T & E

Front 1

What is an Estate

Back 1

-Assets held by a decedent.

-Separate legal entity.

- Purpose: funnel net assets to successors

-Who receives the assets? Testate: will beneficiaries. Intestate: heirs

Front 2

What is a Trust

Back 2

- Also a separate legal entity
- How created: Testamentory trust: created by a will; Intervivos Trust: created during life

Ex: Assume T owns a house, wants to give it to his child (A) and grandchild (B).

Options: outright transfer; transfer life estate to A, remainder to B; transfer title to trust w/rights directed to trustee to allow A for life(income interest) and remainder to B.

Trusts separate title into legal title(trustee) and beneficial title(A & B).

Front 3

What is Probate and WHy Does Everyone Want to Avoid It?

Back 3

Assume Dolores dies, with 500K in assets (house, stocks, etc.). SHe has two children, no spouse.

How do we get title from Dolores to her children? We need some intervening procedure that allows those beneficieaies to get good title. After death, assets will become part of Probate Estate and those assets will be administered to heirs.

Front 4

Probate Process: How does it begin?

Back 4

-Decedent left a will: Petition for "letters testamentary"; Executor appointed by court; Usually nominated by will

-Decedent left no will: Petition for "letters of administration"; "Administrator" appointed by court; Usually heir or other family member

Front 5

Probate Process: What does teh "Personal Representative" do?

Back 5

-Notify creditors: shortened statute of limitations
-Marshall assets: file inventory w/court
-Pay off debts, file and pay taxes if required
-Petition court for authority to distribute
-....account for activity during probate
-....distribute assets to beneficiaries or heirs
-All subject to supervision by the court

Front 6

Is Probate always necessary?

Back 6

No, with joint tenancy you can avoid probate; life insurance also doesn't have to go through probate; or give assets away during life (intervivos gifts) or transfer assets to a revocable living trust.

Front 7

Testamentary Freedom. What does it mean?

Back 7

Freedom to pass your assets in any way you like.
The rationale is you might become less economically productive if you couldn't distribute your property the way you like.

Is it unlimited? No, there is a federal estate tax. Transfer taxes: 40% on excess of $5 million. The rationale is that you should give something back and notion that we should begin on an even playing field; Elective shares: not allowed to completely cut out your spouse unless your spouse otherwise agrees.

Other limits?

1) Can T leave one of his children out of his will if he doesn't approve of his lifestyle? Yes
2) Can T leave part of his estate to one of his children only if stays clean for 2 years after his death? Yes
3) Can T leave part of his estate to his son only if his son is married to a Jewish woman when T dies?

Front 8

Estate of Feinberg

Facts: Max Feinberg created a trust in which he declared that any descendant of his — that is, any descendant other than his children — “who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.”

Back 8

Rule: 1) Testamentary provisions which act as a restraint upon marriage or which encourage divorce are void as against public policy.
2) Testamentary provisions cannot act to prospectively encourage beneficiaries to make certain choices regarding marriage.

Analysis: 1) This case does not involve a testamentary or trust provision that is capable of exerting a disruptive influence upon an otherwise normally harmonious marriage by causing the beneficiary to choose between his or her spouse and the distribution, and 2) the distribution plan adopted by Erla has no prospective application. Therefore, the beneficiary restriction clause does not violate public policy.

There's nothing here that's going to encourage divorce or discourage marriage b/c clause was simply taking status at the time of T's death.

Rule: Court weighs testamentary freedom versus encourage/discouraging marriage/divorce if inheritance is conditioned on an act after death.

Front 9

Ford v. Ford

Facts. Respondent murdered her mother by stabbing her 40 times. Under the criminal law she was found guilt of murder in the first degree, however she was also found not criminally responsible by reason of insanity. The trial court in which the will was admitted to probate ruled that Petitioner be declared the heir of the estate. On appeal the Circuit Court reversed and decided that Respondent was entitled to the property. Petitioner now appeals.

Issue. Can an individual who kills another share in the distribution of the decedent’s estate when the individual was insane at the time of the killing?

Back 9

Synopsis of Rule of Law. The “slayer’s rule”, which prevents an individual who commits a felonious and intentional homicide from sharing in the distribution of the decedent’s estate, is not applicable when the killer was not criminally responsible for their conduct at the time they committed the homicide.

Rationale for Slayer's rule? people shouldn't profit from their own wrongdoing; equity; deterrence; testator's intent

Front 10

Hotz v. Minyard

Facts: Minyard signed 2 wills on same day. 1st will gave Greenville dealership to son, 250K general bequests, balance in trust for wife for life, remainder to children in equal shares (Tommy's outright, Judy's in trust). Judy previously named successor to Anderson dealership. 2nd will gave Greenville land to Tommy, Greenville dealership to Tommy, otherwise the same.

P sued her father's lawyer on basis of breach of fiduciary duty.

Issue. Whether the decedent’s attorney breached his fiduciary duty to Appellant by following decedent’s wishes and not disclosing the existence of a second will to Appellant?

Back 10

Held. Reversed in part and affirmed in part.
Summary judgment was improperly granted because there was a factual issue presented as to whether the attorney breached his fiduciary duty to Appellant. Although the attorney represented the decedent and not the appellant, he did have an on-going attorney/client relationship with Appellant and there’s evidence that Appellant had a special confidence in him. Although the attorney owed no duty to disclose the existence of decedent’s second will, he owed Appellant the duty to deal with her in good faith and not actively misrepresent the first will.

There was a duty to P b/c attorney represented P in the past.

What should Attorney have done: 1) when the father asked to execute the 2nd will? no duty here; 2) when Judy asks to review the morning will? call the father to inform him of Judy's request; 3) At the March 87 meeting?

Front 11

Barcelo v. Elliott

i. F: decedent creates pour over will leaving all his assets to a trust for his children and grandchildren, trust fails bc it was never funded and decedents assets pass by intestacy, grandchildren sue lawyer for mal practice for failure of the trust

Back 11

H: judgment for atty, only client can sue the lawyer, no relationship/privity btw grandchildren and the lawyer that would allow them to recover (bright line rule → minority view)

Front 12

When do intestate statutes come into play?

Back 12

i. Decedent dies without a will
ii. Will does not adequately dispose of all the property to which remainder of assets pass by rule of intestacy
a. i.e. decedent’s will says “I leave all my real property to J” but decedent has only $20K in stocks and bonds
1) Stocks and bonds are distributed by intestate succession
iii. Will fails
iv. Dictates who has the right to complain about a will
a. If a contestant would be entitled to part of the estate by intestate succession has standing to contest a will
v. Will is unclear
a. i.e. Decedent’s will says “to the heirs of my daughter”
1) use rules of intestacy to determine who the daughter’s heirs are

Front 13

Estate of Goick

F: D dies 2 week after initiating divorce proceedings, no final decree of divorce is issue, surviving spouse received property. D’s mother and sibling brought suit. Trial court held for wife.

Back 13

iii. Rule: your are a surviving spouse until a final decree of divorce is granted
a. UPC §2-802 (pg 80) → person whose marriage has been terminated by divorce or annulment does not qualify as a surviving spouse
1) Surviving spouse does not include an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights
b. EPTL §5-1.2(a)(5), (6)(pg 80) → abandonment or failure to comply with an obligation to support a spouse terminates the right to take by intestate succession
iv. Rule: Only an heir within the meaning of the intestacy statute has the standing to contest an intestate proceeding or a will
a. (and a creditor)

ii. H: affirm judgment for wife, only mother has standing to sue bc of her creditor status, siblings have no standing, no issue of divorce to wife properly inherited estate through intestacy and was properly appointed the representative of the estate

Front 14

Estate of Locke


i. F: Decedent is survived by first cousins on mother’s side (4th degree of kinship) and first cousins once removed on father’s side (5th degree of kinship), lower court held that the estate is split btw both sets of cousins bc statute said to divide estate btw issue of maternal and paternal grandparents. First cousins appealed.
a. First Cousins → no representation is allowed to collaterals beyond the 4th degree

Back 14

ii. H: affirm judgment spitting estate, statute says first split estate in half btw issue of maternal and paternal grandparents and then further independent distribution of each half per capita, this is different then representation

Front 15

UPC 2-102

Back 15

Share of Spouse
(1) Entire estate to spouse if (A) no kids or parents, or (B) all the same kids and no other kids belong to surviving spouse
(2) 300K, plus 3/4th if (A) no decedents, but (B) a surviving parent
(3) 225K, plus ½ if (A) all the same kids, and (B) other kids that belong to surviving spouse
(4) 150K, plus ½ if (A) decedents are not related to surviving spouse
"

Front 16

Shares of Other Heirs – UPC §2-103

Back 16

1. Descendants
2. Parents
3. Sister/Brother
4. Grandparents (equally paternal/maternal) or aunt/uncle ← STOPS THERE

Front 17

Hypo on UPC §2-102 and EPTL §4-1.1: $300K Estate.

Decedent is survived by spouse and sibling, NO ISSUE

Back 17

a. UPC §2-102(1)(i) → entire estate goes to spouse
b. EPTL §4-1.1(a)(2) → all to spouse

Front 18

Hypo: ii. Decedent is survived by spouse, sibling and parent, NO ISSUE

Back 18

a. UPC §2-102(1)(ii) → surviving spouse gets the first $200K plus 75% of the remainder and the balance goes to surviving parent
1) Wife → $200K + 75% of remaining $100K ($75)=$275K
2) Mother → $25K
b. EPTL §4-1.1(a)(2) → entire estate goes to spouse

Front 19

Hypo: iii. Typical Family, Decedent is survived by spouse and their child

Back 19

a. UPC §2-102(1)(ii) → entire estate goes to spouse
b. EPTL §4-1.1(a)(1) → if decedent is survived by a spouse and issue, spouse gets first $50K and 50% of the balance and the rest goes to the issue
1) Spouse → $50K + 50% of $350K ($175K) = $225K
2) Issue → remainder of $175K
3) If a decedent doesn’t want their spouse to share the estate with their child → WRITE A WILL
4) This can be troublesome if the children are minors → need to create a custodianship for the assets

Front 20

Hypo: iv. Decedent is survived by spouse, issue from prior marriage AND issue with surviving spouse

Back 20

a. UPC §2-102(4)→ spouse gets first $100K plus 50% of the balance
1) Spouse → $100K + 50% of $300K ($150K) = $250K
2) Decedent’s issue with surviving spouse and issue from a prior marriage split remainder of $150K to get $75K each
3) The UPC is looking to protect the child from a prior marriage
a) The child of the decedent and the surviving spouse gets a windfall because she initially gets $75K and then gets whatever her father leaves her
b) Ensures that the child of a prior marriage of the decedent gets some of his mother’s estate
c) For the sake of fairness whatever one children gets the other gets
b. EPTL §4-1.1(a)(1) → surviving spouse gets $50K plus 50% of remainder of estate
1) Spouse → $50K + 50% of $350K ($175) = $225K
2) Decedent’s issue with surviving spouse and issue from a prior marriage split remainder of $175 into $87,500 each

Front 21

Hypo: v. Decedent is survived by issue with spouse, and surviving spouse; surviving spouse has a child from prior marriage

Back 21

a. UPC §2-102(3)→ spouse gets first $150K, plus 50% of the balance
1) Spouse → $225K + 50% of $175K ($87.5K) = $312.5K
2) Issue → $87.5K
3) Idea is to protect the issue of the decedent in case the surviving spouse prefer his issue from a prior marriage over the issue of the decedent
b. EPTL 4-1.1(a)(1) → spouse gets first $50K + 50% of balance
1) Spouse → $50K + 50% of $350K ($175) = $225K
2) Issue → $175K

Front 22

Hypo: vi. Decedent is survived by issue from surviving spouse, issue from prior marriage and surviving spouse; surviving spouse has a child from a prior marriage

Back 22

a. UPC §2-102(4) → spouse gets first $100K plus 50% of the balance
1) Spouse → $150K + 50% of $250 ($120) = $270K
2) Issue from surviving spouse and issue from prior marriage split remaining $150K into $75K each
b. EPTL 4-1.1(a)(1) → surviving spouse get $50K plus 50% of balance
1) Spouse → $50K + 50% of $350K ($175) = $225K
2) Issue from surviving spouse and issue from a prior marriage split remaining $175 into $87,500 each

Front 23

Hypo : Using the Family Tree described above, in each of the following situation how would X’s $120K estate be distributed under (a) Wyoming statute, (b) Pennsylvania statute, (c) UPC, and (d) EPTL.

