age 30,
the trust is distributed to his then living descendants, by
representation, and if none, to Cyrus’s then living descendants, by
representation. Esther (Cyrus’s sister and Gideon’s mother) is
trustee.
a. Gideon is 26 and has finished college. The trust still has
$60,000 in it. Cyrus, Esther, and Gideon would all like to
terminate the trust. How would you advise them to
proceed? If Cyrus is dead, how would you advise Esther
and Gideon?
b. Assume the trust provides for distributions for Gideon’s
health, support, maintenance, and education for his life.
On Gideon’s death the remaining corpus will be distributed
to his then living descendants, by representation. Cyrus is
no longer alive. The trust has $2 million in assets. How
would you advise Gideon, who is 45 and would like to
terminate the trust? Does it matter whether Gideon has
children? How would you advise Esther?
2. When Gene died in 1979, his will created a trust for his daughter,
Denise, and her descendants. Denise’s brother is the trustee. The
trust terms directed the trustee to pay Denise the income during
her life and on her death to distribute the corpus to her
descendants. When Gene died, Denise had two children, Angie
and Benton. After Gene’s death, Denise had a third child,
Charlene, who was born with a serious mental disability. Denise
kept Charlene at home when she was young, but in recent years
Charlene has lived in a residential facility. She receives money for
her care from the state through its Medicaid program. Denise is
now in her late 70s and is worried about Charlene. The trust has
$300,000 in assets. If the trust terminates and distributes
$100,000 to Charlene, she will lose her government benefits. The
money can be spent on her care, but her care is so expensive that
the money will not last long, and Denise worries that Charlene
may then have trouble requalifying for benefits or that there may
be a gap between the time the money is gone and she is able to
requalify for government benefits.
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a. Advise Denise. Can the trust be modified? If so, how?

b. Now assume that Gene consults you before his death. At
the time he talks with you, Denise has two children, neither
with disabilities. Denise plans to have more children. Is
there anything you can recommend in drafting the trust
that would have made dealing with the later circumstances
easier?
3. Garrett established a testamentary trust “for my favorite nieces,
Alma and Mary.” After Garrett’s death, a niece named Mary
appeared to claim an interest in the trust. The trustee knows that
Garrett had a close relationship with a friend of the family named
Mary who was not his niece but was raised by Alma’s family. The
trustee says that Garrett did not know the niece named Mary and
wants to treat the other Mary as the beneficiary of the trust. What
should the trustee do?
3. Decanting Statutes
Problems [556]
Terrence serves as the trustee of a trust for his deceased sister’s children, Jason and
Jordan. The terms of the trust direct the trustee to distribute income and principal for the
children as the trustee deems necessary for their health, education, support, and
maintenance until no child is under the age of 25. At that time, the trust divides into two
trusts, one for each child. For each trust, the trustee has the power to distribute for the
child’s best interests until the child reaches age 30 when the trust terminates and the
remaining assets are distributed to the child. Terrence seeks your advice.
1. Terrence would like to modify the trust to provide that rather than distributing the
property when each child reaches age 30, the property will continue in trust and
the child will have the power to withdraw it at any time. Is that possible under
UTDA? Could the trust be modified to change the age for the payout to age 40?
2. Now assume that Jason was in a terrible motorcycle accident that left him in
need of round-the-clock care for the rest of his life. He will be eligible for
government benefits to help with the cost of the care, and Terrence would like to
keep Jason’s share in trust for the rest of Jason’s life so the trust assets will not
affect Jason’s eligibility for the government benefits. What are the options? Can
the trust be modified under UTC §412? Under UTDA? Does it matter whether
Jason is 18 or 28? What if the settlor of the trust is still alive?
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CLASS 21
Understanding the difference between general powers and non-general (limited) powers of
appointment. Understanding the consequences of whether you have a general or limited power
of appointment.
Powers of appointment are important for providing flexibility in a document, to achieve client’s
goals.
We need flexibility because it’s an irrevocable document and want flexibility in who assets are
appointed.
- Gives control to donor and appointees
*NOT RESPONSIBLE FOR UNIFORM POWERS OF APPOINTMENT ACT*

- State law governs
- Only 6 jurisdictions have adopted, so it’s really not the standard across the country
- Not tested on specifics of UPAA
Power of appointment--broad or narrow, as the donor would like
Characters:
- Donor: settlor in a will or trust; creates power of appointment that gives it to the
powerholder
- Powerholder: can exercise if they choose to (donee)
- Appointtive property: land, piece of land, documents, etc.
- Permissible appointees: objects of the power; can be a broad group (friends) narrow
(descendants of my marriage)
- Testamentary: powerholder has the power to exercise power by will
- Presently exercisable: done in any writing in any time
- General power: I can appoint to any group of individuals including myself
- Treated as the equivalent of ownership
- Default rule under UPAA
- Instrument can draft around that as well
- Limited power: you’re not able to exercise it for the benefit of yourself, your creditors,
etc.
- Permissible appointees aren’t powerholder, powerholder’s estate, powerholder’s
creditors
- Default if power of appointment is testemantary and appointees do not include
powerholder
- Testamentary POA can be exercised in one’s will
General v. limited--relevant for tax purposes
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Limited to ascertainable standard--biggest takeaway
If you try to appoint to impermissible appointees, it is void and it goes to the donor’s takers in
default.
A. What is Power of Appointment?

1. Definition
Another way to build flexibility into a trust is to give a power of appointment over
trust assets to someone other than the trustee, often a beneficiary, family
member, or friend, so that the third party has the power to distribute the property
among a designated group of beneficiaries as circumstances dictate.
2. General Terminology
There is special language that applies to powers of appointment that specifies
the parameters of the power
● Donor: The person who creates a power of appointment.
● Powerholder (or donee of a power of appointment): The person who holds
the power and makes decisions using the power. Unlike the trustee or the
beneficiaries, the powerholder does not hold title to the property and does
not have a beneficial interest in the property.
● Appointive property: The property subject to the power.
● Permissible appointees (or objects of the power): The persons in whose
favor the power can be exercised.
● Takers in default of appointment: The persons who will take the property if
the powerholder fails to exercise the power and the powerholder’s power
terminates (often at death).
● Testamentary power of appointment: A power that can be exercised only
by will.
● Presently exercisable power of appointment: A power the powerholder
can exercise during life, through an inter vivos instrument.
● General power of appointment: A power to appoint in favor of the
powerholder, the powerholder’s estate, the powerholder’s creditors, or the
creditors of the powerholder’s estate. A general power of appointment can
be broad—to anyone—or can be limited to one or more of the four
categories listed—for example, to the powerholder. Different tax and
creditor consequences follow depending on whether a power is general or
nongeneral. See Section E below.
● Nongeneral power of appointment: A power that cannot be exercised in
favor of the powerholder, the powerholder’s estate, the powerholder’s
creditors, or creditors of the powerholder’s estate. A nongeneral power
can be broad—to anyone in the world other than those in the four
categories—or it can be narrow, such as to the settlor’s descendants or to
a named person. A nongeneral power is also sometimes called a “special
power” or a “limited power.”
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● Power of withdrawal: The right to withdraw property, or a specified

amount of property, from a trust. A power of withdrawal is a general power
of appointment, because the powerholder can withdraw property for her
own benefit. See UPAA §503.
● Exclusionary power of appointment: A nongeneral power of appointment
that can be exercised in favor of one of a group of permissible
appointees, to the exclusion of the other appointees. Most powers are
exclusionary powers. The default rule is that nongeneral powers are
exclusionary.
● Nonexclusionary power of appointment: A power that must be exercised
in favor of all permissible appointees, so that each member of the group
receives something. There is no requirement of equal distribution, and the
amount each appointee must receive can be the subject of controversy
among the group of permissible appointees. (Is $1 enough?) Careful
drafting should clarify the donor’s intent.
3. Distinguishing Between a Power of Appointment and Fiduciary Power
A powerholder can choose to exercise the power or not and choose to exercise it
arbitrarily, as long as the property subject to the power is given to a permissible
appointee.
Problems [562]
1. Nancy’s will creates a trust for her daughter, Angela, for life, and on
Angela’s death it continues for Angela’s siblings. Nancy gives Angela the
power to appoint the property in the trust to one or more of her siblings.
The power is exercisable exclusively by will.
(i) donor -- Nancy
(ii) Powerholders--Angela
(iii) Appointive property -- trust property
(iv) the permissible appointees -- one or more of Angela’s siblings
If angela doesn’t exercise power, it still continues for angela’s
siblings upon angela’s death
(v) whether the power is general or non-general-- non-general, the
power that cannot be exercised in favor of the powerholder
(vi) whether the power is presently exercisable or testamentary--
testamentary because its exercisable only via will
2. Kieran’s will establishes a trust naming his sister, Phoebe, as the trustee.
The trust directs the trustee to pay income to Kieran’s brother, Seamus.
a. The trust also provides that during Seamus’s life, the trustee shall
distribute up to $20,000 a year to any charity Seamus names in a
writing that Seamus delivers to the trustee.
i) donor- Kieran
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(ii) powerholder(s)-Seamus
(iii) appointive property- up to $20,000
(iv) the permissible appointees- charity
(v) whether the power is general or non-general- non-general
(vi) whether the power is presently exercisable or testamentary- is
presently exercisable
b. On the death of Seamus, the trustee is directed to distribute all or

some of the trust property to such person or persons as Seamus
appoints by will. If Seamus fails to direct the distribution of all of
the trust property, then the trustee is to distribute the property to
Kieran’s brother, Jervis, and if he is not then living, to his
descendants.
(i) donor- Kieran
(ii) powerholder(s)-Seamus
(iii) appointive property-all or some of the trust property
(iv) the permissible appointees- anyone Seamus appoints
(v) whether the power is general or non-general; general
(vi) whether the power is presently exercisable or testamentary-
testamentary
Jervis may not receive anything if Seamus appoints that property

to anyone who isn’t Jervis
Trustee and powerholder can be the same person--no one to enforce the power of appointment
B. Creating a Power of Appointment

As with the creation of a trust, the creation of a power of appointment requires that the
donor of the power manifest the intention to create the power.
No special words are necessary, and the donor need not use the words “power of
appointment.”
- Sometimes disagreements arise about donor intent [appointment or full
ownership]
One condition frequently imposed is that the powerholder make specific reference to the
trust and to the power of appointment when exercising it (a “specific reference” clause).
C. Exercising a Power of Appointment

Specific exercise clause is the gold standard--don’t want to include as part of residuary.
Ideal--separately stated in will, titled: “exercise/non-exercise of power of appointment”--
want to be clear whether exercising power of appointment
- Unambiguously express intent to exercise or not exercise
- Identify document where receive power
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- Clearly state to whom appointment is made (must be permissible)

- Provides what happens if appointee predeceases
- Any conditions apply, if any [slide 10]
- If donor wants to only exercise in certain manner, donor should be clear how
donor wants to be exercised
Blanket exercise--any power of appointment the powerholder has--can be risky
Blending: your assets and disposing of appointative property
Residuary: risky because hard to exercise power of appointment--you should be more

clear
1. Overview
Problem [565]
Fran and Luisa executed a joint revocable trust, providing that on the death of the
first spouse, the trust would become irrevocable. The survivor had the power to
appoint so much or all of the trust assets as the survivor “shall appoint and direct
by specific reference to this power of appointment in her last Will admitted to
probate by a court of competent jurisdiction. If the power is not exercised, then
the property shall be given to our children.” The trust included the family home
and various bank accounts.
Two years after Fran’s death, Luisa executed a document that purported to be an
amendment to the trust. The document provided that on Luisa’s death, the family
home would go to a friend, Jorge, who had taken care of Luisa. Luisa signed the
document, and her lawyer notarized it. Has Luisa exercised the power of
appointment? What arguments can Jorge make that he should receive the family
home?
Austin (mostly guessing)

No, she has not executed the power of appointment. The joint trust
became irrevocable on Fran’s death, so it was incapable of being
amended to make Jorge the new recipient of the property. In order for
Jorge to receive the property, it would have to be given to him via a will on
Luisa’s death.
Jorge can argue that this gift was the testator’s intent and that giving it to
him through the trust rather than a will represents substantial compliance
with a donor-imposed formal requirement. UPA 304
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2. Different Ways to Exercise a Power of Appointment

A carefully drafted specific-exercise clause will make the likelihood of a
successful challenge by someone else remote.
All too frequently, powerholders do not use a specific-exercise clause, do not

follow the directions of the donor, or do not make clear their intent to exercise the
power. The most common problems arise when the powerholder uses a
residuary clause, because then it is not clear whether the powerholder intended
to exercise the power or not.
a. Residuary Blending Clause with Blanket Exercise--Does it Satisfy a

