Trust and Estate Outline

Trust &Estate by Rosenbury 2005
I. Introduction
A. The Mess of Family, Property and Death
1. In re Vickie Lynn Marshall (distributed via email)
B. Overview of the Probate Process, p. 34-47
All of the decedent’s assets at death can be divided into probate (property that passes under decedent’s will or
by intestacy) and non-probate property (property passing under an instrument other then a will which became
effective before death, including: joint tenancy property, life insurance, K with payable-on-death provisions,
interests in trust ( if the decedent has a testamentary power of appointment over assets in the trust the
decedent’s will must be admitted to probate, but the trust assets are distributed directly by the trustee to the
benes. named in the will and do not go through probate).
Testacy: a person dying testate devises real property to devisee, and bequeaths personal property to legatees.
Intestacy: heir = next-of-kin.
Probate performs three functions: (1) it provides evidence of transfer of title to the new owners by a probated
will or decree of intestate succession; (2) it protects creditors by requiring payment of debts; (3) it distributes
the decedent’s property to those intended after the creditors are paid.
If no will is probated within 3 yeats after death, the presumption of intestacy is conclusive. The time for
contesting probate of a will is dependent upon a statute in the particular jurisdiction.
Probate is not always necessary, as it cost a lot. It can be avoided by providing the property owner during life
transfers all his/her property into a joint tenancy or a revocable or irrevocable trust or in many states,
executes a K providing for distribution of K assets to named benes. on the owner’s death.
Universal succession: a different system from common law system: the heirs or the residuary devisees
succeed to the title of all of the decedent’s property; there is no personal representative appointed by a court.
II. The Default: Intestate Succession
A. Introduction to Intestacy, p. 71-74
* People wouldn’t make their own will, b/c can’t fact their own death and the cost involved. Whatever the
reason, a person who does not make a will or dispose of all his/her property by non-probate transfers,
necessarily accepts the intestacy law as his/her estate plan by default.
* General speaking, the law of the state where the decedent was domiciled at death governs he disposition of
personal property, and the law of the state where the decedent’s real property is located governs the
disposition if such real property.
* UPC§§2-101, 2-102, 2-103 (p.73)
B. The Surviving Spouse
1. Share of Surviving Spouse, p. 74-77
Policy of framing an intestacy statute: to carry out the probable intent of the average intestate
decedent. Under most current state law, it is to give the surviving spouse a 1/2 share if only one child
or issue of one child survives, and a 1/3 share if more than one child or one child and issue if a
deceased child survive, but there are variations. Under the UPC, §2-102 (p.73): if the decedent’s
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descendants are also descendants of the surviving spouse, and the surviving spouse has no other
descendant, the surviving spouse takes the entire estate to the exclusion of the decedent’s
descendants. Giving everything to the spouse and nothing tp the children, under these circumstances,
is a novel statutory solution. The provisions in subsections (3) and (4), giving the surviving spouse
less when either spouse has a child by a previous marriage, are also unusual. If there is no
descendant, most states and the UPC provide that the spouse share with the decedent’s parents, if
any. If not, the surviving spouse usually takes all to the exclusion of collateral kin; but some other
states provide to share with kin and their descendants.
In Hawaii, persons who are forbidden by law to marry can register with the state as “reciprocal
benes, which are given many of the benefits of surviving spouse, including the right to inherit under
the intestacy statute the same share as a legal spouse receives and the right to an elective share.
2. Who Qualifies as a Surviving Spouse?
a. Bigamous Marriages, handout
b. Same-Sex Couples, p. 492-500 and handout
In re Estate of Cooper: (study aid p.139) is the survivor of a homosexual relationship,
alleged to be a “spousal relationship” entitled to right of election against the decedent’s
will? NO
c. Unmarried Cohabitants, handout
d. Sex Changes, handout
C. Descendants
1. Who Qualifies as a Descendant
a. Posthumous Children, p. 97-98, 127-28 (notes 2-3) and handout
(遺腹子) it is a child’s advantage to be treated as in being from the time of conception
rather than from the time of birth, the child will be so treated of born alive. The Ct. has
establish a rebuttable presumption that is “if the child claims that conception dated more
then 280 days (normal period if gestation is 280 days), the burden of proof is usually
upon the child. The UPA (p.98) presumes that a child born to a woman within 300 (rather
then 280) days after the death of her husband is a child of her husband.
* a woman in LA giving birth to a girl using the sperm retrieved from her dead husband 30
hours after the man’s death. If the father didn’t consent?
* under the social security act, the state intestate succession law determines rights to SS
benefits for a dependent child. In1996, the SS commissioner agree to pay benefits to a
Louisiana child conceived after her father’s death even though under Loui’s law such a
child is not a heir; Arizona grant this benefit to a child conceived after father’s death and
recognized the child as the father’s heir.
b. Adopted Children, p. 98-114
Hall v. Vallandingham: Does the trial Ct. is correct in denying the four children
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the right to inherit through their nature paternal uncle when these children
were adopted by their stepfather after the death of their nature father and the
remarriage of their natural mother. (the children adopted is not entitled to
inherit from their nature father.)
* this is for the preventing of dual inheritance. The Family Law Act plainly
mandates that adoption be considered a “rebirth” into a completely different
relationship. Once a child is adopted, the right of both the natural parents and
relatives are terminated, and b/c an adopted child has no right to inherit from
the estate of a natural parent who dies intestate, it follows that the same child
may not inherit through the natural parent by way if representation. (aid p.27)
* UPC §§2-113 ,2-114(p.101) but the inheritance rights vary from state to state.
* children born by reproduction technology, the “surrogate mother issue”.
(p.103-109) To determine whose child the true intent when making K, and the
best interest of the child is taken into consideration.related to inheritance.
* An adoption of adult can prevent will contest (in NY, adopt an adult is fine,
but can’t adopt an adult lover, but Delaware Ct. reject NY Ct.’s holding). The
adoption can’ not be set aside by the person persons who would have been the
heirs but for the adoption. But can attack an adoption decree on grounds of
mental incapacity, undue influence.
O’Neal v. Wilkes: the K is invalid, so the adoption of O’Neal null, such that she
is not entitled to inherit Cook’s estate property.
O’Neal was born out of wedlock, raised by mother, unrecognized by her father
(take no action to legitimize has, or provide support to her or her mother). She
was adopted by Cook by the K her aunt entered into with him.
* O’s father’s consent of the adoption is not necessary here b/c he never
recognized her in any manner. (but the law requires parent’s consent although
the child is physical custody of another b/c to arrange the adoption of their
child is an exclusive authority.) But her aunt’s relation with her is not a legal
custodian relation but merely a family obligation, so her aunt has no authority
to enter into the adoption K with Cook (neither does the relatives consent to
the K), so the K is invalid.
* Dissenting opinion: (p.112) where the child has fully performed the alleged K
over the course of many years or a lifetime and can sufficiently establish the
existence of the K to adopt, the K should be enforce regardless that the person
who consented to the adoption has no authority to do so. Reasons follow.
(p.112) (the policy of the requirement is to protect the child, but to strictly
apply it damages the policy) (p.113-14: if the foster parent performed the K,
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although there is no formal K, their performance estopped them to deny the

adoption, therefore the child can inherit from them.)
c. Nonmarital Children, p. 115-17
Children born out of wedlock could inherit from mother, but the rule respecting inheritance
from father vary from state to state. (argument: discriminate against nonmarital child).
The rule to inherit from father: p.115-17
2. Share of Descendants, p. 86-90 and review handout
After the spouse’s share is set aside, the children and the issue of deceased children take the
remainder of the property to the exclusion of everyone else. When one of several children has died,
before the decedent, leaving descendants, all states provide that the child’s descendants shall
represent the dead child and divide the child’s share among themselves (take by representation). Son-
in-law and daughter-in-law are excluded as intestate successors in all states.
I. Per Stirpes (SP) (Strict per stripes)
II. Per Capita with Representation (PCR) the modern American approach
III. Per Capita at each generation (PCG) the UPC approach, equally near, equally dear.
* note: Negative Disinheritance: UPC§2-101(b) authorize a negative will, the barred heir is treated as
if he disclaimed his intestate share, which means he is treated as having predeceased the intestate.
D. Ascendants and Collaterals (祖先和旁係)
1. Share of Ascendants and Collaterals, p. 90-96
When the intestate is survived by a descendant, the decedent’s ancestors and collaterals do not take.
But when there is no descendant, after deducting the spouse’s share, the rest of the intestate’s
property is usually distributed to the decedent’s parents, as under the UPC. And if there is no spouse,
parent or descendant, the decedent’s heir will be more remote ancestors or “collateral kindred” (all
persons who are related by blood to the decedent but who are not descendants or ancestors) and in all
states intestate property passes to brothers and sisters and their descendants; the descendants of any
deceased brothers or sisters (nephews and nieces) take by representation in the same manner as
decedent’s descendant.
* “laughing heirs”: UPC §2-103, it does not permit inheritance by intestate succession beyond
grandparents and their descendants. (but some legislatures have moved to the opposite direction, ex,
permitting stepchildren and kin of a predeceased spouse to inherit when the decedent leaves no blood
relatives, ex: CA)
2. Review Problems, handout
F. Special Issues Regarding “Half-Bloods,” p. 96-97
In a large majority of states, a relative of half-blood (hb) is treated the same as a relative of the whole-blood.
This is the position of UPC§2-107. a few states where a hb Is given a half share (Virginia); few others, a hb
takes only when there is no other wb relatives on the same degree (Oklahoma).
E. Advancements (生前贈與), p. 128-31 UPC§2-109 (p.130)
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At common law, any lifetime gift to a child was presumed to be an advancement, a prepayment of the child’s
intestate share. This is based on the presumption that the parent would want an equal distribution of assets
among the children and that true equality can be reached only if lifetime gifts are taken into account in
determining the amount of the equal shares. This presumption has been changed in some states, where a
lifetime gift is presumed not to be an advancement unless it is shown to have been intended as such.
- to avoid this doctrine, the child has the burden of establishing that the lifetime transfer was intend ed as an
absolute gift that was not to be counted against the child’s share of the estate.
- if the child predeceases the parent, the amount of the advancement is deducted from the shares of his/her
descendants, if other children of the parent survive.
* Transfer of expectancy (p.130): the expectancy is not an interest at all, therefore, can not be transferred at
law. However a transfer may be enforceable in equity as a K for an adequate consideration.
G. Special Issues Regarding Transfers to Minors, p. 132-34
A minor doesn’t have legal capacity to manage property, therefore needs a guardian. 3 alternatives for
property management are: guardianship (conservatorship), custodianship, and trusteeship.
H. Bars to Succession, p. 141-57 and handout
1. Homicide: In re Estate of Mahoney: in the sate of Vermont, may a widow convicted of manslaughter in
connection with the death of her husband inherit from his estate? NO.
A person who has killed another id prevented from taking by descent or distribution from the person he has
killed. No one should be permitted to profit by his own fraud or take advantage and profit as a result of his
own wrong or crime. Therefore, the legal title passed, but it was subjected to a constructive trust, and the
equity hold the wrongdoer to be a constructive trustee and compel him/her to convey the property to the
heirs or next of kin of the deceased.
- One who has killed while insane is not chargeable as a constructive trustee.)
- The principle is that the slayer should not be permitted to improve his position by the killing. But, he
should not be compelled to surrender property to which he would have been entitled if there had been no
killing. The doctrine of constructive trust is involve to prevent the slayer from profiting from his crime
(prevent the unjust enrichment) but not as an added criminal penalty.
* UPC§2-803, bars the killer from succeeding to non-probate as well as probate property, “a wrongful
acquisition” of property must be treated in accordance with the principle that a killer can not profit from
his wrong. The killer is treated as having predeceased the victim, the UPC provides that the killer is treated
as having disclaimed the property, and under §2-801, the disclaimant is treated as having predeceased the
decedent.
2. Disclaimer: Troy v. Hart (read the study aid p.35)
The common law treat the heir who disclaim the inheritance as if title had passed to the heir and then from
the heir to the next intestate successor. And the disclaimant is treated as predeceased the decedent (UPC§2-
801) §2the advantage of this are saving estate tax and avoiding creditors.
I. Review Problems, handout
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III. Attempting to Manifest Intent: Wills (or Testate Succession)