Situation 1: All Children (A, B, C, and D) and Grandchildren G and L, predecease X

Back 23

1) Per Stirpes:
a) Divide estate at level of the children → 4 shares ($30K each)
i) A’s $30K share
(1) Divide btw his children → 3 shares ($10K each)
(a) E → $10K
(b) F → $10K
(c) G ‘s $10K share
(i) Divide btw his children N and O → 2 shares ($5K each)
ii) B’s $30K share → goes to only child H
iii) C’s $30K share
(1) Divide btw his children, I, J and K → 3 shares ($10K each)
iv) D’s $30K share → would have went to L but since L is dead it is split btw Q and U $15K each
2) Modern Per Stirpes:
a) Divide estate at level of the first generation with living descendents (Grandchildren) → 8 shares ($15K each)
i) E, F, H, I, J and K all get $15K
ii) G’s $15K → divide btw his children N and O ($7,500 each)
iii) L’s $15K → divide btw his children Q and U ($7,500 each)
3) UPC §2-106, EPTL §1-2.16:
a) Divide estate at level of the first generation with living descendents Grandchildren → 8 shares ($15K each)
i) Create as many shares as there are surviving members of that generation AND deceased members who leave surviving issue
ii) E, F, H, I, J and K all get $15K
iii) Remaining $30K of estate is divided equally among the surviving issue of the deceased grandchildren → 4 shares ($7,500 each to N, O, Q, and U)

Front 24

How remote do we go by distant relatives for intestate succession?

Back 24

i. Laughing Heir Statute → intended to cut off people who probably didn’t even know the decedent existed and are nothing but delighted at his death, states vary in this regards
ii. UPC §2-103(4) →stops at the issue of grandparents
iii. EPTL §4-1.1(a)(6), (7)→ stops at the great grandchildren of grandparents if no other less remote relative

Front 25

EPTL 4-1.1. Descent and distribution of a decedent's estate

Back 25

(a) If a decedent is survived by:

(1) A spouse and issue, fifty thousand dollars and one half of the residue to the spouse, and the balance thereof to the issue by representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.
(7) Great grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one half to the great grandchildren of the paternal grandparents, per capita, and the other one half to the great grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great grandchildren of grandparents on one side, the whole to the great grandchildren of grandparents on the other side, in the same manner as the one half.

Front 26

UPC 2-106. Representation. (Per Capita at Each Generation)

Back 26

makes first division at the level where someone is alive, but shares of deceased on that level are combined and dropped down to be divided equally among lower generation: [D=1/3] [2/3 divided among E F G]

Front 27

Hypo: D dies intestate survived by her husband and sister but no children, Husband dies two weeks after D, survived by his brother, how will D’s estate be distributed?

Back 27

a. D’s husband will succeed her entire estate,
b. at H’s death, the husband’s brother will take his entire estate
c. D’s sister gets nothing

Front 28

Estate of Villwock

F: Mr and Mrs Villwock dies in an accident, husband is pronounced brain dead several minutes before his wife, husband left a will leaving all his property to his wife and did not name anyone to take the property if his wife didn’t survive him, Wife left all her property to her family. H’s estate passes to W, who dies minutes later and W and H’s estate goes to W’s family. Daughter of husband from previous marriage claims simultaneous death, so she should be entitled to her father estate.

Back 28

H: the Couple did not die simultaneously based on the medical testimony, facts indicate H died before W
iii. Even though the both Mr and Mrs Willvock left wills the result is the same as if they died intestate
iv. What if the couple died two weeks apart?
a. Same result
b. This is why a properly drafted will ALWAYS has:
1) A residual clause, → naming an alternative taker AND
2) A survivorship provision → requiring a limited period of survivorship (anywhere from 30 to 60 days)

Front 29

UPC §2-104 Requirement that Heir Survive Decedent for 120 hours

Back 29

Provides survivorship provision for an intestate succession
a. Requiring 120 hours (5 days)
b. “an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent
ii. This section is designed to BOTH effectuate decedent’s intent AND avoid litigation over the precise moment of decedent’s death

Front 30

Hypo: H and W dies in an accident, H is killed instantly and W dies in an ambulance on the way to the hospital. Both dies intestate and each survived by four children from a previous marriage. H has an estate of $100K and W has an estate of $200K

Back 30

i. UPC §2-104: H and W are deemed to have predeceased each other since W did not survive 120 hours after H
a. H’s estate is distributed up btw his children, $25K each
b. W’s estate is distributed up btw her children, $50K each
ii. Villwock: H’s estate goes to W bc she survived him by a few minutes
a. W’s estate = $200K + $100K (from H) = $300K which is divided up ONLY among W’s children
b. H’s children get NOTHING

Front 31

Disclaimer MUST:

Back 31

i. Be in writing
ii. Unconditional
iii. No benefits may be accepts
iv. Must be within 9 months of the receipt of the gift

Front 32

Hypo: M dies intestate leaving an estate of $1M, she has one child D, D has assets of $10M and D has 3 other children

Back 32

1) How are M’s assets distributed if D disclaims the inheritance?
a) If D disclaims her mother’s assets, we assume that the disclaiment pre-deceases the decedent so we determine M’s heirs as if D did not survive her
b) Estate is split btw D’s 3 children
2) why disclaim?
a) If D were to accept M’s estate she would be taxed on it and then when D dies and leaves her assets to her children, they are taxed on D’s assets, which include M’s assets, causing M’s assets to be taxed twice
b) If D disclaims her mother’s property and M’s estate goes directly to D’s children, the tax at D’s level is eliminated and the assets are only taxed once

Front 33

Relation back doctrine

Back 33

i. When disclaimer takes place the property is treated as if it was never touched by the disclaimed individual
ii. Go back to moment inheritance is created and treat is as if it went to the ultimate beneficiaries who would have been entitled to it
iii. This permits disclaiming beneficiaries to avoid creditor claims
iv. If an estate beneficiary executes a disclaimer, the beneficiaries interest in treated as if the beneficiary NEVER received the interest, as a result the interest is beyond the reach of the beneficiaries creditors

Front 34

Estate of Baird


i. F: James Baird assaulted ex wife, she dues for assault and win. Baird executes a disclaimer from the proceeds of his mother’s estate while his mother is still alive, mother dies and then he files for bankruptcy and his ex-wife cannot collect.
a. Baird → disclaimed to prevent his ex-wife from getting the money as a creditor since he owed her money from the civil case against him
b. ex wife → disclaimer is invalid, should be able to collect her judgment from her Ex-husband’s inheritance
c. Baird’s children → valid disclaimer and therefore their grandmother’s estate should pass to them

Back 34

H: disclaimer is invalid, no anticipatory disclaimers bc one does not have an interest in an estate or can be a beneficiary of an estate while the decedent is still alive, Baird only had the possibility he might inherit at the time of the disclaimer, no actual interest in the property

Front 35

Federal Tax Liens: The Drye Case

Back 35

i. Disclaimer WILL NOT defeat a federal tax lien
ii. An heir by deciding whether to disclaim, effectively determines who will receive the assets, which constitutes property subject to the gov’t tax lien

Front 36

Disclaimers in Bankruptcy

Back 36

i. Two federal COA held that disclaimer executed before disclaiming heir petitions for bankruptcy is EFFECTIVE to cut off any rights of the bankruptcy trustee when the disclaimer would be effective under state law

Front 37

Disclaimers and eligibility for public assistance

Back 37

i. Public agencies may recover form disclaimed assets even when other creditors will not enjoy priority over disclaimed assets

Front 38

Hypo: J dies intestate survived by his brother, K. At time of J’s death, K is in a nursing home. K dies 3 months after J. K was in debt to the nursing home at the time of his death. K’s wife and executor, L, wants to disclaim K’s interest in J’s estate in order to preserve the assets for their son, M

Back 38

i. UPC §2-801(a):L, as K’s wife, is the “representative of a person to whom an interest in or with respect to property or an interest therein devolve by whatever means MAY DISCLAIM it in whole or part”
ii. UPC §2-801(b): must disclaim “not later then nine months after the death of the deceased owner” (J) bc this was only 3 months after J;s death disclaimer is allowed

Front 39

Hypo: I dies intestate, survived by his son, H and his grand-daughter G, the only child of I’s deceased daughter F. H has 4 children, B, M, S and Z

Back 39

i. How will I’s estate be distributed if H disclaimed his interest?
a. G gets 50% by representation for her deceased mother, F
b. H’s 50% is split up btw his 4 children, B, M, S and Z (each get 1/5)

Front 40

Advancements:
Hypo: D has 2 children, A and B. D has $3M in assets and $1M is represented by a painting. D transfer the painting to A during his lifetime saying “I want you to know how much I appreciate what a wonderful daughter you are.” D dies with $2M in assets.

Back 40

i. B → he should get $1.5M and A should get $500K bc she already got a $1M painting
ii. A → estate is $2M they should split it $1M each, painting is irrelevant

2. CL → substantial gift given to child by a parent raised a presumption that the gift was an advancement of the child’s inheritance and that the gift should be charged against the child’s intestate share
i. Presumption in favor of advancement UNLESS it can be proved otherwise
ii. Presumption was rebuttable
iii. Burden of proof is on child to demonstrate that the parent did not intend an advancement
iv. This is problematic and creates litigation trying to figure out what the decedent intended and once he is dead it is impossible
3. UPC §2-109 Advancements (pg 164-165)
i. Requires a writing to establish an advancement otherwise it is one persons words against the other
ii. Reverses CL presumption → transfer will be an advancement ONLY if the decedent declared it in a contemporaneous writing OR the heir acknowledge such advancement (difficult to imagine)

Front 41

4. Hypo: G advanced $50K to her daughter A and $10K to her daughter B, each memorialized by a writing declaring her intention that the gifts be treated as an advancement. G then dies intestate survived by her husband H and her three children A, B and C, all born of a previous marriage. G’s net estate is worth $290K. How should G’s estate be distributed under the UPC?

Back 41

iii. A already got $50K → Must A pay some of his advancement back?
a. No, A does not have to pay back part of his advance, A goes nothing at G’s death, he is dropped completely
b. $290K estate + $10K (B’s advancement) = $300K
1) H gets first $150K + 50% of 150K = $225K
2) B and C split remaining $75K except B already got $10K so remaining pot is $65K
a) C gets $37.5K
b) B gets $27.5K (+ $10K she already receives = $37.5K)
iv. H ends up getting less bc of the advancement to A, either way, A, B and C would have gotten $25K
a. A’s extra $12.5K cost H $12.5K from his inheritance
b. H is guaranteed at least he first $150K and then 50% of the balance, A’s advancement comes out of the balance of the estate
5. EPTL§2-1.5
i. Same requirement as UPC for advancement

Front 42

Who can make a will?