Specific Reference Requirement?
Motes/Henes Trust Bank of Bentonville v. Motes
Facts/PH: Helen Henes (deceased) executed a will in 1979 containing a

residuary clause. It gave all of the remainder and residue of her estate
“together with property to which i may have a power of appointment at the
time of my death” to the trustee, to be held in trust.
In 1982, the Motes/Henes trust was established for Helen Henes and her
sister, Elizabeth Motes. $6 million from interests the sisters had redeemed
from their business ownership was placed in the trust. The trust contained
a provision that terminated the trust with respect to the separate trust
share of each grantor upon the death of the grantor. Upon that
termination, the remaining assets of that separate trust would be paid to
such person or persons as grantor may, by specific reference, appoint in
her Last Will & Testament.
Helen Henes died in April 1983. In February 1988, the trustee of the
Motes/Henes trust petitioned for the consolidation of the probate and
chancery proceedings. The trustee also petitioned for construction of the
power of appointment in the will.
PH: Court granted consolidation following a hearing, and the trial court
held that the language of the will was sufficient to exercise the power of
appointment in the trust. The trustee and Elizabeth Motes appealed.
Respondents are the children of Elizabeth Motes.
Issue: whether a reference in the testator’s will to a power of appointment

was sufficient to exercise a power of appointment in a trust instrument.
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When a power of appointment requires a specific reference to it, as does

the trust in this case, will a general reference in the will be sufficient to
exercise the power requiring specific reference?
Holding: we find the evidence of intent in this case is very strong and
therefore have no problem with a more liberal construction of the “specific
reference” requirement.
In this case, Ms. Henes’ will refers first to [ ] “all of the remainder and
residue of my estate[ ]” and then specifically refers to “property to which I
may have a power of appointment at the time of my death.” It seems clear
that the testator’s intent at the time of execution was to include any after-
acquired property. Affirmed.
- Issue arises out of the expression of the intent and whether it

complies with the requirements of exercise imposed by the donor
and by rules of law.
- Split in the law; cases either construe the specific reference
requirement literally and those that are more flexible and focus on
the intent of the donee
- Arkansas court prefers focusing on the intent of the donor
- Court has fashioned a test for a specific reference problem:
- Where the evidence of intent is powerful, the question of
compliance should be examined in a light which favors
fulfillment of both the donor’s desire for assurance and the
donee’s intent. Where, however, evidence of the donee’s
intent is weak, a liberal construction of the condition of
specific reference may well defeat the limitations of both
donor and donee.
- The evidence of Fay Henes’ [ ] intent came from the testimony of
John L. Johnson, who was the attorney for both sisters. He had
drafted the wills for both, and had also drafted the trust
agreement. He testified that at the time of drafting the will he had
discussed with Ms. Henes how she wanted to dispose of her
property and she told him she wanted her sister to be benefitted
and the property to go to her nieces and nephews, her sister’s
children. The will was drafted to effectuate that intent, giving her
sister a life estate through the trust, for her enjoyment during her
lifetime, with the property ultimately going to the nieces and
nephews.
- Johnson noted that the provision in the will on the power of
appointment would operate to exercise all powers of appointment
would operate to exercise all powers of appointment that Henes
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would have--to pass the property under a trust agreement that

was set up under her will
- By not putting final testamentary disposition provisions in the trust,
it retained for Ms. Henes the ability at any point to change her
mind as to the disposition of her estate.
- Johnson testified that this was absolutely consistent with his view
and understanding of Ms. Henes’ intent
b. Can a Powerholder Exercise the Power by a “Pure” Residuary Clause?
Clause in a powerholder’s will: “I give the residue of my estate to my

descendants, by representation”
- Doesn’t contain a blanket-exercise clause
- Doesn’t contain any reference to a power
- Can it still indicate the testator’s intent to exercise the power?
The majority of states follow the rule that a general or “pure” residuary
clause like the one above does not exercise a power of appointment
held by the testator, regardless of whether the donor required a specific
reference.
If the general residuary clause is not treated as a valid exercise, the

takers in default receive the property that was subject to the power.
UPAA and restatement: pure residuary clause doesn’t exercise a power

without more. Exceptions
- The power is a general power
- The donor did not provide for takers in default
The policy behind these provisions is to limit the exercise to stipulations in

which permitting the residuary clause to exercise the power is likely to
accord with the donor’s intent
Will of Block
c. What is Required for Substantial Compliance?

In re Estate of Carter
[note from book: the powerholder devised the property subject to the
power to permissible appointees. She neither referenced the power nor
her husband’s will that granted the power and required a specific
reference. She devised the property subject to the power in a typical
specific devise and did not use any of the words typically employed by
powerholders, like “power” or “appoint”]
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Facts: James Cedric Carter died testate in 1981. James’s will established
a testamentary trust to provide for his wife, Lucile, during her lifetime. The
relevant provision reads:
4. Upon the death of my wife after my death, the trustee shall

distribute the trust property, as then constituted, to or in trust
among the class of persons consisting of Robert R. Carter, Anne
Fenton Carter, Junior Brownfield, Virgie Brownfield, and the then
living descendants of any of such persons, upon such conditions
and estates, with such powers, in such manner, and at such times
as my wife appoints and directs by will specifically referring to and
exercising this limited power of appointment. Nothing in this
provision shall be construed as empowering my wife to appoint
any of the trust property to herself, her estate, her creditors, or the
creditors of her estate.
The trust then provided for a disposition of the trust property upon Lucile’s
death “to the extent that she does not effectively exercise the foregoing
limited power of appointment”
Lucile died on August 9, 2000. Her will was admitted to probate. Her will
leaves 16.19 acres of real estate to Junior Brownfield and Virgie
Brownfield.
On the same date Lucile executed her will, she executed a warranty deed
in which she purported to convey the same 16.9 acres to Junior
Brownfield and Virgie Brownfield, husband and wife. This deed was
recorded in Tippecanoe County where the real estate was located.
Because Lucile’s will did not expressly state that she was intending to
exercise the power of appointment, the personal representative of her
estate petitioned the court to construe her will and instruct it on how to
proceed.
After a hearing, the court determined that in spite of Lucile’s failure to

characterize the devise to the Brownfields as an exercise of her limited
power of appointment, her intention to do exactly that was clear and
should be given effect.
Roger Carter, appellant, challenges the outcome.
PH: Clinton Circuit Court determined that Lucile Rogers Clark, in her last
will and testament, validly exercised a power of appointment given to her
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under the will of her deceased husband, James Cedric Carter. Appeal
contends that Lucile failed to exercise that power.
Issue: whether Lucile validly exercised a power of appointment.
Holding: Yes. Affirmed.

- It’s clear that James intended that Lucile have a limited power of
appointment to dispose of certain assets by her will. The focus is
whether Lucile exercised that power.
- Because Lucile’s will specifically described property that was
subject to the power and gave it to beneficiaries within the class
permitted by the power, and because of the other facts and
circumstances surrounding her execution of the will, it was clearly
her intent to exercise her power of appointment.
- Roger’s argument in opposition simply contends that in
order to exercise the power, Lucile’s will had to expressly
state that she was thereby exercising her limited power of
appointment.
- Since we have already held herein that express reference
to the power is not the only manner of indicating that a
testator intended to exercise it, this argument must fail.
- Moreover, we determine that the court’s findings are
sufficient to sustain its conclusion that the will did exercise
the power of appointment granted under James’ will.
- Under I.C. 29-1-6-1(f), a will will not operate as exercising power

of appointment unless by its terms the will specifically indicates
that the testator intended to exercise the power
- Appellant characterizes the statutory requirement as
“identitical” to the one contained in James’s will, and
makes no distinction between the two.
- Appellant contends that to have exercised the power,
Lucile’s will must have explicitly stated that it was her
intent to do so.
- Appellant cites a comment of the Probate Study
Commission, which adds the language “by the use
of appropriate words” to the statutory requirement
that the will specifically indicate that the testator
intended to exercise the power.
- The court interprets this comment as an exposition
of the statutory requirement rather than an attempt
to further restrict the statute’s meaning
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- Indiana legal history has long displayed an aversion to any notion

that some shibboleth should be required for the exercise of
powers of appointment.
- Legal authorities recognize three classes of cases as affording
sufficient proof of intent to execute the power:
- 1) where the testator refers to, or recites, the power in his
will; (2) where the property subject to be disposed of under
the power is described; and, (3) where the will would be
inoperative without acting on the property over which the
power was given
- Additionally, Indiana courts have held that intent need not be
shown in any particular way, but is to be determined by the
construction of the whole instrument with reference to the
circumstances under which it was executed
3. Exercise in Further Trust

A general power of appointment may be exercised to appoint the property in fee
simple as well as subject to further trust or to a new power of appointment.
Since the powerholder of a general power could appoint to herself and then use
the property to establish a trust or give the property to a permissible appointee
subject to a further power, the law permits the powerholder of a general power of
appointment to accomplish this result directly without the intermediate step of
appointing the property to herself.
If the power is a nongeneral power, however, the powerholder may be able to

appoint in further trust only if the grant of the power so provides, depending on
case law in the state.
Example that includes the power to appoint in further trust

I, Ursula Harkin, grant to my husband, Claudio Harkin, the power to cause all or
any part of the Trust to be paid to such one or more of our joint descendants, at
such times, in such proportions and in such manner, in valid trust or otherwise,
and with such powers of appointment, general or special, as he may appoint by
his will, executed after my death, specifically referring to this power of
appointment, and valid wherever probated.
Example of an exercise of the power in further trust

I, Claudio Harkin, hereby exercise the power of appointment granted me under
the will of Ursula Harkin and direct that all the property subject to that power be
distributed to my friend, Eugene Tanaka (“trustee”), to be held by him as trustee
for the benefit of Simon Saldana, the grandson of Ursula and Claudio Harkin.
The trustee shall distribute to Simon so much or all of the income and principal of
the trust as the trustee determines to be in Simon’s best interests. On Simon’s
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death, the trustee shall distribute any remaining assets to the descendants of
Ursula and Claudio Harkin, by representation.
Rule against perpetuities

In states that still follow the Rule Against Perpetuities, the Rule applies to an
exercise of a power of appointment. The date of the gift of the power is the
starting date for the Rule, and a gift in further trust may violate the Rule if the
trust extends too far in the future. If the power is a general power, then the
powerholder is treated as the owner and the Rule begins to run from the time of
exercise rather than the time of creation, extending the period.
If the power is a nongeneral power, then the power runs from the date of creation
of the power, but facts at the date of the exercise control.
4. Problems with Appointees

a. Exercise in Favor of Impermissible Appointees
Power of appointment can be exercised only in favor of the permissible
appointees. The attempted exercise is invalid and the property will go to
the takers in default if the powerholder attempts to exercise the power in
favor of someone who is not a permissible appointee.
BMO Harris Bank N.A. v. Towers

[although no impermissible appointees actually benefited from the
appointive property, the court held the exercise ineffective]
Facts: Mary and Martin Cornelius Sr. created two trusts. The Bank was
the trustee. The trusts would be administered for the benefit of Martin Jr.,
Mary and Martin Sr.’s son, during Martin Jr’s lifetime.
Each trust granted Jr., a liminted testamentary power of appointment.

Mary’s trust allowed Marin Jr. to appoint assets to or in further
trust for his spouse, Mary’s other descendants, or the spouces of
such descendants.
Martin Sr.’s trust allowed Jr. to appoint assets to or in further trust

for his spouse, his lineal descendants and their spouses, Sr’s
other lineal descendants and their spouses, or any charitable
organization.
Under the terms of the Mary trust and Martin Sr.’s will, if the powers of
appointment were not effectively exercised, then distributions would be
made to Jr’s living descendant’s at the time of Jr’s death.
Jr. created a revocable living trust (Martin Jr. trust). Jr. was survived by
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his spouse and four children: Harry, Martin III, Camilla, and Dagmar. Jr’s
last will and testament from 1991 was admitted to probate. Jr. exercised
his limited powers of appointment under the Mary & Sr. trusts by
appointing all the property to his trustee.
Under the terms of the Martin Jr. Trust, the trustee, upon Jr’s death, was
directed to pay from teh “original trust all debts, expenses of
administration, and death taxes that are payable as a result of Jr.’s death.
(Section 5.3). The trustee may distribute to Jr’s probate estate, as
beneficiary of the trust, cash or other property of any assets then held by
the trust. 5.5. When all properties of the original trust have been divided
and distributed, the original trust shall be deemed terminated. 5.7.
[Martin’s spouse was a lifetime beneficiary, and after her death,] the
remaining assets of the trust would be paid in equal shares to Martin Jr.’s
son Harry and three of Martin Jr.’s grandchildren. Martin Jr. explicitly
stated that his children Dagmar and Martin III were omitted as residuary
beneficiaries.
PH: Plaintiff Bank, as trustee of two trusts, filed a petition seeking

instructions from the court regarding the validity of the exercise of the
testamentary powers of appointment by Martin Cornelius, JR. over the
two trusts created by Martin’s parents.
Trustee of Martin Jr.’s revocable living trust and Martin’s four living
children filed a counter petition against the bank because Martin Jr’s
exercise of his powers of appointment was valid and the bank violated its
fiduciary duty by filing its petition.
Trial court held that Martin Junior improperly exercised the powers of
appointment granted to him by his parents and instructed the Bank to
distribute the trust funds per stirpes to Martin Jr.’s four living children. The
Towers defendants appealed.
Issue:
Holding: For the reasons that follow, we affirm the judgment of the circuit
court. We hold that: (1) As the trust donee, Martin Jr.’s exercise of his
limited testamentary powers of appointment in favor of himself was
ineffective and therefore void because he was not a permissible
appointee; (2) as the trustee, the Bank acted within its fiduciary duties by
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filing a petition seeking instruction from the court regarding the proper
distribution of the trusts[].
- Martin Jr. blended his own property with the appointed property for
all purposes
- Plain language of Jr.’s trust agreement establishes that it was Jr’s
intent to pay all his debts from his original trust, which included the
assets appointed from his parents’ trusts.
- Because Martin Jr. exercised his powers of appointment in favor
of himself and he was not within the class of permissible
beneficiaries under the limited powers of appointment designated
by his parents, his impermissible exercise of his powers of
appointment rendered the act of conveyance void.
- Regardless of how the trustee actually performed his duties, the
intent and validity of a will is determined at the time of death, and
the will and trust agreement here dictated that Martin Jr.’s debts
would be paid from the original trust, which contained the
commingled assets of both Martin Jr.’s estate property and the
assets from his parents’ trusts. This was the intent of Martin Jr.,
and the fact that Martin Jr.’s creditors never actually accessed the
assets of his parents’ trusts does not remedy the invalid
conveyance.
b. Predeceased Appointees
D. Release, Failure to Exercise, and an Express Statement of Nonexercise

E. Rights of Creditors and Taxes
F. Contingent Future Interests and the Rule Against Perpetuities
Problems [589]
Donor is Amir
Powerholder- jasmin
Permissible appointees: children and descendants
1. To whom should the trustee distribute the property when Jasmine dies?
a. Impermissible appointee (Ibrahim) for the trust property. Estate goes to Amir’s
descendants (Damian and Fatima) by representation
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b. Nadia is not one of Amir’s descendants, so despite being one of Jasmine’s

children she is an impermissible appointee. Goes in equal shares to his two
children, who were also appointees. (Block case)
c. Depends on who her descendants are? If both Ibrahim and Nadia predecease
Jasmine, with no descendants of their own, then the appointees seem valid.
i. Alternatively, if this is an improper appointment, then the corpus of the
trust will be distributed to Amir’s descendants by representation.
ii. If residuary clause “picks up power of appt” only permissible appointees=
damien and fatima
d. This is an appropriate power of appointment, and the trust shall be distributed to
Fatima.
2. If Jasmine releases the power of appointment that Amir gave her, the trustee follows the
instructions of the trust, which would distribute to Amir’s living descendants by
appointment.
3. The trustee shall distribute the property to Hannah. The breach of contract can result in
a suit against Aubrey’s estate, but Hannah still takes.
4. No, there is another taker in default expressed, so it doesn’t go to the powerholder’s
estate. If Aubrey fails to exercise the power of appointment, the property will be
distributed to the nonprofit group Doctors Without Borders.
RAP: “a life in being +21 years” -- NOT ON THE EXAM