A. Executing Wills
1. Testamentary Capacity
a. Mental Capacity, p. 159-65
In re Strittmater: the will that is the product of the decedent’s insanity is not valid.
*Reasons for the requirement of mental capacity: ①the will should be given effect only if
it represents the T’s true desires. ②a mentally incompetent person is not definded as a
“person” in a legal sense. ③to protect the decedent’s family. ④to protect the decedent
himself carry out his true intent incase he becomes insane later and executes another will
produced under insanity. ⑤to protect the society at large from irrational acts. ⑥protect a
senile or incompetent T from exploitation by cunning persons (undue influence).
*The test of mental capacity: the T has to have the ability to know: ⑴ the nature and extent
of the T’s property. ⑵ the person who are the nature objects of the T’s bounty. ⑶ the
disposition the T is making. ⑷how these elements relate so as to form an orderly plan for
the disposition of the T’s property.
- The T must have mine and memory relevant to the 4matters, T must understand the
significance of his act. Testamentary capacity cannot be destroyed by showing a few
isolated acts unless they directly bear upon and have influenced the testamentary.
- capacity to execute a will requires less competency than the power to make a K or gift,
therefore a person has been declared incompetent and put under conservator has the
capacity to produce a valid will if during a lucid interval.
- Marriage require less mental competency then to make a will. (p.165)
- To draft a will for an incompetent person is a breach of professional ethics. The lawyer
however can rely on her own judgment regarding the client’s capacity.
b. Insane Delusion, p. 165-75
This is a legal concept refers to a false conception of reality, ex: involved the false believe
of a family member therefore to disinherit him. A man has insane delusion is not
necessarily mentally incapable. Only the part of the will caused by the ID failed.
In re Honigman: a man was obsessed by the suspicion that his wife is unfaithful. (p.42)
* an insane delusion is a belief not susceptible to correction by presenting the testator with
evidence indicating the falsity of the belief; a mistake is susceptible to correction if the
testator is told the truth. A will in mistake is valid to probate. (p.173, 2)
c. Undue Influence
i. Introduction, p. 175-84
To be undue influence in the eye of the law must be “coercion”, can be many
ways even though not actual violence. The Ct. develops the elements to
examine, which are: ①the T was susceptible, ②the influencer had the
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disposition and the opportunity to exercise UI, ③the disposition is the result of
the influence.
But we still have to look into the case to determine what influence is undue.
Lipper v. Weslow: (aid P.44) the test of undue influence: whether such control was
exercised over the mind of the testatrix as to overcome her free agency and free
will and to substitute the will of another so as to cause the testatrix to do what she
would otherwise have done but for such control. The person with sound mind has
the legal right to dispose of his property as he wishes, even it’s an unusual
disposition. Those attacking the disposition have the burden to prove that it was
the product of undue influence.
 the rule of undue influence applies when (1) a personal in a confidential relationship (2)
receives the bulk of the T’s property (3) from a T in the weakened intellect, the burden
of prove is shift to the person occupying the confidential relationship to prove
affirmatively the absence of undue influence.
 If the part of the will id the product of UI, those part may be stricken and the remainder
is allowed to stand if the invalid part can be separated w/o defeating that T’s intent.
 No contest clause: designed to discourage will contests but will defeat the safeguards
ex: “fraud”, “forgery”, “undue influence”… built around the testamentary dispoisition
of property. UPC: “probable cause rule”: the no contest clause will be enforce unless
there is a probable cause to contest.
ii. Bequests to Attorneys, p. 185-87
 In NY, the surrogate must investigate any bequest to the attorney who draft the will.
 In CA, invalidate any bequest to a lawyer who draft the will unless the lawyer is related
by blood or marriage to the testator.
iii. Sexual Relationships, p. 188-97
In re Will of Moses: sexual relationship with younger attorney for 7 years (occupying the
confidential relationship). Devising all her property to him drafted by another
lawyer not telling him.
d. Fraud & Tortious Interference, p. 213-22
Fraud occurs where the T is deceived by a misrepresentation and does that which the T
would not have done had the misrepresentation not been made, it is usually said that the
misrepresentation must be made with both the intent to deceive the T and the purpose if
influencing the testamentary disposition. That portion in the will procure from the fraud
is invalid. If the will been probated, the Ct. may use equity power to impose a
constructive trust on the wrongdoer.
- Fraud in the inducement: when a person misrepresent facts thereby causing the T to
execute or not to execute a will, including particular provisions in the wrongdoer’s favor,
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to refrain from revoking a will. (no intent to fraud but later change mind, the victim may
recovered on the theory of “secret trust”)
- Fraud in execution: a person misrepresent the will for T to sign.
* Tortious Interference with expectancy: a tort action for tortuous interference with an
expectancy is not a will contest (therefore a no-contest clause is not applied here). It
doesn’t challenge the probate or validity of a will but rather seeks to recover tort damages
from a 3rd party for tortuous interference. Punitive damage may be recovered.
e. Review of In re Vickie Lynn Marshall (Day 1)
2. Statutory Requirements
a. Attested Wills
i. Writing/Signature/Publication, p. 223-27
Formal requirements of executing a will: To prove there is an intentional exercise
of the power to determine the successors in ownership, the Ct. needs to be
convinced that the statement of the transfer was deliberately intended to
effectuate a transfer. Therefore for the purpose of the requirement of transfer
①there should be a ceremonial, and the term for this is “ritual function”. And ②
an “evidentiary function” for the proof presented to the Ct., and ③ to safeguard
the T at the time execution the will against UI or other forms of imposition, there
is a “protective function”. The requirement see UPC§2-502.
ii. Witnesses, p. 227-42
In re Groffman: the T should sign in front the witnesses or acknowledge the
signature in front of them. And the witnesses has to sign in presence of each
other, has to present at the same time (English and some jurisdiction in the U.S
approach, stricter then UPC), fail to meet the requirements, the will is not validly
attested. Some other circumstances described in p.234-36
Estate of Parsons: witnesses and also beneficiaries in the will. (CA probate code
§51: a gift to subscribing witness is void unless there are two other and
UPC§2-505: (a) any person generally
competent to be a witness to a will (b) a disinterested subscribing witness to the will) A subsequent disclaimer is
will or any provision thereof is not invalid
because the will is signed by an interested ineffective to transform an interested witness into a disinterested one b/c §51
witness. (broader view)
looks solely to the time the will executed, and the propose of §51 is to protect the
T for UI and fraud at the very moment the T execute the will.
Here when there is no other two disinterested witnesses in the will, the witness’s
interest is void, so she has no interest to disclaim. (CA had adopted UPC§2-505)
iii. Execution/Proof/Safeguarding, p. 242-47
See the in class notes. Which law governs? The state of domicile and the land.
But if carefully draft the will, can avoid the problem of applying which state law.
The T’s declaration that the instrument is his will is called “publication.” An
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“attestation clause” is important b/c it proves that the will being duly executed.
 “self-proving affidavit” typed at the end of the will, swearing before the notary public
that the will has been duly executed and then signed by the T and the Ws in front the
notary public who in turn signs and attaches the required seal. This is to prevent a
situation that the W is dead, and no one can testify the will. The will is valid w/o the
affidavit, but it makes it easy to probate the will. (UPC§2-504)
 Self-guarding a will: to keep the will n safe place. (p.246-47)
iv. Curing Mistakes, p. 247-62 and handout
Correcting mistake in the will, the In re Pavlinko’s Estate: H and W signed the will of each other but themselves’, the
recent movement, see p.427-438
lawyer and his secretary were the witnesses. The will can’t be probated as H’s
will, b/c it is not signed by H clearly and unambiguous. if the Ct. open the door
for rewriting the will for equity, there will be countless fraudulent claims, and
the will act will be nullity. (Dissenting: T’s intent should be counted, H and W’s
wills are complementary of each other, and it’s the lawyer’s fault.)
In re Will of Ranney: the signatures of two witnesses on an attached self-proving
affidavit but not the will itself (b/c the attested clause for witnesses had been
omitted. This page is on the bottom of the will but neither numbered nor
attached, the attorney and a notary public are witnesses.
 Self-proving affidavits and attestation clauses, although substantially similar in content,
serve diff. functions: Spa, are a sworn statements by eye witnesses that the will has been
duly executed. The Spa performed virtually all the functions of an Ac, and has the
further effect of permitting probate without requiring the appearance of either witness.
Ac, facilitate probate by proving an evidence that the T voluntarily signed the will in the
presence pf the witnesses. Which also permits probate of a will when a witness forgets
the circumstances of the will’s execution, or die before the T.
A substantial compliance doctrine: a
harmless error in executing a will  It would be ironic to insist on literal compliance with statutory formalities when that
may be executed if the proponent
establishes by cleat and convincing insistence would invalidate a will that is the deliberate and voluntary act of the T, such a
evidence that the decedent adopted
the document as his/her own will. result will frustrate rather than further the purpose of the formalities.
(dispensing power)
 Accordingly, if a witness, with the intent to attest, sign a Spa, but do not sign the will or
the an Ac, clear and convincing evidence of their intent should be adduced to establish
substantial compliance with the statute.
b. Unattested Wills, p. 262-76 and handout
Holographic will: a will written by the T’s hand and signed b the T; attesting witnesses are not
required. Requirements for HW vary form state to state. A holographic will may be
presented by a lot of forms, not merely written on the paper.
In re Estate if Johnson: the statutory requirement that the material provisions be draw in the T’s
own handwriting requires that the handwritten portion clearly express a testamentary
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intent. If the portion not in handwriting is essential to the testamentary disposition, the
will can not be probated. Here the mere fact that the T used a blank form, if the printed
words maybe entirely rejected as surplusage, then the will can be valid. UPC§2-502 (c)
(p.227): testamentary intent can be established for a holographic will by looking at the
portions of the document that are not in the T’s handwriting; the official comment: the
holographs may be written on a printed will form if the material portions of the document
are handwriting. (statutory form wills p269)
Kimmel’s Estate: (conditional will: “if something happen…” p.274, can be probated) a letter
containing some testamentary provisions can be probated as a holographic will. b/c the
word containing in the letter strongly support the testamentary intent. (p.273)
c. Review Problems, handout
B. Will Components
Two doctrines that permit extrinsic evidence to resolve the identity the will beneficiaries or property passing
under the will, which makes it possible that those documents or acts not executed with testamentary
formalities can be used to have the effect. These are ⑴ the doctrine of incorporation by reference and
⑵ the doctrine of acts of independent significance. (These 2 doctrines shouldn’t be confused with the
doctrine of integration of wills and the doctrine of republication by codicil.)
1. Integration of Wills, p. 301-02
Will which not written in several papers, all papers should be present at the time of executed, the
paper intended to be a part of the will, should be integrated into the will. Thus, which sheets of paper
present at the time of execution, comprise the testator’s duly executed will?
-the will is stabled or ribboned by which the pages of the will are physically connected.
-sufficient connection of the language carrying over from page to page.
-lawyers can prevent from any problems from arising under the integration of the will doctrine by
making sure that the will is fastened together before the testator signs and by having the testator
sign or initial each numbered page of the will for identification.
2. Republication by Codicil, p. 302-03
When codicil, the will is treated re-executed (“republished”), it’s the update of the original will. Ex:
1st will is revoked by a 2nd will, but then a codicil of the 1st will is executed, the 1st will is republished
and thus the 2nd will is revoked by implication (“squeezed out”). Only when updating the will carry
out the testator’s intent is this doctrine applied.
※the difference b/w “republication by codicil” and “incorporate by reference” are”
-RC: only applies to a prior validly executed will,
-IR: applies to the instruments that have never been validly executed (unattested) and to be
incorporated into a will.
Few jurisdictions don’t recognize the IR doctrine, ex: NY, general doesn’t permit IR but the
codicil can republish and thereby give testamentary effect to a will that was invalid b/c of mental
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incapacity or undue influence (should be duly executed with required formalities.) But a codicil
can’t republish an instrument never duly executed with the required formalities.
3. Incorporation by Reference, p. 303-18 and handout UPC§2-510,
Clark v. Greenhalge: a specific, written bequests of persona; property contained in a notebook that
was maintained by a decedent, can be incorporated by reference into the terms id tat person’s
will. “a properly executed will may incorporate by reference in to it’s provisions and document
or paper not so executed and witnessed, whether the paper referred to be in the form of …a mere
list or memorandum,.., if it was in existence at the time of the execution of the will, and is
identified by clear and satisfactory proof as the paper referred to therein.
- this IR doctrine is not recognized in NY, Connecticut, Louisiana.
Johnson v. Johnson: UPC§2-513 (p.311): a valid holographic codicil can be used to republish and thereby
give effect to an unexecuted non-holographic will. (Study aid p.79)
4. Acts of Independent Significance, p. 318-19
If the beneficiary or property designations are identified by acts or events that have a lifetime motive and
significance apart from their effect on the will, the gift will be upheld under the doctrine of acts
of independent significance (also called the doctrine of nontestamentary acts)
UPC (1990) 2-512 EVENTS OF INDEOENDENT SIGNIFICANCE
A will may dispose of property by reference to acts and events that have significance apart from their effect
upon the dispositions made by the will, whether they occur before or after the execution of the
will or before or after the testator’s death. The execution or revocation of another individual’s
will is such an event.
C. Will Construction
1. Admission of Extrinsic Evidence
a. Mistakes in Drafting, p. 409-14
Mahoney v. Grainger: EE can’t be presented to try to prove the T’s intent in the will.
The will must be construed as it came from the hand of the T. mistakes in the drafting of
the will may be of significance in some circumstances in a trial as to the due execution
and allowance of the alleged testamentary instrument. It is only when testamentary
language is not clear in its application to facts that evidence may be introduced as to the
circumstances under which the T use that language in order to throw light upon its
meaning.
* personal usage exception: if the EE shows that the T always referred to a person in an
specific manner, the evidence is admissible to show that the T meant someone other than
the person with the legal name of the legatee.
* the plain meaning rule (no EE rule) had been critized.
b. Ambiguity, p. 417-27 and handout
11
Estate of Russell: Roxy the pet dog. EE is allowed to resolve the ambiguity (EE is
admissible “to explain any ambiguity arising on the face of a will.)
c. Correcting Errors, p. 427-38 and handout
Erickson v. Erickson (supreme Ct. of Conn. 1998) the EE should be admissible to establish the T’s
true intent. (p.432-434 blue mark)
2. Changes in Condition/Status of Beneficiaries, p. 438-58
Death of beneficiary before the death of testator:
3. Changes in Property, p. 459-69
D. Revoking Wills
1. Revocation in Entirety
All states permit revocation of a will in 1 of 2 ways: (1) by a subsequent writing executed with
testamentary formalities, or (2) by a physical act such as destroying, obliterating, or burning the will.
Oral revocation is inoperative in all states for the assumption that that would open the door for fraud.
If a duly executed will is not revoked in a manner permitted by statute, the will is admitted to
probate.
UPC (1990) §2-507: Revocation by writing or by act: (a) A will or any part thereof is revoked:
(1)by executing a subsequent will that revokes the previous will or part expressly or by
inconsistency; or (2) by performing a revocatory act on the will, if the testator performed the act with
the intent and for the purpose of revoking the will or part or if another individual performed the act in
the testators conscious presence and by the testator’s direction. For purpose of this paragraph,
“revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will
or any part of it. A burning, tearing, or canceling is a “revocatory act on the will,” whether or not the
burn, tear, cancellation touched any of the words on the will.
a. By Subsequent Instrument, p. 276-77 and handout
Revocation by inconsistency: a subsequent will wholly revokes the previous will by inconsistency if
(1) the testator intends the subsequent will to replace rather then supplement the previous will, and
(2) if the subsequent one doesn’t expressly revoke it but makes a complete disposition of the
testator’s estate is presumed to replace it and revoke it by inconsistency, and (3) if not makes a
complete disposition, it is viewed as a codicil supplements a will rather than a replacement of
revocation. [UPC(1990) §2-507 (b)-(d)]
b. By Physical Act, p. 277-84
Harrison v. Bird:
Fact: Harrison is the beneficiary of Speer’s will in 11/89, and Speer wanted to revoke her will in 3/4
1991, her attorney and his secretary tore the will into 4 parts in front of each other, then sent the
remainder to Speer with a letter states that she was without a will. After her death, the probate Ct
found the letter but not the 4 pieces of torn will, it ruled in accordance to the cousin, Bird. The circuit
12
Ct. ruled (1) that the will was not properly revoked because the attorney didn’t destroyed the will in
her presence and (2) there could be no ratification of the destruction of Speer’s will for not meeting
the requirements of the Alb. probate code §43-8-136(b) and (3) the pieces delivered to Speer was not
found after her death, could form an assumption that she revoked the will herself thereafter.
Therefore, the duplicate will possessed by Harrison was not the last will and testament of Speer. It
held that the estate should be administrated as an intestate estate and confirmed the letter of
administration issued by the probate Ct. to Ms. Bird. Supp. Ct.: if the evidence establisjes that Speer
had possession of the will before her death, but the will is not found among her personal effects after
her death, a presumption arises that she destroyed the will. Furthermore, a presumption arises that she
revoked her will and all duplicates even though a duplicate exists that is not in her possession.
However the presumption is rebuttable and the burden of rebutting the presumption is on the
proponent of the will. Here, the evidence Bird provide is not sufficient to rebut the presumption,
therefore affirmed the decision.
Note: Probate of lost wills: In the absence of statute, a lost will (or destroyed w/o the consent of the
testator , or with the consent of T but not in compliance with the revocation statute) can be admitted
into probate if it’s contents are proved.
In a few states, there are statutes that prohibit the above to probate unless the will was “in existence”
at the T’s death (and destroyed thereafter) or was “fraudulently destroyed” during the T’s life. But
this will in conflict with the state revocation statute (a will not legally revoked is barred from
probate.) The solution the Ct. held is, either the will not lawfully revoked continues in “legal
existence” until the T’s death or that a will destroyed by a method not permitted by the will
revocation statute has been “fraudulently destroyed.”
Thompson v. Royall
Fact: the will of 9/4 1932 and the 9/15 1932 codicil were dully attested but possessed by different
person. And in 9/19, she decided to destroyed both but by the advice of her attorney, she retain them
and added the notion of “as a memorandum for another will if I desire to make same” on both doc.
and signed and possessed by only one person. After she died, her heirs and beneficiaries came to
probate the will.
Issue: whether the will of Mrs. Kroll had been revoked shortly before her death.
Analysis: the effect revocation should meet (1) the doing of one of the acts specified, (2)
accompanied by the intent to revoke. This didn’t meet the statuary requirements of a certain act to
carry out the intent, “some writing declaring that an intention to revoke”: not her writing, only her
signature, and there is no physical evidence of cutting, burning, tearing, obliterating, canceling, or
destroying. If merely write on the margin or the back is not enough consisting the revocation of the
will, the writing itself should touch the writing of the will to consist physical destroy (revocation) and
with the intent to revoke. Therefore the will is ineffectual b/e T intended to revoke her will by the
writings not meet the statutory requirement and b/e not meet the requirement of physical action to any
13
writing part of the will.

 Note: if use UPC(1990) §2-507 provide “whether or not burned… touched any words on the
will.” The words need not be touched but however need to be written on the same document.
c. By Operation of Law, (changing in family circumstances) p.298-300
Divorce can revoke any provisions in the decedent’s will for the divorced spouse (treats the divorced spouse
as having predeceased the testator) in very few states and in most of the states revocation occurs
only if divorce id accompanied by a property settlement. These revocation statues only applied to
wills not to other non-probate transfers.
UPC(1990) §2-804 (p299) applies to non-probate transfers as well as to wills. (the term “governing
instrument” means a deed, will, trust, insurance or annuity policy….
2. Partial Revocation, p. 284-85 and handout
While UPC(1990) §2-507 and the statute of many states authorized partial revocation by physical
act, several states can only revoke partial will by a subsequent instrument. And there are 2 reasons
for that: ① canceling a gift to one person necessarily results in sth/one else taking the gift, and this
new gift, like all bequests, can be made only by an attested writing. And ② permitting partial
revocation by physical act offers opportunity for fraud. b/e the one who takes the new gift might be
that one who made the canceling mark.
And if partial revocation by act is not recognized, the will must be admitted to probate in the form In
which it was originally executed if the original language can be ascertained.
3. Dependant Relative Revocation, p. 286-96
If the testator purports to revoke his will upon a mistaken presumption of law or fact, the revocation is
ineffective if the testator would not have revoked his will had he known the truth. This doctrine is
applied to carry out the T’s true intent. Ex, the T destroys his will under a belief that that a new will
is valid but for some reason it is invalid, if the Ct. find that the T would not have destroyed his will
had he known the new will was ineffective, the Ct, applying the doctrine of dependent relative
revocation, will cancel the revocation and probate the destroyed will.
Carter v. First United Methodist Church of Albany
Fact:
Rule:
Estate of Alburn:
4. Revival, p. 296-98
E. Restrictions on the Power of Disposition: Family Protection
1. Protection of the Spouse
a. Introduction to marital property system, p. 471-73
There are two basic martial property system exist, the system of separate property and the
14
system of community property. And the differences are:

‧ The system of separate property (common law system) the husband and wife own separately all property each
acquires (except those items one spouse has agreed to put into joint ownership with the other). Under this system,
whatever the worker earns is his/hers, there is no share of earnings therefore, if one spouse works at home while the
other one is the wage earning spouse, the later one will own all the property acquired during marriage (other than gifts
or inheritances from relatives or gifts by the wage earner to the homemaker).
Then here is the ISSUE: what protection against disinheritance should be given the
surviving spouse who works in the home or at a low-paying job? Almost all states adopt this
system answer this question by giving the living spouse , by statute, an elective (or force)
share in the estate of the deceased spouse. And the elective share is not limited to a share of
property acquired with earnings, however it is enforceable against all property owned by the
decedent spouse at death.
‧ The system of community property (adopted by Arizona, CA, Idaho, Louisiana, Nevada, New Mexico,
Texas, and Washington, and Wisconsin) where the husband and wife own all acquisitions from earnings after
marriage in equal undivided shares, which is, all earnings if the spouses and property acquired from earnings are
community property. The death of one spouse dissolves the community. The deceased spouse owns and has
testamentary power only over his/her one-half community share.
But the property acquired before marriage and acquired during marriage by gift, devise,
or descent is the acquiring spouse’s separate property.
‧ Therefore, under the separate property system, if the one who has no earnings during the life, he/she has
nothing to dispose if he/she dies first. On the contrary, the community system, the one who dies first can dispose
his/her half of the community property by will.
‧ Alaska enacted a statute permitting married couples to elect to hole their property as either community
property or separate property.
b. Rights of Surviving Spouse to Support, p. 473-80
i. Social security: under social security system the retirement benefits are paid to a
worker and his/her surviving spouse. It thus incorporates the principle of
community property that the benefits of earnings should be shared by husband
and wife. The benefits can shift to spouse but not to others.
ii. Private pension plan: This is funded by employers or jointly funded by employer and
employee contributions mushroomed in the twentieth century. It requires that the
spouse of an employee must have survivorship rights if the employee predeceases
the spouse. The purpose is to insure a stream of income to surviving spouse. If the
employee spouse survives to retirement age, the pension paid must be paid as a
joint and survivor annuity to the employee and his/her spouse. Unless the non-
employee spouse contents to some other form of payment and the pension is
vested, the surviving spouse must be entitled to a pre-retirement survivor
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annunity.
iii. Homestead: UPC§2-402(1990). The Homestead law (probate homestead) was
decided to secure the family home to the surviving spouse and minor children,
free of the claims of creditors. The decedent has no power to dispose of a
homestead so as to deprive the surviving spouse of statutory rights therein. The
right to occupy the homestead is given in addition to any other rights the
surviving spouse has in the decedent’s estate.
iv. Personal property set-aside: UPC§2-403(1990). Related to Homestead is the right of
surviving spouse to have set aside to a certain tangible personal property of the
decedent up to a certain value. This is usually subject to several conditions and
limitations, but if these are met, the decedent usually has no power to deprive the
surviving spouse of the exempt items.
v. Family allowance: §2-404(1990). Every state has a statute authoring the probate Ct. to
award a family allowance for maintenance and support of the surviving spouse
(and often dependent children) the allowance may be limited by the statute to a
fixed period or it may continue after the will been contested or for the entire
period of administration. The “allowance”, as with the “homestead” and “personal
property set-aside”, is in addition to whatever other interests pass to the surviving
spouse.
vi. Dower:
1. At common law, a widow had dower in all land of which her deceased husband
had been seized during marriage and it is inheritable by the issue of the Hand W.
Once dower has attached, the H can’t sell the land free and clear of the wife’s
dower interest. No purchaser, bona fide or not, can cut off the W’s dower w/o her
consent. Dower functions today primarily to make the signatures of both spouses a
practical requirement to the sale of one spouse’s land.
2. At common law, a H had a support interest in his wife’s land, called curtesy. It
is comparable to dower except 2 points (p.479).
3. There are only 5 jurisdictions still recognize “dower”, where the surviving
spouse must elect to take dower, or to take a statutory share of the decedent’s
estate, or to take a share under the decedent’s will. As the statutory elective share
is almost always greater than dower, dower is rarely elected.
c. Rights of Surviving Spouse to Elective Share
i. Rationale, p. 480-84
All separate property system states except Georgia (is the only separate property
state w/o an elective share statute) give the surviving spouse, in addition to any
support right mentioned above, a share in the decedent’s property. The policy is
16
that the surviving spouse contributed to the decedent’s acquisition of wealth and
deserves to have a portion of it, and this policy was carried out by statutes giving
the surviving spouse an elective share (forced share) of the decedent’s property.
The spouse can take under the decedent’s will or can renounce the will and take
a fractional share of the decedent’s estate.
In a few states, the elective share is limited to a life estate in one-third or one-half of the
decedent’s estate.
UPC(1990)Article 2 “elective share of surviving spouse, general comment: partnership theory of
marriage:
The basic principle in common law states (title-based) is the marital
status does not affect the ownership of the property. The regime is one of
separate property, in which each spouse owns all that he or she earns. By
contrast, in the community-property states, each spouse acquires an ownership
interest in half the property the other earns during the marriage. By granting
each spouse upon acquisition an immediate half interest in the earnings of the
other, the community-property regimes directly recognize that the couple’s
enterprise is in essence collaborative.
The common-law states, however also give effect to the partnership theory when a marriage
is dissolved by divorce. When divorced, a spouse who sacrificed his or her
financial-earning opportunities to contribute so-called domestic services to the
martial enterprise stands to be recompensed under the equitable-distribution
system.
The typical elective-share law in common-law states, including the that provided by the pre-
1990 UPC, a surviving spouse may claim a one-third share of the decedent’s
estate, not the one-half share of the couple’s combined assets hat the partnership
theory would apply.

