Wills, Estates and Trusts

Terms in this set (171)

Everman v. Mercantile Trust Razing house after death went against public policy

Hodel v. Irving State cannot take away right to dispose of property

Death cessation of respitory and circulatory functions. NJ--

> brain death

conservatorship authorizes court appointed conservator to manage

the disabled person's property under the court's
supervision

durable power of attorney can transact legally on a person's behalf during any
period of incapacity

digital assets if you do not give it away like via email once you die
it dies with you

cohen v. guardianship bodies are not property

slayer rule found by preponderance of evidence of a felonious

or intentional killing

evidentiary standard for slayer preponderance of evidence

Castro case wife never criminally charged with killing husband

but still found civilly liable under slayer rule
 UPC 2-1105 power to disclaim--> anyone can!

UPC 2-1113 Disclaimer Barred or limited: you cannot accept the

devise then say you disclaim it

Estate of Gardner house with big mortgage. Disclaimer of an interest

in property is barred if the disclaimant accepts the
interest sought to be disclaimed

UPC 2-103 Order of intestate succession:

decendants
parents
siblings
nieces/nephs
grandparetns
uncles and aunts
first cousins
certain step children

Laughing Heirs persons so distantly related to the decedent as to

suffer no sense of bereavement, laughing all the
way to the bank--> this is what UPC 2-103 is trying to
avoid

UPC 2-102 Share of Spouse If D has not decendents but has parents: 300k + 3/4
of remainder
2. D has descendants who are not spouses: 150k +
1/2 remainder
3. Spouse has kids who arent D's: $225 + 1/2
remainder
 English Per Stirpes a. Divide decedent's estate into an equal number of
shares such that one share is set aside for each child
of the decedent who is then living and one share for
each child who is not then living but has
descendants who are living. Always start at first line
of descendants even if they are all dead.

Modern Per Stirpes UPC 1969 a. Divide the decedents estate into an equal number
of shares in the first generation below the decedent
with a living relative. Set aside one share for each
member of that generation who is then living and
one share for each member who is not then living
but has descendants who are living. Distribute the
shares by representation

Per Stirpes Per Capita a. "equally near, equally dear" divide the estate into
an equal number of shares in the first generation
below the decedent in which there is one living
relative. Distribute one share to each member who
is alive. Then combine the remaining share of
predeceased members into a bucket. Pass the
bucket down to the next generation with a living
relative and repeat in the same manner until entire
estate is exhausted.

berger v. megust case where depending on the per stirpes applies

the niece would either get 1/4 or 1/11 of the estate. it
makes a big difference!

stranger to adoption rule adopted adults can inherit from but not through the
adoptive parent (under UPC this does not apply for
intestate estates but does apply for testacies with
class gifts)

half-blood under upc each gets 1/2

 Estate of Thiemann aunts and uncles can be half bloods

UPC 2-119(b)-(d) adoptive parent can inherit from child and child can
inherit both through and from adoptive parent and
biological parent.

Advancement inter-vivos which can be interpreted as an

advancement on an estate. old rule was a
presumption this was so. new rule is you need
declaration of advancement in contemporaneous
writing

estate of hand love letter will. protecting testaotr intent--> if he

said he was going to formalize it into a will then the
love letter was not an intentional will

UPC 2-501 Capacity minors do not have capacity. need to undersand

generally the nature and extent of property and
natural objects of bounty

Model rule for capacity based on atty's reasonable belief about capacity;
allow lawyer to seek help

Capacity challengers carry burden of proving there was no capacity

(minority rule is TX and NY)

Estate of Nalaschi Decedent had two wills, one (the later one) used
daughter's maiden name in will, thought other
daughter was stealing, etc. DAughters argued no
capacuty. holding: decedent did have capacity and
the testimony to contrary is not from a reasonable
time before or after the execution of the will--> he
knows generally what is in his estate and who he
wants it to go to
 Lucid interval a period when the person with a mental incapacity is
clear minded

Insane Delusion A distinct form of testamentary incapacity--> the

delusion needs to be pretty wild though AND the
delusion needs to have CAUSED the objectionalbe
disposition

estate of Zilinksi Really crazy lady case (sad). holding: do not need to
prove she was lacked total capacity, just that the
delusion impacted the disposition.