- Jurisdiction applies
- Be able to spot a violation
- Draft to avoid violation
- Can often draft around it--MD & DC
- Explicitly say “RAP doesn’t apply”
CLASS 22
Protecting the Family
A. Introduction
What happens when the decedent chooses not to leave property to family members or
forgets to do so?
There are three major protections for the family in this situation:
a) The community property form of ownership of property between spouses
b) The opportunity for a surviving spouse to take an “elective share” if the decedent
did not leave the spouse a sufficient share of the marital property or if such a
share would be preferable to the result in intestacy
c) The protection against accidental disinheritance when the decedent executed a
will before marriage or omitted a child
B. History of Adult Partner Protections
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Under English common law, dower gave the widow a life-estate in ⅓ of her husband’s
real property. Husband couldn’t extinguish this right. On death, the widow didn’t control
the ultimate disposition of the property, she only held a life estate.
Protection for a surviving husband came in the form of curtesy, which provided a
husband with a life estate in all of his deceased wife’s property, not just real property, but
this only applied if a child was born to the marriage.
C. Differing Protections Under Community Property and Common Law Property Systems
DMV aren’t community property states
1. Community Property
In these states, property is held by marital partners either as community property
or separate property.
Community property is property accumulated by either spouse from earnings or

other work during the marriage. Unless the spouses agree otherwise, all property
acquired during the marriage is jointly owned in a manner similar to tenancies in
common (but which exists exclusively between spouses). Because each spouse
has equal ownership, states have established various limits on each spouse’s
ability to manage, give away, or sell community property without the permission
of the other spouse.
Property that was acquired before the marriage, or that either spouse receives as
a gift or an inheritance during the marriage, is considered separate property and
remains under the ownership and control of that individual spouse.
In community property states, community property is distributed at divorce either
equally or by a system of equitable distribution based on a variety of factors,
such as the needs and contribution of each spouse.Upon death, the surviving
spouse in a community property jurisdiction is entitled to retain her one-half of all
community property.
The decedent can freely dispose of the other half of the community property and
all the decedent’s separate property, typically giving it to the spouse or children
from another marriage.
The surviving spouse may receive more or less than one-half of the community
property if: (i) the couple migrated between community property and separate
property states throughout the marriage (discussed later in subsection 3); or (ii)
the spouses have agreed otherwise in a marital agreement.
2. Common Law Property

In the common law system, title vests in the person who earns or otherwise
acquires the property in his name. The spouse with title has sole ownership and
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control over the property during the marriage. Except to the extent the spouses
acquire and title property jointly, the non-title holder has no rights in the property
of the other.
At divorce, common law states distribute the property based on equitable

distribution of all assets acquired during the marriage.
Upon the death of a spouse, in a common law state, the spouse who has title to
any property titles solely in that spouse’s name can determine where it will go by
writing a will or using nonprobate transfers.
An important safeguard is the right of the surviving spouse to take an “elective

share” of the decedent’s property. The elective share represents an attempt to
prevent disinherited spouses from becoming public charges and to reflect the
partnership theory of marriage.
3. Division at Death for Migrating Couples

Can migrate between community and common law property states during their
marriage. The law of the marital domicile controls the right of survivor on death.
Courts have traditionally used the following rules to determine the classification
of property that the couple has acquired in each state:
a) For real property, the law of the state in which the property is located
controls its classification; and
b) For personal property, the law of the marital domicile at the time the
property is acquired controls its classification.
The move doesn’t affect the classification of property interests.
Example: “Sujatha and Tim lived in New York for 50 years. During the course of
the marriage, Sujatha saved $100,000 from her earnings that she placed in a
bank account in her own name. Sujatha and Tim retired and moved to Texas.
Sadly, Sujatha died shortly thereafter. Tim has no rights to the money in Sujatha’s
separately titled bank account, as it is considered separate property. Because
each spouse owns one-half of all community property, elective share statutes are
not part of the law in community property states. As a result, without additional
statutory assistance, Tim may have no rights to Sujatha’s property on her death.”
In recognition of the unfairness to Tim of this result, several community property

states have developed doctrines that recognize rights in the surviving spouse to
property acquired in a common law state under the principle of “quasi-community
property.”
“Quasi-community property is generally defined as marital property
acquired while domiciled in a common law state that would have been
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characterized as community property if the married couple had been

domiciled in a community property state.”
In effect, the property becomes community property to which the surviving

spouse has equal rights. The impact of quasi-community property
doctrines can be waived if both spouses sign a written agreement to that
effect.
D. Protection for the Surviving Spouse -- The Elective Share

1. What Happens Without an Elective Share?
Problems [608-609]
In each of the following problems, consider what property, if any, the surviving
spouse (Sawyer) would be entitled to claim assuming there is no elective share
statute. Tony and Sawyer were married for 35 years, they lived in a common law
property state, had two children (Anya and Brad), and all of Tony’s property was
acquired with funds earned during the marriage. Sawyer has no property in her
name other than what is left to her by Tony. As you answer these questions, think
about whose interests are favored, and whether anyone else’s interests should
be considered.
1. Tony dies with $1 million in the probate estate and leaves everything to
Sawyer in his will. $1 million goes to Sawyer
2. Tony dies with $1 million in the probate estate and leaves nothing to
Sawyer in his will. He devised a third each to Anya and Brad and one-
third to his friend Fred. Tony states in his will that he wishes to disinherit
Sawyer because they have had so many disagreements over the years,
and he feels he wasted his life with her. In common law and without
elective share, Sawyer gets nothing???
Could have some statutory rights to property, but she can’t disrupt his
plan otherwise.
3. Tony dies with no property in his probate estate because he made gifts of
$333,333 each to Anya and Brad and his friend, Fred, a week before he
died. Sawyer gets nothing.
4. Tony dies with no property in his probate estate. He has a $1 million
individual retirement account (IRA) and named his sole employee as the
beneficiary a week before he died. Sawyer gets nothing?
2. Non-UPC Approaches to the Elective Share
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This provision was at issue in the following case, in which Maryland’s highest
court resolutely stuck to the statutory definition of “net estate.”
“The only person you can’t disinherit is your spouse” -- the reason for that is
because we have elective share statutes in place. All jurisdictions are different,
but most of them have one. Can contract around this.
Surviving spouse has a right to elect into/out of elective share.
Karsenty v. Schoukroun
Facts: On October 10, 1987, Gilles Schoukroun (decedent) married his first wife
Bernadette. He had one child, Lauren, with Bernadette, about three years later in
4/20/1990. Gilles and Bernadette divorced six years later.
In 1999, Giles met Kathleen and eventually became engaged and married.
Before marrying, In Spring of 2000, Giles and Kathleen took out life insurance
polices from Zurich Kemper. Gilles purchased a policy on his life and named
Katleen beneficiary ($200k). Kathleen made her policy benefits payable to her
estate (200k), with her son from her prior marriage as the beneficiary of her
estate.
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Giles and Kathleen married on July 3 2000. Giles eventually developed

lymphoma.
In the last three to four months of his life, Giles made estate planning
arraignments. On June 23, 2004, he prepared and executed his last will and
testament and a document known as the Gilles Schoukroun “the trust.”
Under the terms of his will, his sister Maryse, was named the personal
representative. Under the will, Gilles gave all tangible personal property and any
insurance coverage to his wife, Kathleen. THe remainder of the estate would go
to the trust.
Lauren, his daughter, was named the beneficiary to the trust. Gilles was named
the settlor and trustee of the trust during his lifetime, and he appointed Maryse
trustee upon his death. If Maryse couldn’t serve as trustee, Gilles named
Kathleen as alternative trustee.
On the same day that he created the Trust, Gilles transferred into the Trust
assets from three financial accounts: (1) one at E*Trade Financial, worth
approximately $29,037.15; (2) one at Fidelity Investments, worth approximately
$75,257.25; and (3) a second at Fidelity Investments, worth approximately
$49,034.67.
On 12 July 2004, Gilles named the Trust as the beneficiary of two IRA transfer-
on-death (“TOD”) accounts at Fidelity Investments, one worth approximately
$257,863.31, the other worth approximately $14,069.51.
Total trust value to his daughter was $425,261.89. Total amount to his spouse
was $222,000 ($200,000 life insurance and $22,000 value of a vehicle).
Gilles never took distributions from the TOD accounts during his lifetime.
Kathleen renounced her inheritance under Gilles’s will and invoked her right to an
elective share of his estate, which she contends should include the Trust and the
TOD accounts.
PH: Circuit Court for Anne Arundel County held that the inter vivos transfer does
not constitute a per se violation of the surviving spouse’s elective right to a
percentage of the deceased spouse’s net estate. Specifically, that the decedent
did not intend to defraud his surviving spouse when he transferred assets to a
revocable trust that he created for his daughter (of a prior marriage) and named
her the beneficiary of two IRA accounts.
The Court of Special Appeals reversed the trial court and held that although the
trial court wasn’t clearly erroneous in finding that the decedent didn’t intend to
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defraud his surviving spouse, the decedent retained control of the transferred
assets rendered the transfer a fraud per se on the surviving spouse’s marital
rights.
Issue: whether an inter vivos transfer, in which a deceased spouse retained

control over the transferred property during his lifetime, constitutes a per se
violation of the surviving spouse’s statutory, elective right to a percentage of the
deceased spouse’s net estate under Maryland Code
Whether Gilles intended that the transfer change nothing, except how the
property was directed at his death.
SCOMD reverses the judgment of the intermediate appellate court. Remanded to

the trial court with guidance.
Holding: W]e are not certain what the trial court meant when it found that Gilles
did not intend to defraud Kathleen. If the trial court was looking solely for fraud, it
applied the wrong standard; however, we may not substitute our judgment on the
facts for that of the trial court. Accordingly, we must remand this case for further
proceedings not inconsistent with this opinion and, if necessary, the taking of
additional evidence.
- Starting point of the court’s analysis of Kathleen’s claims to elective share
of the Trust and TOD accounts is Maryland’s elective share statute and
Maryland Code Estates and Trusts article.
- The term “net estate,” as it is used in Maryland’s elective share statute,
“means the property of the decedent passing by testate succession.”
- This includes only property in which the decedent “has some interest . . .
which will survive his death.” Here, the Trust and the TOD accounts fall
outside the definition of “net estate” because Gilles did not have any
interest in either that survived his death.
- Thus, by its plain language, Section 3-203 does not permit Kathleen to
take a share of the Trust assets or the TOD accounts.
- A court may invalidate an inter vivos transfer where equity
requires that the transferred property be considered part of his
estate for the purpose of calculating the surviving spouse’s
statutory share.
- To determine whether equity requires that a transfer be set aside,
a court must ask whether the decedent intended to part with
ownership of the property in form only, while remaining the true
owner of the property during her or his lifetime;
- if the decedent intended that the transfer divest her or him of
ownership in form, but not in substance, the transaction unlawfully
frustrates the statutory protection of the decedent’s surviving
spouse and, accordingly, is invalid.
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- Case by case basis

- In the present case, Gilles retained the power to revoke the Trust at
anytime “by notice in writing.” He named himself as trustee and retained a
life-estate in the net income of the Trust. Gilles also retained the power to
invade the principal of the Trust. With respect to the TOD accounts, Gilles
retained the power to change the beneficiary of those accounts.
- While retained control is a significant fact to consider, it is not, by
itself, a sufficient justification for invalidating an inter vivos trust.
Accordingly, we reverse the judgment of the intermediate
appellate court and direct a remand of this case to the trial court
for further proceedings not inconsistent with this opinion. . . .
- If an inter vivos transfer was complete and bona fide or done in good
faith, the court must respect the estate planning arrangements of the
decedent and may not invalidate a transaction. However, if the transfer is
a sham, the court shall invalidate the underlying transaction as to the
surviving spouse.
- the question for a court to decide is whether the decedent
intended that the transfer change nothing, except how the
property is directed at the decedent’s death.
- We believe, however, that three considerations lessen
somewhat the difficulty of this analysis.First, as a threshold
matter, a surviving spouse must show that the decedent
retained an interest in or otherwise continued to enjoy the
transferred property. . . . Second, as a guiding principle,
courts should not employ their equity powers to second-
guess reasonable and legitimate estate planning
arrangements. For this reason, we think that a surviving
spouse has a high hurdle to overcome.Third, our case-law
offers considerable guidance with respect to what factors are
relevant to determining, in this context, whether a decedent
intended that an inter vivos transfer be a sham. . . .
-
E. The UPC Approach to the Elective Share
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CLASS 23
Problem [628]
Harlan and Wendy were legally married at the time of Harlan’s death. They had no premarital or
post-marital agreement. Harlan’s heirs are Amy, Bill, and Carlos (Harlan’s children from a prior
marriage), and Wendy. Harlan’s net probate estate is valued at $250,000. By his will, Harlan
devised $100,000 of property to Wendy and the $150,000 residue to a charity. Harlan also
arranged nonprobate transfers at his death of $30,000 to Wendy, $200,000 to Amy, and
$250,000 to Bill. The value of Wendy’s personal assets, not including any inheritance or
allowances from Harlan’s estate, is $40,000. During her marriage to Harlan, Wendy transferred
money into a joint bank account with right of survivorship, which she maintains with her sister,
Sally. The account’s balance as of Harlan’s death is $30,000, all of which is attributable to
contributions made by Wendy.
Assume Harlan and Wendy were married for 20 years at the time of Harlan’s death. Determine
Wendy’s elective share amount under the UPC. From what sources is the elective share
amount, if any, payable? (Compare UPC §§2-209(b)-(c) to §3-902.)
Pursuant to UPC §2-207, the goal of combining the estates and non-probate transfers of
the decedent and the surviving spouse is to create an equitable split between the
spouses. In this case, the total augmented value of the marital estate is roughly
$800,000. As they were married for 20 years, Wendy would be entitled to half of the
augmented estate??? [UPC §2-203 says 100% after 15 years, but that has to be 100%
of one marital share, right??? So only 50%?]
If, after the application of subsection (a), the elective-share amount is not fully satisfied,
or the surviving spouse is entitled to a supplemental elective-share amount, amounts
included in the decedent’s net probate estate, other than assets passing to the surviving
spouse by testate or intestate succession, and in the decedent’s nonprobate transfers to
others
F. Prenuptial and Marital Agreements

Most times, clients come ready to know what assets to put in prenups.
Simply being unconscionable is usually not enough to overcome contract
A spouse may validly waive the right to inherit from the other spouse. Usually, these
waivers take the form of premarital agreements, although enforceable waivers can also
be entered into during the marriage or in separation agreements entered into as the
marriage is dissolving.
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With a carefully drafted and complete prenuptial agreement, the parties agree in
advance how to divide their property upon a divorce or at death, regardless of when,
how, and from what source their property was acquired. In addition to spouses in second
marriages, prenuptial agreements may be important to the wealthy parents of a child
about to wed as a way to avoid a contentious fight over trusts for their child in case of
divorce. Courts will normally accept the “deal” so long as it complies with state law.
1. When is a Waiver Valid?