ii. Property Subject to elective share, p. 500-13
The original elective share statutes gave the spouse a fractional share of the
decedent’s estate, which implicitly meant probate estate. With the proliferation of
non-probate transfer, the Q arises whether the elective share should be extended to
some or all non-probate transfers.
(1) Judicial Decisions:
Sullivan v. Burkin: Change rule
Issue: Whether (the W’s claim was simply that) the inter vivos trust was an
invalid testamentary disposition and that the trust assets “constitute assets of
the estate” in which P has right.
17
Analysis: If the W is right that the trust was an ineffective testamentary

disposition, the trust assets would be part of the H’s probate estate. In that
event, we would not have to consider ant special consequences of the W’s
election under Mass law.
Conclusion: The trust was not testamentary in character and that the H
effectively created a valid inter vivos trust. Because:
1. The inter vivos trust is valid though it was testamentary. A trust is not
testamentary and invalid for failure to comply with the requirements of the
statute of wills merely b/e the settler-trustee reserves a beneficial life
interest and power to revoke and modify the trust. A trustee controls the
administration of the trust does not invalidate it.
2. Even if the trust was not testamentary on general principles the widow has
special interests which should be recognized.
(2) Uniform Probate Code
iii. Waiver: p. 517-21 & handout
d. Rights to Community Property, p. 521-25
1. basic information
8+1(Wis. Adopted UMPA, providing for CP under the name of marital property.) states
are CP states. And Alaska permits spouses to elect CP rather than SP is they so choose.
‧ CP in the U.S is a community of acquests. H &W own earnings and acquisitions from
earnings of both spouses during marriage in divided shares. All property that is not CP is
SP, of one spouse, but when in the case of tenancy in common or joint tenancy, is the
separate property of both.
‧ SP includes property acquired before marriage and during marriage by gift or
inheritance.
‧ CP states: Income from SP is CP (Ida. Loui. Tex. UMPA, other CP states, income
from SP is SP.) whenever the characterization of the property is doubtful, the strong
presumption is that the property is CP.
‧ To avoid problem, couples can make agreement regarding the character of their
property. They may change CP into SP or reverse by agreement, or may change CP into a
joint tenancy, a tenancy in common, or sole ownership of one spouse. And they can agree
that all their properties is CP to achieve favorable income tax.
‧upon the death of one spouse, the deceased spouse can dispose of his/her half of the CP
which may be devised to whomever the deceased pleases, the same as SP. Tthe surviving
spo. owns the other half, which is not subject to testamentary disposition by the deceased
spo.
‧ In CP raises problems as to which spouse to manage the property. States ordinarily
18
require both spouses to join in transfers or mortgages of community real property. Ex:
when H buys a life insurance with his earning during marriage but names A as
beneficiary, upon H’s death, the W’s right in the policy proceed? - CA, During H’s life,
W is entitled to set aside an entire gift and reclaim the property for the community. But
after death, W is entitled to set aside the gift to the extent of one-half. b/e a gift by H
during life of CP is treated as if it were a devise by H of his half share.
- TEX, the manager of the CP can make reasonable gift to others, but excessive gifts are
deemed in Fraud of the other spouse’s right. If it found so, the non-manager is entitled to
half the policy proceed.
- Other CP states divided b/w CA. and TEX.
2. Putting the survivor to an Election:
“Widow election” in CP states is applicable to widows and widowers nowadays, which
refers to when one of the spouse is the manager of CP (p.524-525)
e. Multi-State Couples, p. 525-30 and handout
‧ The conflict-of-law rules used to determine which state law governs material property
are: (a) The law of the situs controls problems related to land. (b) The law of the marital
domicile at the time personal property is acquire controls the characterization of the
property (that is, as separate or community). (c) The law if the marital domicile at the
death of one spouse controls the survivor’s martial rights.
‧ Although the state of the situs has the power to control it’s land, it may choose to apply
the law of the marital domicile. (UPC§2-202). Therefore, the right of a spouse to an
elective share in land located in the state shall be governed by the law of the decedent’s
domicile at death.
a. Moving from SP state to CP state:
Problem about the fairness of the surviving spouse arises.
The movable property: the ownership of movable property is determined by the law of the
state where the couple is domiciled when the property is acquired. When they in SP state,
all the property earned by H belongs to H and W is protected by the elective share, but
when move to CP state and continue to domicile in that state, property remains H’s as H’s
SP. BUT when H “dies,” the law of the state of domicile at the date of death governs the
disposition of movable property. But when neither spouse works in the CP state, there
maybe no CP for the surviving spouse. And the W lost her selective share protection and
is not protected in the CP. Therefore the law provides a remedy, “quasi-CP” in which
upon the death of the acquiring spouse, one-half of the quasi-CP belongs to the survivor
(the quasi-CP was treated as SP during life). The other half is subject to testamentary
disposition by the decedent. If the non-acquiring spouse dies first, she has no testamentary
power over it.
19
b. Moving from Cp state to SP state: The moving doesn’t change the preexisting property
right of the H or W. CP continues to be CP when move to a SP state. (the UDCPRDA
applied in SP states, which says that CP brought into SP states and all property (including
land in the state) traceable to CP remains CP for the purpose of testamentary disposition.
Unless the spouse agree to convert into SP) CP brought into SP state is not subject to
elective share.
f. Premarital Wills, p. 530-37
Estate of Shannon:
g. Review Problems, handout
2. Protection of Children
a. Intentionally Disinherited, p. 536-37, 550-51
b. Pretermitted Child Statutes, p. 537-50
IV. Trusts
A. Testamentary versus Inter Vivos Trusts
1. Overview, p. 351-52, 358-61, 386-96, 553-56
1. Revocable trusts: introduction: a revocable trust inter vivos trust is the most flexible of all will substitutes b/c the
donor can draft the dispositive provisions and the administrative provisions precisely to the donor’s liking. Typical
revocable inter vivos trust involving a deed of trust, the trust settler transfers legal title to property to another person
as trustee pursuant to a writing in which the settler retains the power to revoke, alter, or amend the trust and the
right to trust income during lifetime. On the settlor’s death, the trust assets are to be distributed to or held in further
trust for other invalid unless executed with testamentary formalities.
A trust is a management relation whereby the trustee manages property for the benefit of one or more beneficiaries.
The trustee holds legal title to the property and , in the usual trust, can sell the trust property and replace it with
property thought more desirable. The trustee owes fiduciary duties to the beneficiaries, including loyalty to them
and prudence in investments. If the trustee breaches one of these duties, the trustee is personally liable to the
beneficiaries. We call the beneficiaries’ interest in a trust “equitable title” b/c an equitable interests on beneficiaries
enforceable against the trustee who has legal title. The trustee can be one of the beneficiaries of the trust, if however
the trustee is the sole beneficiary, the legal titles merge, leaving that person with absolute legal title. There is no
trust, b/c the trustee owes no fiduciary duty to the anyone except himself. The Q is, does the settlor owe any
fiduciary duty to anyone (or created any equitable interesting anyone) other then himself? If not, there is no trust,
the settlor remains the absolute owner of the property.
When an individual manifests an intention to create a trust in property to be acquired in the future, and thereafter
confirms this intent by taking the steps necessary to transfer the property to the trust, the property so transferred
becomes subject to the terms of the trust even if he/she is settlor, trustee and lifetime beneficiary of the trust at the
same time.
The revocable declaration of trust (living trust). There is a way to avoid probate, that is, declare yourself trustee of
your property by using a revocable declaration of trust, with the trust property to pass to named beneficiaries upon
20
your death.
2. Use of revocable trust in estate planning:
a. Introduction:
b. Consequence during life of settlor

2. Review of In re Vickie Lynn Marshall (from Day 1)
B. Trust Requirements
1. Valid Purpose, handout
2. Settlor & Transfer/Present Declaration, p. 557-59
3. Trustee, p. 559-61
There maybe one or more trustees, and the trustee maybe an individual or a corporation. The trustee
may be the settlor or a third party, or a beneficiary. If a settlor intends to create a trust but fails to
name a trustee, a court will appoint a trustee to carry out the trust, “a trust won’t fail for want of a
trustee.”
The trustee hold legal title to the trust property; and beneficiaries have equitable interests. The trustee
is under the duty to administer the trust in the interest of the beneficiaries; self dealing is sharply
limited and for some transactions is prohibited altogether. The trustee must preserve the property,
make it productive, and, where required by the trust instrument pay the income to the beneficiary. If
the trustee has no duties at all, there is no trust, then the trust is “passive” or “dry,” and the trust fails.
When the trustee has no active duties so the trust fails, the beneficiaries acquires legal title to the
trust property. the law doesn’t impose upon a person the office of trustee unless the person accepts,
and once accepts the office of trustee, the person can be released from liability only with consent of
the beneficiaries or by a court order.
4. Intent, p. 567-75
There is not particular form of words is necessary to create a trust, the sole question is whether the grantor
manifested an intention to create a trust relationship. Where a grantor conveys property to a grantee
to hold “for the use and benefit” of another, this is a sufficient manifestation of an intention to create
a trust.
Jimenez v. Lee Supreme Court of Oregon, 1976
Facts 1. P. the daughter against D the father also the trustee of her trust.
2. firs gift was made in 1945, $1000 face value U.S saving bond which was registered in the names of D. and/or P and/or
P’s mother.this bond was purchased to provide funds to be used for P’s educational needs
3. second gift in the amount of $500 was made in 1956 by D’s client and she made identical gifts for D’s 2 other children,
the $1500 was deposited in the names of D and his 3 children.
4. in 1960, D. cashed the saving bond and invested the proceeds in common stock. The ownership of the shares was
registered as D., Custodian…for P. and the Joint saving was closed and $1000 was invested too, D also took the title to
this stock as custodian for 3 kids.
21
5. trial Ct.: there is no trust. D held the savings bond and the savings account as custodian. (P. contends that the gifts for her
educational use created trusts in each instance and tat the trusts survived D’s investment of the trust assets in the stock.)
Issue Does transfer of property with the intent that it be used for the educational needs of a third party create a trust?
Ana. 1. the donors didn’t expressly direct D to hold the subject matter of the gift “in trust”, but it’s enough if the transfer of the
property is made with the intent to vest the beneficial ownership in a third person.
2. the D admitted that the gifts from his mother and this client are for the educational needs of the children. And the letter
from the donor states the same. And the D is a lawyer.
3. the doctrine of merger defeated the intent? No, the trust was create for the benefit of P, the D brought the stock as
custodian does not expand D’s power over the trust property from that of trustee to that of custodian. And D’s action has
violate his duty to the beneficiary “to administer the trust solely in the interest of the beneficiary.
4. P was entitled to impose a constructive trust or an equitable lien upon the stock so acquired. P is also entitled to be
credited for any dividends or increment in the value of that part of the stock representing P’s proportional interest.
Whether or not the asset of P’s trust are traceable into a product, D is liable for that amount which would have accrued to
P had there been no breach of trust.
5. it is the duty of the trustee to keep full, accurate and orderly records of the statutes of the trust administration and of all
acts thereunder. Here D failed to do so, he didn’t keep separate records of trust income and trust expenditures. And the
record he kept were only for the purpose of defending the present suit. The letter in 1966 to P was inaccurate of the
amount of the trust and didn’t mention about the second gift.
6. some expenditure shows on the record clearly out side the purpose of an educational trust. Ex medical bills, this should be
obligations the parents own to their minor child.

Clu. The trial was error in both findings. D has the burden to prove that the expenditure is for the trust.
notes 1. Precatory language: the T express a wish that the property devised should be disposed of by the devisee in some
particular manner, but the language does not clearly indicate whether the T intents to create a trust or merely a moral
obligation unenforceable at law, the latter, is the precatory language. The problem could be avoid by clear drafing.
2. equitable charge: if a T devises property to a person, subject to the payment of a certain sum of money, to another person,
the T creates a equitable charge, not a trust, there is no fiduciary relationship.
5. Property, p. 581-84, 586-89

a trust is a method of disposing of, or managing, property, a trust can not exist without trust property.
Anything that is called property, can be transferred, may be put in trust. The Q is whether a particular
claim can be called property by a court.
Unthank v. Rippstein Supreme Court of Texas, 1964
facts
Issue May a promise to make payments on a monthly basis even after death be enforced as a trust?
Ana.
Clu.
Brainard v. Commissioner U.S court of appeals, seventh Cir. 1937

facts
Issue Is a settlor of a trust consisting of property to be received in the future responsible for the taxes on that property?
Ana.
Clu.
6. Beneficiary, p. 561-62, 597-608 and handout
1. The beneficiaries hold equitable interests, and the remedies available (the personal claim against the
22
trustee) to the beneficiaries for breach of trust. But this claim is no higher priority then the claims of
other creditors of the trustee, so this won’t protect the beneficiaries much. Therefore, equity gives
them additional remedies relating to the trust property itself, so the creditor of trustee cannot reach
the trust property. If the trustee wrongfully disposes of the trust property, the beneficiaries can
recover the trust property unless it has come into the hands of a bona fide purchaser for value. The
beneficiaries can also enforce the trust on newly acquired property which acquired by the
disposition of the trust property by trustee.
2. There must be one or more beneficiaries to whim the trustee owes fiduciary duties, someone who can call
the trustee to account. The exception to this rule is, the beneficiaries may be unborn or unascertained
when the trust was created, under this situation, it still can be a valid trust. But if at the time the trust
becomes effective the beneficiaries are too indefinite to be ascertained, the attempted trust may fail
for want of ascertainable beneficiaries.
Clark v. Campbell Supreme Court of New Hampshire, 1926
facts Decedent’s will create a trust under which all of his personal property, such books, pictures, antiques and rugs was to be
distributed to those of his friends that his trustee, in their sole discretion, chose. All remaining property was to be sold and the
proceeds added to the residue of the estate.
Issue Do “friend” qualify as an ascertainable beneficiary sufficient to sustain a bequest or private trust.
Ana. 1. Under common law, a bequest to an indefinite person is invalid. b/c there must be beneficiary or class thereof capable of
coming into Ct. and enforcing the gift, this rule applies to private but not charitable or public, trust.
2. charitable or public trust are enforceable even w/o an ascertainable beneficiary b/c the attorney general, on behalf of the
public, may seek enforcement.
3. the language of the will itself defeat the argument which said that the will did not intent to create a trust but was instead
an outright gift of the personal property to the trustees.
4. the language of the will is also defeat the argument that the will is to create a power of appointment in the trustees.
Clu. no
In re Searight’s Estate Ohio Court of Appeals, Ninth District, 1950

facts Searight died in Nov. 1948 leving $1000 to be paid to Florence Hand at the rate of 75 cents per day for the care of his dog,
Trixie, until the dog died. If there was money remaining at the time of Trixie’s death, the money was to be paid to a list of
persons, provided that if they survived the dog. Hand accepted Trixie upon Searight;s death and was paid 75 cents a day until
Trixie died in Oct. 1949 when she was struck by a car.
Issue Is a trust in favor of a non-human beneficiary enforceable? (is the testamentary bequest for the care of the dog valid in Ohio
(1) as a proper subject of a so-called “honorary trust”? (2) as not violate
Ana. 1. This is not a gift for the care of dogs in general, it is not a charitable trust.
2. The trust is binding on the conscience of the trustee, thus, the trust is a valid gift so long as the rule against perpetuities is
not violated.
3. Here the purpose of the trust is to care for the decedent’s dog, and the person he entrusted with the task has accepted it.
This trust also does not violate the rule against perpetuities b/c it limits itself to the life of the god.
4. even the dog life lives an inordinate length of time therefore the trust violate the rule against perpetuities, the amount of
money here even when calculating in earned interest, cannot last foe that long.
Clu. The trust is valid.
notes Under the Wait-and–see doctrine, a Ct. doesn’t declare an interest invalid until the wait-and-see period expires. Hence, if the
jurisdiction applies this doctrine for the common law perpetuities period, as Ohio does, {Under the Rule against Perpetuities,
and “honorary trust to support a pet animal is void if it can last beyond relevant lives in being at the creation of the trust plus
21 years.} But if the jurisdiction applies Uniform Statutory Rule Against perpetuities, which provides a wait-and-see period of
90 years, and honorary trust seems to be valid for 90 years.
23
- CA: a trust for care of a designated domestic or pet animal may be performed by the trustee for the life of the animal.
- UPC§2-907(1990): a trust for the care of a designated domestic or pet animal is valid for 21 years or for the life of the
animal, whichever period turns out to be shorter.
7. Writing? Some Exceptions, p. 584-86, 608-17