Back 42

1. EPTL §3-1.1 → every person 18 or older of sound mind and memory may by will dispose of property whether real or personal
i. 2 requirements:
a. T must be 18 or older
b. T must be of a “sound mind and memory”
1) Hard to figure out what this means
2) Raises many will contests

Front 43

1. Hypo: A and B are having drinks and A tells B “I want you to have $10K when I die,” A scribbles that on a cocktail napkin and hands it to be, no signature, A walks out of the bar and gets hit by a truck. B takes the napkin to probate court and says “give me $10K”
i. Should we give legal effect to this document?

Back 43

a. NO!
b. bc they were drinking A’s estate will argue A was NOT of a “sound mind and memory”
c. there is no way of knowing whether this document is real, whether it is actually A’s handwriting, whether A was actually thinking this is what he wanted or if it was just the product of alcohol

Front 44

3. What do we need to execute this will?

Back 44

i. New York law requires under EPTL §3-2.1
a. (a) → Will have to be written, NOT oral
b. (a)(1)) → wills but me signed by the testator at the END of the document
1) cant cange the will under the signature as far as the disposition of the property
c. (a)(3) → Testator must declare to each witness that the instrument that he signed is his will
d. (a)(4) → need two witnesses
1) will but be signed by the testator in the presence of witnesses OR if it is not signed in their presence, Testator must acknowledge that it is his signature in the presence of witnesses
2) witnesses must sign the will and attach their residence addresses (failure to comply with this requirement DOES NOT affect validity of the will)
3) witnesses must sign the attestation within 30 days
ii. UPC §2-502 (pg 224) → fewer requirements then EPTL §3-2.1
a. Will must be
1) in writing
2) signed by the testator (NO express requirement as to where it has to be signed)
3) signed by two witnesses
a) witnesses must sign within a reasonable rime after witnessing the signing of the will or testators acknowledgement of his signature
b) (NO expression requirement of within 30 days)

Front 45

Beneficiary witnesses

Back 45

1) CL → if the will was executed by an interested witness the will would fail
2) EPTL §3-3.2 (pg 235)→ If witnesses are beneficiaries of the outcome of the will, then you need more then two witnesses)
a) Beneficiary CAN be a competent witness to a will BUT the will is subject to attestation of two other disinterested witnesses
b) In the case of a beneficiary witness, the will would NOT fail, just becomes matter of whether the interested witness would get to keep their gift

Front 46

4) Hypo: M, P and L are decedent close friend and witness D’s will. M and P are beneficiaries under the will; M got modest cash gift and P received residuary estate. M renounced his gift after the will was probated. D’s intestate takers claim will is validly probated but the residuary passes by intestate succession.

Back 46

a) Under EPTL §3-3.2 need to have TWO disinterested witnesses at the TIME of EXECUTION and ATTESTATION
i) Even though M renounced his gift, he was a beneficiary of the will at the time of the will’s execution and attestation
ii) P’s gift of the residuary estate is lost and passes by intestate succession

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5) Hypo: T’s will leaves $50K to her niece and divides the rest of her estate btw her two children. How should T’s estate be distributed if
a) Niece and a neighbor, not mentioned in the will witness the will ,
b) T’s daughter and neighbor witness the will

Back 47

a) i) Only one disinterested witness so niece would ose her bequest bc you need two disinterred witnesses under EPTL
ii) Estate all falls into reside and goes to T’s children who get everything they would have originally gotten plus the niece’s share

b) i) CL→ entire will fails bc the daughter is a disinterested witness nonetheless T’s children still get the money bc of intestate succession
ii) EPTL §3-3.2(a)(3)→ bc the daughter gets a share of the estate through T’s will OR intestate succession, she does NOT improve her position by bearing witness to the will and so her gift under the will is NOT void
(1) Daughter has not improved her position visa-vie her mother’s estate by witnessing the will unlike the niece who loses her bequest by witnessing the will and gets NOTHING under intestate succession

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Affidavit of attesting witness → Self Proving Affidavit

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a) Attached to the will and signed by the witnesses, the testator and the notary at the time of execution
b) Affidavit itself is sufficient to get the will admitted to probate AND often eliminates the need to find witnesses to establish a foundation for the will at testator’s death (unless there is a will contest)
c) Functions:
d) acts as a substitute for testimony so witnesses don’t have to come to court
e) enables will to be admitted into probate
f) NOT a guarantee, if there is a contest of the will a witness may be called to court to testify
g) Need a Notary to witness the signature of the witnesses
h) SEPARATE DOCUMENT which says that the witnesses signed the will and witnessed the testators signature of the will
i) (NOT to be confused with attestation clause which is PART of the will)

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Signature requirement

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a. It is advisable to have the testator sign and initial each and every page in addition to signing the will at the end
b. After the testator signs, the witnesses sign and they must acknowledge what it is they are doing and read the attestation clause out loud to declare what they are doing
d. Lawyer can serve at a witness to the will or a notary for the affidavit BUT he cannot notarize his won signature as a witness

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Attestation Clause v. Self-Proving Affidavit

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a. When a witness signs an attestation clause she is expressing a present intent to act as a witness to the will→ she is attesting
b. When a witness signed the self-proving affidavit, she swears that she has already preformed the act of witnessing and signing the will

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Morris v. West


F: daughter and grandson of testator are contesting the will, Daughter’s ex-husband got the share of the estate that would have been allocated to her, grandson was omitted from the will. Texas statute requires witnesses to be in the presence of the testator when they sign the will. Lower court held in favor of daughter and overturned the will. Ex-husband appeals
1) Ex-H: since entire procedure of signing the will took place in the same suite of offices, witnesses were in “conscious presence” of T and only the slightest physical exertion would have been required for T to have seen the signing of the will → his will should therefore be submitted to probate

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b. H: affirm lower court decision NOT to submit the will into probate, statute requires witnesses to sign their names “in the presence of the T” and T would have had to have gotten up, leave conference room and walk down hallway in order to watch the witnesses sign the will and codicil.

Under the UPC the will would have been submitted → no presence requirement

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UPC §2-503 (pg 243) offers a solution for “failures to comply with formalities”

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dispensing power → creates a judicial power to admit a document to probate even when the documents lacks even the basic formalities required under UPC §2-502 IF there is clear and convincing evidence supporting the testator’s intent
1) Court in Morris probably would not have granted this dispensing power bc they did not seem to agree with the will

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Estate of Hall

F: Decedent and his second wife executed a joint will, problem with the Will was that there were NO witnesses. Montana had similar dispensing power statute as UPC §2-503, which said in the absence of proper witnesses the document may still be treated as if it had been executed under certain circumstances… if proponent of the document can prove by clear and convincing evidence that this document is consistent with the decedents intent, then the document with be executed (In NY you MUST have witnesses)
1) D’s daughters from a prior marriage → argue joint will should be invalid as a matter of law bc no one properly witnessed it

Back 53

Wife offers clear and convincing evidence of her husband, the decedent’s intent
a) D asked his wife to rip up the old will→ consistent with D’s belief that he had a new will
b) D asked his lawyer if the draft could stand as a will until the lawyer send them a final will
c) (W testified to all this and she is the proponent of the will and the main beneficiary of the will – D’s children from a prior marriage got cut out
b. H: court applied the dispensing power, Wife wins, will is admitted to probate

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Substantial Compliance

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Fewer then 10 states have adopted UPC §2-503 but courts have admitted non-conforming wills to probate by applying the judicially created “substantial compliance doctrine”
b. Under this doctrine, a court confronting a will that fails to comply strictly with the formalities statute should NONETHELESS admit the document IF the document expresses testator’s testamentary intent and if its form sufficiently conforms to formalities so that the purposes of formalities statutes are served

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Doctrine of Integration.
how do you make sure you have a well integrated will?

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a. T and witnesses sign each page
b. Page numbers pg x of y
c. Clear transition from one page to the next
d. Make sure all pages are attached at the time of the signing of the will

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Hypo: day before coming into to sign the will Steve says “I have this valuable collection of baseball cards and I know who I want to get what” so he types up a list at home and dates it and he takes it with him to the lawyers office and hands it to the lawyer. Lawyer then proceeds with execution ceremony. If Steve dies shortly thereafter is the will valid?

Back 56

Yes, Doctrine of integration says a will is an integrated doctrine of all of which was in front of the testator and the witnesses when the will was signed, including this list

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Doctrine of Incorporation by Reference.
Question is can T bring into his will a document that WASN’T witnessed?

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a. YES! ONLY IF:
1) Document is clearly identified by the will
2) Document in question MUST be in existence at the time of the will (or codicil)
a) Republication by codicil→ when T signs a codicil to their will, it has the effect of updating the will except to the extent that it changes anything in the will, the will is essentially refreshed or updated

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iii. Hypo: Steve doesn’t bring the list of who we wants to get his baseball cards to the lawyers office but tells the lawyer he made such a list and he wants it to be a part of his will. Lawyers says he will add a paragraph to the will saying “I Steve wish m baseball cards to be distributed in accordance with the list I wrote yesterday” then Steve signs and executed the will in front of witnesses, is the list a part of the will?

Back 58

a. The list standing alone is not part of the will bc it is unattested but through the doctrine of incorporation by reference this unattested document can be brought in.
iv. NY does NOT allow incorporation by reference

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Estate of Norton.

i. F: Court is confronted with 6 pages of a will which had NO attestation clause or any signature of witnesses, and attached to the will was a codicil of 2 pages which says this is a codicil to my will and codicil was witnessed. T though by attaching the codicil to his will it would validate it so he asked his grand-daughter to staple to two documents together.

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H: the 8 page document does not represent the decedent’s will, the first 6 pages of the “will” are not valid bc they are unwitnessed and the 2 page codicil is valid but does NOT incorporate by reference the first 6 pages bc the codicil contains no reference “in term clear and distinct” designating the 6 pages as the document to be incorporated, no proof that the 6 pages were physically present at the time of the execution of the codicil and without adequate reference derived from the codicil itself or other evidentiary sources the court cannot be sure that D intended to incorporate the first 6 pages.

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Clark v. Greenhalge.

i. F: T left bulk of estate to her cousin, Greenhalge, T’s will was executed in 1977. In 1972 T wrote a letter, entitled memorandum, which Greenhalge was aware of, which was later modified in 1976, the will referred to this memorandum. 1980 T signed a codicil and then died in 1986. In 1979 T also wrote in a notebook that she wanted her neighbor to have a particular painting. After T died, Greenhalge would not give the neighbor the painting claiming it was part of the residuary estate, letter reference in will did not mention painting and notebook was not in the will.

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H: judgment for neighbor, court applies doctrine of incorporation of reference to the notebook; the will’s reference to “memorandum” include both the letter and the notebook (even if notebook wasn’t title memorandum). Even though Notebook was written in 1979 and will was executed in 1977 T executed codicil in 1980 which updates the will so in deciding whether the notebook was in existence at the time of the will court looks to the time of the codicil.

Court could have went the other way and said notebook is notebook and memorandum is memorandum but in these cases the court has lee way and court was probably influence by the cousins inequitable behavior (he knew T wanted to give neighbor the painting)

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UPC §2-513 Separate Writing Identifying Devise of Certain Type of Tangible Personal Property (pg 269)

Back 61

a. Such document must be signed by T
b. Must describe items and devises with reasonable certainty.
In a jurisdiction that did not enact UPC §2-513 T can tell their executor how he wants specific items to be distributed but this is NOT enforceable

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Doctrine of Independent Significance

Back 62

i. i.e. T writes in his will “$1000 to the person who is my primary caregiver at the time of my death” → if T fires a caregiver and hires a new one he has changed his will
ii. way of changing one’s will through actions
iii. if there is some legal significance to actions OTHER then testamentary then we give effect to this kind of provision in the will

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Hypo: Steve tells lawyer he wants to leave his baseball card collection “to those people who were on my softball team at the time of my death”

Back 63

a. we don’t know at the time the will is signed who will end up with the baseball cards and events that occurs after the signing may change who gets the cards
b. such a clause is permissible→ doctrine of independent significance BUT must have significant legal reason to do so apart from the distribution of Steve’s estate

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In Re Tipler’s Will.