Undue Influence Unfair and improper persuasive pressure within a

relationship of trust: "this is not my free will but I
must do it"

undue influence rebuttable if the two are in a confidential relaitionship

presumption (fiducuary relaitionship) and there are suspicious
circumstances then there is a presumption that there
was undue influence

elements to prove undue 1. susceptible donor

influence 2. opportunity of fid. to take advantage
3. the disposition would benefit fid.
4. apparent result of benefit to fid.

in re estate of kurrle son lived with mother, had power of atty, etc.
holding: elements of undue influence were met and
son needed to rebut the presumption: but here did
not assert any evidence. not good enough

duress threatened to perform, or did perform, a wrongful

act that coerced donor into making transfer
 In re Estate of Rosaco mean nephew case. holding: there was duress
because he was violent and made threats, but not
undue influence because aunt's will was not
overborne- she had consulted with others.

fraud knowingly or recklessly making a false

representation of a material fact with intent to (and
results in) leading donor to make transfer that would
not otherwise be made. An omission of material fact
is also fraud.

fraud in the execution document is not what it says it is

fruad in the inducement a lie like " your son died, give to me" but son is not
really dead.

internal protective doctrines capacity, lucid interval, insane delusion

external protective doctrines undue influence, duress, fraud

Attested Will requirements 1. in writing

UPC 2-502 2. signed
3. two witnesses OR notarized

Estate of Henneghan Will was not signed by two witnesses (in this state
they had not adopted UPC provision allowing will to
be notarized)

Witness Competency Competency and credibility

Disqualified witness if they are an interested party.

purged of interest if interested witness signs a will then their interest is

"purged" UNLESS there are two other witnesses
 UPC Purging minortiy rule: sees interested witness as harmless
error

Attestation Clause That clause (e.g., at the end of a will) wherein the
witnesses certify that the instrument has been
executed before them, and the manner of the
execution of the same. is prima facie evidence that
will is valid

Self-Proving Affidavit Maker and witnesses sign Will and swear under oath
before a notary public- certain statements to "prove"
Will upon later death

Avoids witnesses' later testimony

In re Estate of Griffith witnesses impeached their own signatures on the

will: courts said the testimony can be considered
but with caution.

Holographic Will will that is handwritten and signed by decedent

Revised UPC re: holographic material portions must be in decedent's handwriting:

wills this is getting harder in the digital age...

In re Will of Morris typed fill in the blank will with two fully handwritten
paragraphs below. holding: only the two
handwritten paragraphs below were valid (in this
case appointment of executor was not material)

Harmless errors must be proved by clear and convincing evidence

intended this to be the will
 Estate of Erlich messy attorney case. holding: clear and convincing
evidence that unsigned will in a drawer was meant
to be his last will and testament

when does a will become 1. death of testator

irrevocable 2. loss of capacity

how is a will revoked? 1. subsequent will

2. act of revocation (tearing, burning, shredding)
3. required mental capacity

codicil an amendment or supplement to a will

holographic codicil amendment of prior will that is handwritten (enough

for a sample) and often placed on a will itself.

partial revocation by resolution of inconsistent parts in favor of most

inconsistency recent will/codicil; disposition of unaltered parts
stays the same

Republication by Codicil A validly executed will is treated as re-executed as

of the date of the codicil (in some states even if the
will was not validly executed then it is published for
the first time with the codicil)

Revocation by Subsequent we need to be able to ascertain

Writing 1. the intent of the testator
2. what part of the will is revoked
3. what part of the will remains
4. ensure it covers complete disposition of proeprty
 revocation by physical act 1) Will must be burned, torn, cancelled, destroyed
or obliterated.
2) T must have the SIMULTANEOUS intent to revoke
3) The Act must be done by T, or by some one in T's
presence and at his direction.