notes: resulting trust and constructive trust (p.584-86)
Resulting trust: it is a trust that arises by the operation of law in one of 2 situations: (a) where an
express trust fails or makes and incomplete disposition, or (b) were one person pays the purchase
price for property and causes title to the property to be taken in the name of another person who is
not a nature object of the bounty of the purchaser. The latter situation is called a “purchase money
resulting trust.
As resulting trust arise by operation of law, even though the subject matter is real property, it is often
hold that are not subject to the Statute of Frauds. Moreover, resulting trust doesn’t contemplated an
ongoing fiduciary relationship, once a resulting trust is found, the trustee must reconvey the property
to the beneficial owner upon demand.
Constructive trust: also arise by the operation of law and not by express terms of an instrument. This
trust a wide variety of situations imposed to give remedies to prevent unjust enrichment. A
constructive trust is under a duty to convey the property to another on the ground that retention of
the property will be wrongful.
The usual requirements to impose constructive trust are: (1) a confidential or fiduciary relationship;
(2) a promise, express or implied, by the transferee; (3) a transfer of property in reliance on the
promise; (4) unjust enrichment of the transferee. But the remedy is not limited to these
circumstances. (ex: p.213-21, 322-28 141-47, 586 effect of death of donor).
Although an ineffective gift will not be upheld as an express trust, when the donee in reliance upon
the gift, so change his position that it would be inequitable to preclude him form obtaining the
property, a Ct. of equity will compel the donor to complete the gift by making an effective
conveyance. In such a case, the donor holds the property upon a constructive trust for the donee until
he makes an effective conveyance of it to the donee. It is merely imposing a duty on the donor in
order to prevent unjust enrichment.
Necessity of a writing instrument:
An inter vivos oral declaration of trust of personal property is enforceable.
Inter vivos trust of land has to be in writing required by Statute of Fraud.
A testamentary trust has to be created by a will required by the statute of wills.
- Under certain circumstance the Ct. will enforce an “inter vivos oral trust of land” or
an “oral trust arising at death”.
Olliffe v. Wells Supreme Judicial Court of Massachusetts, 1881
facts Mrs. Donovan died in 1887 leaving a will in which she gave her residuary estate to the Reverend Wells, the D, “distribute the
same in such manner as in his discretion shall appear best calculated to carry out the wishes which I have expressed to him”.
Wells was named executor of her will. Mrs. Donovan’s heirs, the P, brought the suit, challenging the bequest. At the time of
the trial, Wells contended that Donovan had orally expressed her wishes that he use the residuary estate for charitable
24
purposes, especially for the poor, aged, infirm and needy under the care of St. Stephen’s Mission in Boston, which Wells had
founded. (St. Stephen’s had been destroyed and wells had died prior to this case being decided.)
Issue Is a semi-secret trust valid? NO
Ana. 1. under the plain language of the will, the bequest have Wells no “beneficial interest” in the residuary estate.
2. the bequest substitutes the intent of the decedent with that of Wells is too indefinite to be valid, the next of kin of the
testatrix must take by way of “resulting trust”. (he is required to distribute all of the property bequeathed to some
unknown class of persons and for some unknown purpose.)
3. the discretionary authority granted to the D by the P, might result that the D won’t carry out the P’s intentions. It has been
held in England and in other states, that, if a person procures an absolute devise or bequest to himself by orally promising
the testator that he will convey the property to or hold it for the benefits of the third person, and afterwards refuse to
perform his promise, a trust arises out of the confidence reposed on him will enforce against him at the suit of such 3rd
person.. and in other similar circumstances, where an oral agreement is made and is referred to in the will, the same will
be enforced upon a proper showing of that the agreement was made.
4. BUT, there is an important distinction, b/c where the bequest is outright on it’s face, the imposition of the constructive
trust does not impair the rights of the heirs to that property b/c they have non of that right. On the other hand, where the
bequest id not outright but is for some indefinite purpose, the right of the heirs as the equitable owners of the interest that
is the subject of the bequest, which they received by way of a resulting trust, are injured.
5. therefore the interest of the heirs can not be deprived by the conduct of a devisee or the intent of the deceased unless the
same is clearly expressed in the required legal form.

Notes 1. this case is the origin distinction b/w a secret trust and semi-secret trust
2. the distinction is: *secret trust: can be imposed a constructive trust upon the “said” trustee, b/c the will indicates no trust
and it’s Wells’ promise to the decedent that he will distribute the money as she wanted, so the EE allows to prove Wells’
intent; * the semi-secret trust: the will indicates that there is a trust but not identifies the beneficiaries (as was true in this
case), the legacy to Wells fails, but here, no need to prevent unjust enrichment, EE not allowed.
C. Types of Private Express Trusts

1. Discretionary Trusts, p. 617-31
Trust can be divided into mandatory trusts and discretionary trusts. In a mandatory trust, the trustee
must distribute all the incomes, then the trustee has no discretion to choose either the person who
will receive the income or the amount to be distributed; in a discretionary trust, the trustee has
discretion over payment either the income or the principal or both. (“spray trust” is one of
discretionary trust, in which the trustee has the discretion to determine how to distribute all the
income in what amount and who within the group of beneficiaries can get it, which means, the
beneficiary consisting one or more members might not receive income equally.) When distribute
principal of the trust, the trust instrument may specify that the trustee has discretionary power to
distribute principal to the income beneficiary. Such a power may be limited by a standard (“such
amounts as are necessary to support my wife I the style of living to which she has become
accustomed”) or the trustee may be given wide discretion.
Marsman v. Nasca Massachusetts Appeals Court, 1991
2. Spendthrift Trusts, p. 631-42
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In a spendthrift trust, the beneficiaries cannot voluntarily alienate their interests nor can their
creditors reach their interests, it is created by imposing a disabling restraint upon the beneficiaries and their creditors.
(the opinion against the spendthrift trust: “it would be to form a privileged class, who could indulge in every
speculation, could practice every fraud, and provided they kept on the sage side of the criminal law, could yet roll in
wealth.” But more and more states have adopted the new rule.)
Shelley v. Shelley Supreme Court of Oregon 1960
Fact A standard spendthrift clause in the trust: “each beneficiaries hereunder is hereby retrained from alienating, anticipating, encumbering, or
in any manner assigning his or her interest or estate, either in principal or income, and is without power so to so to do, nor shall such
interest or estate be subject to his or her liabilities or obligations nor to judgment or other legal process, bankruptcy proceedings or claims
of creditors or others.” is included in trust.
Issue Whether the incomes and the corpus can be reached by “others” (creditors..., in this case, Shelley’s former wives for the alimony
and the beneficiary’s children for support)? Yes
Ana. 1. It is clear that the trust placed no restriction on Grant’s right to receive income from the trust. Therefore he has an absolute
property interest in the income and it can be used to pay Patrica’s claim unless the spendthrift clause prohibit them from
doing so.
2. The interest of the beneficiary of a trust should be subject to the claims for support of his children, it’s not a sound policy to
use the welfare funds of this state in support the beneficiary’s children, while he stands behind the shield of immunity
created by a spendthrift trust provision.
3. Some jurisdictions recognizing the difference in martial and parental duties and held that a spendthrift trust is subject to the
claims for the support if children but free from the claims of the former wife. But the majority of the cases, however, hold
that a spendthrift clause will not bar a claim for alimony.
4. The duty of a husband to support his former wife should override the restriction called for by the spendthrift clause. The
same reason for requiring the support of the beneficiary’s children will be applicable to the claim of a divorced wife.
Conl 1. The beneficiary’s interest in the corpus is not made immune from the claims of alimony or support, but by the terms of the
trust, the disbursement of the corpus is within the discretion of the trustee, therefore Grant’s right to receive any part of the
corpus does not arise until the trustee has exercised his discretion and has decided to invade the corpus. Until that time. The
P(Grant) and former wife cannot reach the corpus of the trust b/c the beneficiary has no realizable interest in it.
2. clause (5) “in case of any emergency arising whereby unusual and extraordinary expenses are necessary for the proper
support and care”

notes The protection of spendthrift trust from creditors has several exceptions:
1. Self-settled trusts: a spendthrift trust cannot be set up by the settlor for the settlor’s own benefit. Creditors of the settlor can
reach the settlor’s interest in income or principal in a mandatory trust. Persons with earned (or inherited) wealth can protect
their assets from creditors by creating a self-settled spendthrift trust, so the spendthrift clause in these trusts is not effective,
but in Alaska and Delaware, if the trust is not created with the intent to defraud creditors then it can be created.
2. Child support and alimony
D. Modification and Termination of Trusts, p. 651-64

1. If the settlor and all the beneficiaries consent, a trust may be modified or terminated, the trustee has no
beneficial interest and cannot object. Such a right exists even if the trust contain a spendthrift clause. If
the settlor is dean or not consent to it, the Q arises whether the beneficiaries can modify or terminate
the trust if they all agree.
2. English court (1841): a trust can be terminated at any time if al the beneficiaries are adult and sui juris
and all consent.
3. English Variation of trust act (1958): a court may consent to modification or termination of a trust on
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behalf of incompetent, minor, or unborn beneficiaries whenever the court finds it beneficial to these
beneficiaries.
4. In the U.S, the settlor’s intent cannot be set aside after his death.
In re Trust of Stuchell Oregon Court of Appeals, 1990
fact 1. Stuchell, now deceased, established a testamentary trust for his grandchildren and their families under which the
grandchildren were to receive the income for life with the remainder going to their children.
2. One of his two surviving grandchildren had 4 children of her own, one of which is mental retarded and in state assistance.
While no guardian has been appointed for him, he resided in a state facility and receives Medicaid and social security
benefits.
3. in Dec. 1989, his surviving grandchildren, with the consent of all beneficiaries under the trust, petitioned the Ct. to modify
the trust so that if the mentally retarded great-grandchild survived the others, the trust would continue as a supplemental
needs trust until his death, and then be distributed to the surviving family members of Stuchell’s grandchildren. The
proposed modification was necessary to allow the mentally retarded great-grandchild from losing public assistance. The
trial Ct. dismissed the petition.

Issue May a trust be modified by the agreement of all beneficiaries?
con. NO (the judgment of the trial Ct. affirmed.)
Anal. 1. The common law rule: the trust may be terminated of all the beneficiaries agree and none are under a legal disability and
the modification does not frustrate the trust’s purpose. By this rule, it’s only applied to the termination of the trust and see
no reason here to expand it to cover modifications.
2. §157 of Restatement 2nd of trusts provides for modification if the purpose of the trust would be substantially impaired b/c
of changing circumstances not known to the settlor.
3. However comment b to the §157 states that a modification that is merely advantageous to the beneficiaries should not be
approved.
4. Here the sole justification for the modification is to protect the public assistance currently being provided to the mentally
retarded great-grandchild of Mr. Stuchell, who is a remaindermam of the trust. As such, the only purpose is to make the
trust more advantageous to the beneficiaries and is therefore improper.

notes 1. Ct.s in several states in recent years have reformed or modified a reust so as to obtain income ot estate ta advantages.
Sometimes the Ct. have corrected a lawyer’s error in drafting the instrument; at other times the Ct. have modified the trust
b/c of changed circumstances.
2. Drafting advices: when draft a trust that is to last into the unforeseeable future, ou should consider giving a beneficiary
(either the life tenant or a remainderman or an independent third party the power to modify or terminate the trust in the
form of “ a special power of appointment”, which is a power to appoint the property to, or modify a trust for the benefit of,
anyone except the donee. In Stuchell, the lawyer who draft the will some 40 years earlier did not, and could not, foresee
the future and did not write into the trust a means of changing the trust when circumstance change. The lawyer left the
testator’s family in a strait-jacket.
3. Unless all the remainder beneficiaries consent (which usually is not possible b/c. The remainder may ultimately vest in
persons now unascertained or unborn), relief is denied unless the trust is construed to contain a power or invade, express
or implied.
4. Deviation in exercising administrative powers: Ct.s have been much more liberal in permitting trustees to deviate from
administrative directions in the trust, b/c of changes of circumstances, than they have been in permitting modification of
distributive provisions. Ex: the Ct. in Joseph Pulitzer’s will held that even though the sale of those stocks (the shares of the
27
stock are the asset of the trust) was prohibited by the settlor, the Ct. had power to authorize sale in circumstances where
the trust estate was in jeopardy, and the Ct. approved the sale.
5. “Claflin Doctrine”: a trust can not be terminated prior to the time fixed foe termination, even thought all the
beneficiaries consent, if termination would be contrary to a material purpose of the settlor. In he case of
Claflin v. Claflin, a trust was established for testator’s son, with principal to be paid to the son at age of
30. after 21, the son sued to terminate the trust, pointing out the he was the sole beneficiary. The Ct.
refused to permit termination as this would violate the intent of the T.
Generally, a trust cannot be terminated if it is a spendthrift trust, of the beneficiary is not to receive the principal
until attaining a specified age, if it is a discretionary trust, or if it is a trust for support of the beneficiary.
Such provisions are usually deemed to state a material purpose of the settlor.
In re Estate of Brown Supreme Court of Vermont, 1987
Fact 1. A .J. Brown, now deceased, created the trust in his will. Under the trust the fund was to be used to educate his nephew’s
children. The trust was to continue until the purpose of providing an education has, in the determination of the trustee, been
accomplished.
2. After the accomplishment of the purpose, the income of the trust and any part of the principal were to be used for the care,
maintenance and support of his nephew and his nephew’s wife, in the style to which they had become accustomed, until
death.
3. upon their death, the trust was to terminated and the remaining funds distributed in equal share to his nephew’s living
children.
4. the trustee complied with the terms of the trust. In 1983, the nephew and his wife petitioned the Ct. to terminate the trust,
arguing that the only remaining purpose of the trust was to provide for their support and that distribution of the entire trust
was necessary to accomplish that result. The remainderman, their children, consented to the termination. (the probate Ct.
denied)
Issue May the trust be terminated by the agreement of all beneficiaries?
Con. NO (the probate Ct. denied but the appellate Ct. reversed, this Ct. reversed the decision of appellate Ct. and reaffirmed the former)
Anal. 1. Under the law, an active trust may not be terminated if a material purpose of the trust remains to be accomplished. This is
true even if all the beneficiaries consent to termination.
2. the trustee argues that the trust cannot be terminated b/c it is both a support and spendthrift trust. This argument is w/o merit
b/c this trust is neither. However that the trustee is correct to content that the termination is not possible b/c the material
purpose of the trust in this case has not been accomplished yet and thus termination is not proper. This trust has two purposes.
3. first purpose is to provide education, but all of the living children have received it and Brown’s nephew’s wife couldn’t have
more children as the trial Ct. determined, as such, this purpose has been accomplished.
4. the 2nd purpose is to assure the life long income for the nephew and his wife through management of the trust by the trustee.
This clearly indicates Brown’s intent (the trustee must provide for the “care, maintenance and welfare” ) to make sure the
nephew and his wife lived in the style they were accustomed to until their death. This purpose would be defeated if the trust
were terminated, since they could mismanage the funds thereby depriving themselves of the lifetime income Brown
envisioned.
note 1. A few states has enacted statutes that permit Ct.s to terminate trusts prior to the time specified by the settlor. Ex: permitting
modification or termination in changed circumstances which would defeat the purposes of the trust.
2. it may be possible to terminate a testamentary trust by a compromise agreement b/w the beneficiaries and heirs entered into
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soon after the testator’s death.
3. Changing trustee: unless the trustee has been guilty of breach of trust or has shown unfitness, inasmuch as the settlor reposed
special confidence in the designated trustee, the Ct. will not change the trustee merely b/c the beneficiaries want to.
4. But now in some states, entire inventories if trust accounts are now routinely bought and sold b/w banks, should the
beneficiaries now be offered the opportunity to change trustees if they are disadvantaged by these transactions? UTA (1999
draft) §706 (p.663).
E. Charitable Trusts
1. Charitable Purpose, p. 859-65, 867-69 (start at note 2)
- A trust is a charitable trust if a trust that is for the benefit of a class of person (and not for the
benefit of the community at large) must be for the relief of property or for the advancement of
education, religion, health, or other charitable purpose. A trust if not charitable merely b/c it is for
the benefit of a class of people. Ex: a trust for the benefit of sick employees is charitable, but is not
if it’s for the general benefit of employees; a trust pay salary to law professor is charitable b/c of
education purpose.
- A trust may be a valid charitable trust although the person who directly benefit are limited in
number. Ex: a trust awarding scholarships or prizes for educational achievement is charitable.
- A trust to benefit political party is against public policy to endow perpetually to it, thus it’s not a
chartable trust, but a trust for the improvement of the gov. structure and method in a manner
advocated by a particular political party is one.
- The category to see whether it’s a chartable trust, see p.867 and 868
- Draft advice: be sure to write the exact legal name of the charity, and make sure if the client wants
an estate tax chartable deduction whether the charity is tax-exempt under the IRS code. A purpose
deemed charitable by a state court may not qualify for a federal estate tax charitable deduction,
which denied the deduction to charities that indulge in certain prohibited activities.
- Trust of “benevolent” or “philanthropic” purpose should be avoided, it may fail as a charitable trust
b/c the income can be used foe non-chartable purposes.
Rosser v. Perm (handout)
2. Modification of chartable trust: Cy Pres, p. 869-83 and handout

Cy pres: means “as close as possible” When a gift is made by will or trust and it is no longer possible
to follow the instructions of the donor, a judge, estate, or trustee may apply the Cy Pres doctrine to
fulfill the donor's wishes as nearly as possible. It is usally applied in the case of a gift made for
charitable or educational purposes when the named recipient of the gift does not exist, has dissolved
or no longer conducts the activity for which the gift is made. In some cases, the Cy Pres doctrine is
used court disputes in which a judge must determine the appropriate substitute to receive the gift.
The general rule is: (p.875) if property is given in trust to be applied to a particular charitable
29
purpose and it is or become impossible or impracticable or illegal to carry out the particular
purpose, and if the settlor manifested a more general intention to devote the property to charitable
purposes, the trust will not fail but the Ct. would will direct the application of the property to some
charitable purpose which falls within the general charitable intention of the settlor.
- Cy pres does not authorize a Ct. to vary the terms of the bequest, merely b/c the variation will
accommodate the desire of the trustee.
- to the extent that the term efficiency embraces the concept of relative need, it is not an appropriate
basis for modifying the terms of a testamentary trust.
Obermeyer v. Bank of America, N.A., Washington University (handout)
3. Supervision, p. 892-901
V. Fiduciary Administration of Trusts
A. Powers of Trustee, p. 950
The administrative power of a trustee is derived exclusively from the instrument creating the trust.
B. Duties of Trustee
1. Duty of Inquiry into Beneficiary Needs, p. 618-27 (review)
Marsman v. Nasca case:
2. Duty of Loyalty, p. 903-19
The trustee must administer the trust solely in the interest of the beneficiary.
a. not self-dealing
Hartman v. Hartle New Jersey Court of Chancery, 1923
Fact 1. Mrs. Dorothea died testate leaving 5 children. In her will, she named 2 of her son-in-law as co-executors, the D here. Her will
directed her executors to sell her real estate and distribute the proceeds equally among her children.
2. the Executors sold part of the real estate (the farm) at a public auction for $3900. They sold the farm to one of her son who
actually purchased the farm for his sister, and the sister happens to be the wife of one of the executors.
3. the proceed of the sale was distributed to the children. Subsequently the sis resold the farm for $5500.
4. one of the other children (P) brought the suit against the executor (and the ultimate purchaser of the farm, claiming the sale
was fraudulent disproved.) claiming that the executors violate their fiduciary duties by selling to the wife of one of the
executors.
Issue Is it a violation of an executor’s fiduciary duties to sell trust property to his wife? Yes!
Anal. 1. the law prohibits the sale of property by the executors and trustee to the wife of one of them w/o previous authorization by
the Ct.
2. if the claim is true, the sale to the sis, even through her brother is illegal.
3. the settled law of this state is that a trustee cannot purchase trust property from himself at his own sale. This prohibition
applies equally to the trustee’s spouse, unless a Ct. has granted authorization for the sale by Ct. order.
4. neither the executors or the sis sought judicial authorization for this sale, as such, the sale was improper.
5. the farm, however, is now in the hand of an innocent purchaser and cannot be reclaimed. Instead, the sis and the executors
must account for the $1600 profit from the subsequent sale, each child is entitled to one fifth of that $1600 profit.
notes 1. self-dealing: good faith and fairness to the benes are not enough to save the trustee form liability. The benes can held the
trustee accountable for any profit made on the transaction, or, if the trustee has bought trust property, can compel the trustee
to restore the property to the trust, or, if the trustee has sold his own property to the trust, con compel the trustee to repay the
30
purchase price and take back the property. the only defense for trustee’s self-dealing is the authorization from the settlor or
the benes’ consent after full disclosure. Even then, the transaction must be fair and reasonable.
2. no-further-inquiry rule: p.905
3. Trust pursuit rule: when a trustee, in wrongfully disposing of trust property, acquires other property, the beneficiary is
entitled to enforce a constructive trust on the property so acquired, treating it as part of the trust assets. This also applied
where the property ends up in the hands of a third person, who unless be a bona fide purchaser for value and w/o notice if the
breach of trust. (p.906)
b. can not have conflict of interest