States have adopted varying approaches to determining the validity of a waiver.
In re Estate of Hollett [N.H. 2003]

Facts: John and Erin Hollett met in 1984 when John was 52 and Erin was 22.
John was a successful real estate investor and developer who regularly bought
and sold property in New Hampshire and Florida. Erin had dropped out of high
school and had no work or business experience aside from several low level
jobs.
John had been married to Kathryn Hollett and had five children with her. Under
the terms of their divorce, John owed Kathryn a substantial property settlement
and owed her millions of dollars at the time of his death.
Having once discussed prenups before engagement, John did not bring up the
prenup again until a few days before their wedding in 1990. John sent a
statement of his net worth to his attorneys who then drafted a prenup agreement
for him. He gave the prenup agreement to Erin less than two days before the
wedding. Under the original draft, Erin would only receive $25k and a car upon
divorce.
John’s lawyers contacted Brian Shaughnessy, a recent law school grad, and
requested that he counsel Erin regarding the prenup. John would pay his fee.
Shaughnessy had never negotiated a prenup, but he studied and reviewed the
draft agreement before meeting Erin.
Erin, her mother, and Shaughnessy met on August 17, the day before the
wedding. The wedding was elaborate and the couple was expecting over 200
guests. It was also already paid for. Erin’s mother and father flew in from
Thailand.
Shaughnessy noted that, during the meeting and subsequent negotiations with
john’s attorneys, that Erin was under considerable emotional distress, sobbing
throughout the time he was with her, and was at times so distressed that she
couldn’t speak. Erin testified that she couldn’t remember anything from the
conference.
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Shaughnessy testified that he reviewed John’s financial disclosure and draft

agreement with Erin, explained the significance, and asked what she sought from
the agreement. He advised her that the settlement was inadequate and that the
wedding could be put off if necessary. Shaughnessy testified that the financial
disclosure was not audited and was invalid.
At the end of the negotiations, the prenup was more favorable to Erin--she could
obtain as much as ⅙ of John’s estate in the event of a divorce or John’s death.
John’s lawyers prepared a final version of the agreement, which John and Erin
signed the morning of August 18, their wedding day.
John died in 2001, survived by Erin, his first wife, and his children from the first
marriage.
PH: Petitioner Erin Hollett appeals an order by the Merrimack County Probate
court which declared the prenup between Erin and the decedent, John Hollett,
valid.
- Erin’s argument: agreement should be set aside because of duress,
undue influence, insufficient financial disclosure, and lack of effective
independent counsel
- Kathryn Hollett, decedent’s first wife & his five children, argument:
agreement is valid and order should be affirmed
Supreme Court of New Hampshire reversed and remanded.
Issue: whether the prenup is invalid because it was the product of duress?
Holding: Yes, it’s invalid.

- A prenuptial agreement is presumed valid unless the party seeking the
invalidation of the agreement proves that: (1) the agreement was
obtained through fraud, duress or mistake, or through misrepresentation
or nondisclosure of a material fact; (2) the agreement is unconscionable;
or (3) the facts and circumstances have so changed since the agreement
was executed as to make the agreement unenforceable.
- To establish duress, a party must ordinarily “show that it involuntarily
accepted the other party’s terms, that the coercive circumstances were
the result of the other party’s acts, that the other party exerted pressure
wrongfully, and that under the circumstances the party had no alternative
but to accept the terms set out by the other party.”
- Courts tend to scrutinize prenups more than ordinary commercial
contracts
- The timing of the agreement is important in assessing whether it was
voluntary
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- Agreement in this case involves disbursement of an estate valued at

more than 6 million--such a complicated agreement would require more
time for negotiation and reflection than two days
- Erin’s bargaining position was vastly inferior to John’s
- John was older and had already been married
- John had 6 mill in assets, while Erin had about 5k
- Erin had little understanding of John’s business ventures
- John had encouraged Erin to stop working after they got together
- If Erin refused to sign the agreement, she thus not only stood to face the
embarrassment of canceling a two hundred guest wedding, but also stood
to lose her means of support. Prenuptial agreements that result from such
a vast disparity in bargaining power must meet a high standard of
procedural fairness.
- Finally, John’s conduct before the wedding raises serious questions
regarding his good faith in dealing with Erin.
- Didn’t mention the agreement for two years
- Had the agreement a month before the wedding but only served
Erin with it two days before
2. UPC Response
In terms of best practices, it is important for both parties to have independent
representation. To avoid any perception of unconscionability associated with
having to make a rushed decision, the agreement should be negotiated well
before the wedding. Lastly, as the “poorer” person is typically giving up important
rights, there should be adequate consideration and full disclosure of financial
position given by the “richer” person.
Problems [636]
Tyrone and Shana married late in life. They both had been married before and had
children. Tyrone had accumulated a sizeable fortune before their marriage. Just prior to
the marriage, Tyrone indicated he wanted Shana to complete a premarital agreement
waiving “all rights” each had in the property of the other upon divorce or death. In
exchange for executing this, Tyrone was willing to transfer to Shana, in trust, a fully paid
$1 million life insurance policy on his life. Tyrone is otherwise worth about $8 million.
1. Can you represent both Tyrone and Shana in drafting the agreement? Why or
why not? Should you? Return to the ACTEC Commentaries to Model Rules 1.6-
1.8 in the first chapter and your answers to a similar question there.
No. Because the court closely looks at prenups, it would be best to have two
separate attorneys to avoid any conflict of interest. Since the spouses have
different interests in the prenup, it would be hard to represent both clients’
interests. Moreover, they have substantially different bargaining power coming
into the prenuptial negotiations.
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2. Assume a prenuptial agreement was not executed. Upon Tyrone’s death, to

what, if anything, is Shana entitled per UPC §2-102 or UPC §2-202?
As a note, it appears as if Tyrone died intestate. While there is a trust, it says that
he *was willing*, not that it was executed.
Per 2-102--the first $150,000 [+ COLA], plus one-half of any balance of the
intestate estate. This is because the decedent’s surviving descendants are not
Per UPC 2-202, the surviving spouse receives 50% of “marital property” portion
of the augmented estate. As such, Shana would receive 50% of the marital
property portion of the augmented estate
UPC §2-102. Share of Spouse.

The intestate share of a decedent’s surviving spouse is:
(5) the entire intestate estate if:
(i) no descendant or parent of the decedent survives the
decedent; or
(ii) all of the decedent’s surviving descendants are also
descendants of the surviving spouse and there is no other
descendant of the surviving spouse who survives the decedent;
(6) the first $300,000 [+ COLA], plus three-fourths of any balance of the
intestate estate, if no descendant of the decedent survives the decedent,
but a parent of the decedent survives the decedent;
estate, if all of the decedent’s surviving descendants are also
descendants of the surviving spouse and the surviving spouse has one or
more surviving descendants who are not descendants of the decedent;
estate, if one or more of the decedent’s surviving descendants are not
UPC §2-202 –SS receives 50% of “marital-

property”portion of the augmented estate
3. Without doing the actual drafting, identify four issues or concerns you would want
to address in planning to draft or drafting a premarital agreement to avoid its
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subsequently being considered unenforceable by a court and detail in what

manner you would address them.
a. The urgency with which it was brought to Shana - Tyrone brought it before
her right before the wedding. I would want to know that they had
discussed it plenty before that.
b. I am unlikely to be able to represent Shana and Tyrone without a conflict
of interest. Given the massive disparity in bargaining power, I would like
to know whether she had adequate legal representation and understood
the terms of the agreement and was amenable to it.
c. I would like a detailed statement of net worth + debts from Tyrone and
Shana so that there is no mischaracterization or nondisclosure of material
facts that would change their understanding of the value of each party’s
assets.
d. ???
G. Protections for an Omitted Spouse and Child

1. The Omitted Spouse
UPC 2-301
- Appears from will or other evidence that it was created in contemplation
of marriage
- Explicitly stated in will not providing for spouse
- Transfers to spouse outside of the will
Omitted spouse statutes usually presume that the decedent would have wanted
to change a premarital will to cover the new spouse but just never got around to
doing so. This presumption can typically be rebutted if one of three events
occurs: (i) the parties entered into a premarital or marital agreement to waive
inheritance rights; (ii) after the marriage, the decedent used other means, such
as trusts or insurance policy benefits, to provide for the surviving spouse; or (iii)
the spouse was given something in the will even though the will was written prior
to the marriage, and the will expressly states that it excludes any persons the
testator might marry in the future.
a. The Testator’s Intent?
Bay v. Estate of Bay (Wash. Ct. App. 2005)
Facts: John Bay created a will in 1983, 16 years before his death. The will
left everything to Cathy, his wife at the time, then in trust to their children.
John’s will emphasized his desire that his estate provide for his children’s
post-secondary education.
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John and Cathy divorced in 1986 after having two children, Kelly and Eric.
By statute, his estate would pass as if the former spouse failed to survive
the testator, leaving Kelly and Eric as the sole beneficiaries to the will.
John married Laura in November 1999. He changed his 401(k) so that

Laura was an 80 percent beneficiary and his two children were equal
beneficiaries to the remaining 20 percent. John didn’t change his will.
John comitted suicide in October 2000. Kelly was 18, Eric was 15. 401(k)
was distributed properly--Laura got 290k and the kids each received their
10 percent share.
John’s first wife’s brother was the personal representative of the will, and
distributed the entire estate equally between Kelly and Eric, with nothing
for Laura.
PH: Laura Bay protested the proposed distribution. She claimed that as
an omitted spouse she was entitled to her intestate share of the probate
estate. Her intestate share under the descent and distribution statute
would have been “one-half of the net separate estate” because John was
“survived by issue.” Wash. Rev. Code §11.04.015(1)(b). Laura accordingly
proposed that she receive $54,000 from the probate estate, with Kelly
and Eric to receive $27,000 each.
The dispute came to the superior court where Judge Thorpe rejected
Laura’s claim and ordered the $108,000 to be distributed equally between
Kelly and Eric Bay. Each child’s total receipts, including their shares of the
retirement account and some other non-probate accounts, amounted to
approximately $100,000. Laura appeals the final order confirming the
proposed distribution to the Bay children.
Laura Bay, who was not named or provided for in her late husband’s will,
challenges a trial court’s decision to deny her a share of his estate.
Although she was presumptively entitled to an intestate share as an
“omitted spouse,” the statute permits this presumption to be rebutted by
clear and convincing evidence “that a smaller share, including no share at
all, is more in keeping with the decedent’s intent.” Wash. Rev. Code
§11.12.095(3). Substantial evidence in this case supports the court’s
conclusion that it was more in keeping with the decedent’s intent that his
estate go entirely to his children. We affirm.
Issue: whether Laura was entitled to receive from the probate estate
under the omitted spouse statute?
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Holding: We conclude that John’s dispositive scheme, his property

settlement agreement with his former wife, and the provision he made for
Laura outside the will, provide substantial evidence that the trial court
could reasonably have found to be clear, cogent and convincing evidence
in support of rebutting the presumption.
- [The purpose of the omitted spouse statute is] “to prevent the
unintentional disinheritance of the surviving spouse of a testator
who marries after making a will and then dies without ever
changing it” . . . [and] it establishes a presumption that the
omitted spouse will receive the same amount as if the decedent
had died intestate
- Under the statute, The omitted spouse will receive her intestate
share “unless the court determines on the basis of clear and
convincing evidence that a smaller share, including no share at all,
is more in keeping with the decedent’s intent.”
- The statute provides a non exhaustive list of things the court may
consider in relation to this question, including the decedent’s
dispositive scheme and provisions for the omitted spouse outside
the decedent’s will.
- John expressed a desire to support a college education for
his kids
- Laura was focused on the intent of the testator in her argument as
to why the omitted spouse doctrine should allow her to receive--at
the time he created his will, John couldn’t anticipate what he
intended with respect to Laura at the time he created the will
- Under the omitted spouse statute, the trial court is
concerned with the intent of the “decedent,” not the
“testator,” . . . In a case such as this one, the court may
consider manifestations of intent at times other than the
execution of the will.
b. The UPC Approach