In Re Estate of Gushwa crossing out pages on a copy of the will was not
good enough and must also make subsequent
testamentary disposition (modern trend is that
intestacy is ok)

Lost Wills 1. if will was unintentionally lost of destroyed it is still

available for probate
2. if will was fraudulently destrpyed by another to
avoid probate then it can still go through probate if
there is proof of fraud and will contents
3. testator lost/revoked/disposed of will--> NOT
available for probate b/c presumption is testator did
so on purpose. can rebut this presumption through
clear and convincing evidence

Conley case presumption that if will is lost then testator revoked

it

Partial Revocation by Physical must prove by clear and convincing evidence-->

Act who has posession, intent, etc.

Schumacher Case decedent gave holographic will to secretary to

keep safe. he had struck through a portion of the
will. Holding: parital revocation was valid- secretary
kind of like extension of decedent, she was also not
an interested party
UPC 2-804 Change in family we assume you want your stuff to go to your current
status and not former spouse.
2. only effects gifts to former spouse or family of
former spouse

Doctrine of ineffective also known as DRR--> unrevokes a revoked will

revocation under certain circumstances because of either a
mistaken belief of fact (mary is dead but is not dead)
or law ( revoking will 1 in will 2 but not executing will
2 validly) standard is clear and convincing evidence
( can rebut by showing testator would rather have it
this way)

UPC 2-509 (Revival of a 1. Will 2 wholly revoked will 1

Revoked Will) a. will 2 revoked by PHYSICAL ACT
b. will 1 remains revoked unless revived
2. Will 2 partially revoked will 1
a. will 2 revoked by PHYSICAL ACT
b. revoked part of will 1 is REVIVED unless testator
intent was not to revive
3. will will 2 wholly or partially revokes will 1
a. will 2 revoked by will 3
b.will 1 remains revoked unless revoked part is
revived

testamentary rcontracts contracts concerning testamentary succession

involve a decedent's promise to make a will
(personal service contract), not revoke a will
(reciprocal wills) , or die intestate

integration: staple rule which pages constitutes testator's will? two prong
test
1. the pages that testator intended to be part of the
will AND
2. That were physically present when will was
executed
Incorporation by Reference in order to be incorporated the other document
MUST HAVE BEEN
1. in existence at time of execution of will
2. language of will manifests intent of testator to
incorporate the writing
3. will must identify the relative writing clearly.

Gifford v. Gifford four will instruments (yikes!) holding: met the

requirement for incorporation under state law.
NOTE: under UPC integration documents do not
need to be signed OR in the testator's handwriting

UPC 2-513 property lists allows testatos to dispose of personal property in

unattested writing (must be tangilbe personal
property, not cash). timing need not predate will
and not necessary to comply with formalities

In re Moor property memo said to sell items and give proceeds

to people. holding: this is ok, it is not a cash gift

specific devise A gift of real property in a will. Under the UPC, a gift
of real or personal property in a will.

General Devise A general item (usually a sum of money).

Demonstrative Devise Hybrid of general and specific

Gift of particular fund ( I leave 10k from the sale of
my apple orchard to prof. )

Residuary Devise All other property not expressly disposed of in the

will
 class gifts A gift to a group of persons having a common
characteristic; the share of each member of the
class is determined by the # of persons in that class
(i.e. to my children)

Ademption by Extinction failure of a specific gift because the property is not

in the testators estate when she dies.

Ademption by extinction: if property specifically identified in will cannot be

Identity Theory found then beneficiary gets nothing (does not look
into why gift failed)

Ademption by Extinction: Intent if there is no intent to extinguish the gift then

Theory (UPC and REstatement) beneficiary gets money in amount of what gift
would have been

Ademption by Satisfaction the failure of a specific gift because the property

has been transferred to the beneficiary before
death--> modern presumption is that this is not an
advancement unless there is a contemperaneous
writing to reflect as such.