In re Rothko Court of Appeals of New York, 1977 (see the study-aid for detail)
facts Rothko is an expressionist painter, after he died testate and his paintings consisted of tremendous value. The executors was going to sell
his paintings to MNY and MAG. His daughter file a petition to enjoy 2 Ms from disposing the paintings and asked the executors to
return the paintings from 2Ms and asked to remove the executors.
Note Co-trustees: there is more then one trustees for the private, non-charitable trust, they must act as a group and with unanimity, unless the
trust instrument provides to the contrary. One of the several trustee does not have the power alone to transfer or deal with the property. a
co-trustee is liable foe the wrongful acts of a co-trustee to which he has consented o which, by his negligence through inactivity or
wrongful delegation, he has enabled the co-trustee to commit. It is improper for one trustee to leave to the others the custody and control
of the trust property. Charitable trusts where unanimity is not required of the trustees, action by a majority trustees is valid; UTA and
the restatement 3rd permits a majority of trustees’ action in the private trust.
3. Duty to Collect, Protect & Preserve Property, p. 919-20
A trustee has the duty of obtain possession of the trust assets without unnecessary delay. The
unreasonable delay depends on circumstances. Trustee is liable to benes. for not objecting to
executor’s disposition of inheritance. When obtain the property, the trustee has to preserve it
prudently. If real property is involved, trustee must keep building in repair, guard against theft, pay
taxes, and insure against loss by fire.
4. Duty to Earmark Property, p. 920-21
5. Duty Not to Commingle Funds with trustee’s own, p. 921-22
It’s a breach of trust if commingled even though the trustee does not use the trust funds for his own
purposes. b/c that results to difficult tracing and hence subject to the risk that the personal creditors
of the trustee can reach them.
6. Duty Not to Delegate, p. 922-29
Shriners Hospitals for Crippled Children v. Gardiner: (read study aid)
General standard of prudent investment: must not delegate unreasonably, with professional advice as
needed, the trustee personally must define the trust’s investment objectives, and must also make the
decisions that establish the trust’s investment strategies and programs, at least to the extent to
approve the plans developed by agents or advisers. (p.927)
- the non-delegation rule has been abrogated in the restatement 3rd and UPIA, the authority impose upon the
trustee a duty of using care, skill, and caution in selecting an agent, when delegating to obtain the
advantage of the agent’s specialized investment or other skills. And of course the trustee must
review periodically the agent’s compliance with the authority granted.
7. Duty of Impartiality, p. 929-38
A trustee has the duty to deal with both the income benes. and the remainderman impartially. The
trust property must produce a reasonable income while being preserved foe the remainderman.
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Dennis v. Rhode Island Hospital Trust Co. (read study-aid)

8. Duty to Inform and Account, p. 938-49
Fletcher v. Fletcher (read study-aid)
National Academy of Sciences v. Cambridge Trust Co. (read study-aid)
9. Duty to Make Trust Property Productive, p. 954-69
Estate of Collins (read study-aid)
The “prudent investor” rule: the trustee should exercise the judgment and care “which men of
prudence, discretion and intelligence exercised in the management of their own affairs, not in regard
to speculation, but in regard to the disposition of their funds, considering the probable income, as
well as the probable safety of their capital.” In making a loan, the co-trustee should use reasonable
care, diligence and skill, and shouldn’t act arbitrarily or in bad faith.
-Restatement 2nd of Trust: The trustee is under the duty to the beneficiaries to distribute the risk of
loss by reasonable diversification of investments unless under the circumstances it is prudent not to
do so. (p.963, UPIA §3)
-In buying a mortgage for trust investment, the trustee should give careful attention to the valuation
of the property in order to make certain that his margin of security is adequate. Must use every
reasonable endeavors to provide protection which will cover the risks of depreciation in the property
and changes in price levels. And he must investigate the status of the property and of the mortgage,
as well as the financial situation of the mortgagor.
-An “absolute discretion” does not permit a trustee to neglect its trust or abdicate it’s judgment.
C. Liabilities to Third Parties, p. 975-76
UPC (1990) §7-306
011205 ① the note is on the distributed question

012405 ② the note is on the distributed question
011905 ③
Who is the spouse?
Spouse: the status from state may have 3 requirements:
2. Valid marriage licence
3. DP/CV/PB
4. common law in some states (New Hampshire) serves the FUNCTION, that is, when there is no 1and
2, but meet 3, can still be spouse.
Not spouse: no statues, and function is the grey area, but some states say that function doesn’t matter, because they
only recognize status, for example: bigamous spouse, same-sex spouse, sex exchange and unmarried cohabitants.
People without status but with function often lose.
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Status V. Function
Who is a child? Who id a child will always be a child for the purpose of intestacy
Child
1. Biological product of a female (when there is no marriage becomes the question of the 3rd category)
2. Marital children (are always deemed as child) ＊key
3. Acknowledgement of parents
4. Adopted legaly
Hall v. Vallandigham case:
The issue here is WHEN the children is adopted? Can the child still be at a valid position to inherit from its bio.
father? And the state of Texas is the state that the child can inherit from both of the bio. and adopted parent.
The Uniform Probate Code (p.101):
Maryland: the child can only inherit from the adopted parent.
Then the state law comes to play
Woodward case: the ultimate decision of the Ct.??
The child’s father was dead before the child was conceived which is under no marital circumstance, b/e the marriage
was over.
Mars. Ct.: determine the legal question, and the federal Ct. refer to state law to resolve the definition of children. So
here, the legal question is resolved but the fact hasn’t.
The Mars. Ct. has 2 approaches: ①children are children, should not set the hierarchy of them. ②children need to be
supported.
O’neal v. Wilkes:
Not a child
1. Is there a will, if no, it will be intestacy then we have to decide who is the child. ＊key
2. Is this a marital child, no non-marital child① boil. IV , then ACK paternity or boil. PM, then see state law.
② adopted: status or virtual/ functional
※ To determine who is a spouse or who is the child is the purpose of intestacy, b/c if you have a will, you don’t go
to intestacy. But why wouldn’t a will be enough? b/c ex: same sex marriage, there will be some relatives
challenge the will (depending on the family structure) then, when you have adoption, then it might not be
challenged.
012105 ④
Child
Status through
‧ Marriage (or)
‧ Biology
-IV: ACK Paternity / Ct. action
-PM: Within 300 days or consent overlap in UPC stepparents adoption.
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‧ Adoption…………irrelevant…can be lovers
012605 ⑤
Involuntary Bars
- Homicide
- Abuse
- Abandonment/ adultery/ separated (some states ex: NY, MO, also fail to protect your children)
Voluntary Bars
Disclaim
- Tax ( but you still won’t be able to avoid federal tax)
- Avoid creditors
012805 ⑥
Will
Mental capacity, the elements:
1. What property
2. “natural objects”who would take under intestacy
3. disposition
4. orderly plan
Testamentary Capacity
What’s the difference b/w MC and PC?
Strittmatter case (p.159)

1. Knows what is her property
2. She knows that she has concns
3. but decided to give all her property to National omen’s party
4. there is an orderly plan
Testamentary Capacity
1. have to show that you have mental capacity
2. have to show that you are not insane
Strittmatter case (p.159)
020205 ⑦
Mental capacity the testator mist know:
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1. Nature/ extent of prop

2. Persons who are “natural objects”
3. dispositions in will
4. how above for ms orderly plan
Testamentary capacity
Requires mental capacity plus “not”
1. Insanely delusional
2. unduly influence
3. victim of fraud
 when examine a will, first see the testator if he /she is mental incapacity under the 4 elements, then see the
testamentary capacity, and then, see if there is undue influence.
Unduly influence
“Will (here means a person’s mind) of another substituted for will of testator.”
p.177 provides 3 tests:
1. Susceptible.
2. Opportunity
3. Result
020405 ⑧
Invalidating wills:
Who are the heirs the proper distribution; is the will valid? How can one invalidate a will.
1. Mental capacity
2. insane delusion
3. undue influence
4. fraud
5. failure to meet statutory requirements
 as a lawyer, talk and advice them that the potential possibilities the will is going to be contest, see the cases of
Lipper  Moses  Ksuffman.
Fraud
Misrepresentation:
1. in Inducement => misrepresentation of fact related to beneficiaries
2. in Execution => character/ content of will
You have to evidence the intent, and the elements are:
1. intent to deceive
2. for purpose of influence the document
3. but for causation
ex: the Carson case (p214) and the problem in p215.
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When fraud, the Ct. is often reluctant to invalidate the will, so they often post it to constructive trust.
Tortious Interference (p.221) the elements are:
1. Expectency
2. Intentional interference with expectancy
3. Tortious conduct
4. But for causation
5. Damages, because here is the tort claim, and it’s possible to get punitive damage here.
Attested will => been witnessed
UPC: ①in writing ②signed by the testator and signed by 2 witnesses ③the witnesses has to sign in reasonable time.
When the witnesses is a beneficiary…
020905 ⑨
What a lawyer should do when executing a will:
1. came up with a document
2. make sure how many pages stable the will together
3. make sure the testator understand the will
4. the ritual function (formality)
5. providing a private room (more often is a conference room, to be as safe as possible) make sure enter or leave,
and the testator, the lawyer the witnesses and the notary should be in the room..
6. is this you will (the Q the lawyer should ask) and make sure that the witnesses hear that the will is approved by
the testator that it’s his/her will see footnote 11 p.244 =>the “publication” satisfied the criteria, the
requirement.
7. make sure if the two people wanted by the testator to be his/her witnesses
8. the witnesses should sign the will at the margin of each side
9. have one of the witnesses to read the attestation clause out loud to clarify that every one understand that they
are witnesses (ft.12)
10. the distinction b/w attestation clause and affidavit is that the affidavit is notarized, so it allows you to probate the
will without bring in the witnesses.( it’s not always one the same page and time is not an issue here) therefore a
notary is important for the will be respected., the reasons are follows:
⑴ play it safe
⑵ Luicianna, CA require a notary and 3 witnesses, but the notary can be one of the witnesses.
⑶footnote 13 (p.245)
 to be a good lwyer, you had better follow the steps on p.242~246
 when notarize, a notary follows a certain procedure which make sure that the document has a certain
credibility. Because the notary is an agent of the States, the function could ensure the accuracy so to serve
the evidential function. Follow the rules and be ethical is what the lawyer should do, while the notary has to
bear a certain responsibility, too.
36
Addressing mistakes in will execution: ‧‧‧

1. traditional view: invalided ( not meet the requirement)
2. Substantial compliance focus on execution
3. U.P.C.: dispensing the testator’s intent.
Paclinko case
Spouses sign each other’s will, and the Ct. didn’t permit to probate the will because the will didn’t meet the formal
requirements. (see the Groffman case at p. 227)
1. in this case, the residuary is the same
2. he is her brother
3. here there is a remedy against the lawyer => malpractice remedies. And the problem here is that they have to show
malpractice, but there exists a problem because the malpractice could be happen long time ago, therefore, the
lawyer may not be alive anymore! But there still a way out of this, that is the constructive trust.
Ranney case
‧They only sign the affidavit
Under certain states, it requires both attestation and clause and affidavit, and then,
‧have to have substantial compliance which focus on the execution.
The testator here was trying to meet all the requirements but b/e of the lawyer’s mistake here. ( and if it’s the witness’
fault, the witness is immune from responsibility.
U.P.C statute p.252, 257 ( p.259 1st Ph, 3rd sentence: when…)
The UPC substitute doesn’t talk about substantially compliance, it only talks about intent, and the Ct here was
approaching the “substantial compliance”.
‧UPC: dispensing the requirement as long as the testator got intent dispensing theory basic on the testator’s
intent.
Hall case (handout)
The lawyer let his client hanging, let them wait, therefore it’s the lawyer’s mistake.
Here, the Q is why not adopt the UPC approach to see the testator’s intent? Because, the testator is dead so the
evidence is relies only on the survived, and it costs time, and if there is reliable testimony…
021105 ⑩
Sky dancer case
She call him “legatee” and the definition of legatee is the same as “ beneficiary”
The boyfriend take under will while the mom take under intestacy
Doc1. closed, b/e not signed, but notarized
Doc2. not a calid will
Doc3. even it’s a will, it’s not attested, Q here, do you have to give some gift with a document to prove the intent? No
Doc4. unsigned, not a will
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Doc5. unsigned and no witnesses, not a will.

Bf’s argument: ① it’s a holographic will ②they have common law marriage ③doc1~5 has shown the testatmentary
intent. (p.1232)
 but, it seems that every doc. are typed except the signature and shouldn’t be the holograph will.
 and intent?? The docs. she prepared shows the intent.
Mom’s argument: considered about: ①different pagesit could be inserted other pages. (And there is not witnesses
signed on the affidavit?) ② the date of the affidavit signed was the not accordance with the docs. ③there could be a
suspicion that the Bf actually killed the her. ④why give multiple gifts in multiple date? And the strong arguments are:
①there might be fraud and ②it’s a draft=> not true indication of her intent.
Really should look at the differences b/w the documents, and refer to other countries’ judiciary point of view.
Holding: Not a will, and she died intestate. (And the Ct. of Montana here doesn’t apply the dispensing clause of UPC,
so it’s not a valid will.) But states like Colorado adopting the dispensing clause, so this might be valid under those
jurisdictions. But there is no witnesses what so ever!
As for the criminal accuse, (p.1234) there is no reasonable doubt. (the Bf has to prove beyond the reasonable doubt).
And like the Renny case of “the substantial compliance test”.
Types of will
1. Attested
2. Holography
① whether the will is in the state that recognized the holographic will? (p.263 fn.)
② nature of the handwriting
In re Estate of Johnson: Arizona doesn’t adopt the UPC so there’s no dispensing clause
It’s not an attested will, b/e it’s not witnessed, and subsequently examined by whether it’s a holographic will (the
three elements: handwriting, signature and the “material handwriting portions” has to show the “intent.”) in this case,
whether the material handwriting portions shows the intent of the deceased is rather vague. The test that the Ct. uses
was the test apply to the fact (agree or disagree and why and what kind of argument could we make?)
And the difference b/w this case and the skydancer case is that the will in this case has been signed and notarized.
(p.265) it says: “it’s the last will intestament.”
the intent here?p.266 “I nominate and appoint ….as executress (executor)” and he wrote the words “my estate”.
And who are those people that been named in the will, and we have no idea why they have the will!
whether “the material portion” in this case is in handwriting?? And the material means that the writing should
reflect the testamentary intent. Is the testamentary intent was established by his handwriting here?
 how would the Ct. adopt UPC? And if it did, would the result be different? (p.227) you can interpret the
handwriting into that there is intent, and the context of the printed portion.
 if adopt UPC 2-502(c), will you probate the will? Yes, but what kind of argument you could be stating that you
being faithful, ex: it’s handwriting and his intent.
The intent requires only the testamentary intent, it doesn’t have to be unambiguous or explicit intent.
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Many courts require that the entire will to handwriting otherwise it will be invlid.
Kimmel’s case
Does this case meet the requirements of a holographic will?
Is it just a draft? He sent the letter that makes it a strong intent to be a will.
Is there testamentary mature? What are the languages in this case which indicates that?
- if everything happen (unclear what it actually means, but the Ct seems to interpret it as if I should die)
- important pepper
- not a normal letter
And then, whether it is a holographic will should be examined, b/e there is no functional test to guard it.
So we have to ask 1. whether there is testamentary nature and 2. is it completed? Is it still a draft?
021605 (11)
brief review:
1. capacity issue
2. statutory requirement so can only look at the document
①attested – dispensing power
②holographic – dispensing power ④ intent
③oral (p.226 fn.)
sometimes in cases, ①and ②are very unclear.
3. will components (what are the pieces that establishes a will)
- Republication by codicil
- Incorporate by reference
(1) Existence? Clear/ satisfactory proof
(2) Referenced to (fn.26, p.306) article 5th
Clark case : even if there is no 1979 notebook, there were still a 1972 and 1976 memos.
The argument for the cousin: the 5th article only mention that there is “a” memo. (p.306)
- Should be clearly identified the notebook as memo
- Maybe still at the stage of drafting =>never be able to know that it’s her last will.
- Fraud? Not necessary here.
- * Whether the actual gift (sentence “the line”) in the notebook exists.
- There is a oral but can’t be sure that there is really a line in the notebook.
The Ct. (in MA, hasn’t adopted UPC dispensing clause) : ①memo doesn’t mean a certain type, and ②”a” memo
doesn’t mean “one”, and ③contemplated a multiple way by “in accordance with my known wished
‧ Is it permissible? The problem that NB as a codicil is that it’s not formal, doesn’t meet the statutory requirement.
(p.309 note 1)
Johnson case: the will is mixed with typing and handwriting. The trial Ct. denied probating, and the supreme Ct of
39
OLK went to the depth of “Republication by codicil”.