Under the UPC, an omitted spouse has the right to receive an intestate
share of the probate estate, but only from that portion of the estate not
devised to descendants of the testator. The statute will not create a share
for the spouse if the decedent executed the will in anticipation of marriage
or provided for the spouse through nonprobate transfers or if the will
expressed the testator’s intent to disinherit any future spouse. Of course,
the omitted spouse may alternatively seek her elective share of the
augmented estate per UPC §2-202 if it is larger.
Problems [643-644]
1. When Sam wrote his will in 1997, he and Sally were good friends.
In his will, he specifically named her in this bequest: “I leave Sally
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$10,000.” Eight years after executing the will, Sam and Sally
married. Sam never updated his will and died in 2016 with a
probate estate worth $250,000. Can Sally be considered an
omitted spouse even though she is specifically named in the will?
Because the will was executed before marriage, I think that Sally
can be considered a surviving spouse. Sam intended to give Sally
the 10k before they married--he did not give her 10k as a spouse.
Counter to this, if Sam’s will included a provision that said
the gift to Sally was $10,000 and that he was explicitly excluding
any individual that he would later marry, then Sally would only get
$10,000. (Pg 637)
2. In Bay v. Bay, what would the result be under the UPC? In what
manner would the analysis differ?
In Bay, I think there’s a chance the result can be the same. Under
(a)(3) of UPC 2-301, a surviving spouse is not considered omitted
when “the testator provided for the spouse by transfer outside the
will and the intent that the transfer be in lieu of a testamentary
provision is shown by the testator’s statements or is reasonably
inferred from the amount of the transfer or other evidence.” John
made Laura the primary beneficiary to his 401(k) and the other
evidence is clear that he wanted his children to have funds for
college.
3. Ted and Sammy were getting married. A few days before the
wedding, Ted signed a will leaving his entire estate to his two
children from an earlier marriage. Sixteen years after the wedding,
Ted died in a hang-gliding accident. Ted has a $2 million probate
estate. He acquired a life insurance policy of $500,000 five years
ago and named Sammy as the beneficiary. He also owned a $1
million parcel of real estate in joint tenancy with one of his two
children. This constitutes all of the property that passes as the
result of Ted’s death. What rights under UPC §2-301 does Sammy
have? What elective share rights does Sammy have, and against
which items of Ted’s property?
UPC 2301
- Sammy does not have rights as an omitted spouse. Under
(a)(1), the will in this fact pattern was clearly made in
contemplation of the marriage to the surviving spouse
- Sammy would be entitled to 50% of marital property
portion of the augmented estate, whatever that is.
2. Omitted Children
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A testator can intentionally disinherit a child by giving the property to someone

else in the will, and the testator’s decision will be enforced—although, as
discussed in the article below, it may be subject to a will contest.
Even though children have no right to inherit from their parents, most states
protect children who have been disinherited unintentionally through pretermitted
or omitted child statutes. These statutes protect children born after the execution
of a parent’s will, and some even protect children alive at the time of the will’s
execution under some circumstances. Because it is not always clear whether the
testator intentionally left out a child, states have adopted different approaches to
determine their rights. Statutes vary on numerous issues, including the following:
- Which children have standing to contest their exclusion? Some statutes
also include grandchildren and other descendants as omitted heirs.
- Do the protections only include children who were born or adopted after
the execution of the will, or all children omitted from the will, regardless of
whether they were living when the will was executed?
- To what share is an omitted child entitled?
- Is the share limited to taking against probate property or does it include
nonprobate property as well?
- What types of evidence, if any, are admissible to show the testator’s
intent?
a. History [didn’t read or take notes]
b. Intentional Disinheritance
In re Gilmore [NY 2011]

Omitted Child Statute NY: EPTL 5-3.2(a) states as follows: “Whenever a
testator has a child born after the execution of a last will, and dies leaving
the after-born child unprovided for by any settlement, and neither
provided for nor in any way mentioned in the will, every such child shall
succeed to a portion of the testator’s estate as herein provided.”
Facts: In June 1996, Roy Gilmore, the decedent, executed a last will. He
died in January 2007. Angela Manning, one of the decedent’s children,
was the executor of the decedent’s estate and offered the will for probate.
Although the decedent was survived by 11 children, his will left the entire
estate to Manning.
Movants, Andrea and Malverick Hofler, contend that the decedent didn’t
know they were his biological children until after he executed his will.
PH: Andrea and Malverick Hofler, nonparties, contend that they are
nonmarital biological children of the deceased testator. They further
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contend that the testator only learned of their existence after he had
executed his final will, and shortly before his death.
The Surrogate Court [lower court] found that the movants were not
entitled to any rights. The Surrogate’s Court acknowledged that a child is
generally entitled to after-born rights only if born after the execution of a
will. The Surrogate’s Court further acknowledged that the only exception
to that rule is for a child adopted after the execution of a will, even if born
prior to its execution.
Issue: Whether non-marital children of the decedent, only known to the decedent
after the execution of the will (after-knowns), can be considered “after-borns”
under EPTL 5-3.2?
Holding:No, non-marital children of the decedent, only known to the decedent
after the execution of the will (after-knowns), can’t be considered “after-borns”
- The decedent’s failure to address any potential offspring can be
considered as an intent to preclude succession to the same.
Reasoning:
-In Matter of Wilkins, the decedent’s will was executed in 1965, Michael (non-marital son) was born in
1969, and the decedent died in 1988. He sought to inherit as a child born after the execution of the
decedent’s will. At a hearing, the decedent’s friend testified that the decedent often referred to Michael as
his son, and Michael’s mother testified that the decedent was aware that Michael was his son prior to
Michael’s birth.
the Court determined that Michael was the decedent’s son and that the decedent openly acknowledged his
paternity and found that the term “after-born” included a nonmarital child.
-HERE- the movants were born prior to the execution of the subject will, whereas the child in Wilkins
was born after the execution of that will.
-Movants concede that they’re “after-borns” as defined in EPTL 5-3.2, but argue that because they were
not known to the decedent, they are “after-knowns” and should be treated in the same manner as adopted
children citing Bourne v. Dorney
-In Bourne, Court considered whether a child adopted by a testator subsequent to the making of his last
will was an after-born child within the meaning of the predecessor statute to EPTL 5-3.2. The testator in
Bourneexecuted his will in 1886, and in 1897, the testator and his wife adopted the petitioner, who was
born in 1892 so the child was not in the will. The Court found that the adopted child was born of the
testator at the time of the adoption and, thus, eligible to inherit from the testator.
-following Bourne, children adopted in the State are considered born to a testator at the time of the
adoption for the purposes of EPTL 5-3.2.
-EPTL 5-3.2, entitled “Revocatory effect of birth of child after execution of will,” by its terms, only
applies to after-born children who are unprovided for and unmentioned in a will
-Under the plain meaning of EPTL 5-3.2, the movants cannot be considered after-born children of the
decedent because they were not “born after the execution of a last will.” àthe result would be that children
born of a testator prior to the execution of a will, but unknown to such testator, would lead to a result that
would be contrary to the plain meaning
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-Manning- emphasizes the significant difference between adopted children and so-called after-known
children.
-Adopted children do not become the children of a person until after the adoption; by adopting a
child, a parent makes an affirmative decision to incur legal obligationsthat are triggered by an
adoption.
- On the other hand, after-known children are children of a person at the time of their birth; a
child’s birth prior to the execution of a will, and a testator’s subsequent discovery of said child,
involves no affirmative act.
-HERE- the decedent’s conduct prior to the execution of his will included
activities which could have, and ostensibly did, result in the birth of nonmarital
children, then he executed a will which made no disposition to any unknown
children that he may have fathered.
Problem [652]
Nina executed her will in 2012, leaving $10,000 to her two children, Alice and Bill.
In 2014, Chelsea was born. In 2015, Nina executed a codicil, changing her
executor. Assuming that the applicable law is the New York statute you read in
Gilmore, what rights does Chelsea have to Nina’s estate?
If the execution of the codicil amounts to the execution of the last will and
testament, then she wouldn’t have any rights.
Problems 655-656
Terry had two living children, Anna and Belle, when she executed her will.
Subsequently, Charlie was born. Terry died recently.
a. Terry’s will devised $7,500 to Anna and $7,500 to Belle. How much
money is due Charlie under the UPC?
The $15,000 that is divided for Anna and Belle now includes Charlie. So
each get $5,000.
b. What if Terry’s will had devised $10,000 to Anna and $5,000 to Belle?
UPC 2-302 - $15,000 pot for the 3 children divided again. It divides
proportionally. Anna gets $6,666, Belle gets $3,333, and Charlie gets
$5,000. The shares are abated in equally part from the other children.
c. What if Terry’s will had devised $10,000 to Anna and nothing to Belle?
$10,000 pot. 3 potential takers, so it’s split 3 ways. But Belle gets
nothing. So Anna gets $6,666, and Charlie gets $3,333. Belle
starves.
d. What if Terry’s will had devised nothing to either Anna or Belle?

If no other child gets anything, than the omitted child is not
provided for either, and receives nothing.
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Problems 655-656
1. When Heath Ledger died in 2008, his daughter, Matilda, born outside of
marriage with actor Michelle Williams, was not mentioned in his will
because he had not updated it since her birth. If Heath Ledger’s will were
to be probated in a UPC state (instead of Australia), what would Matilda
have to show in order to inherit a share of the estate?
That the estate didn’t go in substantial part to the parent of the child’s
surviving parent. She would then be entitled to the share she would
receive under intestacy as an omitted child (after-born).
2. Tim recently died with a probate estate valued at $1 million. He is

survived by his wife, Winnie, whom Tim married 15 years ago, their child
Kala, who was born 10 years ago, and Tim’s out-of-wedlock but
acknowledged son, Tiger, who was born 5 years ago to Tim’s secretary,
Joan. Tim is also survived by his brother, Arnie.
a. Assume Tim died intestate. How much of Tim’s estate will Winnie
and the two children receive?
Per UPC §2-102, when a spouse dies intestate, the surviving

spouse is entitled to a certain share. Under Section C, with a
surviving spouse and at least one child who is not a descendant of
the surviving spouse (Tiger), then the surviving spouse gets
$150,000 + COLA and ½ of estate. So, Winnie is entitled to
$150,000 (plus COLA) and one half of the intestate estate. The
children recover equally. Out of the $1,000,000 estate, it goes as
follows:
Winnie - $575,000 ($150,000 + (½)($850,000))
Children - $212,500 each. (½ of remainder)
b. How much is Winnie’s share if she chooses her elective share
under UPC §2-202, and why? Assume Winnie has no assets and
Tim’s only assets at death are the $1 million in probate property.
Under UPC §2-202 & §2-203 guidelines Winnie could
recover 100% of her marital share, which is 50% of the marital
property portion of the augmented estate.
c. Assume instead that Tim executed a will 20 years ago when he

was not married. That will left all of his property (a residuary
bequest) to his brother, Arnie. Who takes how much of Tim’s
estate, and why?
Winnie takes as an omitted spouse and the kids take as
omitted kids, same as intestacy rules (see problem A). So
Winnie still gets $575,000, and the kids each take
$212,500.
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d. Assume instead that Tim executed his will 20 years ago, and that
Tiger was born 25 years ago to Tim and Joan. Tim’s will provided
for a $200,000 bequest to Tiger and the residue of his estate to
Arnie.
i. How much would Winnie get under the omitted spouse
statute, §2-302?
The original bequeathment of $200,000 goes to Tiger. We take like
intestacy for the omitted spouse and child (Omitted spouse with a
will written before the marriage). So of the remaining $800,000
goes as follows:
- Winnie gets $150,000 of the $800,000, then ½ of the
remaining estate. So she takes $475,000 ((1/2 )($650,000)
+ $150,000).
ii. How much would Tiger and Arnie get if Winnie takes her
omitted spouse share?
Of the remaining $325,000, Kala gets $200,000 (to match Tiger as
an omitted child).
Arnie, the brother, gets $125,000.
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CLASS 24
A “power of attorney” authorizes one person (the “agent,” who is sometimes also called the
“attorney-in-fact”) to act on behalf of someone else (the “principal”) in a legal, health, or
business matter.
Every state authorizes durable powers of attorney (DPOA)
The capacity standard for appointing an agent is typically the same as that required to enter into
a contract, a high standard, which requires that the individual have a reasonable understanding
of the act in which she is engaging.
Uniform Power of Attorney Act