Abatement reducing bequests when estate does not have

enough to cover debts and expenses

UPC Default Priority of 1. property not disposed of

Abatement 2. residuary devises
3. general devises
4. specific devises

Acession increase or addition to property (usually dealing

with securities) --> increase will be payed out to
beneficiary (split stocks)
 Power of Appointment a power that enables the donee of the power to
designate recipients of beneficial ownership
interests in or powers of appointment over the
appointive property

General Power of Appointment A donee can appoint to herself, her creditors, or her
estate as if donee owns the property himself.

Specific Power of Appointment donee is custodian who merely has the ability to
determine who gets the appointive property and in
what proportions (cannot give to themselves)

in re estate of muchemore was the power of appointment general or specific?

Holding: because there were almost no limits then it
was general

exercising powers of 1. donee's exercise must be in a leggally effective

appointment document
2. must fulfill requirements imposed by donor
(specific reference requirement back to original will
to ensure they know they are in compliance)
3. exercise of power must be in favor of permissible
appointees

Use of residuary clauses and residuary clauses standing alone are ineffective to
specific reference requirements exercise a testamentary power of appointmet

Appointment of Executor 1. helps prevent litigation about administration of

estate
2. court's generally respect testator's choice
3. appoint successor executors as well
Challenging Executor- proposed executors can be found to be unqualified
Appointment if
1. underage
2. incapacitated
3. convicted felon
4. demonstrated propensity for dishonesty

Challenging Executor- Focus more on handling of administration of estate

Proceedings have begun and breach of fiduciary duties
(petition to remove)

In re Estate of Jones Courts have huge leeway in not appointing executor

if the issue is raised.

Appointment of Guardianship UPC 5-202: can do so in a will but also in unattested

for Minor Children but signed written instruements.

Rebuttlable presumption of the fact that a parent names an individual creates

appointment of guardianship rebuttable presumption that the individual should
for minor child be confirmed by the court. BUT interested party can
object forcing court to decide based on the BEST
INTERESTS OF THE CHILD

In re RMS temporary guardian after death of sister challenging

guardianship appointment in will. holding: best
interests of child should prevail over testator intent

Just Debt Clauses and UPC 2- specific devise passes subject to the mortgage,
607 Nonexoneration without rise of exoneration, regardless of boiler
plate "just debts" clause

In re Estate of Vincent what is the imapct of just debt clauses on non-

probate assets? holding: none! a general just debts
clause is not enough for exoneration of a non-
probate transfer that is subject to a mortgage
 Negative wills will that expressly disinherits potential heirs in the
case of intestacy.
Common law (majority)- not given much effect
UPC- given full effect

Cook v. Estate of Seeman applying the majority view that although grandkids
were disinherited in the will that they would inherit
the house through intsestacy since there was no
residuary clause in the will even though D had
expressly disinherited them

Lapse beneficiary predeceases the testator and there is a

failure of gift

UPC 2-604 Default Rules for 1. If lapse of Specific, general, or demonstrative

Lapse devise--> gift goes to residuary estate
2. if residuary estate lapses then goes to the
surviving residuary beneficiaries (if there are more
than one) If there was only one residuart beneficiary
then passes through intestacy

No residue of the residue rule minority rule stating that if one residuary beneficiary
bequest lapses then it must pass through intestacy
even if there are other living residuary beneficiaries

Carpenter v. Miller testator's will adequately planned for if all residuary

beneficiaries died.

120 hour rule 1. a beneficiary must survive testator's death by 120

hours (5 days) and such must be proven by clear
and convincing evidence
Simultaneous death and 120 if both die "simultaneously" (within 5 days of each
hour default rule other) then apply legal fiction that both outlived the
other and transmit property through their own
estate to other heirs and beneficiaries

Benficiaries in gestation if lives more than 120 hours after birth then deemed
to have survived the decedent

In Re Leete Estate husband and wife died simultanously: court applied

120 hour rule and divised their estates according to
individual wills.