F: T’s will leaves her property to her husband and if he is dead then her property will be distributed accordingly with her husband’s will. T’s husband did predecease her but enforcement of T’s will was challenged by T’s heirs. Trial court applied doctrine if independent significance and order’s T’s assets to be distributed in accordance with T’s husband’s will. Heir appeal

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ii. H: affirm trial court application of doctrine of independent significance, distribute T’s assets according to her H’s will. Independent significance is satisfied bc H’s will has independent significant of distributing his estate and was not written with the intention of distributing T’s estate.
iii. T couldn’t incorporate her husband’s will by reference bc it wasn’t executed at the time she executed her will so she referred to the document and enabled her property to pass under it bc her H’s will had independent significance outside the distribution of T’s estate

Front 65

Pour-over wills, Facts of Independent Significance and Incorporation by reference

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i. Historically one application of doctrine of independent significance arose when T directed that a portion of his estate bc distributed to an inter vivos trust created by T or someone else
a. If the trust were NOT modifiable or revocable, T’s disposition to the trust could be validated by using incorporation by reference doctrine
1) Trust must be in existence at time of signing of the will (can’t be changed)
b. If the trust is revocable (can be modified) after the execution of T’s will, incorporation by reference is NOT available to bring the trust into the will BUT doctrine of independent significance can uphold the provision pouring over part of T’s estate into the trust
1) T would NOT modify or revoke the trust JUST to change the disposition of his estate.
2) A modification or revocation of the trust would immediately effect the money is the trust and would have an important present effect NOT merely an effect at T’s death

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Unfunded Inter Vivo Trust

Back 66

a. Doctrine of independent significance may fail to validate the will’s pour over provision since the trust would only be funded at T’s death and then have no significance outside of the distribution of T’s estate
iii. Because pour over wills and inter vivos trust are useful estate planning tool, EVERY jurisdiction has enacted legislation validating pour over provision to either funded or unfunded trusts
a. Resorting to doctrine of incorporation by reference or facts of independent significance are no longer necessary to validate a will that pours over I not an inter vivos trust

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Specific devise

Back 67

→ specific piece of property, can only be satisfied by reference to that particular piece of property

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b. General devise

Back 68

gift of cash, doesn’t have to come from any specific asset

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c. Demonstrative devise

Back 69

devise of a particular amount of money to be drawn from a particular fund or asset

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d. Residuary

Back 70

what ever is left in estate after devises

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EPTL §13-1.3; UPC 3-902(pg 283).
Order of abatement

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a. Property NOT disposed of by the will
b. Residuary devise
c. General devise
d. Specific devises and demonstrative devises

Ratable Abatement within Each Class: “abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will”

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In re Estate of Potter.

i. F: T wanted to split her estate 50/50 her daughter’s share would be the house and her son’s share would be a sum of cash equivalent to the value of the residence receive by her daughter, but at T’s death there were insufficient assets to pay the son the equivalent amount in cash. Trial court ordered the house be sold and the proceeds split 50/50. Trial court held T’s intent was to give equal portions btw the son and daughter, NOT having daughter live in house.

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ii. H: AC did not look at the intent of the T but at the FL abatement statute, which directed the order of abatement (same as EPTL §13-1.3) first property NOT disposed of by the will, then residuary devise, then property not specifically or demonstratively devised and then property specifically devised. Daughter has a specific devise (house) and son has a general devise (money) so daughter keeps the house and son doesn’t get anything
iii. Under the UPC §3-903 a court might have affirmed the trial court decision to give effect to T’s intent, UPC allows courts this discretion
iv. If T’s intent really want to distribute her estate equally btw her children he will should have said “my assets are to be divided equally btw my son and my daughter and to the extent feasible the house should eb used to satisfy my daughters share

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Ademption

Back 73

A specific devisee is entitled to NOTHING if the specifically devised property is NOT in T’s estate at T’s death
i. Specific devise has been adeemed by T’s disposal of the specifically devised property

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McGee v. McGee.


F: T’s will said “$20K to Fedelma; Texaco stock and “all money in bank” to grandchildren. At T’s death there were $30K in flower bonds (US gov’t bonds that used to be use to pay estate taxes at a discount) but NO cash. Trial court looked into T’s overall estate plan and held that T’s overall plan to benefit her grandchildren so the bonds should be used satisfy the devise of the grandchildren. Trial court held devise to grandchild was specific bequest.

I: do the grandchildren get the value of the bonds or does are the bonds used to satisfy the gift to Fedelma?

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H: reversed trial court, judgment for Fedelma, AC does not care about intent, applies strict identity theory, grandchildren do not get the bonds, agreed with trial court devise to grandchildren was a specific bequest and since the asset was no longer there the devise is adeemed.

A devise of a specific amount of cash is a general bequest whereas a bequest of “all cash in my bank account” is a specific bequest

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UPC §2-606 Nonademption of Specific Devises… (pg 295)

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a. (a) specific devisee has a right to the specifically devised property in T’s estate at death AND:
1) (1) → situation where property is sold on credit ( hasn’t completed collecting all of the sale proceeds ) specific devisee gets the remaining purchase price owed
2) (2) → if property is condemned, specific devisee gets any proceeds unpaid at death
3) (3) → property burned in a fire etc devisee gets UNPAID insurance proceeds
4) (5) → property purchased as a REPLACEMENT for devised property in estate at death will go to specific devisee
5) (6) → unless facts and circumstances indicate ademption was consistent with intent to T, presumption is against ademption (intent theory of ademption)
a) this is a rebuttable presumption → to rebut must show:
i) ademption is consistent with intent of T
ii) ademption is consistent with manifest plan of distribution
iv. In NY common law identity theory is following with an exception when the property of a devise is sold by a conservator and NOT the testator

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Beneficiaries of Anti-Lapse Statutes

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Anti-lapse statute preserve the devise ONLY for the ISSUE of the deceased devisee NOT for the deceased devisee’s will beneficiaries (except MD)

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Consequences of Lapse

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i. Specific, demonstrative and general devises → devised property generally passes into residue of T’s estate
ii. Residuary devises → residue passes by intestate succession

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Representative Anti-Lapse Statutes

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→ main variable in anti-lapse statute is to what beneficiaries do they apply?
i. N.H → anti- lapse statue applied to “heirs in the descending line of a legatee or devisee”
a. This is essentially issue bc it says descending line
ii. Vir. → anti-lapse statute applied to “a grandparent or descendent of a grandparent of T”
iii. MD → EXCEPTION, gift passes to estate of the deceased beneficiary

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NY EPTL §3-3.3

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Disposition to Issue or BROTHERS OR SISTERS of T not to lapse; application to class disposition (pg 302-303)
a. Siblings OR issue is the ONLY type of beneficiary whose bequest will be saved

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Class Gifts - Anti-Lapse

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ii. CL → if a member of the class predeceased T, that member’s devise lapses and the remaining members of the class divided the lapsed devise
a. CL rule remains in effect for class gifts to which the anti-lapse statutes does NOT apply
iii. Today, most anti-lapse statutes apply to class gifts as well as gifts to individual

v. Note: as a drafting matter, gifts to a single-generation classes, children, grandchildren, nieces, nephews, invite dispute about the rights of issue of deceased class members, BUT if the drafter included in the devise to “issue” or to “issue of my brothers and sisters” the dispute dissolved

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Note: Void Devises

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i. CL → a lapsed devise was a devise to a person who died btw the time of the will execution and time of T’s death
a. A void devise was a devise to a person who died BEFORE the time of the will execution
ii. Modern anti-lapse statutes generally apply to save BOTH lapsed and void devises
iii. Some jurisdictions the distinction remains importance
a. EPTL §3-3.3 → “no benefit shall be conferred.. upon the surviving issue of an ancestor who dies BEFORE the execution of the will in which the disposition to the class was made

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Estate of Rehwinkel

F: residuary bequest left the estate “to those of the following who are living at the time of my death…” T’s niece was on that list but she predeceased T, nieces son is arguing more should be required to override anti-lapse statutes. Trial court hold this is sufficient to override.

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H: AC affirm trial court decision, language “to those who are living at the time of my death” manifest T’s clear intent that the anti-lapse statute not apply, sufficient to override the application of the anti-lapse statute.

Survivorship conditions override anti-lapse statutes as well

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Estate of Ulrikson.


F: T left his residuary estate to his brother and sister and if either one predeceases T then to the surviving sibling. Both siblings predecease T, brother leaves issue, Sister does not. Minn Statute says if a grandparent or lineal descendent of a grandparent predeceases T then anti-lapse statute doesn’t apply and estate passes through intestacy. T had other brothers and sister who were not named in the will and their issues are heirs by intestacy, if anti-lapse does apply, issue of brother named in will gets the estate. Lower court held anti-lapse statute was applicable
a. Heirs → condition of survivorship automatically overrides the anti-lapse statutes → estate passes to them by intestacy

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H: Anti-lapse statute is applicable, affirm lower court decision, it was T’s intention to leave his residuary estate to his brother or sister and their descendents, he thought about the possibility that one of them would due but it didn’t occur to T that both would predeceases him. Words of survivorship are effective to override anti-lapse statute ONLY IF there are survivors. Since there are no survivors her the anti-lapse statute is free to operate.

UPC §2-603 agrees with son, survivorship condition is NOT enough, must have other evidence besides “if he survives me” such as an alternative gift

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UPC §2-603

Back 84

a. IF: devisee is a grandparent, descendent of a grandparent OR a stepchild of T
b. AND: devisee predeceases T and leaves surviving descendents
c. THEN: (b)(1) substitute gift is created in the devisees surviving descendents
1) Some things can OVERRIDE the substitute gift
a) (b)(4) → alternative gift
b) substitute gift of descendents of a devisee will be created UNLESS the will contains an alternative devise
2) (b) is the heart of the statute
a) (b)(1) → gifts to individuals
b) (b)(2) → class gifts
c) (b)(3) → words of survivorship, by themselves, are NOT sufficient to remove a devise from application of the anti-lapse statute

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NY Anti-Lapse

Back 85

a. IF: devisee is issue OR sibling of T
b. AND: devisee predeceases T but leave issue who survives T
c. THEN: devise bests in surviving issue by representation

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VIR. Anti-Lapse

Back 86

a. IF: devisee is grandparent OR issue of a grandparent
b. AND: Devisee predeceases T
c. THEN: children of devisee or descendents of deceased children of devisee take

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NH Anti-Lapse

Back 87

a. IF: devisee is any legatee or devisee
b. AND: devisee predeceases T
c. THEN: devisee’s heirs in descending line (issue) take

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Matter of Marine Midland Bank, N.A.

Facts. Carl V. E. Gustafson was married and childless when he died. He disposed of his estate through two trusts. One of the trusts named his wife Elsie as having the life estate. Upon her death the trust corpus was to be paid half to each of Gusafson’s two brothers. However, if either brother was to predecease Elsie then their share was be paid over to their surviving children. And if the brother left no surviving children then the surviving brother would take all. At the time of Elsie’s death only one of Gusafson’s brothers was still living. The other brother, Leonard, had predeceased Elsie. Leonard had a son, Daniel, however he too predeceased Elsie leaving a widow and children who sought to take a share of the trust corpus. Daniel’s widow alleges that “surviving children” was meant to include grandchildren.

Issue. Do the terms used in the decedent’s will “surviving child or children” include grandchildren?