- The Act establishes relatively straightforward procedures so that individuals can arrange
for surrogates to handle their property if they are incapacitated
In re Ferrara
Facts: George J. Ferrara (decedent), a retired stockbroker living in Florida, was single, and had
no children; his closest relatives were his brother, John, and a sister, and their children.
-On June 10, 1999, he executed a will “mak[ing] no provision for any family member or for any
individual person” and declared his intention to leave his entire residuary estate to charity (sole
beneficiary= the Salvation Army)
-On August 16, 1999, he executed a codicil naming the Florida attorney who had drafted his will and
codicil as his executor
-In Dec. 1999, Dominick Ferrara (George’s nephew/John’s son), said he and his father “were called to
assist” the decedent who was hospitalized
-On January 25, 2000, ten days later, decedent signed, a “Durable General Power of Attorney: New York
Statutory Short Form,” appointing John and Dominick Ferrara as his attorneys-in-fact, and allowing either
of them to act separately “in any way which [he] [him]self could do, if [he] were personally present, with
respect to the matters [listed subdivisions (A) through (O)”
-Subdivisions (A) through (O) of the form listed various kinds of transactions; including “making gifts to
my spouse, children and more remote descendants, and parents, not to exceed in the aggregate $10,000 to
each of such persons in any year.”
-he authorized his attorneys-in-fact to carry out all of the matters listed in subdivisions (A) through (O)
and initialed a typewritten addition to the form, which stated that “[t]his Power of Attorney shall enable
the Attorneys-in-Fact to make gifts without limitation in amount to John Ferrara and/or Dominick
Ferrara.”
-Dominick insisted that the provision authorizing him to make unlimited gifts to himself was added “[i]n
furtherance of decedent’s wishes,” bc the decedent repeatedly told him in December 1999 and January
2000 but acknowledged that decedent made no memorandum or note to this effect, and only once
expressed these donative intentions in the presence of anyone else—Dominick’s wife, Elizabeth.
- Dominick Ferrara sought out an attorney in New York City “to discuss [his] Uncle’s wishes,” and this
attorney provided him with the power of attorney that decedent ultimately executed.
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-The power of attorney was notarized by an attorney whom Dominick and Elizabeth knew. The attorney
testified that she attended the signing at the Ferraras’ behest, but acted only as a notary, not an attorney for
either the Ferraras or decedent, who read the form in her presence before signing it.
-it was Dominick who explained the form’s provisions to decedent; she does not recall the word “gift”
having been mentioned
-the Decedent’s condition deteriorated and admitted to the hospital in Jan. 2000, and died in Feb. 2000,
approx. 3 wks after executing the power of attorney.
-in those 3 wks, Dominick transferred about $820,000 of decedent’s assets to himself, including IBM
stock and about $300,000 in cash from the certificates of deposit, multiple bank accounts and the sale of
[decedent’s] Florida property.
-After decedent’s death, Dominick filed a 1999 federal income tax return for decedent, and collected a
refund in the amount of roughly $9,500.
-he testified that he does not recall what happened to any of the $300,000 in cash, but that he still owns
the IBM stock.
PH: -The Salvation Army found out about decedent’s will and commenced a proceeding
- the order of the Appellate Division should be reversed and the matter remitted to Surrogate’s
Court for further proceedings.
Issue: Basically was Dominick allowed to gift to himself as he did given the Section 5-1501
statute
Holding: No, he wasn’t because “An agent acting under color of a statutory short form POA that
contains additional language augmenting the gift-giving authority must make gifts pursuant to
these enhanced powers in the principal's best interest”
- he didnt do the gifts in the principal’s best interest, therefore, wasn’t allowed
- In short, [regardless of the form of the gift-giving power], the best interest requirement remains.
- §5-1501 of the General Obligations Law sets out the forms creating a durable and
nondurable statutory short form power of attorney.
- -Per these forms, the principal appoints an attorney-in-fact to act “IN [HIS] NAME, PLACE
AND STEAD” with respect to any or all of 15 categories of matters listed in lettered subdivisions
(A) through (O)
- - in 1996 the Legislature amended §5-1501 (1) to add lettered subdivision (M), authorizing the
attorney-in-fact to “mak[e] gifts to [the principal’s] spouse, children and more remote
descendants, and parents, not to exceed in the aggregate $10,000 to each of such persons in any
year.”
- -§ 5-1502M construes this gift-giving authority “to mean that the principal authorizes the agent
[t]o make gifts either outright or to a trust for the sole benefit of one or more of [the specified]
persons only for purposes which the agent reasonably deems to be in the best interest of the
principal, specifically including minimization of income, estate, inheritance, generation-skipping
transfer or gift taxes.”
- -§5-1502M unambiguously imposes a duty on the attorney-in-fact to exercise gift-giving
authority in the best interest of the principal
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- - The best interest requirement is consistent with the fiduciary duties that courts have historically
imposed on attorneys-in-fact.
- -“A power of attorney is clearly given with the intent that the attorney-in-fact will utilize that
power for the benefit of the principal”
- -the relationship of an attorney-in-fact to his principal is that of agent and principal the attorney-
in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act
in accordance with the highest principles of morality, fidelity, loyalty and fair dealing.
- *** Dominick was only authorized to make gifts to himself insofar as these gifts were in
decedent’s best interest, interpreted by section 5-1502M as gifts to carry out the principal’s
financial, estate or tax plans.
- HERE- Dominick did not make gifts to himself for such purposes.
- -Rather, he consistently testified that he made the self-gifts “[i]n furtherance of [decedent’s]
wishes” to give him “all of his assets to do with as [Dominick] pleased.”
- - The term “best interest” does not include such unqualified generosity to the holder of a power of
attorney, especially where the gift virtually impoverishes a donor whose estate plan, shown by a
recent will, contradicts any desire to benefit the recipient of the gift.
There are a range of potential civil claims against the agent, including fraud and conversion.
Criminal laws, such as theft, may also be relevant, and some states have adopted specialized
laws that criminalize abuse or exploitation of the authority granted by a power of attorney.
Banks or other financial institutions that respect the power of attorney are generally protected if
they can show that they relied on the agent in good faith. Some states even have laws that
impose liability on an entity that does not honor the agent’s request.
Problems [671]
Rani and Sasha have each executed a DPOA, naming the other as agent. Please answer the
questions below based on the Uniform Act.
1. Rani and Sasha are married. Sasha withdraws all of the assets from Rani’s account at
Brattle Bank and then leaves the country. Is this within Sasha’s authority? Does Rani
have any recourse against Sasha or the Bank?
No, it’s not within Sasha’s authority. Under 5B-114, an Agent that has accepted
an appointment must act loyally for the principal’s benefit, within the principal’s
best interest, unless excluded under the terms of the POA, attempt to preserve
the principal’s estate plan, etc.
I think that Rani does have recourse against Sasha because (d) says that an
agent isn’t liable solely when they benefit if the agent acts with care,
competence, and diligence for the principal’s best interest. Sasha clearly isn’t
acting in Rani’s best interest if she’s fleeing the country with Rani’s money.
Regarding the bank, it would be generally protected if they can show that they
relied on the agent in good faith.
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2. Rani and Sasha are married. Rani obtains a civil protection order requiring Sasha to stay
away based on past acts of domestic violence. Sasha then withdraws all of the assets
from Rani’s account at Brattle Bank. Is this within Sasha’s authority? Does Rani have
any recourse against Sasha or the Bank?
No, I don’t think that this is within Sasha’s authority. Since Rani obtained an order
for Sasha to stay away, Sasha’s withdrawal was likely not in good faith and not
within Rani’s reasonable expectations or in Rani’s best interests. Additionally,
unless excluded under the terms of the POA, Sasha was not acting loyally for the
principal’s benefit.
3. Rani and Sasha are married. Rani becomes incapacitated.

a. Can Sasha withdraw money to pay for nursing home care for Rani?
Yes, under 5B-114(B)(5)
b. Can Sasha withdraw money to make gifts to their grandchildren?
Sasha can only if the power of attorney expressly grants the authority to give a
gift.
- Also if he has a pattern of gifting to them
- If POA doesn’t prohibit the gifts
c. Can Sasha withdraw money to pay for a new car that Sasha will use to take Rani
to doctors’ appointments?
I think so--look at the circumstances of the car. If it’s a special vehicle,
d. Can Sasha revoke a trust that Rani had previously established?
If it’s revocable, only to the extent that is expressly authorized by the terms of the
trust or the power of attorney--needs to be written out very clearly that the POA
has the power
e. Can Sasha revoke Rani’s existing will?
She has a duty to preserve estate plan, so no, the UTC does not permit Sasha to
revoke a will.
4. Rani and Sasha are not married, and they have not seen each other in five years. Sasha
withdraws all of the assets from Rani’s account at Brattle Bank and then leaves the
country. Does Rani have any recourse against Sasha or the Bank?
Yes against Sasha--Sasha’s authority clearly terminated upon their separation.
Regarding the bank, it would be generally protected if they can show that they
relied on the agent in god faith.
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5. In each of Problems 1 to 4, what legal responsibility does the agent have to account to
the principal for his or her actions?
Mandatory: act in accordance with the principal’s reasonable expectations and in best
interest; act in good faith; act within scope of authority
Unless excluded by the the terms of the POA: act loyally for the principal’s benefit; act as
to not create a conflict of interest; act with the care, competence, and dillegence; keep
receipts; health-care decisions; attempt to preserve the principal’s estate plan
Dealing with Digital Property

- Among the types of property that a surrogate decision maker may manage are digital
assets.
- Consequently, new methods are being developed to use wills or trusts to dispose of
digital assets, even though the policies of Internet providers can limit the exercise of
individual autonomy.
- The revised Uniform Fiduciary Access to Digital Assets Act permits fiduciaries to manage
digital property like computer files, Web domains, and virtual currency. It also strives to
balance the accountholder’s privacy interests with the needs of fiduciaries by restricting
access to electronic communications such as email and social media accounts unless
the original user has indicated consent to disclosure in a will, trust, power of attorney, or
other record, such as an online tool.
- Four Categories of Digital Assets
- Personal Assets: include information generally found on a computer or
smartphone or uploaded to a Web site, such as photos, important personal
documents, playlists, and banking and medical records.
- Social Media Assets: include Web sites where you connect with others, such as
Facebook, Twitter, gaming sites, and blogs. These accounts can include personal
information, photos, and videos.
- Financial Assets: include online bill payment, banking and investing accounts, as
well as other business-related accounts, such as sites through which you make
purchases or sales.
- Business Accounts: include business-related records (e.g., online databases for
storing documents) and other information, such as notes about clients (for
lawyers) or patients (for physicians).
- Although most of probate law is state-based, federal laws protect the privacy of some
forms of digital assets, and copyright law protects some of the information an individual
may hold in a digital account. Moreover, digital accounts have their own terms of service
that may preclude transfer of the underlying assets—or the passwords. These issues
make digital asset planning somewhat more complicated.
Agents vs. Conservators
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Several differences exist between conservators appointed by a court and agents of a power of
attorney: (i) it takes a court action to begin and end a conservatorship, but a power of attorney
can be initiated or revoked at any point; (ii) conservators are appointed only upon incapacity of
the principal, but powers of attorney can only be established while the principal has capacity;
and (iii) conservators are subject to court supervision, but agents are not.
i) Revocable Trusts
- Another important difference between agents and conservators is that they do not have
the same authority with respect to revocable trusts.
- the UTC tries to limit disruption of the settlor’s estate plan by providing safeguards for
revocation or modification by both an agent and a conservator.
- Note that even if the revocable trust document specifies that a conservator shall not
have the power to revoke, a court may nonetheless approve the revocation “if it
concludes that the action is necessary in the interests of justice.”
In re Franzen [Colo. 1998]

[the court similarly permitted an agent acting under a power of attorney to revoke a trust.]
Facts: On February 4, 1992, James Franzen, a terminally ill settlor, executed an instrument
creating a trust designed to provide for himself and his wife, Frances Franzen, in their old age
and named Norwest Bank, (then United Bank of Denver) as the sole trustee; their nephews
were named as remaindermen of the trust
-The corpus of the trust consisted of 3 bank accounts (total-$74,251.19), but it did not include certain
other assets held by Mr. and Mrs. Franzen as joint tenants, such as the family home.
-James died four months later
-following his death, a trust officer at the bank sent a letter to Frances Franzen, who was living in a
nursing home, notifying her that she had “certain rights regarding the trust” (per Art. 5.1) and included a
copy of the trust agreement.
-Article 5.1, which states:At [James’s] death, if Frances survives [him], she may direct [the] trustee in
writing to deliver the residuary trust estate to her within three months of [James’s] death. If she does not
so direct, this trust shall continue to be administered as provided in Article 3. If she so directs, the trust
shall terminate on the date the trust estate is distributed to her.
-The letter asked Francis for a decision in writing by August 1, 1992, “so that we have time to make
arrangements for the transfer of assets if necessary.”
-Mrs. Franzen signed and dated the note on July 14, 1992, and wrote “I wish to leave the trust intact for
my lifetime.”
-The bank was worried about the disposition of the then vacant house and other assets not included in the
trust, contacted Mrs. Franzen’s nephews.
- The nephews were reluctant to assume responsibility for Mrs. Franzen’s affairs, though, and Mrs.
Franzen’s brother, James O’Brien, intervened by moving Mrs. Franzen to a nursing home in Kentucky,
where he lived, and asked the bank to turn over Mrs. Franzen’s assets to him.
- the nephews expressed concerns about O’Brien’s motives to the bank; the bank declined to comply with
O’Brien’s request, and filed a Petition for Instruction and Advice in the Denver Probate Court (probate
court).
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- Before the hearing, O’Brien sent the bank a copy of a power of attorney purporting to authorize him to
act in Mrs. Franzen’s behalf and a letter attempting to revoke the trust and to remove the bank as trustee
(per Art. 6.2, Art. 8)
-Article 6.2 of the trust provides that after the death of James Franzen, Frances “may remove any
trustee,” and that “any removal under this ¶ may be made without cause and without notice of any
reason and shall become effective immediately upon delivery of written notice to the trustee” unless
Frances and the trustee agree otherwise.
-Article 8 of the trust agreement gives James Franzen “the right to amend or revoke this trust in whole or
in part by a writing delivered to the trustee. After my death, Frances may exercise these powers with
respect to the entire trust estate.”
PH: The bank filed a Petition for Appointment of a Conservator, asking the probate court to
appoint someone to manage and protect Mrs. Franzen’s assets.
-After a hearing, the probate court ruled that the power of attorney had created a valid agency but that the
trust had not been revoked and continued in existence.
-The probate court found that Mrs. Franzen needed protection, but a conservator was not available, so the
Court appointed the bank as “special fiduciary” with responsibility for both trust and non-trust assets
pursuant to [UPC §§5-408, 5-409]
-The court ordered the bank to use the assets to make payments for Mrs. Franzen’s benefit.
-Francis appealed the probate court rulings.
- On appeal, the court of appeals reversed- holding that the power of attorney authorized O’Brien to
remove the bank as trustee and to revoke the trust and held, that the bank was not liable for expenditures
made in good faith after receiving the removal and revocation letter, including the legal fees incurred in
the course of opposing O’Brien’s efforts.
Issue:
Holding: the court permitted an agent acting under a power of attorney to revoke a trust
- The basic rule recognized in these cases involving other actions under powers of
attorney logically might extend by analogy to situations where a power of attorney gives
an agent wide authority to make decisions on behalf of the principal but makes no
mention of the power to alter the principal’s rights under any trust.
- - the scope of the agent’s authority under the common law in such circumstances would not
extend to revocation of a trust established to benefit the principal.
- - we are not persuaded that under the common law, an agency instrument must expressly refer to
a particular trust by name in order to confer authority on the agent to revoke it.
- -Under the reasoning of the cases previously cited, the terms of the power of attorney need only
evince an intention to authorize the agent to make decisions concerning the principal’s interests in
trusts generally, not necessarily a particular trust.
- - Section 1(c) of the power of attorney executed by Mrs. Franzen expressly authorizes O’Brien to
“manage and in any manner deal with any real or personal property, tangible or intangible, or any
interest therein in my name and for my benefit, upon such terms as [O’Brien] shall deem proper,
including the funding, creation, and/or revocation of trusts or other investments.”
- -We have little trouble concluding that the quoted language expressly authorizes O’Brien to
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revoke the Franzen trust, even though it does not mention the trust specifically by name.
Problems [677]
1. You are a member of your state bar’s Elder Law Committee, and the committee is
considering whether a conservator or someone acting under a power of attorney should
be able to amend a revocable trust or other will substitutes. What policies would you
consider, and what would you recommend? Would you recommend making revocable
trusts irrevocable if the settlor were found to be incapacitated?
Sort of a double-edged sword. From a policy perspective, we do want
conservators or agents with POA to be able to manage a revocable trust to make changes in the
way that is best for the principal. Alternatively, allowing conservators or agents w/ POA to make
changes to revocable trusts or will substitutes may open the floodgates to a considerable
degree of fraud. We should allow a change to a revocable trust, but not to a will. I’m really not
sure if I would recommend making revocable trusts irrevocable if the settlor became
incapacitated.
2. Marian has two children, Delilah and Sanford. She gets along well with Delilah, but she
is estranged from Sanford, and when she executes her will she leaves her entire estate
to Delilah. When Marian begins to need more care, Sanford moves her to the state
where he lives. She signs a power of attorney, naming him as her agent. He then
transfers the money in her bank to an account in his name. He tells Delilah he will use
the account for Marian’s care.
a. Advise Delilah. Is there anything she can legally do? Is there anything she should
do?
I don’t think there’s anything Delilah can do other than encourage her mother to
revoke his POA. Delilah is set to inherit her mother’s estate, but she doesn’t have
a right to that estate yet.
b. If you represented the bank where Marian’s bank account is located, would you
allow Sanford to withdraw the money?
Because Sanford claims to be using it for Marian’s care, there’s no evidence of
bad faith. As such, I think I would be required to let him withdraw the money.
c. Now assume that Marian had created a revocable trust before she became ill.
After Sanford became Marian’s agent under the power of attorney, he revoked
the trust. Advise Delilah.
I would advise Delilah to check to see if there is language in the trust that allows
the agent to revoke the trust. If there isn’t, I guess she can intervene? Even so,
Under Franzen I think Delilah is SOL without any bad faith on part of Sanford.
d. If you represented the bank that is serving as trustee of Marian’s trust, what
would you recommend when Sanford revokes the trust?
To find a better trustee...but seriously, under the Franzen case, I don’t think the
bank can do anything about it absent bad faith on part of Sanford.
Schiavo
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Facts: Theresa Marie Schindler was born on December 3, 1963, and lived with/near her parents
in Pennsylvania until she married Michael Schiavo on November 10, 1984. Michael and
Theresa moved to Florida in 1986. They were happily married and both were employed. They
had no children.
In 1990, Theresa suffered a cardiac arrest as a result of a potassium imbalance. From 1990
until Theresa died, she never regained consciousness and lived in nursing homes with constant
care. She was fed/hydrated by tubes. She had numerous health problems, but none life
threatening.
The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is