(P303, top) when you have an attested will, why does it matter so much that when republished by codicil, b/e it
only applied to a prior validly executed will.
The Ct.: ①but it’s sill a will even… and ②even if here is defected, the codicil heal the defect. (p.313)
The Dissenting: Integration: all the pages are exist at the same time when the will was executed, and in Johnson
case, there is only 1 page of will. And, if it’s a holographic will, the elements are: ①am I in the state that requires
the whole will should be in writing, and ②”material portion”. If met the 2 elements then we go back to
incorporate by reference, then we can say that when handwriting, the part of type writing has already existed.
Last year exam. Identify if the will has any document attached, not attached b/c nothing to attached.
021805 (12)
- Incorporate by reference (2 requirements)
- Republication by codicil P.314 3rd paragraph
- Reference theory
The handwriting part existed after the typing and the handwriting part was testified that it’s her will, the argument
here would be, It’s the codicil which republished the will or the Integration theory should be applied here because it’s
on the same page. BUT if applied “integration”, the will won’t be able to probate here because it’s not attested or it’s
not a valid holographic will for there is a part of it typed.
And BUT when the will is tore into two part, not integrated anymore, the argument for this will still be able to probate
will be: that consider the two part as separate, and constructive saver…
1 page integrated, 2 pages incorporate by reference ( and if we no longer sure who did the typing, we should start
to worried about “Fraud.”
(“Integration” requires more what consists the will.)
022305 (13)
1.2.3, not really look into the content of a will, and 4, is the interpretation of a will.
1. Capacity issues
2. Statutory Requirements
3. Will components ①Integration
②RBC
③IBR
④AIS
a. do you have a valid executed will?
b.
c. motive or signature apart from the will?
(p.318. 319) Problem 1:
- The right hand draw: what do I want to know about it?
40
i) Is there a save keeping purpose?

ii) Who else has access (the keys) to the draw?
- labeled envelops: like NY and TENN, many states says that 2nd and 3rd paragraph has no
difference, (IBR helps to solve why there are label envelops but could change name) so the
2nd and 3rd answers could be the same, we can use IBR to explain it, but still can’t say that it’s
for the purpose of save, b/e can’t see that.
Problem 2: the document you executed has to be existed at the time you execute the will, so
IBR can’t be applied in problem 2.
* Her brother’s testamentary intent(someone else’s) constitute an AIS. Barney id not bound by
his testamentary intent. And fraud here is not likely, because it’s her brother’s choice through
the will and the will has to be validly executed.
4. Will construction
Mahoney v. Gainger
What she wanted before she die, what did she tell the lawyer?
The Issue: what is the language “the heirs at law” refers to?
What could we assume? ①”the heir at law” means her 25 cousins, and ②the 25 cousins are not the heirs at law,
because the only heir at law is the aunt, and it’s because that she is in the 3rd degree while the cousins are on the 4th
degree, therefore, the aunt takes all.
Ct.: applied the “plain meaning rule” here, means the no extrinsic evidence (EE) permitted unless there is ambiguity.
(BUT, the language of the will provided ①the heirs at law, and ②divided among them.)
the Ct. made a distinction of ambiguity, which are: Paten v. Latent, and Equivocation v. mis-description. And in this
case there might be and very possibly a latent ambiguity, so the Ct. said that it’s the common language that the lawyer
should know, the Ct. was trying to stick to a bright line rule for the later cases.
The actually intent of “heirs at law”: “heirs at law” is actually a good language for many testators because they might
worry about that there might be other heirs qualifies during the period of ti,e that she executes the will and she
deceased. But it is apparently not a good language and it’s of the mistake of the lawyer so the Ct. was not willing to
modify the language.
- (1) is “substantial compliance” applied here? No
- (2) is UPC “dispensing clause” applied here? No
No, because the will has to be valid and it has to be executed so the (1) and (2) can be applied here. Here we are
discussing about “WILL CONSTRUCTION”, so these 2 alternatives don’t apply here.
Fleming v. Morrison
Roxy is a dog, in CA, you can’t give your assets to a dog
The Law: whether to let the EE comes in? (contract, Parol evidence)
The Ct. took the two steps process of plain meaning rule
I. step: p.421 bottom ~p. 422 2nd paragraph let the EE in to see if there is an ambiguity=> Roxy is a dog, it’s a latent
ambiguity, so the dog can’t take the share.
41
II. step: what is the EE that Quinn wants in? => “take care of Roxy.” (but the Ct. deems it as a “precatory”, which is, a
“moral obligation.” And the Ct. won’t let this EE in b/e it can’t be construed as it, b/e “take of Roxy” means that
Quinn takes all, which is not a proper construction, so the Ct. created a reasonable one “in equal share” to construe the
will.
Is the testator “delusional insane”? according to her background, she was an real estate management, she should’ve
known that the dog couldn’t take the share, so this might be an EE that she wants Quinn to take all, but the Ct ignore
this.
022505 (14)
Erickson case the wife wants the EE to be admitted which shows the decedent never had the intent to revoke the will
after the marriage. And the daughter doesn’t want the EE to be admitted.
The Probate Ct.: allows the will to probate regardless the statute (fn12) says that the will provided for the contingency
of marriage.
The Trial Ct.
The Supreme Ct.: should let the EE come in.
①Look at the plain language, the 4 corners of the language.
②Mistakes: i) the lawyer didn’t put the provision that the will won’t be revoked after the marriage
and the lawyer knew the reason why the will been executed (it was b/e that they were going to a
honey moon right after the wedding). ii) the lawyer had the opportunity to recover the mistake but
he didn’t and still made the same mistake.
- The stock: -he set up a corporation which is not going to probate.
-Under the judicial approach, we won’t even look at the fact about it (fn.15) and it
might be the reason that be put in fn.
-fraud, dress, undue influence….
1. The clear and convincing evidence was the lawyer made a mistake.
2. The testator was misled by the mistake.
Q: why not just go suing the lawyer?
- Unjust enrichment (malpractice doesn’t unjust enrich a lawyer)
- Encourage the lawyer to admit his mistake. (but actually the lawyer still screws up?)
- The cost of litigation will be higher b/e…
- How about the Paclinko case who signed the wrong will and the Mahoney case??
- The execution v. draft??
Flannery case
- The “laughing heirs”
- The will is clear and there is no residuary, but doesn’t mention about how it going to be when the wife pre-deceased.
- Personal usage argument.
1. There are about 5 reasons that why the Mars Ct. doesn’t want to apply “reformation”
42
2. The floodgate
3. Judicial resources
4. Statute of will??
5. Other cases are bad/ inapplicable
6. Testator confusion (are they going to know that if they follow the 4 corners of examination and…)
- the sister: it’s the policy to change the Mahoney opinion.
- The concurrence opinion:
030205 (15)
Traditional rule 1969 UPC 1990 UPC
Specific/ general gift Goes into residue If qualified.
Then to issue.
Residuary Intestacy ,, Go to other residuaries.
(eliminate the rule of
“no-residue-of-residue”
Class gift Surviving members ,,
Void gift: 1. when a person is not a person
2.
3.
ex: Roxy the dog, under the common law rule, there is “no-residue-of –residue”, so the residuary goes to intestacy.
Anti-lapse: the requirements have to be satisfied or it has to go to traditional common law rule.
And it’s a default rule, like contract, you can contract around it.
Allen v. Talley each of the predeceased siblings left surviving children, one of the children file the application to
probate.
Argument: (p442top) 1. there are two living siblings. 2. at what time does the “living” apply?
Did she intent to contract around the anti-lapse statute? The “state of intent” is clear that the deceased has to be alive
before the deceased die, then the anti-lapse statute not apply.
Plain meaning?
1990UPC: why are we give so much weight to that for them to K around the anti-lapse statute?
The approach is: to reflect the intent of the average testator (but how do we know that his/her intent is to K around the
anti-lapse statute?)
Jackson case: Issue: Is there any substitute beneficiary here?
The step children of the testator claim they have title of the land (property), and the person wants to buy the land
brought the suit. ( a marketable title claim)
- We have a lapse here.
- Does the anti-lapse clause save the gift ?
- Here the anti-lapse not apply(fn19) only apply to a certain heirs
43
- To have a substitute beneficiary?

Hofing v. willis (P448-449): “and “ can’t be read as “or”
Dawson case: fn20(p450) when deal with lapse question, ask the following question:
1. Is there a lapse?
2. Does the anti-lapse statute apply?
3. Is there a substitute beneficiary?
4. Can it be construed as a class gift?
Ct. reasoning:
1. Doesn’t include all the class member, only two, and
2. she gave them specific share
3. she knew how to…
4. she doesn’t use the “class” label.
So, this is not a class.
030405 (16)
Is there a lapse? If yes, will goes to residue, beneficiary or intestacy UNLESS:
1. Anti-lapse statute applies.
2. Will provides for substitute beneficiaries.
3. Can be construed as class gift.
Moss case:
1. What is the lapse?
2. Does an anti-lapse statute apply?
3. Is there a substitute beneficiary?
4. Can the gift be construed as a class gift, and what are the arguments on both sides?
5. Do you find the rationale of the holding compelling?
6. What could be a more compelling rationale? (Maybe there's something from our discussion of intestacy that would be
relevant?)
EJ predeceased (the lapse) there is no anti-lapse statute here b/e it’s a 1899 case, hasn’t enacted it yet. Besides, Moss
died without heir, even if we have the statute, won’t apply here.
Is EJ a member of class?
Lower Ct.: not a member of the class b/e, look at the language, EJ seems to be excluded by the class, therefore, goes
to residuary.
Issue: the wife has assigned a residuary to “Kinsberry” and that’s why the wife’s death matters, they don’t even know
who “Kinsberry” is!
Higher Ct.: was convinced by the …
Assume that EJ is going to take the share equals to the sister’s child, the old England PS situation.
44
Argument for “class”: 1. EJ was her niece, they are all at the same degree of relationship, (all nieces and nephew) this
gives weight that it is a natural class.
2. but they came from different family, then the share might be different because of the PS.
Q: If EJ has sibling , does this situation defeat the class?
Last year exam question:

1. If the handwriting on the will is found to be invalid (because it’s in pencil, just a draft, etc.), what lapse(s) are present
and what would likely happen to those lapses? How would your answer change if the handwriting was found to be valid
(either as a valid holographic will or valid holographic codicil)?
2. What happens to the gift to Frances? To Marybeth? (You will find p. 459-66 useful in answering these questions, but we
will not explicitly discuss the Wasserman case.)
3. What happens if there’s a lapse with respect to parts of the principal of the residue to be distributed under the terms
of Article IV?
Ademption:
1. What’s the difference between the identity theory and the intent theory?
2. How would you answer problem 1 on p. 466? Problem 2 on p. 467?
Common Law: General/specific gift

Only specific gift subject to ademption (a deem)
And take away/void.
p.463, 469, 459 : “my” Microsoft stockl.
abatement handout:
1. What are your answers?
2. How did you get there?
031605
Will maybe revoked by:
1. Subsequent Instrument
2. Physical Act
3. Operation of Law
* The best way to revoke a will is to complete destroy the “original” will, but this might result in that
the T end up without a will, and T’s estate will go to intestacy. so when destroy a will should ask the
client whether he/she wants to have a subsequent instrument.
* If the state you are in doesn’t apply UPC, and the subsequent will doesn’t include a revocation clause,
the SW can still revoke the previous will if it’s “inconsistency” with the previous will.
* But under the UPC, even if your SW doesn’t include a revocation clause, it can still revoke the previous
will.
Subsequent instrument
45
Gilbert case: (not follows the UPC)

“The rest” here is kind of ambiguous, can any EE be admitted here to determine the term?
(The Roxy case overturned the plain meaning rule by setting the policy that “ you ought to see the extrinsic evidence
first then to determine whether the will is ambiguous or not. And the plain meaning rule stats that EE can’t be
admitted unless there is ambiguity in the will)
Thompson case:
“The witting at the back of the will” what does it stands?
(1) A subsequent instrument: it’s not a subsequent instrument because it’s not a valid attested will.
‧ Is the state of Virginia recognizes “holographic will?” Yes it does.
‧ But the handwriting is not total her own.
‧ And the reason why it’s not a valid attested will was because that the witnesses didn’t sign on it. If the UPC apply
here, the dispensing rule will apply and the T’s intent matters, so if there is any explicit EE shows the T’s intent,
the handwriting will count although it’s not from the T itself but only signed by him/her, and it doesn’t even need
the witnesses to sign.
(2) Is there a physical act to destroy the will? The Ct. held no, because the word should touch the word on the will,
that’s what suffice the physical act which destroy the will. Here, the Ct. gave much weight on that the words
should write on the words of the will not on the back of the will (if it’s on the back of the will, it can be viewed as
on a separate sheet) because the policy here is to avoid opening the possibility of “fraud.” The argument here
could be:
‧ Why does it matter if you write it on the front or back., because even if you wrote on the front, there still be a
possibility to fraud.
‧ See the “incorporate case” where the will was tore into 2 parts.
‧ In the case, the room for fraud is smaller for it’s on the same paper.
(3) See p.277, the statutory authority actually respect the testator’s intent, it says “whether or not the …tough the
words of the will.” So if the UPC governed this case, the will could be cancelled.
Physical Act
Harrison case:
When destroy a will, it should be done either by the testator or in front of the testator. And the policy support this is
that we want the testator to know what she is doing, and reduce the possibility of fraud.
‧ In this case, the Ct. made a presumption that if you can’t find the remaining pieces of the destroyed will, then we
presume that she intent to revoke the will. (She throw the pieces away might because that she thought the will had
been revoked, under the presumption, the act that she throw away the pieces is not the act of revocation.)
‧ It is similar to Erin case where involved revocation by operation of law, which, if you got married, the will
executed before your marriage will be revoked automatically by the operation of law. But in the Erin case, it’s the
attorney’s error for this to happen, so the Ct. let the will to probate.
‧ If the pieces been found, it’s a valid will, so it will be probated. And the lawyer should be punished because of
providing “incorrect legal advice.” And the remedy here could be ①malpractice remedy (but this is not the best
46
way b/e by the time the lawyer might already die or bankrupt…etc.) and ② construed will, follow the Erison
approach.
Operation of Law
1. Divorce: problem1, where the stepson takes all. Revoke the spouse, but not the spouse’s relatives. But the UPC
changed the approach, can goes to the children of pre-marriage.
031805
Partial revocation
1. Physical act prohibiting (always ask the first question: does the state recognize partial revocation?) and see the
UPC (p.277)
2. through a codicil (ex: Gilbert case)
3. divorce operation of law
The problems at p.285 (the use of pencil mark)
(a) A draft or final will?
On the base that there is no fraud (ex that there is no other has the access to the will) we are going to presume that
this is her handwriting.
(b) The state only permit to revoke the will wholly but partially for the policy of ① easier to apply and ② limited
the room for fraud.
(c) Here the question shift to “can you partially revoke a holographic will through a physical act (the argument could
be: there is no signature and no testamentary intent). But the policy perspective here is that fraud or the testator’s
intent might be to write another will. Is there an ambiguity here and can the EE been allowed to challenge the
unduly influence? If the answer is no, then we should ask that does it reflect the T’s intent or it’s only a draft. The
Ct. often presume that it is the T’s intent, and then the burden will shift to the person who challenge the will.
DDR
Requirement: 1. A valid revocation.
2. Mistake
3. Was the revocation depend on the mistake of law or fact.
Carter case: doesn’t apply DDR very well
the church want the 1963 will be probated, so we can presume that the church’s name was in the 1963 will and it can
take a part of the estate from the will. Meanwhile, Luther wants it intestacy.
The Ct.’s presumption:
(1) T made the markings b/e it’s in her possession.
(2) Revocation: cancellation
(3) The revocation is dependent on the effectiveness of ’78 will.
“The markings on the will”:
Ct.: there is no valid subsequent instrument so has to have a physical act so the will can be revoked.
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‧ But the marking related to many material parts.

‧ This marking are made by pencil, might not be a valid holographic will, but still can be a presumption of
revocation.
‧ But the EE came in that the pencil markings were what she wants her lawyer to make a change, so the
presumption that she wanted to revoke the ‘63 will by make the markings and she thought that the ’78 will will be
valid.
‧ Look at the DDR doctrine, that it needs “a valid revocation”, the revocation can be challenged here, b/e it’s not
valid here.
‧ There is no evidence that she thinks that the ’78 will is effective so we might be able to say that she made a
mistake therefore the DDR doctrine doesn’t apply here. (if there is any mistake here, it’s not the mistake that
DDR needs for requirement, but merely a mistake that she didn’t take it to her lawyer.)
‧ The Ct. here is in favor of the pencil marking and deems it as a valid revocation.
Problem: some thought on the problem2 on P290

Would you apply DRR here? It’s possible that the testator mistakenly believed that the gift to Nancy was attested.
However, that doesn’t necessarily mean that the testator would want the gift to John to be given effect in he absence
of that mistake. The Houghton Court held that DRR did not apply, and the partial revocation therefore stood, because
by striking out John’s name, it was cleat that the testator did not want John to take. To disregard the revocation,
though the application of DRR, would thus not further the testator’s intent. However, hypothetically, it is possible to
imagine evidence that could cause the court to go the other way. For instance, what if John were Nancy’s father, and
John asked the testator to give the gift to Nancy (instead of John) because John wanted to eventually pass the gift on
to Nancy and he wanted to avoid estate taxed? ( remember our discussion of disclaimer, when we were discussing
intestacy?) if such evidence existed, then it would have been appropriate to apply DRR.

In the first situation, where the testator mistakenly thought Judy had died, it is likely that the Ct. would apply DRR
(and the Campbell Ct. did in fact apply DRR). This is because the mistake was recited in the term of the revoking
instrument (see limitations on DRR on p.291). Therefore, Judy would take $5000.
In the second situation, where the testator mistakenly believed he/her had already given Judy money, the Ct. would
likely NOT apply DRR (and the Witt Ct. refused to apply DRR) because the mistake was a factual mistake (as
opposed to a legal mistake) completely within the testator’s control.