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Synopsis of Rule of Law. Words in a donative instrument will generally be construed by courts to have their ordinary and everyday meaning.

Discussion. The Court notes that courts construing donatives instruments are governed by the testator’s intent as ascertained from the words used in the will according to their ordinary and everyday meanings. In addition they note that they would be willing to justify a more expansive definition of “children” to include “grandchildren” but only if it was the to avoid failure of the estate and that this was not the situation here.

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Estate of Carroll.

Facts. Archie and Dortha Carroll were married and had no children, however Archie had twelve nieces and nephews who were children of his brothers and sisters and Dortha had eight nieces and nephews who were children of her brothers and sisters. The parties executed separate wills leaving the residue of their estates to each other, but on the condition that they predecease their spouse then the residue was to pass to “my nieces and nephews that are living as of the date of my death.” Dortha died in July of 1980 and Archie in September of 1986. Plaintiffs are children of Dortha’s brothers and sisters and are sought a declaration that Archie’s bequest to “my nieces and nephews” included them as well as children of Archie’s brothers and sisters. The trial court ruled against the Plaintiffs and ordered the estate be distributed to children of Archie’s brothers and sisters.

Issue. Does the terms used in the decedent’s will “my nieces and nephews” include nieces and nephews by consanguinity and those by affinity?

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Synopsis of Rule of Law. Courts will construe the language used in a will in its legal, technical, and ordinary meaning. When the language is clear and unambiguous extrinsic evidence will not be admissible to show the testator’s intent.

Discussion. There is nothing in Archie’s will to indicate an intent that “nieces and nephews” means anything more than their legal, technical, ordinary meaning. The Court notes that if Archie had intended to include Dortha’s nieces and nephews he would have used the words “our nieces and nephews” instead of “my nieces and nephews.” Because the words are clear and unambiguous extrinsic evidence of the testator’s intent was inadmissible.

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Gifford v. Dyer.


Facts. Abigial Irish left a will with several bequest of her property, however she did not mention her only child, Robin Gifford, in the will. Gifford had been absent from home for ten years and was presumed dead. Appellant contends that the will was void because at the time of making her will the testatrix thought that her only heir, her son, was dead and as a result of this mistake did not include him in her will. Appellee contends that the Gifford’s appearance could not operate to revoke the will because it is not one of the statutory causes for revocation.

Issue. Did the testatrix mistake in believing her only heir, her son, was dead operate to revoke her will in which she failed to include him?

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Synopsis of Rule of Law. A mistake, not appearing on the face of a will, will not operate to revoke such will.

Held. No. For a mistake to revoke a will the mistake must appear on the face of the will and it must also appear what would have been the testatrix intent but for the mistake.

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Knupp v. District of Columbia.


Facts. Testator executed a will from his hospital bed a month before he died. Paragraph six of the will provided that the residue should be given to the person mentioned in paragraph eight, however not residual beneficiary was named in paragraph eight. Appellants allege that this is due to error on the part of the attorney who drafted the will and that extrinsic evidence shows that testator intended the Appellant to be the beneficiary and the Court should interpret it as such.

Issue. Can the Court look at extrinsic evidence to provide the missing name of a residual beneficiary in the testator’s will?

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Synopsis of Rule of Law. Extrinsic evidence will be admissible to interpret an ambiguity in a will but will not be admissible to add a provision not already in the will.

Held. No. Extrinsic evidence can be used to clear up an ambiguity in a will but only for the purpose of interpreting something already in the will not to add a provision to it.

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Gushwa v. Hunt.

F: Unable to secure the original copy of his will, the testator on advice of counsel signed before witnesses and had notarized a document stating that he revoked his will. He also wrote “revoked” on each page of a photocopy of the signed will.

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H: the Court held that the will was not revoked. The New Mexico revocation statute does not allow for revocation by a writing other than a will. Revocatory acts performed on a photocopy do not revoke the will.
The court remanded for consideration of whether the original will was wrongly withheld from the testator. If that were the case, the court may impose a constructive trust on the beneficiaries of the will in favor of the heirs.

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Ward-Allen v. Gaskins.

F: Petitioners filed their objections to admission of the codicil on the fact that Respondent filed a copy of the 1995 codicil, instead of the original, with the register of wills.Trial judge sustained appellees' objections to probating a copy of the 1995 codicil b/c there was to much uncertainty about what became of the original and Ms. Ward-Allen didn't meet her burden to prove what happened to it.

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Rule: A will or codicil, or a part thereof, after it is revoked, may not be revived otherwise than by its re-execution, or by a codicil executed as provided in the case of wills, and then only to the extent to which an intention to revive is shown.

Holding: It is undisputed that the codicil had been properly executed, and no evidence was "presented suggesting that the deceased had revived the earlier will by re-executing it or executing a new codicil."

The Missing Codicil Presumption: If a will or codicil, known to have been in existence during testator's lifetime can not be found at his death, a presumption arises that such will was destroyed by testator with the intention of revoking it. Once presumption is triggered, the party seeking to probate a copy of the will or codicil must show by a preponderance of evidence, that the testator did not destroy the lost will or codicil with the intent of revoking it.

Proof to Overcome Presumption: state of relations b/t testator and beneficiary; testator's intentions regarding making a new will shortly before death.

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Revocation by Operation of Law

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i. UPC §2-804 Revocation of Probate and Nonprobate transfers by divorce; no revocation by other changes in circumstances (g 363-364)
a. Divorce or annulment revokes a will

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Revival and Dependent Relative Revocation

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Revocation of T’s last will does NOT reinstate a prior will
a. Reinstatement of a prior will would require testamentary formalities


iii. Generally speaking, in most states including NY, the revocation of a subsequent will which revoked a prior will, DOES NOT revive the prior will
a. NY EPTL§3-4.6 revocation or alteration of later will not to revive prior will or any provisions thereof
b. Must comply with testamentary formalities to revive prior will
c. NY will which has been revoked is dead UNLESS T recreates it with testamentary formalities

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UPC §2-509 Revival of Revoked Will (pg 367-368)

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a. Allows for revival of a revoked will
b. Prior will might be revived depending on T’s intent and whether the revoked will only partially or wholly revoked a previous will
(a) → prior will is revived if it is evident from circumstances of the revocation that the subsequent will or from T’s contemporaneous or subsequent declarations that T intended the previous will to take effect as executed
(b) → if a subsequent will that partially revokes a previous will is revoked, the revoked part of the previous will is revived UNLESS it is evident from the circumstances of the revocation of the subsequent will or from T’s contemporaneous or subsequent declarations that T did NOT intend the revoked part to take effect

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Note on Revocation of Codicils

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a. Revocation of a codicil leaves the will, without the revoked codicil, intact
b. UPC §2-509(b)→ bc codicil works a partial revocation of T’s earlier will, revocation of a codicil revives the earlier will

Front 98

Oliva-Foster v. Oliva.

I: Whether the trial court in granting SJ properly applied the doctrine of dependent relative revocation to revive their father's 1995 will.

F: Children of decedent contend that the new will was improperly executed and invalid b/c the witnesses did not sign the will in the presence of each other and of the decedent. Children argued that the new will was invalid, the old will was revoked and could not be revived, and the estate should pass by intestate succession. Wife argued that even if new ill were invalid, the old will would be revived by the doctirne of dependent relative revocation, and the estate would still pass to her.

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Doctrine of Dependent Relative Revocation: If T knew he would not have a new will, he would not have revoked his old will.

A: Here T destroyed his old will with a present intention of making a new one immediately and as a substitute.

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Dependent Relative Revocation

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When you apply DRR you are looking for the second best solution and if the results you get under ignoring revocation of a document is closer to T’s intention then allowing the revocation of the document which ends up in intestacy then you disregard the revocation

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Hypo: I leave my entire estate to Nicholas Brody b/c I love him dearly, and know he is a loyal American.

Carie dies in a plane crash during the first episode of Season 3, in which we learn that Nick Brody actually was responsible for the explosion at the CIA. Who should get the estate.

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1) This was a mistake in the inducement, possibly.

For there to be a mistake, 1) it has to be clear on its face, and 2) will must provide a disposition absent mistake.

Here, there was no alternate disposition so Brody gets the estate.

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Barnes v. Marshall.


i. F: T was relatively well off, no indication he couldn’t manage his money, took care of his own financial affairs and wrote a detailed will specifying what he wanted , he k new his daughter existed bc she is named in the will but he didn’t give her very much. Daughter is contesting the will bc she got $5 a year, defendants are beneficiaries under the will including nonprofit organization and family members
a. Daughter→ T lacked testamentary capacity when the will was drafted; property should pass intestate to her

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R: Before a lay witness will be permmitted to give his opinion that a person is of unsound mind, he msut first detail the facts upon which he bases such opinion, but if he expresses an opinion that such person is of sound mind, he is not required to detail the facts upon which he founds his opinion.

H: jury held T did not have capacity based on testimony from doctors and laymen who knew T, unusual that T left very little money to his family and a lot to charity, court thought $5 a year to daughter was an unnatural disposition

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Wilson v. Lane

F: Katherine Lane – Executrix (D)
Jewel Jones Greer – Decedent (T)
Floyd Wilson -P
The will distributed T’s property into 17 equal shares to 17 beneficiaries.
16 of the beneficiaries were blood-relatives to T
D was the only non-blood beneficiary and had spent much time caring for T until T’s death in 2000

I: Did T lack the testamentary capacity to execute a will when ?

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R: A person is mentally capable to make a will if she has sufficient intellect to enable her to have a decided and rational desire as to the disposition of her property.

A: Drafting attorney testified that T was mentally competent when the will was signed and that T had selected the beneficiaries of her will “emphatically”
P never presented any evidence showing T was incapable of forming a decided and rational desire as to the disposition of her property, even when evidence is examined in a light most favorable to P’s side
P called T eccentric, aged, and peculiar in the last years of her life.
But the law does not withhold from the aged, the feeble, the weak-minded, the capricious, the notionate, the right to make a will, provided such a person has a decided and rational desire as to the disposition of their property
Although perhaps persuasive to a jury, eccentric habits and absurd beliefs do not establish testamentary incapacity
No expert or physician showed T lacked testamentary capacity

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Dougherty v. Rubenstein.


F: T wrote a will, which disinherited his only child, left all of his property t his sister, NOT to his son Jay, even though his earlier will left everything to Jay. T thought his son Jay was stealing from him,
1) Jay → Insane delusion, T’s will is made on a mistaken belief by T that his son was stealing from him

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b. H: no insane delusion, will is valid even though there is no evidence that Jay stole from T, Jay put T in a nursing home and T was really angry about that, T’s sister get him out of the nursing home and T lived another 6 years and took care of himself, T had a delusion that Jay stole form him but it wasn’t so insane bc T did have reasons to disinherit his son

R: Insane Delusion: 1) Mistaken belief, 2) belief not grounded in reality or logic even if presented with evidence to the contrary


a. Mistake of Fact → T is wrong,
1) i.e. Jack Shepherd’s mother thought he son died in a plane crash but he actually survived
b. Insane Delusion → irrational belief against the facts; belief in things impossible or belief in things possible but so improbable that no man in sound mind would give it credence
1) i.e. Jack Shepherd’s mother thinks her son is dead, Jack survives and comes to see his mother but she does not believe he is alive, ignoring facts to the contrary
2) T might not be crazy, but is crazy in believing this delusion

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Haynes v. First National State Bank of New Jersey.