important to understand that a persistent vegetative state is not simply a coma. She is not
asleep. She has cycles of apparent wakefulness and apparent sleep without any cognition or
awareness. As she breathes, she often makes moaning sounds.
Over the span of the decade, Theresa’s brain deteriorated because of lack of oxygen. Her
cerebral cortex was replaced by cerebrospinal fluid. Medicine would not have cured the
condition.
Over the years, her parents and Michael didn’t abandon her. Michael continued to care for her
and visit over the years, and became a professional respiratory therapist working at a nearby
hospital. He always attempted to provide the optimum treatment for his wife, and was a dilligent
watch of Theresa’s care.
PH: Robert and Mary Schindler, the parents of Theresa Marie Schiavo, appeal the trial court’s
order authorizing the discontinuance of artificial life support to their adult daughter. Michael
Schiavo, Theresa’s husband and guardian, petitioned the trial court in May 1998 for entry of this
order. We have carefully reviewed the record. The trial court made a difficult decision after
considering all of the evidence and the applicable law. We conclude that the trial court’s decision
is supported by competent, substantial evidence and that it correctly applies the law.
Accordingly, we affirm the decision.
- This lawsuit is affected by an earlier lawsuit. In the early 1990's, Michael Schiavo, as
Theresa’s guardian, filed a medical malpractice lawsuit. That case resulted in a sizable
award of money for Theresa. This fund remains sufficient to care for Theresa for many
years. If she were to die today, her husband would inherit the money under the laws of
intestacy. If Michael eventually divorced Theresa in order to have a more normal family
life, the fund remaining at the end of Theresa’s life would presumably go to her parents.
- Since the resolution of the malpractice lawsuit, both Michael and the Schindlers have
become suspicious that the other party is assessing Theresa’s wishes based upon their
own monetary self-interest. The trial court discounted this concern, and we see no
evidence in this record that either Michael or the Schindlers seek monetary gain from
their actions.
Issue: The Schindlers have raised three legal issues that warrant brief discussion.
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- First, the Schindlers maintain that the trial court was required to appoint a guardian ad
litem for this proceeding because Michael stands to inherit under the laws of intestacy.
- Second, the Schindlers argue that the trial court should not have heard evidence from
Beverly Tyler, the executive director of Georgia Health Decisions.
- Finally, the Schindlers argue that the testimony, which was conflicting, was insufficient to
support the trial court’s decision by clear and convincing evidence.
Holding:
1. Because Michael Schiavo and the Schindlers could not agree on the proper decision
and the inheritance issue created the appearance of conflict, Michael Schiavo, as the
guardian of Theresa, invoked the trial court’s jurisdiction to allow the trial court to serve
as the surrogate decision-maker.
2. There is some risk that a trial judge could rely upon this type of survey evidence to make
a “best interests” decision for the ward. In this case, however, we are convinced that the
trial judge did not give undue weight to this evidence and that the court made a proper
surrogate decision rather than a best interests decision.
3. We have reviewed that testimony and conclude that the trial court had sufficient
evidence to make this decision. The clear and convincing standard of proof, while very
high, permits a decision in the face of inconsistent or conflicting evidence.
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Facts:
-Theresa Marie Schindler was born in Dec. 1963, and lived with or near her parents in PA until
she married Michael Schiavo in Nov. 1984.
-Michael and Theresa were married, moved to Florida in 1986 and were both employed. They had
no children.
-On February 25, 1990, Theresa (age 27) suffered a cardiac arrest as a result of a potassium
imbalance.
-Michael called 911; Theresa was rushed to the hospital but never regained consciousness.
-Since 1990, Theresa has lived in nursing homes with 24/7 care; she is fed by tubes; she suffered
from numerous health problems, including incontinence, none of which were life threatening.
-the evidence indicates that Theresa was in a persistent vegetative state (not simply a coma)
-She had cycles of apparent wakefulness and apparent sleep without any cognition or awareness;
she could breathe and often made moaning sounds.
-She had contractures of her hands, elbows, knees, and feet.
-Over the span of this last decade, her brain deteriorated because of the lack of oxygen it suffered
at the time of the heart attack.
- By mid-1996, the CAT scans of her brain showed a severely abnormal structure.
*Medicine cannot cure this condition, she would remain in an unconscious, reflexive state, totally
dependent upon others to feed her and care for her most private needs.
-She could, however, remain in this state for many years.
- Michael continued to care for her and to visit her; he became a prof. respiratory therapist and
works in a nearby hospital.
-In the early 1990's, Michael Schiavo, as Theresa’s guardian, filed a medical malpractice lawsuit,
resulting in a sizable amt of money for Theresa, sufficient to care for Theresa for years.
- If she were to die today, her husband would inherit the money under the laws of intestacy, if,
however, eventually he divorced Theresa, the fund remaining at the end of Theresa’s life would
presumably go to her parents.
(Since the malpractice lawsuit, both Michael and the Schindlers became suspicious that the other
parties assessed their own monetary self-interest)
-The trial court rejected this concern
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Proc. Hist.:
-Michael and the Schindlers simply cannot agree on what decision Theresa would make today if
she were able to assess her own condition and make her own decisionà Michael has not been
allowed to make a decision to disconnect life-support and the Schindlers have not been allowed to
make a decision to maintain life-support.
-Michael Schiavo, Theresa’s husband and guardian, petitioned the trial court in May 1998 invoked
the trial court’s jurisdiction to allow the trial court to serve as the surrogate decision-maker.
-Robert and Mary Schindler, the parents of Theresa Marie Schiavo, appeal the trial court’s order
authorizing the discontinuance of artificial life support to their adult daughter.
- The Schindlers have raised three legal issues: (1) that the trial court was required to appoint a
guardian ad litem for this proceeding because Michael stands to inherit under the laws of
intestacy; (2) they argue that the trial court should not have heard evidence from Beverly Tyler,
the executive director of Georgia Health Decisions; (3) they argue that the testimony, which was
conflicting, was insufficient to support the trial court’s decision by clear and convincing evidence
Issue:
Holding:
We conclude that the trial court’s decision is supported by competent, substantial evidence and
that it correctly applies the law.
-Accordingly, we affirm the decision.
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Reasoning:
-(1) that the trial court was required to appoint a guardian ad litem for this proceeding because
Michael stands to inherit under the laws of intestacy
- When a living will or other advance directive does not exist, it stands to reason that the
surrogate decision-maker will be a person who is close to the patient and thereby likely to
inherit from the patient.
-the fact that a surrogate decision-maker may ultimately inherit from the patient should not
automatically compel the appointment of a guardian.
-HERE- Each party in this case, might have been a suitable surrogate decision-maker for
Theresa.
-(2) they argue that the trial court should not have heard evidence from Beverly Tyler, the
executive director of Georgia Health Decisions
- per her testimony, most people, even those who favor initial life-supporting medical
treatment, indicate that they would not wish this treatment to continue indefinitely once their
medical condition presented no reasonable basis for a cure.
-There is some risk that a trial judge could rely upon this type of evidence to make a “best
interests” decision for the ward.
-HERE- the court believed that the trial judge did not give undue weight to this evidence and
that the court made a proper surrogate decision rather than a best interests decision.
-(3)- they argue that the testimony, which was conflicting, was insufficient to support the trial
court’s decision by clear and convincing evidence
-
Quimbee:
Rule of Law
To overcome the default position erring on the side of life, a trial court acting as surrogate
decision maker must conclude by clear and convincing evidence that a ward in a long-time
persistent vegetative state with no hope of a medical cure would want life-prolonging treatment
to cease.
Facts
Theresa Schiavo had lived with or near her parents for the majority of her life until she married
her husband, Michael. The couple moved to Florida and in 1990, at the age of 27, Theresa
suffered cardiac arrest and was rushed to the hospital. She never regained consciousness. She
was in a permanent or persistent vegetative state with a complete lack of consciousness or
awareness, but did not have a life-threatening condition. She had never completed a will, living
will, or advance directive indicating her wishes. She was raised Catholic, but had no religious
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advisor. Prior to her condition, Theresa’s discussions with family and friends regarding what she
would want if she were in her current state were minimal. For 10 years, she lived in nursing
homes completely unable to care for herself, including eating and drinking. A CT scan of her
brain showed significant deterioration as a result of the oxygen deprivation at the time of the
cardiac arrest. She only had slight instinctive neurological functions. Michael continued to care
for her, never divorced her, and was diligent in ensuring that Theresa received proper treatment.
Similarly, Theresa’s parents visited her often and prayed for a miracle. The two parties
disagreed on what Theresa would have wanted regarding the continuation or cessation of life-
prolonging treatment. They also distrusted each other, in part, because Michael, as Theresa’s
guardian, received a large financial award from a medical malpractice action filed on her behalf.
If she were to die, the money would go to Michael. If he divorced Theresa, the funds would likely
go to her parents upon her death. Both Michael and Theresa’s parents suspected each other of
having financial-based motives. In 1998, a trial court granted Michael’s petition to have
Theresa’s life-prolonging treatment stopped. Theresa’s parents immediately appealed the
removal of artificial life support.
Issue
May the termination of life-prolonging treatment be granted for a patient who has been in a
persistent vegetative state for over 10 years that has deteriorated significant brain tissue,
robbed her of neurological functions, and left her completely unable to care for herself in a
unconscious and unaware state?
Holding and Reasoning (Altenbernd, J.)
Yes. There is sufficient evidence concluding that Schiavo is in a permanent or persistent

vegetative state. It is apparent that “unless an act of God, a true miracle, were to recreate her
brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon
others to feed her and care for her most private needs. She could remain in this state for many
years.” A Florida trial court may act as a surrogate decision maker if requested to examine
evidence and decide by clear and convincing evidence whether Theresa would want life-
prolonging treatment to cease. The appointment of a guardian ad litem to represent the interests
of Theresa is not required here. The trial court filled that role. In that role, the trial court gave due
consideration to all the relevant testimony and evidence. Its decision is affirmed.
Problems [684]
1. The following case is before Judge Johnson of the Columbia state court. You are Judge
Johnson’s law clerk, and the judge has requested your advice on the appropriate ruling.
What advice will you provide?
Amy Chen suffered severe brain damage when she almost drowned at a beach.
When she was brought to the hospital by her friend, she was in a coma. Her
husband, Joe, was in Iraq when this happened and could not be reached
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immediately. The doctors thought she had a 50/50 chance of a full recovery if
they drilled a hole in her cranium to relieve the pressure. Amy’s mother gave
permission. Although the doctors managed to save her life, she did not come out
of the coma. She has been in this condition for five months, is fed through a tube,
and it is undisputed that she will never regain consciousness. Amy, who is 40
years old, has two young children, who are 5 and 7 years old. Joe returned from
Iraq and has asked the hospital to withdraw life support because when the
couple had discussed the possibility of being unable to make decisions for
themselves, Amy said she “never wanted to be kept on life support if she were a
vegetable and things looked hopeless.” Amy’s parents, however, argue that Amy
should be allowed to continue living and that she would not want her treatment
ended if she were competent today. Her father cited the family’s Catholic faith
and testified that he believed that Amy agreed with him when he had stated that
“God, not doctors, can decide when one’s life is over.” Caroline, Amy’s best
friend, also testified that after she and Amy saw a movie involving a character in
a vegetative state, Amy told Caroline that she “hopes [she is] never in a similar
state and that her relatives would make the right decision for her.”
Statutes say that we should prefer life. There is a clear and convincing evidence
standard to end someone’s life when they are incapacitated.
Alternatively, the statements that she made to her husband and her friend may
be enough to satisfy the requirement, though we may need more context
surrounding those statements.
2. Consider what factors should most heavily influence a surrogate in deciding whether to
terminate a patient’s life under either a substituted judgment or a best-interests standard.
How would you gather evidence if you were a surrogate decision maker for an individual
on life support? What is the role of religious beliefs? See Richard L. Kaplan, Religion
and Advance Medical Directives: Formulation and Enforcement Implications, ___ ILL. L.
Rev. ___ (forthcoming 2016).
I. The wishes of the incapacitated party.