We discussed problem 1 in class. Problem 2 is different because the second will was revoked by a subsequent
instrument, as opposed to a revocatory act. Therefore, pursuant to subsection (c) of UPC§2-509, H takes via intestacy
because the 1996 will wholly revoked the 1995 will and the testator didn’t call for revival of the 1995 will in the 1999
document.
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Estate of Alburn:
① Milwaukee will
② Kankakee will
Do we have a valid revocation? There is a mistake, b/e she depended on that she if tore the Kankakee will the
Milwaukee will will revive.
‧ the Wisconsin law: the M will won’t automatically revive when revoke the K will, you have to re-execute the M
will so it’s will revive.
‧ Therefore there is a “mistake in law.”
‧ Here might be reduced to 3 outcomes: ① the court probate the K will, or ② look for the testamentary intent, or ③
ignore DDR, just revive the M will (but it’s not likely to success in this Ct.)
‧ Non of her heir get anything under the M will.
‧ Conclusion: if Wisconsin:
- Follow the majority approach, the M will will be probated
- Follow the English approach, the M will is never been revoked so it will be probated and doesn’t have to consider
about the revival of the M will.
- Follow the UPC §2-509, whether wholly revoke or partially revoke:
1. Wholly revoke, §2-509(a), it remains revoked unless revived
2. Partially revoke, §2-509(b), (the case here) because there are still substantial beneficiaries.
3. Either 1 or 2, the M will will be probated.
032305
Restriction of testamentary intent
1. Could you completely disinherit your spouse? If I have a complete written instrument maybe but not likely
successful b/e we have 2 systems which grant the surviving spouse property, which is, the surviving spouse is
entitled to a portion of the decedent’s property.
2. the property:
‧ SP system, provides “selective share” among the states except GA, but in GA, the surviving can still have the
right from the “support right”
‧ CP system, each of the spouses take one-half of the earnings from each other, which is the 1/2 undivided interests.
‧ The support system: the policy of this is to “reward contribution” (the contribution includes house hold working,
and lost opportunities for working or gaining a higher pay) but this follows the question, is the spouse entitled to
those intangible contribution?
3. The support right v. property right.
‧ probate/ non-probate estate (see day 2) and the surviving spouse
‧ Support right: from what non-probate property does the surviving spouse titled to?
(1) Social security  only available to the surviving spouse, (if you don’t have a surviving spouse, the SS goes
49
to the Government, the decedent has no right to dispose it.) and the policy for this is to prevent homeless,
comfort of retirement.
(2) Private pension plans (the ERISA right): the question raised when the employee dies after the retirement and
before the retirement the surviving spouse has entire right over pension (?). and also, the employee can not
use the pre-marital agreement to waver the ERISA right. (See p.476). Problem (p.300), revocation by
operation of law, so the gift to formal spouse was revoked. ERISA right preempts state law. (nearly all
states)
(3) Is the divorce revoke the pension beneficiary? If the support right is to reward the contribution, then when
divorced, the pension doesn’t automatically revoked, if you want to revoke it there are some action you
should do, which are for example, re-married or change your pension beneficiary. (If you never married,
you can name anyone under your pension beneficiary because you want your intent to be respected. But,
once you got married, you have to name your spouse to be your beneficiary.) Therefore, when remarried,
because marriage trumps any other intent, the new spouse will take the pension. And if there is no action
was taken, the ex-spouse will still entitle to the pension. So the problem on p.476, the pension will go to her
ex-husband b/e she wasn’t remarried. It’s the difference from revoking will by the operation of law
because: when married, you revoke your prior will by the operation of law, but when divorce or die, here the
concern is about pension plan of the support right.
‧ probate property: homestead, personal property, family allowance (Georgia focus more on this), Dower(for
widow)/ curtecy(for widower with children) (because there is no elective share)
‧ The assets subject to the elective share:
(1) In day 2, Probate estate (stands for what money is probate estate): [property subject to the will: joint
tendency, property in trust, life insurance, inter vivos gift…. There are not property of probate estate, but the
non-probate estate.]
(2) The distinction of probate and non-probate estate is a was to prevent disinherit the spouse.
(3) Sullivan case: they separate. Therefore the presumption is: maybe he wanted to leave his money to someone
else (kids or lovers). So he out his money to inter vivos trust. The duration of this trust? Is the a revocable
trust make a difference in this case. The trust property not probate estate, the elective share is only over the
probate estate. So she wants a bigger pie.
032505
CP SP
During 50/50 split of all the CP Title governs*=> don’t have to
To dispose CP has to get the consult other spouse doesn’t
other spouse’s consent have to get the consent
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Divorce 50/50 Sullivan p.540

Equitable distribution=> ownership redefined=>50/50, all states follow
Death 50/50 ES (elective Share) => have to know what property are we taking the share, and
what amount we are taking from the share.
‧ CP: 8+1(Wisconsin) states is CP including CA and Texas, so the population is relatively much in this system.
‧ 1969 UPC: CA started to approve “no fault” divorce, thus, the one who’s status is lower loses the leverage to
bargain.
‧ *In SP, title governs, but when divorced, the one who owns title has to support the other one.
‧ * During the marriage, title used to govern, when divorced, the earnings acquired during the marriage was
accumulated to make an equitable distribution, the goal is 50/50 share.
‧ What property was included in the 1990 UPC (1990 UPC) expended by add many SP) and the difference from the
1996 UPC:
(1) UPC (1990) §2-207:
a. Makes no distinction from the property acquire from the survivor’s and the decedent’s property.
b. Want to combine both spouses assets.
c. Very from the CP states ( 1969 UPC: title governs and using gift to make a difference).
d. How 1990 UPC operate? Looks at both spouses’ properties CP, and adding all property titled in the
surviving spouse’s name. so makes no distinction of CP or SP here.
e. Purpose: if the survivor can take care oh him/her self, then won’t be over compensated.
(2) The amount of the share decided by the tendency of the marriage.
(3) a. Estate in CP: only the wages earned during the marriage. So if you got married and immediately your
spouse dies, you probably get nothing from the marriage, b/c it’s not likely to augment any accumulation of
the wages.
b. Estate in SP: a-third of his prebute estate.
(4) so 1990 UPC is trying to solve the problem by silding the scale.
- If there is no will, see the intestacy, and if there is, see the Shannon case.
- In CP states, you don’t need a elective share law governed by states.
- 1990 UPC is trying to implement partnership theory but it really prevent over compensation.
- Problem from the hand out. (the answers see the email for reference)
$24 million dollars, MD: 1/3, so 8 million; AZ (CP state) gets nothing from the painting b/c there is no SP law in the
CP states (movable property: anything other than lane). CA is a CP state, (see p.526 fn. 13) Quasi-community, only to
divorce, but we are talk about death here, so in AZ, don’t have to worry about it, but in CA, apply to both. Under
quasi-community, SP stays SP except the spouse who possesses property die first. So CA: $9million+ $2milllion (the
property in AZ)=$11million.
Problem 3: SPCP, the CP nature stays the same, so get $12millionif Byran die first, the D gets the $12million, the
problem is really about the SP regime, if you die first, and you don’t get any title under your name, you get nothing.
SP has some relief, but only base on the support theory.
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033005
where does the money come from? From the estate of the testator. The order: abatment started with the residue (see
which state you are from) then the general request then…
Waiver: You need both spouses’ signatures.

The difference b/w will and the pre-marriage K: you can K around the default rule and because K is bilateral in which
you have to get tour spouse to sign, to consent; but when the T making a will, he/she doesn’t need to get the other
spouse’s consent. But even the pre-marriage agreement has the risk of fraud or undue influence.
Grieff case p.520-21 The appellate court in NY is the highest court, follows the precedent “In re estate of Gababe” and
Grieff (highest)states new test from the Garbabe case (follow but develop new test)
 If use the new test to the Garbabe case, then what’s the result?
 The new test: “shift the burden”
Garbabe, where the wife has to show the fraud, and the proponent doesn’t have to do anything
Grieff, where the wife only has to show “inequality” which is easier to show, foe example, you can show that you
don’t have money or you have less power, or the education difference or maybe that the hudband has relationship
with the attorney. So the burden of prove SHIFT to the proponent, so the proponent has to shoe there is an
ABSENCE of fraud.
- Then what’s to show for the absence of fraud? In Grieff, there are some elements can be examined, those are:
attorneys, consideration, signed prior the wedding (in family law, 30 days before wedding is generally considered
sufficient for they to think about it before signing.)
- But you might even don’t want the proponent to court to prove the absence of fraud, so a better solution for the
testator is to transfer the asset to non-probate property, ex: trust, an “irrevocable” one!
- But when the testator actually wants to give the asset to his kids, and his kids’ kids…, then try corporation.
- b/c the elective share only attached to “spouse,” so if you don’t even want to give the elective to your spouse,
then, don’t get married! Can stay in NY b/c NY doesn’t recognize common law marriage, so you can still be
functional spouses, but you don’t have marriage status, therefore, there is no elective shares.
Shannon case: she wants a half of the SP (b/c no earnings coming during marriage after they get married)
(see the Erickson case where the marriage effect the will)
- the argument for Beatrice: 1. there is a particular clause of the will and 2. that Shannon has received support (the
over compensation theory).
- Shannon’s argument:
- The Ct: following common law that the clause doesn’t include future spouse. “It is not sufficient to show that the
$2000 trust fund could be in lieu of a share in his estate, it has to be integrated with intent, see §6561 (b) =>
“statements of testator” or “ from the amount of the transfer”
- If UPC governs here, Shannon will get nothing. UPC is similar to CA, but more exception and is different in
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amount. The policy here is, the testator’s intent is been weighted more, and it looks after children more.
- But you can always disinherit you children (except Luisiana), there is no such complicate statute as disinherit
spouse.--> the policy might be refer to the intestacy.
040105
Pretermitted spouse statute v. Elective share /CP the difference
Pretermitted spouse statute Elective share /CP the difference
apply Applied only to the will executed before the apply to all spouses
marriage
Which takes more in SP states, the share is large (but the total Augmented estate in SP states
estate? P.535 notes, share of probate assets
only =>① individual statute of the state, ②
individual estate)
Here, in CP states, we are going to presume
the decedent’s intent that he/she wants the
spouse to take more then the CP property.
- Protect the testamentary intent
- Protect the surviving spouse
Pretermitted children statutes
Some states, you have to mention them explicitly if you want to disinherit them, while in some states, if silence in the
will, the policy presumes that the testator forgets to mention the children but not disinherit them.
Laura case
Their names were left out of the will.
If all the children dead, the estate goes to the grandchildren, but if one of them alive, the great-grand kids won’t get
anything. This refers to the Ct.: as long as the parent is named, whether it’s a gift or ..., that is not enough to
preclude….
Intestacy?--> presume the same thing here that is the parents will take care of the grand or great-grand child.
 problem on last year’s exam: Rose is the “ after-born or adopted” child here. And she was born or adopted
after the codicil. The issue here is the codicil.
Azcuce case p.539
Seems like an unfortunate situation, (EE p.302, republication of codicil)
2nd codicil: b/c erpublicatiob by codicil is not applied automatically but only where update the will carries out the T’s
intent. So can argue that the 2nd codicil doesn’t carry out T’s intent, therefore doesn’t republish the 1st codicil and the
will doesn’t republish the prior will too, therefore Particia takes as a pretermitted child.
Q: if argue the above, there will be 2 possibilities: ① 2nd codicil sustained but doesn’t republish, and
② 2nd codicil revoked the entire will and the 1st codicil.
The last year exam problem: if it’s a valid holographic codicil, then it republishes the entire will then, Rose is no
longer an after-born child. (but here can argue that there is no publication b/c…) And here worth of noticing is that
Rose is actually Jessica’s child, and the pretermitted child statute only applied to T’s child.
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Trust (the definition)
The settlor inter vivos testamentary

can be a trustee 1. declaration trust: no writing needed, and the settlor = trustee writing
2. deed
3. land: should be in writing (statute of fraud)
p.559 the problem: if she doesn’t transfer the title, is the document valid?
If it’s a declaration trust, then it doesn’t need to be in writing, but if it’s deed, then in writing is required. Here the
trust id valid. But there is a possibility that A’s right be hurt, so the remedy is damage.
040605
Trust requirements
1. Purpose
(1) Valid:
a. Should be an lawful propose, ex: not promoting a drag, money laundry…etc, can not be criminal conducts.
b. Can not contract to public policy
c. Can not violate the rules relating to perpetuities, because it might not be able to achieve the trust purpose.
(2) Intent (to create a trust):
a. Jimenez case: when the father has the title to the stocks, was he in the role of “custodian” or the
“trustee”? (p.133, custodian relationship)
- if trustee, the money has to be solely used on education
- if custodian, the money can be used on anything that is benefit to the minors. And, if he is
on the role of custodian, there will be no suit here b/c already run out the statute of limitation. (p.570,
fn.5)
- if it’s “trust”, the statute of limitation starts to run as soon as he received the accounting. And when it
is trust, there should be a fiduciary duty, so the Ct. says that this case is really in between of trust and
custodian.
- If the accounting shows that he didn’t use the money for educational purpose, she can use the
constructive trust (for the stock) to get the money acquired for the operation of the stocks.
2. Trustee: accept the duties (follows the terms, fiduciary duties…) and there are also age and competence
requirements.
The trustee has to take legal title, and it has to transform from the settlor to the trustee.
- How to evaluate whether a trust is established (p.561): when X takes the agreement and put his money in his
account, does it constitute acceptance?
- When the absence of the explicit refusal, so we have the acceptance? Is “silence” and “inaction” constitutes
acceptance for the role of trustee? Many Ct.s have recognized that “silence” and “inaction” represents a
54
disclaimer of a trustee, because acceptance requires duty on the trustee, therefore should be more explicit.
- But here, X put the money in hos save deposition, this constitutes a certain action that X accepts to be a trustee.
- For X, he can argue that “I am only a “bailee” (a bailee is a person who only keeps the money for save purpose)
So first has to determine whether X is a trustee or a bailee.
- What if the $100,000 is a piece of art, then X sold it to D and E; or X just gave the money to D and E instead of A
and B, and then D and E sold the property to Z, can A and B go after Z? NO, b/c (p.562) “if the trustee
wrongfully dispose of the trust property, the beneficiaries can recover the trust property unless if has come into
the hands of a bona fide purchaser for value.”
3. Property
(1) Identify and separate
a. Unthanks case:
- Holographic will?
i. Is the state recognize it? Yes, p.263 (fn.), Taxes is one of the holographic state.
ii. Is the will in writing? In this case, yes.
iii. The testamentary intent.
- He uses “estate” to describe his money, but “estate” mostly means “probate estate.”
- The Ct. says that it’s not testamentary in nature, so it’s not a holographic will, the will itself doesn’t
seem like a holographic either, b/c there is no “when I die” kind of usage in the language of the
instrument to show that this is meant to be a will and has testamentary intent.
- Craft is the settlor and the trustee (this is a declaration of trust: settlor and the trustee is the same
person), b/c there is a language says “as long as I live,” therefore it might establish to be a trust.
- The Ct. here is worried about: ① Iva Rippstein is sure not a spouse, so there might be an undue
influence. ② the Ct. concerned about what property should be put in the trust, b/c when all the
money is in the trust, it might all subject to the statute of limitation.
(2) In existence
a. Brainard case:
The problem here is the timing=>when does the trust become valid? At the time the trust was declared
the property has to be in existence. Here in this case is not, so is this case, when he credits the profits
to the beneficiaries, the trust becomes valid.
040805
Trust requirements
1. Purpose: valid and intent to manage for beneficiaries
2. Trustee: must accept, have duties, and take legal title
3. Property: - source: settlor, need intent and if settlor is not trustee, has to have delivery
- type: “separate and identifiable” and “in existence”.
4. Beneficiaries: has to have “legal standing” (there is an exception for this requirement, which is the “honorary
55
trust (pecatory trust)”, definite and identifiable.

Clark case: it’s a “testamentary trust” so it must be in writing. And the issue here is that “is friend an ascertainable
beneficiary?”
∗ There might be somewhere in writing identifying who the friends are X, Y, Z….
∗ According to the Ct., a friend can’t be an ascertainable beneficiary because there is a concern of “confusion.”
∗ Legal Status v. Function: If it’s a child, then it’s easier to identify b/c the child has a “legal status” to be a child.
So, in this case, there is no legal status to be a friend as friendship is purely “functional” approach. (when is a
child be considered a child? Previous class discussion)
∗ The Ct. seems to imply that the trustee might unduly influence the T. (p.600)
∗ If you are going to give to others (other then your nature bounties, which means your kids next of kin…), you
have to be specific in the terms of the trust.
Searight case:
(1) testamentary trust:
a. If Trixie is a 6 months baby, will the trust be valid?
i A 6 months baby can’t go to the court ( just like the dog), but a guardian can go to the Ct. on behalf for her ,
so the baby certainly has a standing.
ii There will be no perpetuity issue here b/c the trust will be end when the baby reaches 21 years of age.
(2) Honorary trust (lack of beneficiaries):
a. A trustee accepts the moral duty to carry out the testamentary trust. And the trustee is presumed to be in
good faith.
b. If under UPC §2-907 (p.606), in 21 years the honorary trust is valid as trust.
c. Sidney case, what if it’s in CA or in Ill? Because it’s unclear that when a moral duty becomes a legal duty,
so more and more states passing adopting the provision approach b/c it can avoid to go thorough the whole
honorary trust discussion.
5. Device:
(1) Writing: a. testamentary trust
b. land
c. deed of trust => the settlor and the trustee is not the same (declaration trust where the trustee and the
settlor is the same)
(2) Resulting trust: “when trust fails.” (the second situation is not going to discuss here)
(3) Constructive trust: to prevent unjust enrichment
Mahoney case: (Vermont has no “slayer statute” when this case occurred, which provides that a slayer can’t be
benefited from the people he killed.)
Probate Ct.: give the property direct to the parents
Supreme Ct.: impose a constructive trust.
(3) Express trust v. Constructive trust: the major difference is that there is no fiduciary duty relationship in
constructive trust, so the beneficiaries can demand the property anytime.
56
(4) Secret trust: it looks like a gift, you have a will but you have a secret agreement for the distribution of the gift, and
you might not actually retain the gift.
* Constructive trust used here to prevent the beneficiaries from being taken advantage of. b/c it looks like a gift,
then the trustee might not actually fulfill the duty, then constructive trust is here to solve the problem.
(5) Semi-secret trust: you know that there is a trust, but you don’t exactly know what the trustee’s duty is and you
don’t know who the beneficiaries are. Therefore here, the trust fail. So, we use the “resulting trust” to solve the
problem.
041305
Trust
Express trust (inter vivos or testamentary) By operation of law
5 elements apply Device/Trustee, requirements don’t apply
* Mandatory trust * Constructive trust
* Discretionary trust * Resulting trust
- Under which situation a resulting trust will raise: when you try to create an express trust and it fails a resulting
trust raised. The one who will be benefited by the resulting trust is the settlor, (the estate goes back to the settlor).
But if the settlor died, it will goes to his /her heir under intestacy, but if he/she has a will (usually don’t) and it
includes the residuary clause, then it passes to the residuary devisee. However, if there is no residuary clause, they
go to the heir?
- Constructive trust arises to prevent unjust enrichment.
- Semi-secret trust is when a trust raises but lack of beneficiary, then the trust will fail b/c doesn’t meet the
requirements of the express trust. And the “resulting trust” arises to solve this problem.
- Secret trust which doesn’t present in a will that it is a trust but looks just like a gift. So there is a concern that the
trustee might not carry out the true intent of the settlor. For preventing unjust enrichment, then a “constructive
trust” will be imposed.
p.617 problem2, (all trust is private, b/c doesn’t have to make trust in public like a will does, there is no probate
process for a trust.) to set up a trust to benefit a lover outside the marriage: if Simon wants to put itin writing to prove
the arrangement, you can just give the instrument to Camilla, but to do this might blow the cover as well for the wife
will find out the affair, and this might open the argument of “undue influence” too. So the “spray trust” of
discretionary trust can be used here. (spray trust: there are multiple beneficiaries and the trustee has discretion to
determine which beneficiary can get the money, so there may be beneficiaries get nothing!)
- 1990 UPC includes irrevocable trust but must of the states don’t, (augment)
- Discretionary trust (can vary form type to types what money trustee grant to the beneficiaries)
Marsman case:
It’s a testamentary trust set up in the will. (Fn.19, p.619) MA has elective share of the life estate in one-tried of the
decedent’s estate. And the testatrix was doing the minimum that the state requires which is give her husband 1/3 of the
life estate.
57
- The trustee’s duty:

a. The principal: it’s for the trustee’s discretionary.
b. The income, this part is mandatory trust
- Under what circumstances can the money distribute to Cappy (he got remarried in 6 months)
- The holding: Farr did his duties as a trustee, but there are two duties he breached, which are:…
- So Marrgret might be unjust enriched, therefore imposed constructive trust on her, she is not going to get the
house, but she should be compensated (but not the house).
- When someone is Bona fide purchaser…(p.562)
Shelley case: Spendthrift trust
- The income is mandatory; and the principal is discretionary.
- The spendthrift clause on the clause 8 on p.633 is a classical one, this is particularly important here b/c the income
here is mandatory.
- It is against public policy to prohibit the former wife and the children to require alimony and support. So the Ct.
decides that the ex-wife can access to the principal but has to wait until it been transferred to the beneficiary
- And the children are remained beneficiaries, they can challenge the trustee in clause (5)…”emergency”. But to
determine whether it’s emergency is trustee’s discretion, but the Ct. said that children should have the right to
reach the principal, b/c they are not just remainder beneficiaries, but also direct beneficiaries.
- Support trust: a trust that requires the trustee to make payments of income (or principal) to the beneficiary in an
amount necessary for the education or support of the beneficiary in accordance with an ascertainable standard.
The beneficiary of a support trust cannot alienate her interest, nor can creditors of the beneficiary reach her
interest.
Last year question B: no spendthrift trust here b/c no spendthrift clause here (except NY)
Could it be a support trust (which is that the trust is to maintain certain people’s (beneficiary’s) life standard that
he/she is accustom to
- If there is no spendthrift clause, does that mean that the beneficiaries can do whatever they want? Not exactly
right, b/c if there is a support trust, then the beneficiaries can’t alienate it. (p.642 note5 and the problem).
- Is a word “support” enough to establish a “support trust”?
- If it’s fixed amount, the trustee has no discretion but to distribute all the income.
041505
Express trusts
1. Mandatory trust
Hy brid spendthrift
2. Discretionary trust
> Support trust
Incoming beneficiary v. Principal beneficiary: depends on what property that founds the trust
58
Income: the beneficiary can only get the income deprived from the trust estate, it’s mandatory, the beneficiary is
“entitled to” the income payment, it is entitlement, and he/she has the property interest in the future payment b/c It’s
mandatory.
B/c of mandatory trust, the beneficiary has the property interest in the future payment, so he can assign the interest,
and likewise, the creditor can come in and require them, so if a settlor wants to make sure that the beneficiary keeps
the interest in as oppose to giving it away to someone else or to the creditors, they will include a spendthrift clause
(Shelley case, the spendthrift clause (8), p.633). It is the property interest that the spendthrift clause tries to affect.
So technically once the mandatory payment is made, the spendthrift clause is no longer apply and no longer restrict
the money, b/c once the money transferred, it becomes the beneficiary’s personal property, otherwise the beneficiary
wont be able to use it.
Expectancy v. interest (p.643 more detail) (with respect to the mandatory and discretionary turst)
In the mandatory trust, a beneficiary has the interest on the income and can therefore assign it, likewise, the
creditors can come in to attack it. That’s why the spendthrift trust applies here (in NY where automatically include the
ST clause), but once the principal paied out, the spendthrift clause is out of the window. If it’s a discretionary trust,
the beneficiary only has a expectancy in the principal, so the bene. can’t assign the expectancy, and likewise, the
creditor can’t come in to attack it, b/c there is NO interest and no property there. So the spendthrift clause is not so
influential here.
The policy behind ST clause: testator and settlor has the right to decide the way to distribute their money to benefit a
certain beneficiaries not their creditors. Therefore, the people who inherit the money can avoid the creditors, it’s a
privilege. To respect the settlor’s intent. (see the case on p.639)
Self-settled trust: “I generate the money myself to found the trust”, the spendthrift clause can’t be used here b/c the
settlor can’t not set up a trust for his/her own benefit (to avoid his/her own debt). The spendthrift clause is to help
beneficiary, not for the settlor. (ex, the people use the credit card (generate the money myself)to fund the trust for
myself, that is a self settled, the ST clause is not available here, the trust will fail here actually, b/c there is not trust
property, b/c the creditor will come in and attack the trust property.)
- people who is sophisticated enough, generally has a sum of money, so may create a trust include the ST clause.
Support trust v. spendthrift clause:
Support trust: (p.642) when the trustee has to determine how much to pay to the beneficiaries, the beneficiary can not
assign his/her interest. Then build in a spendthrift clause to a support trust to prevent the creditors to attach to the
future payment, and likewise,
(problem on p. 642: “pay B income”, means the trustee has to pay all the income, it’s mandatory but that doesn’t mean
it’s a support trust, and there is no spendthrift clause.)
(last year exam, question B: the rent is the trust income here, the principal is the building and any other property that
built into the residue. (Jessica entitle to the income) It’s not a support trust b/c the language of “to pay the income to
the rest of Jessica’s life” b/c???, and the creditors can actually reach the income interest and the bene can assign it. On
p.4 document 3 we can know that Jessica is actually not on the sheet, so she has no any interest or expectancy in the
principal, the bank can go for the interest including the future income interest, b/c it’s not a support trust, but the bank
59
can not go after the principal. [The language of a support trust could be: “the trustee ‘shall to pay (the trustee have to
maintain)’ B that amount of the income necessary to…(support education, maintain life style…)”])
Charitable trust:
The “beneficiary” element is different here. (so who is going to challenge the trust? The state attorney)
The beneficiary here should be:
a. “a type of group”
b. the group has to have “public interest”. (so it’s different from the Clark case where the group is “friend”)
c. the group has to be charitable
Rosser v. Perm: (handout) define “charitable”
- If the trust fail, everything goes to intestacy, b/c the will doesn’t include residuary clause
- (p.7 fn,2) the previous Ct. says that this is not a charitable trust b/c it’s a bzard sex, therefore it would not
reasonable serve the societal benefit. But this Ct. says that the prior Ct.’s decision will be questioned today,
b/c the society may change the attitude toward sex, and the reasonable person may have diff view too.
- the state has the interest to make sure that the trust is really charitable b/c the beneficiaries don’t have to be
taxed. Like the Searight case (the dog), 2 issues there, one is that you can’t set up a trust for a dog b/c it has
no legal status and there is no bene to challenge the trust, but you can set up a procatory trust; the other one
is that the “rule against perpetuity”, charitable trust are exempt from that rule, it might go on forever, so the
state the interest to make sure it really is a charitable trust.
- (p.598) the “beneficiary requirement applies to private not to public trusts and charities. The basis assigned
for this distinction is the difference in the enforceability of the two classes of trusts:
*private trust: there is no one who can compel performance, with the consequent unjust enrichment of the
trustee.
*charitable trust: performance is considered to be sufficient secured by the authority of the attorney-general
to invoke the power of the court.
the
rule against perpetuities (just like the Searight case)
the trust modification
once the charitable has difficult to carry out the purpose (it’s not charitable), there are two choices, the trust can
either fail or be modified by the Court.
When the Ct. wants to modify a trust, apply the ……. Doctrine (p.875) the general rule:…
Obermeyer case: issue: (p.10 handout)…, the ct. 2 holding to the language of the trust:… there is a question that the
WU might not even able to accept the trust. b/c the problem is that the dental school is no long exist. WU says that
we still need the money. But the trust language says that trust fund be used exclusively to the benefit of the dental
alumni fund. But there is no dental alumni fund, moreover, there is not dental school! So we have to determine
that is there a general intent or a specific intent, b/c the Cy pres rule says that it only applied when the settlor had
meanifested a general intent.
Only reading the language, it seems clear a specific intent (exclusively use…). But the Ct…..but don’t know what
60
the intent would be…”as near as”… and if it’s not a trust, it’s a gift to WU…
(1.2.3.4 are the main distinctions b/w private trust and a charitable trust)
042005
Charitable trustthe testator’s intent, whether it’s general or specific…… see the Washington U case.
Modification: modification in private trust (as opposed to public trust, “charitable trust”):
The general rule is that: Trustee has no right to object if all beneficiaries consent to modify the trust even if there is a
spendthrift clause.
Stuchell case: in this case, the settlor is dead! But we know the settlor’s intent. (but if we know about the settlor’s
intent, then why does it matter if the settlor is dead or not?  in this case, the settlor doesn’t now the great grandson
is retarded, there is a circumstance change, therefore it matters when the settlor is dead or not even though we know
about the settlor’s intent)
 The common law the D applied: if want to terminate the trust, there is a 3 points test: ①all of the
beneficiaries agree. ② none of a beneficiary is under a legal disability. ③ the purpose will be frustrated.
 The argument here for the D is that : 1. if you can terminate the trust under the test, why not modify it, b/c to
modify seem less harsh. And 2. the modification can apparently deal with the change of circumstance.
 The counter argument can aim at the differences b/w modification and the termination. And the Ct. says that
there is no need to change the circumstance here.
 The Ct. step into the stand of the settlor, b/c the settlor is dead (the case will be much easier if the settlor is
still alive b/c can simple get his/her consent)
 The trustee can not modify the trust without a permit for the court, otherwise the trustee will violet the duty as
a trustee. (there is also a possibility that the trustee just breach his duty)
 The restatement has a broader approach then the rule the Ct. applied. The Ct. raised John’s status comment
b.--> there will be more advantageous to the beneficiaries if modified. ( the counter argument is that we have
to assume the settlor’s intent which is to help the beneficiaries, therefore it might be more benefit to John if
the trust been modified.) (then the Ct.’s argument would be: as the purpose of policy, the money should go to
the people who is more in need, and here, John has enough money to support his life.)
 Could the settlor originally draft the trust to compliance with the situation? Yes, then the intent should be
respected even though the change of circumstance is not foreseeable.
 The thing is that you can have comment b, but the settlor’s intent should be respected.
 Oppose to the “advantageous” is “disadvantageous”, so is John being more disadvantageous if modified? It
really depends on how much money that John can get after the modification.
 The intent of the trust is to HELP people, so if the situation in the future turn out to be disadvantageous to the
beneficiaries, then the trust should be modified whether the situation is unforeseeable.
 There is power for one of the beneficiaries to determine who could be benefited in the trust, this take out the
power from the court to one of the beneficiary, but the Ct. still has the authority to look over if the beneficiary
exercise this right properly.
61
Duty of the trustee: (p.903)

The overall task of the trustee is to carry out the intent of the settlor. To do so, the trustee has to look into the trust
instrument (specially what the trustee should do)
(handout 2002 exam Q):
duties:
1. a duty not to delegate to co-trustee
2. duty of loyalty
a. should not self-dealing: Lori resold the property and acquire the difference of $75000, which implied that the
price previous sold is under the market price.
Hartman case: where suggest that the it’s a “strict liability” for the trustee not to self-dealing.
then there is the “no-further-inquiry” rule which stands that it doesn’t matter how you deal, you are posed the
strict liability. If it’s self dealing, there is “no-further-inquiry” rule, but how to determine if it’s self-dealing
if not inquiry??--> once it’s being determined as a self-dealing, then, no further inquiry. If it’s self dealing,
apply Hartman case: the Hartman issue self-dealing no-further-inquiry rule breach of duty. Self-dealing
implies that you make a profit form the estate.
The constructive trust can’t not be posed on the bona fide purchaser (p.906), it can only be posed on the self
dealer or on the one who has the profit (in the problem, it’s Phoebe or the father)
* So the trustee has to have the whole amount of the profit return to the trust estate, so the difference of $75000
has to be returned to the trust estate (added on the $350,000 to be $425,000). If the amount has been spent or
partially spent, should go after the trustee. (when see self-dealing, the amount of 75000 was deprived from the
trust estate. This is one difference from conflict of interest.)
b. should have no conflict of interests:
To determine whether there is conflict of interest, have to see whether there is “unfairness” this is the
differences b/w conflict of interests and self-dealing.
* So Phoebe makes a decision to invest, and the investment decision benefit her husband, although don’t know
whether the investment hurt the trust or not, we know that the trustee didn’t invest solely for the benefits of the
beneficiaries but for her own benefits as well (her husband bonus), so the one who get the bonus is her
husband, not the beneficiaries, therefore, there is a conflict of interests.
In re Rothko: make a distinguish b/w self-dealing and conflict of interests.
3. duty not to co-mingle
4. duty of impartiality
042205 What duty is breached??

1. Duty of loyalty
- No self-dealingno further inquiry, so normally, you don’t even look whether it’s fare or not, except practically,
(p,905) if the trustee involves in self-dealing, gain the profit meet the MV or even above the MV, what’s the
beneficiaries going to do with that? Thumbs up! The key is that you should get beneficiaries’ consent (either
62
before or after), the self-dealing has to be full disclosed. Then you are not self-dealing. The practically matter
is that if the beneficiaries benefited from the self-dealing, then they will likely to approve, then there is no breach.
Otherwise, if you don’t have bene. consent, there is no further inquiry, even if, it might be fair, so it’s all about the
bene.’s consent.
- No conflict of interest
The difference b/w the two: Self-dealing=> sale to yourself or someone related to you
Conflict of interest=>not selling to yourself. Not all of the COI is a breach of duty as long as it’s not unfair.
Whether the trustee is make the profit for beneficiaries or for him/herself
If you have an interest independent from the trust, the conflict is not always breach of loyalty has to be unfair.
(p.912)
The trustee is totally fine to be a beneficiary, is there conflict?
2. Duties regarding to property
- Collect and protect
- No commingling
- Earmark
* The difference b/w earmark and commingling, discuss the problem of 02’ exam, the trustee there just fail to
earmark the trust property, b/c she invested the property under her own name. No commingling here.
* The traditional rule of not earmarking or doing the commingling is the breach of duty is changed, not the trustee
will be held liable only when fail to earmark is the reason due to the loss of the value of the property.
- Make the property productive
- No delegation
- Co-trustee or professionals
3. Duties regarding to beneficiary
- Inquire Information needs (Cappy case)
* The problem: “Steve”, there is a lack of communication, it’s a breach of the duty to inquiry into needs (Cappy)
- Impartiality
* Dennis case: 3 buildings in the case, the value drop, and the remainderman beneficiaries complain that it is b/c
of the mishandling of the property. B/c the drop of the value of property is the responsibility of the trustee for
failing to maintain the property. (the income benns has no complaint b/c by not selling the building, the rent
keep coming in, there is no affection to them.)
* The Ct. here concerns about ① duty of impartiality and ② the duty to make a prudent investment (to make the
property productive): you have to have a prudent investment plan. And there is a ③ duty to diversify, here the
trustee made no diversification (p.935)
- Inform and Account (p.933)
Dennis case, the value of the building is the highest in 1950, the Ct. here worry about the “duty of impartiality”
and the “the duty to make the property productive” you have to have an investment plan, and the prudent man
should make a reasonable decision to diversify the risk, so there is a “duty of diversify” to allocate the risk. And
63
there is another concern is the “duty to inform and account”. The trustee did not appraise the property
appropriately and didn’t keep accounting for 55 years! Here don’t have to worry about the statute of limitation.
The trustee has to keep the record so the bene. could challenge it!
Other problems in the handout: p.918 problem1 and the 02’ exam: “a co-trustee may not grant to another co-trustee
the discretion power which be exercised together only.” So the duty of Lori and Phoebe, Phoebe could be hold liable
as a co-trustee b/c she just left the country and let Lori do everything, b/c she has the duty. P should like at least call L
every week, concerning about the investment. And there is a possibility in the problem, that the trustee is not diligent
enough, and there might be a breach of duty that the trustee doesn’t inquiry the need of the benes.
Have to worry about that the income be generated and the corpus to be maintain too!
L as a remainder bene., (there is other income bene.) doesn’t treat herself differently from others, so here can bring a
duty impartiality, not solely about the conflict of interest
What do we need to know if we have to determine a duty of impartiality? B/c she sold the building, it could be
harming the both class of benes.( income and the remainder benes.).
* With “speculation”, there is huge potential for upside and downside (to lose all the corpus) as well, so this is how
“duty to be prudent” investor to make property productive related to the “duty no to be impartiality”. You have the
speculation of upside of the income doesn’t mean that you can forget about preserving the principal. So b/c of this
policy against speculation, the trustee tends to over preserve the property to avoid being hold liable, so it’s related rti
the “duty not impartiality” (b/c if preserve the property, then the remainder bene get less then the income bene.)
64

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Trust &Estate by Rosenbury 2005

although there is no formal K, their performance estopped them to deny the

III. Attempting to Manifest Intent: Wills (or Testate Succession)

writing part of the will.

system of community property. And the differences are:

Analysis: If the W is right that the trust was an ineffective testamentary

b. Consequence during life of settlor

the $1500 was deposited in the names of D and his 3 children.

this stock as custodian for 3 kids.

from the donor states the same. And the D is a lawyer.

obligations the parents own to their minor child.

the T creates a equitable charge, not a trust, there is no fiduciary relationship.

5. Property, p. 581-84, 586-89

Brainard v. Commissioner U.S court of appeals, seventh Cir. 1937

public, may seek enforcement.

an outright gift of the personal property to the trustees.

In re Searight’s Estate Ohio Court of Appeals, Ninth District, 1950

animal, whichever period turns out to be shorter.

7. Writing? Some Exceptions, p. 584-86, 608-17

unknown class of persons and for some unknown purpose.)

be enforced upon a proper showing of that the agreement was made.

same is clearly expressed in the required legal form.

C. Types of Private Express Trusts

created by a spendthrift trust provision.

that a spendthrift clause will not bar a claim for alimony.

support and care”

2. Child support and alimony

D. Modification and Termination of Trusts, p. 651-64

trial Ct. dismissed the petition.

of changing circumstances not known to the settlor.

trust more advantageous to the beneficiaries and is therefore improper.

testator’s family in a strait-jacket.

soon after the testator’s death.

draft) §706 (p.663).

2. Modification of chartable trust: Cy Pres, p. 869-83 and handout

breach of trust. (p.906)

b. can not have conflict of interest

Dennis v. Rhode Island Hospital Trust Co. (read study-aid)

011205 ① the note is on the distributed question

Strittmatter case (p.159)

1. Nature/ extent of prop

Addressing mistakes in will execution: ‧‧‧

Doc5. unsigned and no witnesses, not a will.

OLK went to the depth of “Republication by codicil”.

i) Is there a save keeping purpose?

- To have a substitute beneficiary?

2. Does an anti-lapse statute apply?

3. Is there a substitute beneficiary?

5. Do you find the rationale of the holding compelling?

Last year exam question:

(either as a valid holographic will or valid holographic codicil)?

will not explicitly discuss the Wasserman case.)

2. How would you answer problem 1 on p. 466? Problem 2 on p. 467?

Common Law: General/specific gift

2. How did you get there?

Gilbert case: (not follows the UPC)

‧ But the marking related to many material parts.

Problem: some thought on the problem2 on P290

Problem: some thought on the problem2 on P292

Problem: some thought on the problem2 on P298

Divorce 50/50 Sullivan p.540

Waiver: You need both spouses’ signatures.

Trust (the definition)