Dutrow was a rich widow. She lived with her daughter (Haynes) and Haynes' children for many years, until Haynes' death.
Haynes' children were a disappointment to Dutrow because they dodged the Vietnam draft.
After Haynes' death, the elderly Dutrow moved in with her other daughter, Cotsworth.
Prior to moving in with Cotsworth, Dutrow's will had been pretty evenly split between Haynes' family and Cotsworth's family. However, soon after moving in Dutrow made a new will that strongly favored the Cotsworth side.
The previous wills were prepared Stevens, who testified that Dutrow told him that she was being pressured by Cotsworth.
Dutrow's latest will was prepared by Stevens and another lawyer named Buttermore just so happened to also be the Cotsworth's attorney!
Conflict of interest maybe...?
Stevens wrote Buttermore a letter accusing him of undue influence.
Dutrow made a few codicils to the will including an in terrorem clause.
By the time all the codicils were executed, instead of splitting the estate $4M for Cotsworth's children and $4M to Haynes's children, the estate now gave $10k to Haynes' children and the rest went into a trust controlled by Cotsworth.
A codicil is an amendment to a will.
An in terrorem clause says that anyone who contests the will is automatically disinherited.
Dutrow died, and Haynes' children contested the will.
Haynes' children claimed that Dutrow was suffering from undue influence.
The Trial Court found the will to be valid. Haynes' children appealed.
The Trial Court found that there was a presumption of undue influence, but that the defense had rebutted that presumption at trial.
The Court found that while markedly different from previous plans, Dutrow's final will was not unnatural or instinctively unsound.
The Trial Court did find that the in terrorem clause was unenforceable.

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R: The New Jersey Supreme Court listed two factors for establishing a presumption of undue influence:
A confidential relationship between the testator and the beneficiary.
The presence of suspicious circumstances.

H: Once a presumption of undue influence is established, the burden shifts to the proponents of the will to provide a rebuttal.
The Trial Court felt that they had.
The New Jersey Supreme Court felt that Buttermore's conflict of interest created the need for a higher burden of proof than normally exists in civil litigation.
Therefore, the proponents of the will need to establish by clear and convincing evidence that there was no undue influence.
Since the Trial Court had used an incorrect burden of proof, the case was remanded back for a new trial.

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Will of Moses.

F: Moses had a will that left most of her things to her sister (and a few other people). A week after she died, a lawyer named Holland stepped forward with a new will that left everything to Holland.
The new will revoked the previous will.
Holland's relationship with Moses was described as one of "dubious morality."
Moses had declared Holland to be her boyfriend.
He was 15 years younger than her.
He was also her lawyer on a number of business deals.
Moses had been widowed three times and was perhaps reluctant to marry a fourth time.
Moses' sister (et. al.) contested the new will and asked for the older will to be reinstated.
They argued that Moses was suffering from Holland's undue influence.
They argued that Moses lacked testamentary capacity.
The Trial Court found for Moses' sister and invalidated the new will. Holland appealed.

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H: The Mississippi Supreme Court found that there had been a confidential or fiduciary relationship between Holland and Moses.
The existence of such a relationship creates a rebutable presumption of undue influence.
Holland attempted to rebut the presumption by showing that the will had been drawn up by another attorney (Holland's partner), and that the partner and Moses wrote the will without his participation.
However, the Court found that the lawyer only wrote down what Moses told him and did not provide her with independent advice or counsel.
Undue influence means more than simply writing the will for someone. You can influence someone without being physically present.
In order to rebut a presumption of undue influence, a person must provide clear and convincing evidence that there was no undue influence. Holland did not meet that standard.

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Matter of Kinzler.

Facts. Appellant appeals a lower court ruling that (1) awarded the objectants’ attorney $ 7,000 as and for legal fees, payable by the estate, (2) held that the sale of the decedent’s residence to one of the beneficiaries, who was also a testamentary trustee under the will, was tainted with a conflict of interest and self-dealing, (3) held the payment by the executor to himself of advance legal fees, without prior court order, to be improper and ordered him to refund $ 11,595.15, plus interest in the amount of $ 16,398.68, for a total of $ 27,993.83, and (4) fixed the legal fees of the executor in amounts less than requested. The matter arose as of the results of Respondents complaint that Plaintiff had violated his fiduciary duties because he was engaged in self-dealing and prejudiced and biased disposal of the estate. Appellant contends that he satisfactorily fulfilled his executor duties and appeals.

Issue. Are fiduciary duties owed from an estate executor to its beneficiaries and must these duties be discharged in an unbiased and unprejudiced manner that does not involve self-dealing?

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Synopsis of Rule of Law. Fiduciary duties are owed from an estate executor to its beneficiaries and must be discharged in an unbiased and unprejudiced manner that does not involve self-dealing.

Held. Yes. Fiduciary duties are owed from an estate executor to its beneficiaries and must be discharged in an unbiased and unprejudiced manner that does not involve self-dealing. Appellant violated this fiduciary duty because of the sale of Testator’s house to a cotrustee, he refused to pay income to one of the respondents, and he paid himself excess fees in advance without permission. A person standing in the relation of a fiduciary capacity, cannot deal with or purchase the property, in reference to which he holds that relation. An executor must at all times discharge his fiduciary duties so that all legatees are treated in like manner and without prejudice or discrimination. It is ultimately the court’s responsibility to decide what constitutes reasonable compensation. In determining what constitutes just and reasonable compensation for an attorney’s services, the court should consider the time spent, the difficulties involved in the matters in which the services were rendered,
the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained. The court may also consider whether the attorney was also the executor entitled to commissions. As to the legal fees owed, it is the rule that where legal services have been rendered for the benefit of the estate as a whole, resulting in the enlargement of all the shares of all the estate beneficiaries, reasonable compensation should be granted from the funds of the estate. Respondents’ attorney here clearly enlarged the shares of the estate.

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Spicer v. Wright.

F: T’s will said “to my sister Wilson to be disposed of as already agreed btw us” T’s husband survived her but died during the period of administration, T’s sister did not survive her representatives if the sister estate v. representatives of H’s estate.
1) H’s estate  T intened to created a trust but it failed bc of the lack of beneficiaries therefore it passes intestate to him
2) S’s estate  no trust, outright gift to the sister, who could dispose of the property as they had discussed but is not obligated to, language creating trust was precatoru NOT mandatory

Issue: Whether the language of Ms. Spicer’s will, read with the extrinsic evidence, is sufficient to establish an intent to create an express trust, and if that trust failed for indefiniteness and a resulting trust arose in favor of Mr. Spicer?

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Rule: Precatory words are prima facie construed to create a trust when they are directed to an executor, but no trust is created by precatory language directed at the legatee, UNLESS there is testamentary intent to impose a legal obligation on him to make a particular disposition of property.

Rationale: The extrinsic evidence supports the finding that the sisters had previously agreed how the property would be disposed of, but the evidence fails to establish a testamentary intent to impose a legal obligation to make a particular disposition, or to show the agreement was designed to impose enforceable duties. If the extrinsic evidence had sufficiently identified the beneficiary, and the terms of the benefits, then that evidence and the precatory language would be considered together sufficient to establish testamentary intent. Nothing in the record assist in determining which one of several interpretations regarding any obligation should be chosen. There is no obligation and no trust.

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Levin v. Fisch.

Facts. Bertha Cohen died in 1959 leaving a will devising most of her property to her son and daughter. The will stated “It is my desire that each year our of annual rent proceeds, rents, and revenues from such property during such year so received by my said daughter and son they pay to my sister Mrs. Laura Fisch the sum of $2,400

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Synopsis of Rule of Law. Determinations of whether a particular word will be construed as precatory or mandatory will be made by looking at the intent of the testator as found in the context of the will and surrounding circumstances.

H: court looked at external evidence, T had been giving her sister $200 a month for several years, language is mandatory and there was an obligation of the children to give the money to the sister.

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Goodman v. Goodman.

Clive gave his mother Gladys power of attorney. He also transferred his business to her.
Gladys sold the business and put the money in her bank account.
Clive died leaving four kids and an ex-wife.
Eight years after Clive's death, one of the kids, Scott, asked Gladys for the money from the sale of the business. Gladys said that she deserved all the money because she had taken care of Clive when he was sick.
Scott sued Gladys, alleging that Clive intended for Gladys to simply hold the property in trust for his children. Gladys pleaded laches in her defense. There was some debate over whether Clive had a will. His ex-wife said he did, but Gladys said he didn't... The Trial Court instructed the jury to determine if the property transfer was a gift or a trust.

The jury came back with a verdict in favor of the children, and said that the property had been held in trust.
However, the judge issued a judgment as a matter of law (aka a JMOL or a JNOV), and found that the children had waited too long to make their claim. The children appealed.

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H: The Washington Supreme Court reversed the JNOV and remanded for trial.

The ex-wife had testified that Gladys told her that she would keep the money until the children "were older."
It was never specified how old was 'older'.
The Washington Supreme Court construed this as the formation of an oral trust.
In order to establish an oral trust, you need clear and convincing evidence.
Under Washington State law, actions based on a trust are subject to a three year Statute of Limitations, which starts running when the beneficiary learns, or should have learned, that the trust had been repudiated.
Repudiation only occurs when the trustee, by words or conduct, denies that the trust exists.
This could be the time when Scott asked Gladys for the money, or it could be the time when the first payment was due.
Thus, a question of material fact existed as to when the trust was repudiated. Therefore a JNOV was inappropriate.

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Wells v. Sanford.

Facts. Nora Wells was declared physically incompetent in 1974 and appointed a guardian. In 1979 Wells’ son passed away leaving his estate in trust to his mother. The will provided that the son “give, devise, and bequeath my entire estate to Elvan G. Sanford, as Trustee to be held in trust for the use and benefit of my mother as long as she lives.” Wells owed an unpaid bill from her nursing home and the guardian petitioned the court for permission to sell Wells’ assets to pay the debt. Appellants, Wells’ surviving children, petitioned the court to have the trust assets sold to pay for the debt. The trial court dismissed the Appellant’s petition finding that the trust was intended by Wells’ son to be used to support her only if her own property was insufficient. Trial court said no funds would be necessary for mother’s support UNTIL her own funds ran out
1) Sanford has a tremendous conflict of interest – use trust assets for the debt and it comes out of his pocket, or else use Mom’s estate to pay her debt

Issue. Whether Wells’ son intended that the phrase “sums necessary for the support and maintenance” of Nora Wells means that his estate was to be appropriated to maintain Wells when she had sufficient means or whether he intended to have his estate held available for her support in the event those means were exhausted?

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H: AC reversed trial court decision, held for children, son intended his mother to benefit from the trust, courts have construed such language NOT to require the beneficiary to exhaust her own assets before receiving income from the trust

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Keisling v. Landrum.


Husband established a testamentary trust for Wife under which Wife was to receive distributions only if her “own income and other financial resources from sources other than from this trust are not sufficient” to maintain her in the standing of living they had while married. Because Trustee had made no distributions, Wife filed suit claiming that “other financial resources” referred only to income and thus Trustee should distribute trust income to her as soon as her own income could not support her standard of living. Trustee asserted that “other financial resources” means assets as well as income and thus Wife must exhaust all of her assets, except for one house and one vehicle, before being entitled to distributions from the trust. The trial court agreed with Trustee and Wife appealed.

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H: The appellate court reversed. The court agreed with Wife that the trust did not show that her husband “intended the trust to be a parachute to protect [Wife] from poverty after she had exhausted all of her own assets.” Keisling at 742. Instead, the court concluded, the trust’s purpose was to “step in and pay for [Wife’s] high standard of living” such as multiple homes, vehicles, cruises, gifts to others, shopping and maid service. The court said it would be “nonsensical to require [Wife] to sell all of her vehicles and other assets * * * just so the trust could ‘step in’ and provide her with funds to purchase new assets and vehicles to replace them.” Keisling at 742.

The court concluded that Husband’s will was unambiguous and then adopted the language of Restatement (Third) of Trusts § 50, comment, that the term “other financial resources” refers only to “income and other periodic payments, such as pension or other annuity payments and court-ordered support payments.” Keisling at 743.