II. The standard of living that the incapacitated has, or would ever have if
they somehow regained capacity.
III. Chance of regaining capacity.
IV. Expression of religious beliefs that would take a stance on the issue.
Speak to healthcare providers to ascertain the possibility to recover and the
quality of life if recovery somehow becomes possible. Gather evidence by speaking with friends
of family with whom the incapacitated party has shared their beliefs, opinions, or plans; see if
the party has written any health directives in advance.
Religious beliefs should play an advisory role. Sometimes individuals follow
many tenets of a religion without subscribing to all of it, and may have personal feelings that
would overpower the typical religious beliefs.
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Schell v. Department of Public Welfare (Pa. 2013) [693]
Facts: Weston Schell, Dorothy Schell’s husband, died on Aug 28, 2001. Decedent’s will
established a trust on Sept. 13 2001, for the benefit of Dorothy. PNC Bank as the trustee. The
terms of the Residuary Trust directed the trustee to pay or apply the net income of the trust to or
for the benefit of Dorothy not less often than quarter-annually. Additionally, the trustee shall also
pay or apply so much of the principal for the benefit of Dorothy and any of the children born to or
adopted by Dorothy and Weston, or their issue, as the trustee shall deem necessary and proper.
Dorothy is the primary beneficiary of the trust, and her needs should be provided before
anything is given to Weston’s children, Cynthia and William. Additionally, the will provided that if
the trustee, in its sole discretion, determined that it would be impractical to administer any fund
under any trust created in the will, the trustee without further responsibility, may pay the fund to
the person then eligible to receive income therefrom--
PH: Dorothy, petitioner, petitions for review of the January 17, 2013 final administrative action
order of the Department of Public Welfare affirming the order of an ALJ recommending the
denial of Petitioner’s appeal from the determination that she was ineligible for Medical
Assistance Long Term Care benefits from Jan 28 2011 to Aug 16 2012. Affirmed.
Issue: whether a beneficiary’s renunciation of her right to the remaining principal in a terminated
residual trust, originally created by will, constitutes a transfer of assets for less than fair
consideration thereby affecting eligibility for Medical Assistance Long Term Care benefits?
Problem [705-706]
Carla called to ask you to represent her to redraft estate planning documents that she last
revised three years ago. In your initial phone conversation, you learn that Carla is an 80-year-
old woman who lives independently. Her husband died several years ago, and she has two
daughters, Donna and Maria, but they live out of town and only visit her occasionally. Carla
arrives with her daughter, Donna, who remains in the waiting area while Carla is in your office.
As you begin to explain the types of steps that Carla might consider, she interrupts, asking,
“Who are you?” When you explain that you are a lawyer who can help her plan for her future,
she shouts out, “I don’t need you.” What should/would you do? How do you feel about drafting
her will? What steps should you take with respect to her competence? What other things might
you consider doing for her?
Problem [711]
Your new clients, Mel and Devon, have two children: Georgia, age 13, and Dakota, age 8.
Among other issues of estate planning, Mel and Devon would like to designate guardians for
their children in case of their deaths or incapacity. How will you counsel them? What documents
would you recommend they need?
I would recommend that they draft a will with a guardianship provision and detail in that will how
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the guardians should distribute any assets to their children. Additionally, I would recommend
that they set up a trust in the will for the children where the guardians manage that trust, so the
assets do not all go to the children if their parents die while they’re still minors?????? I have no
fucking idea.
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Class 26
A. Introduction
Most people do not need to engage in sophisticated planning to avoid estate, gift, and
generation-skipping transfer (GST) taxes, referred to collectively as “transfer taxes.” This
is because there are generous transfer tax exclusions, deductions, and credits, roughly
$5.5 million for one person, and $11 million for a married couple.
There are quite a few legal steps available to minimize or eliminate the transfer tax bite.
Indeed, with the many techniques available, tax professionals frequently refer to transfer
taxes as a voluntary tax because much of it can be avoided with proper planning
IRC treats married couples differently than single people.
B. The Politics of Taxing Transfers of Wealth

Arguments against/for taxes
Arguments Against Tax Repsonses
The estate tax is best characterized as a The estate tax does not tax all deaths.
“death tax.” Very few estates are subject to the estate
tax. Only the estates of the wealthiest
0.2% of Americans—roughly 2 out of
every 1,000 people who die—owe any
estate tax.
The estate tax rate is too high, with the Among the few estates nationwide that
top statutory rate being 40%. owed any estate tax in 2013, the effective
tax rate averaged 16.6% because there is
no tax on the amount below the generous
exclusion amount. This is far below the
top statutory rate of 40%.
Many wealthy estates develop and exploit The use of careful tax planning
loopholes in the estate tax that allow them mechanisms, such as Grantor Retained
to pass on large portions of their estates Annuity Trusts, enables estates to avoid
tax-free. These strategies do not benefit extraordinary amounts of tax.
the broader economy; they only allow the
wealthiest estates to avoid taxes.
The estate tax targets small businesses Only a handful of small, family-owned
and small family-owned farms, requiring farms and businesses owe any estate tax
their liquidation to pay the tax. at all, and the average tax rate among
them is very small. The few estates
without the liquidity to pay the tax have
the option to spread payments over a 15-
year period at low interest rates.
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The public and private costs of estate tax The costs of estate tax compliance are
compliance are significant. relatively modest and are consistent with
the costs of complying with other taxes.
Compliance costs equal about 7% of
estate tax revenues—well within the
range of compliance costs for other taxes.
The United States taxes estates more Measured as a share of the economy,
heavily than do other countries. U.S. estate tax revenues are below the
average for taxes on wealth transfer
among the members of the Organization
for Economic Cooperation and
Development.
The estate tax unfairly punishes success. The estate tax affects only those most
able to pay, and the funds it raises help
support a range of essential programs
that benefit the nation. If the estate tax
were weakened or repealed, other
taxpayers would foot the bill for these
programs, face cuts in the benefits and
services provided, or bear the burden of a
higher national debt.
Problem
Others? In addition to the arguments against the estate tax and the responses discussed
above, how would you respond to these frequent complaints?
1. The estate tax constitutes ‘‘double taxation’’ because it applies to assets that
already have been taxed once as income.
That’s circular logic; when you buy and sell goods, you pay for taxes on both
ends. Now that the assets are for a different purpose, i.e., transfer instead of
income, there are taxes for a different purpose.
2. The estate tax generates less than 1% of the annual federal revenue, doing little
to address the country’s long-term fiscal needs.
It’s only taxing a small portion, .2%, of people.
3. Eliminating the estate tax would encourage people to save and thereby make
more capital available for investment.
I can’t imagine there’s any data on this.
C. Introduction to Transfer Taxes

The three transfer taxes at the federal level in the Code are the estate tax, gift tax, and
generation-skipping tax (GST).
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Taxes
Estate Tax Gift Tax Generation Skipping Tax

(GST)
Imposed on the transferor Imposed on the transferor Complement the estate tax
or his estate on the act of or his estate on the act of regime.
gratuitously transferring gratuitously transferring
property or a financial property or a financial Prevents folks from giving
benefit to another person benefit to another person away unlimited amounts of
during life or at death; i.e., during life or at death; i.e., property during their
when property ownership is when property ownership is lifetimes to avoid estate tax
gifted from one person to gifted from one person to
another. another.
At the core of federal Complement the estate tax

transfer taxation regime.
Prevents folks from giving

away unlimited amounts of
property during their
lifetimes to avoid estate tax
The amount of a transfer subject to tax is the difference between the fair market value
(FMV) of property gifted or devised and any monetary consideration received.
FMV of property gifted/devised - any monetary consideration received = amount of a

transfer subject to tax
FMV: “the price at which the property would change hands between a willing buyer and a
willing seller, neither being under any compulsion to buy or sell and both having
knowledge of relevant facts.”
If the transfer occurs during the donor’s life, FMV is determined on the date of the gift; if
the transfer occurs at death, the property is valued at date of death
D. Income Tax Issues Related to Estate Planning
E. Taxation of Estates
Problems [746]
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1. Unless stated otherwise, you should assume that Tomasita is the decedent. She is
survived by her spouse (Humberto), their daughter (Delia), their son (Spencer), their
grandchild (Georgia), and Tomasita’s sister (Sally). As to each of the following fact
situations, answer these three questions. (You may find it easier to do this with a
spreadsheet listing the questions at the top and the factual situations going down along
the side.)
C. Taxed @ DOG FMV (less annual exclusion); nothing to tax @ death

D. because she retained income, the entire corpus is considered for estate tax
Facts Probate
1)a.i.
a.ii
a.iii.
b.i
b.ii
b.iii
c.
d. non-probate §2036-transfer happens on death, its an

estate tax not, included gross estate
e.
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i. Is the asset probate property or nonprobate property of the decedent?

(This is for review of material covered in Chapter 4, and to contrast the
differences between the probate estate and the taxable estate.)
ii. Is there a transfer subject to gift tax and, if so, in what amount?
iii. At death, is there a transfer subject to estate tax and, if so, in what
amount?
b. At her death, Tomasita had an ownership interest in a $1 million house and other
real and personal property. Tomasita died with a valid will, leaving all her property
to Humberto. Answer the questions assuming:
i. Tomasita owned the house and all the other property in fee simple.
ii. Tomasita owned the house and other property as a tenant in common
with Sally.
iii. Tomasita and Spencer owned the house and other property as joint
tenants with right of survivorship. Many years ago, Tomasita bought the
property with her own funds and titled it in joint tenancy with Spencer.
c. Ten years before her death, Tomasita gifted stock worth $100,000 to Spencer in
fee simple. Tomasita died this year; the stock was worth $175,000 on her date of
death.
d. Ten years before her death, Tomasita created an irrevocable trust to which she
transferred $400,000 of stocks. She named Sally as the trustee. Tomasita is
entitled to all the income from the trust for her life, paid monthly, and on her death
the corpus is distributed to Spencer, if living. If Spencer does not survive
Tomasita, the corpus is to be distributed to Georgia or her estate. Assume that at
the time Tomasita funded the trust, the actuarial value of Tomasita’s interest is
$250,000 and the remainder interest is $150,000. At her death, the trust corpus is
worth $1 million.
i. Nonprobate
ii. Not taxed to put into a trust, but it’s taxed upon death--
1. Tr a n s f e r wi th r i gh t re ta i n e dby D to income from or
use of property**Ta x a b l e t o e x t e n tof FMV @ DOG,
less IRS-actuarial value for retained interest*Included in GE
per §2036 atFMV @ DOD if D dies with retained interest to
extent D could draw income*#
e. Using the facts in (d), would anything be included in Spencer’s gross estate if he
was the first to die, survived by Tomasita, Sally, Delia, and Georgia?
i. Would anything be included in Georgia’s gross estate if she was the first
to die instead?
f. Ten years before her death, Tomasita created a revocable trust and transferred
$400,000 of stocks and bonds to herself as trustee, with Sally specified as
successor trustee upon her death or disability. Tomasita named herself the
income beneficiary while she was alive. On her death, the trust is to terminate
and the principal is to be distributed to Spencer.
i. Tomasita dies. At her death, the trust corpus is worth $1 million.
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ii. In each of the last five years, Tomasita invaded the trust and gave
Georgia $20,000.
g. Tomasita owned a $1 million whole life insurance policy on her own life. The
primary beneficiary is Spencer; the second beneficiary is Tomasita’s estate. What
happens on Tomasita’s death?
i. What if Tomasita had transferred ownership of the policy to Spencer six
years ago when its cash surrender value was $75,000? Two years ago?
2. For each of the following questions, determine the deduction or credit. Assume
Tomasita’s gross estate is $15 million. Is a deduction or credit available and, if so, in
what amount? For purposes of this question, assume the unified credit will allow $5
million to pass tax-free.
a. Tomasita leaves everything to her surviving spouse, Humberto.
i. Marital deduction--can leave the entire estate to spouse???
b. Tomasita leaves $5 million in trust income to her children and, on the death of the
last child, the remainder to her grandchildren to be distributed per stirpes. The
balance of the estate is left to Humberto in fee simple.
i.
c. Tomasita leaves the entire $15 million in trust, income payable quarterly to
Humberto. On the death of Humberto, income is to be paid to her children and,
on the death of the last child, the remainder is to be distributed to her
grandchildren per stirpes. The trust authorizes the trustee to invade corpus as
needed for Humberto’s comfort and support.
i. Does your answer change if the personal representative makes a QTIP
election as to $10 million in the trust (QTIP trust) but not as to the other
$5 million?
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ii. Assume the election is made as in the previous question. Humberto dies
12 years later. The value of the principal in the QTIP and credit shelter
trusts at Humberto’s death is $12 million and $7 million, respectively. With
respect to these trusts, what, if anything, is included in Humberto’s
estate?
239

Wills Trusts Estates

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What is the difference between probate and nonprobate assets?

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What are some estate planning tools discussed besides wills?

What are some estate planning tools discussed besides wills?

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Wills Trusts Estates - WTE Outline

Wills Trusts Estates (American University (USA))

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Will drafting exercise: October

Donative intent: who are you required to leave assets to?

Michael Jackson’s Will

Wills become public records after death

Introduction to Estate Planning and the Lawyer’s Roles

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B. The Legal System Governing Trusts and Estates

2. The guiding principle in estate planning and estate administration is effectuating

2. The Emergence of Will Substitutes

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the right to possession or enjoyment of the property or to a contractual payment outside

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3. The Probate Process

The probate estate comprises

The probate process is intended to perform several useful functions. An executor is

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requirement to account to the court is supposed to keep the personal representative

C. Testamentary Freedom and Limitations on “Control From the Grave”

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constitutional dimensions to his choice of beneficiaries.

2. Dead hand control and public policy.

D. The Professional Standards Associated with Estate Planning

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Holding: No, no duty.

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- the moral blame attached to the defendant’s conduct, and

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Dissatisfaction with the Attorney

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Chapter 2: Inheritance and Relationship

The question of who constitutes a “family member” is essentially a question of status.

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(24) “Issue” of an individual means descendant.

UPC §2-103. Share of Heirs Other than Surviving Spouse.

(1) to the decedent’s descendants by representation; . . . [Emphasis added.]

UPC §2-705. Class Gifts Construed to Accord with Intestate Succession;

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Posthumous Conception and Frozen Embryos

The status of posthumously conceived children affects their entitlement to Social

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Holding: No--state law prevails

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in the traditional state-law realm of family relations.

132 S. Ct. 2021 (2012)

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the decedent under state intestacy law?

Holding and Reasoning (Ginsburg, J.)

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e. Foster and Stepchildren