Anti-Lapse Prevents lapse by substituting the descendants of

the predeceased beneficiary for the predeceased
beneficiary

Lorenzo v. Medina court ruled bequest lapsed because the beneficiary

was not the decedent's descendant but rather his
sister-in -law (only related by marriage)

Types of Extrinsic Evidence for 1. prior drafts

Will construction 2. attorney's notes
3. testimony from those close to testator

Patent ambiguity provision unclear on its face

patent ambiguity modern trend let extrinsic evidence in

patent ambiguity common law no extrinsic evidence because goes agasint the
trend (majority view) intent of the testator

Latent ambiguity cannot tell it is there on its face (to my cousin John
but there are two cousins named john)
Modern and Common law both allow extrinsic evidence in
trend for Latent ambiguity

University of southern Indiana "personal property" was patent ambiguity subject to

v. Baker two reaonsable interpretations holding: would allow
in extrinsic evidence (minority view)

Reformation of Mistake 1. there was an actual mistake

Elements 2. intent of the testator was otherwise
3. proven by clear and convincing evidence

Estate of Herceg holding: evidence that attorney's new machinery

erased some lines which included the name of the
beneficiary

Remarriage revives a revocation of will from divorce (if re-

marrying the same person)

Lincoln v. Guerrero hold: must present proof by preponderance of

evidence that ex-spouse wanted to keep you on as
beneficiary

separate property married persons own property separately except

for jointly titled property (most states)

Community Property States States that classify all property acquired by either
the husband or the wife during the marriage, with
the exception of gifts or inheritance, as marital
property to be equally distributed between the
spouses at the time of the divorce.

Elective Share Statute protect surviving spouses when their spouse tries to
will them out of the will
 augmented estate 1. net probate estate (plus)
2. certain non-probate transfers during marriage
(plus)
3. significant gifts to 3d parties within 2 years (plus)
4. life insurance (minus)
4. surviving spouse's property

Equation to calculate elective (Augmented estate x length of marriage%)/2

share under 1990 UPC

Old UPC elective share 1/3 of augmented estate (did not include life
insurance)

Not in community property 1. gift

2. inheritance
3. recovery from tort claim

(but if you comingle any of it then you are screwed)

omitted spouse If will was createed and executed prior to marraige

then omitted spouse can inherit unless:
1. testator made the will with full awareness of
impending marraige
2. expressly declares will to stay the same
3. testator provides for spouse through non-
testamentary transfers

They get what they would have received through

intestacy!!

If decedent has children who are not children of the

surviving spouse then those gifts stay
 Omitted Children 1. child is omitted from will
2. born or adopted AFTER the will
3. no other property given through non-probate
4. will take by intestacy unless there was an
intentional omission or something goes to the other
parent.

Pro rata calculation for omitted some children in the will are accounted for then kid
children takes pro rata from the other kids

Trust formula A to B for C then D

deed of trust transfer of property to the trustee

declaration of trust grantor trustee

standard of review for valid clear and convincing!! what else?

trust

standard of capacity for irrevocable trusts: same as gift (very high)

revocale and irrevocable trists revocable: same as will "sound mind"

elements required for trust 1. beneficiary

creations (Mannara Case) 2. trustee
3. identified property
4. actual delivery with intent

delivery of trust property deed, list personal property, if settlor is trustee then
retitle the property.

AN INTERVIVOS TRUST MUST DELIVER TRUST

PROPERTY TO THE TRUSTEE
West Coast FActors for trustee a. Amount received and distributed
compensation b. Wages/salary customary in community
c. Success or failure of administration
d. Unusual skill of trustee
e. Fidelity or disloyalty
f. Amount of risk
g. Time consumed
h. Custom in community
i. Character of work (routine or requiring skill)
j. Own estimate of value of services
k. Payments already made

purpose of private trusts cannot violate public policy or be impossible

inter-vivos trust trust created during the lifetime of the settlor