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Marsman v. Nasca.

F: Sara died. Her will created a testamentary trust that provided her second husband Cappy with, "reasonable maintenance, comfort and support ... after having considered the various available sources of support for him."
Basically, the trust gave Cappy a small quarterly income with the ability to ask for more if he needed it for, "comfortable support and maintenance."
What was left over after Cappy's death would go into a separate trust for her daughter Sally.
The will gave the trustees sole and uncontrolled discretion over how much money to give Cappy.
That's known as a discretionary trust.
Cappy continued to live in the house that he'd shared with Sara, and eventually married Margaret.
The house was actually a mansion, bought with the money Sara had inherited from her previous husbands' estates.
A few years after Sara's death, Cappy wrote to the trustee (Farr) and asked for money since his horse breeding business was slow. Farr sent him $300. Farr also asked Cappy to explain in writing why he needed the money.
A few years after that, Cappy had trouble paying the mortgage. Farr suggested that he make a deal with Sally where she would take over payments for the house, and then get it when Cappy died.
Farr made no mention that Cappy could get money out of the trust to pay his bills!
The deal gave no life estate to Margaret to continue living in the house after Cappy died.
Farr acted as the only attorney in the transactions, working for both Cappy and Sally. (conflict of interest maybe...?)
Sally died. Then Cappy died. Sally's heir, Martlette now owned the house and told Margaret to get out. Margaret sued to stay.
The Probate Court found that Farr had breached his fiduciary duties. Farr and Martlette appealed.
The Probate Court found that if Farr had explained to Cappy that he could ask for money out of the trust to pay his mortgage, he never would have sold the house to Sally.
The Probate Court ordered Martlette to give the deed to Margaret and ordered Farr to reimburse Martlette for the mortgage payments out of Cappy's trust.

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H: The Appellate Court affirmed the judgment against Farr, but reversed the judgment against Martlette.
The Appellate Court agreed that Farr was under a duty to inquire about Cappy's finances and offer extra money for Cappy's "comfortable support and maintenance."
Although Sara's will gave Farr discretion, he was still required to use prudence and reasonableness in his actions.
By not inquiring, Farr breached his fiduciary duty.
The Appellate Court found that Sally and Martlette had done nothing wrong in taking over the mortgage, and therefore the contract between Sally and Cappy was valid.
It would not be equitable to make Martlette pay for Farr's malfeasance.
The Appellate Court found that the money in Cappy's trust which should have gone to him if Farr had been doing a better job should go to Cappy's heir (Margaret) and not Sally's heir (Martlette). Therefore, a new constructive trust was formed consisting of all the money Cappy should have gotten.
The exact amount of money in this constructive trust was a question of fact for a jury, so it was remanded back to the Probate Court.

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Clymer v. Mayo.

F: Clara made her husband, Mayo, the principle beneficiary of her will. She also made him the beneficiary of her non-probate assets (aka retirement accounts and insurance). She also made two inter vivos trusts.
The first trust named her husband as the principle beneficiary and gave him the power of appointment. It was to be funded with everything in her will up to the limits of the marital deduction.
The rest of her estate was to 'pour over' into the second trust. That trust gave a life estate to her husband who could take as much as he wanted and whatever was left over after he died went to her nephews and nieces and then to some Universities.
Neither trusts were funded at the time they were created.
These are known as pour over trusts because they start empty and only get funded when money from the estate 'pours over' into them upon the death of the settlor.
Clara and her husband got a divorce. As part of the divorce, her husband waived all rights to Clara's estate. Clara changed her insurance policy to benefit her friend LaFrance.
The husband married another woman the day after the divorce was final!
Clara died. The administrator of her estate (Clymer) petitioned the court asking what to do with the money.
The trusts had never been dissolved, so according to the will the money should go there. But Clara's husband had waived his rights to take the money.
The nieces and nephews argued that if Clara's husband didn't want the money, they should get it immediately.
Clara's parents (the Weisses) argued that since the will was frustrated, the terms were void, so the money should go in intestate succession (aka to them).
A will can be revoked by operation of law when the testator gets a divorce, but this was a trust, not a will.
The Probate Court found:
The trusts remained valid.
The husband's interest in the first trust was terminated by the divorce, but he could still take under the second trust.
The nieces and nephews can take from the second trust.
The Weisses lack standing to sue.

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H: court said that the trust is valid based on a Mass statute which was based on the uniform testamentary additions to trust act which allowed for a devise of property through a trust NO matter what the size of the corpus of the trust.

Mayo and her husband were divorced at her death so the court also held that the provisions of the trust that were in favor of her husband were revoked by operation of law

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UPC §2-511 Testamentary Additions to Trusts

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1) UPC version of Uniform Testamentary Additions to Trusts Act
2) Validates will provision which pour assets into an inter vivos rust

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Heaps v. Heaps.

F: George and Barbara signed a revocable living trust and the main assets transferred was their house, then they sold the house and got a note payable to them as JT NOT to the trust. George and Barbara signed a quitclaim deed conveying title of the house to the trust and then gave the deed to the lawyer who did not record it. When the house was later sold the buyer had no idea the house was owned by the trust. George and Barbara sold the house for a promissory mortgage note payable to them as joint tenants. Trust required a duly executed instrument delivered to the trustee to enact a revocation of the trust. Barbara dies (trust is now irrevocable) and George forgot about the trust or ignored it and he was the surviving JT of the mortgage and was entitled to all of the proceeds of the note. He creates a new revocable living trust form the proceeds of the mortgage with his new wife and transfer title of the mortgage to the second trust. George dies and second wife ends up with the mortgage proceeds. Second wife transfers the mortgage proceeds from the trust with George to another trust, claiming it is her money. George and Barbara’s children claim the money from the mortgage belonged to the first trust which became irrevocable at Barbara’s death and the children were the ultimate beneficiaries of that trust.

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H: judgment for children affirmed, George and Barbara had a specific procedure outlined to revoke the trust which was NOT followed therefore the first trust was never revoked and it became irrevocable at Barbara’s death, second wife must pay over the assets she though were her husband’s to the children of her husband and his first wife
3) George and Barbara sold a trust assets and then took back title as JT which is inconsistent with the idea of holding the property in trust
4) Trust also had a provision which allowed the holding of title to trust property in any form
a) In this case the deed naming George and Barbara as JT could be deemed to be another of holding title to the trust property and did not function to revoke the trust
b) Why have such a provision in a trust?
i) To underline the importance of transferring title to property during the trustor’s lifetime
ii) If goal is to avoid probate of assets you cant have the assets easily leak out of the revocable living trust
5) Why require the delivery of the duly executed instrument of revocation of amendment to the trustee?
a) Memorialize intent to revoke
b) Trustee makes income distributions, if an amendment to the trust is made by the settlor and the trust does not comply with the requirement of a written and delivered notice of amendment the trustee can use this as a defense if he is later sued for not properly distributing the income etc etc

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EPTL 7-1.16

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provides that a lifetime trust instrument must specifically designate the trust as revocable. Otherwise, it will be deemed irrevocable.

(Irrevocable trusts are often used to hold appreciating assets, such as life insurance policies, or real property. Property placed in an irrevocable trust is generally excluded from both the probate and taxable estates. Thus, these trusts can also serve important estate planning purposes.)

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Wilcox v. Gentry.

Facts. Frank Gentry created a revocable trust for which he was the beneficiary during his lifetime. Upon Gentry’s death the trust property was to be distributed to named individuals with one fifth remaining in trust for Isabell Gentry. The trust specified that the trustee was to make distributions on her behalf deemed advisable after considering all sources available to her. Ron and Nancy Wilcox, Appellants, obtained a judgment against Isabell Gentry which they sought to garnish payments from the trust to satisfy. The trial court held that any trustee payments directly to Isabell Gentry were subject to garnishment but trustee payments for Isabell’s benefit were not. The Appellants now appeal this decision.

Issue. If a trustee exercises discretion and makes payments on behalf of the beneficiary are such payments subject to the creditor’s garnishment?

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R: If a creditor has a right to reach payments made to a beneficiary they also have a right to reach payments made in a trustee’s discretion for the benefit of the beneficiary.

Discussion. The Court adopts the Restatement (Second) of Trust Section:155(2) in finding that if the creditor has the right to reach payments made to the beneficiary they also have the right to reach payments made for the benefit of the beneficiary. They reason that drawing a distinction between such payments is arbitrary and without any basis in public policy.

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Scheffel v. Krueger.

Facts. A beneficiary of a support trust was found liable for several sexual assault charges and also faced criminal charges. The plaintiff in the civil sexual assault charge case sought to attach the defendant’s interest in the trust to satisfy the judgment of $551,286.25.

Issue.
Whether a trust purpose for support and maintenance may still be fulfilled where the beneficiary faces a criminal sentence for sexual assault.

Whether a statute that bars creditors from claiming an interest in a beneficiary’s trust makes an exception for tort creditors.

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Synopsis of Rule of Law. A statute that bars creditors from claiming an interest to a beneficiary’s trust does not make an exception for tort creditors.

Held.
The purpose of support and maintenance trust may still be fulfilled while the beneficiary is incarcerated and after he is released.

The statute that bars creditors from making a claim against a beneficiary’s trust interest does not make an exception for tort creditors. Where the legislature has made specific exemptions, the law must presume that no other exceptions were intended.

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Connecticut General Life Insurance Co. v. First National Bank of Minneapolis.

F: Aughenbaugh got a life insurance policy from Connecticut General.
Later he wrote a new will creating a revocable trust. First National was named as the trustee.
The trust was the beneficiary of the life insurance policy, and Aughenbaugh's wife Elizabeth and three kids were named beneficiaries of the trust.
Aughenbaugh divorced Elizabeth and married Marilyn. He wrote a new will that had a clause "superceding and canceling any previous wills or trusts."
Aughenbaugh died. Marilyn tried to get the insurance money from Connecticut General. They balked and instituted an interpleader to determine who should get the insurance money.
The insurance policy had never been changed, but if the trust that was to be the beneficiary was revoked, then the insurance money would pass via intestate succession to Marilyn.
The Trial Court found that the new will did not revoke the trust. Marilyn appealed.

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H: The Minnesota Supreme Court affirmed.
The Minnesota Supreme Court noted that a testamentary trust can be revoked without notice and revocation is implied if the settlor gets a divorce.
However, an inter vivos trust is not revoked in similar circumstances.
The Minnesota Supreme Court found that a revocable life insurance trust such as this one was an inter vivos trust.
The general rule is that if a settlor has the power to revoke a trust by transaction while they are still alive, then they cannot revoke that trust by writing a new will.
In this case, Aughenbaugh did not provide any written notice to either Connecticut General or First National that the trust was revoked.
The original trust document specifically gave Aughenbaugh the right to revoke the trust by written instrument. He didn't follow his own rules.

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Adams v. Link.

F: Kingsmill wrote a will that put the residue of her estate into a trust that provided income to Pringle and Foeppel for life, and then passed to the New York Association for the Blind.
Pringle predeceased Kingsmill so Foeppel got the entire life estate.
Kingsmill died. Her heirs at law (two brothers and a sister) contested the will.
During Probate, Foeppel, the Association, and the heirs at law came to a settlement to divvy up the money.
The executor (Link) refused to pass the money out to the various beneficiaries. They appealed.
Link argued that the settlement agreement would abolish the trust, which frustrated Kingsmill's intent.
Link was getting fees for administrating the trust, so if the trust was terminated, he'd lose money.
The Trial Court refused to approve the agreement. The beneficiaries appealed.

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H: The Appellate Court affirmed.
The Appellate Court found that a testamentary trust can only be abolished by a court, regardless of the preferences of the beneficiaries.
The Appellate Court found that there were three requirements to abolish a trust:
All the parties of interest unite in seeking termination.
Every reasonable ultimate purpose of the trust has been accomplished.
No fair and lawful restriction imposed by the settlor will be nullified.
The Appellate Court found that two purposes of the trust were to provide income for like to Foeppel, and to provide 100% of the intact principle to the Association.
Splitting the money three ways did not insure that Foeppel would have income for life, nor did it give 100% of the principle to the Association.
Therefore the second requirement to abolish the trust was not met.

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American National Bank of Cheyenne v. Miller.

Facts. Mrs. Plummer established a trust in 1967. The trust instructed that it be used to support Mrs. Plummer during her lifetime and after her death to pay $200 monthly payments to her only child Vivian and her husband Grant E. Miller, as well as to assist with educational expenses of their children- Davin, Hickey, and Miller, Jr. After the death of Vivian and Grant E. Miller the trust was to be divided into “as many equal shares as there are then living children” of Vivian and Grant E. Miller. And when all payments to the grandchildren had been made the balance of the trust was to be distributed to fund a scholarship at the University of Wyoming. Mrs. Plummer died in 1976 and Vivian Miller died in 1992. Grant E. Miller relinquished and assigned his interest in the monthly payments to his three children. Appellees, Grant E. Miller, Davin, Hickey, Miller Jr., and the University of Wyoming all consented to the termination and distribution of the trust even though Grant E. Miller w
as still living. The district court issued an order directing the trust be terminated and the trustee appealed that ruling.

Issue.
Is a trustee an “aggrieved party” that has standing to appeal an order terminating a trust?
Can the beneficiaries of a trust compel its termination when there is no material purpose in continuing the trust and all beneficiaries consent?
Can a trustee be required to personally bear the expense of defending a trust?

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Stndrd: 1) When all beneficiaries of a trust consent they can compel its early termination (2) on the grounds that it lacks any remaining material purpose.

Discussion. The majority concludes that there is no material purpose for the continuation of the trust. Grant E. Miller renounced and assigned his monthly interest support to his children therefore it is no longer a material purpose of the trust. In addition educational support was only a material purpose until the children reached age 35. At time of the suit all beneficiaries had reached age 35. The appellant trustee argued that there were unborn contingent beneficiaries who did not consent to the termination. However the court finds that the terms of the trust make clear that there are no unborn, contingent beneficiaries. In directing that the trust be divided in “. . . as many equal shares as there are then living children. . . ” it provides for per capita distribution and no heirs of Davin, Hickey, or Miller, Jr. could be involved.

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Walker v. Walker.

Facts. Plaintiffs commenced this action to amend the trust at issue to conform with the settlor’s intent. Defendants are the presently identifiable beneficiaries of the trust and the Commissioner of the Internal Revenue Service (Defendants). According to the settlor’s trust, the trust funds were to be characterized and distributed to allow for the greatest possible marital deduction under federal tax law. Under these trusts, the settlor’s wife, one of the Plaintiffs in this case, is to receive the net income generated from the property during her life. The inclusion of a provision in the trust gave settlor’s wife the authority to make discretionary payments of principal to herself, as beneficiary, and therefore constituted a general power of appointment within the meaning of the Internal Revenue Code. Because of this characterization, the property was subject to a power. In other words, all property included in the nonmarital deduction trust will be includable in the settlor’s wife e
state at the time of her death, regardless of whether or not she exercised the power. Plaintiffs claim that this is contrary to the settlor’s intent to have the property pass free of estate taxes from both his estate and his wife’s estate.

Issue. May a trust instrument be reformed to conform to the trust settlor’s intent as long as clear and decisive proof that the instrument fails to embody that intent is presented to the Court?

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R: A trust instrument may be reformed to conform to the trust settlor’s intent as long as clear and decisive proof that the instrument fails to embody that intent is presented to the Court.

Discussion. In a situation where a settlor creates a trust with a clear tax objective in mind, but the trust fails to accomplish that objective, a Court generally has the power to amend the trust to fulfill the settlor’s intent.

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Estate of Hamilton.

Facts. Testator died, survived by Spouse and Respondents. Spouse died 15 days after Testator. The will of Spouse was dated December 22, 1967. Testator’s will specifically required Spouse to refer to the power of appointment granted to Spouse by Testator in a subsequently executed 1982 will. The surrogate court determined that Spouse did not satisfy the “specifically reference” requirement of Testator’s will, and that therefore, in accord with Testator’s will, the remainder of the trust would pass to Testator’s residuary heirs. Petitioner seeks review of this order.

Issue. If a donor has expressly directed that no instrument shall be effective to exercise the power of appointment unless it contains a specific reference to the power, does an instrument not containing such reference validly exercise the power?

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R: If a donor has expressly directed that no instrument shall be effective to exercise the power of appointment unless it contains a specific reference to the power, an instrument not containing such reference does not validly exercise the power.

H: Although the spouse had validly exercised the power of appointment granted to her by Testator’s 1966 will, that will was revoked by subsequent wills executed by Testator in 1975 and 1982. Therefore, Spouse did not satisfy the “specific reference” requirement contained in Testator’s 1982 will. Therefore, the surrogate court properly found that the remainder of the estate should pass to Testator’s residuary heirs. The specific power of appointment to which Spouse referred in her will was to a power that had ceased to exist.

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Will of Block.

Facts. Son’s mother died. She had created a trust in her will in which she made Son the beneficiary. Son died and divided his property among his twin sons in his will, and the Trustees brought an action seeking to determine the degree to which Son effectively exercised his power.

Issue. Where there is no compelling evidence of an intention not to exercise a power of appointment, the power is exercised.

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R: Where there is no compelling evidence of an intention not to exercise a power of appointment, the power is exercised. Here the Court aims to effectuate the intent of the testator, even if the will provisions, interpreted in the strictest sense, did not properly convey that result.

H: Son properly exercised his power because there was no compelling evidence of an intention not to exercise the power. Because the son’s apparent intent was to benefit both of his son’s equally, the property should be so divided between the two sons.

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Sullivan v. Burkin.

F: Sullivan created an inter vivos trust. The income from the trust was payable to Sullivan while he was alive and he retained the right to revoke the trust at any time. It contained a provision that upon his death, the contents of the trust went to Cronin Sr. and Cronin Jr.

Sullivan then put the bulk of his estate into the trust.

Sullivan had a will that explicitly left nothing to his wife.

Under Massachusetts State law, a surviving spouse can choose to take an elective share of a decedent's estate in lieu of what they were offered in the will.
The surviving spouse then gets what they would have received if the decedent died intestate.
The Sullivans had been separated for many years but had never bothered to get a divorce.

Sullivan died. Sullivan's wife sued to have the contents of the trust declared part of the augmented estate.

The augmented estate includes everything in the will, plus everything that transfers through non-probate means (trusts, insurance, 401k, etc.)
The trust's new trustee, Burkin claimed that the trust was not part of the augmented estate.

The Probate Court found for Burkin and said that the trust was not part of Sullivan's estate. Sullivan's wife appealed.

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R:
The Massachusetts Supreme Court declared that after this opinion, all inter vivos trusts shall be considered to be part of the estate of the decedent if the decedent alone retained the power during their life to direct the disposition of the trust assets for their benefit.
That includes retaining the ability to revoke the trust or retaining the general power of appointment.
A power of appointment is the ability of the testator to select a person who will be given the authority to dispose of certain property under the will.

H: However, for this case, the Massachusetts Supreme Court decided to stick with previous Massachusetts precedent and declare the inter vivos trust to be valid and therefore not part of Sullivan's estate.

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Estate of Kohlsaat.

Facts. Decedent prior to his death formed a trust as an irrevocable trust and transferred to the trust a commercial building owned by the decedent and managed for many years by various family members. Under the provisions of the trust, Beatrice Reinecke and peter Kohlsaat, the Decedent’s children, each received an interest in one-halfof the corpus and income of the trust. Each also received the special power to appoint the corpus of their share to his or her children or grandchildren. Beatrice and Peter and sixteen contingent remainder beneficiaries were given the right to demand from the trust an immediate distribution in an amount not to exceed $10,000, which such right lapsing 30 days after the transfer of property to the trust. This right was not exercised by any beneficiary. The Decedent’s estate attempted to treat the interest transferred to the sixteen contingent beneficiaries as qualifying for gift tax exclusions. An audit of the Federal estate tax return denied the exc
lusions on the ground that the contingent beneficiaries did not hold a present interest in the trust.

Issue. Whether the interest held by the contingent beneficiaries was a present interest in the trust thus qualifying for an annual gift tax exclusion?

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R: Contingent beneficiaries who have a right to demand payment of trust property, have a present interest in the property that will qualify the Decedent’s estate for a gift tax exclusion.

Discussion. Even though there was an understanding that the beneficiaries would not exercise this right the Court found that the Decedent intended to benefit the contingent beneficiaries by giving them interest in the trust.

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Geddings v. Geddings.

F: Pinkie Geddings married her second husband. They both signed a document called a "Waiver of Right to Elect and of Other Rights"
The document acknowledged that each spouse had made a will, that each spouse wanted the bulk of their estates to go to their children from previous marriages, and that each disclaimed interest in the other spouse's estate, outside of what was granted in the wills."
It also said that each spouse had made a complete disclosure of their presently-owned assets.
Mr. Geddings died, and Pinkie attempted to invoke her right to an elective share of the estate.
The Probate Court found the waiver to be invalid and awarded Pinkie an elective share. Mr. Gedding's children appealed.
The Probate Court found that the waiver was void because Mr. Geddings did not provide a complete disclosure of his assets.
The Appellate Court affirmed. Mr. Gedding's children appealed.

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H: The South Carolina Supreme Court affirmed.
The South Carolina Supreme Court acknowledged that under South Carolina State law, the right to election of a surviving spouse may be waived by a written contract signed by the party waiving after a fair disclosure.
Evidence presented at trial showed that Mr. Geddings had not provided any disclosure about his assets and in fact had kept Pinkie out of the loop.
Uniform Probate Code § 2-123 allows the waiver of the right to election, but it does list issues that could make the waiver unenforceable.

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Prestie v. Prestie.


F: Testator wrote a pour over will, which left all of his assets in a trust his son and a life estate in his condo to his new spouse. Nevada statute says if a person makes a will before getting married and then gets married the will is revoked but will cannot be revoked if new spouse is provided for otherwise.
a. W → will should be revoke and assets should pass intestate (to surviving spouse), claims she wasn’t provided for in the will bc it was pour over will.

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H: judgment for wife, will did not provide specifically for the wife, will left property to a trust, wife can inherit through intestacy

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Estate of Glomset.

Facts. The decedent and his wife made and signed joint and reciprocal wills leaving each other all their assets in case of death, except in the case of simultaneous death in which the entire estate would go to the decedent’s son, John Larson Glomset, Jr. The Appellee, the decedent’s daughter, was not named in the will and sought a declaratory judgment that she was a pretermitted heir and entitled to share in the distribution of her father’s estate. The trial court found that the Appellee was unintentionally omitted from the will and therefore had a right to same right to share in the estate as if the decedent had died intestate. Appellant now appeals this decision.

Issue.
Must the decedent’s intent be determined from the will itself or is extrinsic evidence admissible?
Was the Appellee a pretermitted heir in her father’s will?

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R: Where no ambiguity appears on the face of a will, extrinsic evidence will not be allowed to show why a child was left out of a will by their parent.

H: Yes. Affirmed. There are no uncertainties on the face of the will and the decedent failed to mention the Appellee or his reason for failing to mention her and therefore Appellee is a pretermitted heir and entitled to inherit from her father’s estate.