W&T Good OUTLINE

Wills & Trusts Outline - Fall 2006 - McCouch
Intro: Death-Time Transfers:
Intestate Succession
• No will or preparations for what to do with the property.
• Rigid system with fixed rules.
Probate
• The process of proving and deciding the validity of a will.
• Each state has its own separate probate statutes governing matters of intestate succession, wills, and administration
of decedent’s estates.
• Administration of the estate generally falls into three basic stages:
o Collecting assets of the estate
o Paying expenses, creditors’ claims, taxes, and other charges
o Distributing the remaining assets to the decedent’s successors.
• Property transferred during decedent’s life does not pass by will and generally is not subject to probate
administration.
• Has been given a bad name over the years b/c cumbersome, tedious, expensive.
Will:
• Written set of directions for what is to be done with property at death.
• Gives testator control and freedom.
• Can designate fits, guardians for children, what’s done with remains, etc.
Wills Substitutes:
• Avenue for avoiding the probate system.
• Differs from a will in three main ways:
o (1) Most will substitutes are asset-specific.
 E.g.: life insurance proceeds, bank balance, mutual funds shares
o (2) Avoids probate
 Financial intermediary usually takes place of probate court in affecting the transfer.
o (3) The formal requirements of the Wills Act are not complied with.
 E.g. Attestation
• Will substitutes are not well suited to clearing title and protecting creditors, but changes in business practices of
creditors has diminished the importance of those functions.
• Four main will substitutes:
o Life Insurance
 No will necessary b/c the beneficiary is designated in the policy itself.
 No need for executory b/c insurance company fulfills administrative role.
 Death certificate sent to insurance company – that’s all that’s needed.
o Pension Accounts
o Joint Accounts
o Revocable Trusts
 Trusts: an arrangement for holding and managing property.
 Three necessary parties:
• (1) Settler: person who originally owned property
• (2) Trustee: person who holds legal title to the property
o Someone trusted. Very important. Usually family, banker, etc.
o Subject to fiduciary obligations (loyalty, diligence, avoids conflicts of interest,
generally make trust property productive, etc.).
• (3) Beneficiary: person who benefits from the property.
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 Nearly perfect will substitutes: the trust instrument specifies what happens with the trust-
property. Instead of going to executor, the trustee has already designated and is capable of
turning it over to the beneficiary or hold it over time.
 Functions like a will b/c settler can retain full control during life.
 Can do almost anything you can do with a will.
Why does it matter if its probate or not?

• Probate has restrictions on methods, ownership rights, etc. that affect an owner’s absolute right to deal with property
as she chooses.
Basic Theme: If you’re trying to transfer property, there are numerous ways to go about doing that:
• The planner should achieve the result:
o Reliably
o Minimal transactional costs.
• Using probate or not, or use them in tandem. The planner should know what the best route is.
Sources of Law:
• CA Probate Code
• Intestacy Provisions
• Uniform Probate Code (UPC)
o Response to a number of scandals b/c of book called “How to Avoid Probate.”
o Main goal was to standardize and reform probate codes.
o Streamlined and simplified the probate process.
o Has had limited success – about 15 states.
• Statutes
o There are often no statutory provisions for probate (most laws are creatures of court).
• Constitutional Provisions
o Rights of ownership – if the state interferes, it will generally have to pay compensation to comport with
DPC.
Case: Hodel v. Irving: (pg. 22) Tribal lands – property on undivided interests were fractionalized at each generation.
After a few generations, the land partitions were unmanageable and uneconomical for the beneficiaries. Congress
determined that the owners of de minimis could no longer leave the interests by will or intestacy. The small interests
escheats to tribal ownership.
• Sup Ct: The escheat provision of the Act unconstitutional as a taking without just compensation.
• O’ Conner: “Complex inter vivos transactions like revocable trusts are not an adequate substitute for rights
taken.”
o Revocable trusts aren’t complex. Why aren’t they adequate?
• Intestacy and Will: property will be dispersed to the rightful owners with clear title.
• Revocable trust: trustee would transfer the property to the beneficiary.
• A competently drafted will substitute does the same thing as probate. It is adequate.
o What property rights are being taken without just compensation?
• Congress did note say they will lose property at death – only by will or intestacy.
• Every other avenue for passing property is intact (JT, trust).
o If the ‘taking’ requires compensation, and owner could do an equivalent transfer via another route, the
“just compensation” is infinitesimally small.
• Bottom Line: her reasoning re: “adequate substitute” and “just compensation” does not add up.
The Hodel Decision:

• Beneath the surface of this unanimous decision was brewing controversy:
o Scalia: property can be fragmented, and if any rights are compromised, that is a taking and the state must
provide compensation.
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o Brennan: should look at context and see how intrusive the taking is. Weigh it on a case-by-case basis
depending on totality.
• Where do we go from here? Congress realized the problem and tried to revise the Act:
o Kept basic trigger mechanism (small parcel calculations) but allowed owner to leave land to any other
person who already owned a parcel in the land.
o Advances the purpose of consolidating lands.
• Ginsburg says it fares no better than the original statute.
o Ideally, would like a formula that leaves land to their kids.
o Kids in the normal course will not already own interest in the same land, so they aren’t naturally in the
scope of this “less restrictive” measure.
• Congress tried again:
o Now permits the owner of a small interest to leave property ot another person who already holds interest
in same parcel, or to any other dependent or “Indian Person” (member of the tribe).
o Opens up the same problem or fractionation. Does nothing to further consolidation but is clearly
constitutional.
Testamentary Freedom:
Ways to make gifts of property:

• Outright Gift:
o One owner hands over complete control. No strings, no conditions.
• Testamentary Gift:
o Same thing, but as long as the testator is living, the beneficiary only has an expectancy.
o Gift (or transfer) takes effect at death.
• Gifts in Trust:
o Person creates it, trustee holds it for beneficiary.
o Extremely flexible – it can last for years or be very short.
o Common purpose: to impose conditions or standards that will either self-adjust to circumstances, or
conditions which are designed to affect the conduct of the beneficiary.
 E.g. A gets income from property as long as A remains in school.
o When its inter vivos, the settler and beneficiary can agree that times have changed. They can change the
terms of the trust or re-write it if they agree.
• Testamentary Trusts:
o Once the settler is dead, the terms of the testamentary trust are set in stone.
o The terms may become less suitable to the needs of the beneficiary.
o The problem with DEAD HAND control when a trust becomes irrevocable (especially at death).
Testamentary Conditions:
• Courts traditionally uphold the conditions and limitations.
• It is up to the settler to decide when and how she wants to give it.
o Beneficiary can disclaim, waive, or refuse to accept the interest if she doesn’t want to comply.
• Children have no enforceable legal right to inherit from parents.
o They can cut children off completely if they want to – for any reason or no reason.
Three typical areas:

• Most of the litigation from testamentary conditions has to do with attempts to control behavior:
o Marriage.
o Religion: trying to nudge their children embrace or steer clear from different faiths.
o Education/Career Choices.
Conditions Against Public Policy:
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• Total Restraint on Marriage:
o A condition calculated to induce a beneficiary to remain single is against policy and is void.
o A gift conditioned on marriage with the approval and consent of another beneficiary, whose own interest
would be reduced if he gave such consent, is void.
• E.g. A only gets $ if she marries someone approved by X. If A does not marry someone approved
by X, the $ goes to X.
• Encourage Divorce:
o A condition whose purpose is to induce a beneficiary to divorce is against public policy.
o If engaged (not yet married) at time conditions are imposed, then it does NOT violate PP. Pretty bright-
line.
• Destruction of Property:
o Provisions that call for the destruction of property are some other “capricious act” are not enforceable.
• Commission of Crime or Tort:
o A provision is unenforceable if it tends to encourage the commission of a crime or tortious act.
Conditions NOT Against Public Policy:

• Partial Restraint on Marriage:
o A condition in partial restrain which merely narrows the choices is NOT against public policy.
o A condition tied to a beneficiary NOT marrying a particular, named person is valid.
• Remarriage:
o A trust provision that terminates the interest of a surviving spouse if she remarries is valid.
o The purpose of such a provision is to provide support while single, not to restrain remarriage.
o Must look at the motivations behind the testator’s provision.
• In the event of Divorce:
o If the condition is not to induce beneficiary to divorce, but to provide for her support in the event of a
divorce.
• Divorce for good reason:
o McCouch alludes that if a child is married to spouse that is abusive, and would be net benefit for child to
get out of the relationship, or to provide for her if the marriage ends, this kind of provision makes sense.
Overall Goal: Promoting family security and stability.
Case: US Nat’l Bank v. Snodgrass: (pg. 32) Condition on daughter’s inheritance that she didn’t marry a Catholic man or
become Catholic before age of 32. At age 25, she married a Catholic. Became a live question when she became 32 and
trustee has to disperse property (if he makes a distribution mistake, he is liable to the rightful beneficiary). She makes
three arguments:
• (1) Constitutional: Freedom of Religion.
o Court: This is not a state action.
o Some question as to whether this is true after Shelley v. Kramer, which held that the courts enforcing
restrictions make them a state action.
o Free alienability of land is socially important. If the court constitutionalized the terms of every condition,
it is an un-winnable battle. There would be no way to administer private gifts if they must meet the same
standards the state has to.
• (2) Civil Rights Action: Discrimination
o Same as constitutional argument – not implicated in relations between parent/child.
• (3) Public Policy
o Basic standard (restatement): restriction must be reasonable.
 If there is enough of a potential pool of people to marry, it is reasonable.
 If it rules out the bulk of the population and makes the opportunity to marry very small, it is
unreasonable.
o If the will is framed in terms of prohibiting marriage, it is almost per se unreasonable.
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Restatement of Trusts:
• Concern with dead hand control: The longer the time and more intrusive the condition, the less likely it is that the
condition will remain reasonable.
• The R3d test defines reasonableness flexibly:
o “A restraint contravenes public policy if unnecessarily punitive or unreasonably intrudes on personal
decisions or interests of the beneficiaries.”
• Gives the courts a lot more scope to aid the beneficiary’s interests in autonomy.
• Carves back significantly on testator’s ability to impose conditions.
o Some courts say they are using the R3d but it seems like they are using old standards.
o Other courts use it as a means to intrude more.
Home for Incurables: racial restrictions on a bequest.

• The issue wasn’t litigated until 2000, so we have civil rights legislation.
o The hospital was desegregated for 40 yrs and counted on the money.
o The MD Sup Ct decided the condition was invalid, but allowed the Home to take the bequest despite the
testator’s alternative bequest.
• Took the approach that PP can override testator’s directions.
• Generally, if a court strikes down a condition on grounds of public policy, we don’t know if the condition disappears
or whether it goes to alternative beneficiaries. R3d doesn’t indicate.
Probate Process:
Two Meanings:
• Narrower - Particular aspects of the probate process.
• Broader - General Probate System
(1) Narrower Meaning: The Probate Process:

• A will has legal consequences ONLY after it has been admitted to probate.
o Even if a will is regular on its face, if its never offered for probate, it is a legal nullity.
• Someone must come up with the original will, attach it to a petition for probate (proof of death, known heirs, etc.)
and submit it to the probate court.
o Did the decedent have a will? Is it effective?
o The court will set a hearing date where people can contest.
o The will must comply with the formalities – witnesses, signatures, etc.
• Purpose of probate system is to figure out what to do with those affairs and organize it.
Self-Proving Affidavit:
• Testator and witnesses sign the will, and then they sign a sworn affidavit.
• The affidavit recites all the elements of due execution and serves as a substitute for live testimony.
o Witnesses are often paralegals, assistants, etc. May be hard to track down.
o In CA, the phrase that the “witnesses are signing under oath” is in there, that is enough to get it admitted
without calling live witnesses.
o No authentication required.
Timing:
• Once its offered for probate, and notice has been giving to all parties, the period to contest is short.
o CA – 120 days.
• Notice to beneficiaries and those left out.
• If the contest is not brought promptly, contestants are barred.
Original Will is Missing:

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• Presumption: if the original will can’t be found, it was with the intent to revoke.
o Would have to go through and prove the terms adequately to give them effect.
o Must prove that it was never intentionally revoked.
• The will must be an original document and in writing.
o Even a picture of the will is not the same as the original.
• A well-advised testator will only make one original document (no duplicates).
(2) Broader – General Probate System:

• Must determine if there is a will or not.
o If the determination is no will – then must go through intestacy.
Personal Representative:
• Often there is a need to administer an estate.
o Administrator: appointed by the court
o Personal Executor: named in will.
• No person has any legal authority to deal with someone’s assets unless appointed as a PR.
• What does the PR do?
o Send out notice of his appointment:
 Interested persons, beneficiaries, creditors
o Fiduciary bond:
 A guarantee of the honest, competent performance of the administrator.
o Asset Collection
 Assemble all assets and appraise their value.
 Collects into a list and puts into inventory filed with probate system.
 Time-consuming and burdensome.
o Dealing with Creditors:
 Legal obligation to send notice to each reasonably ascertainable, known creditor.
 Monitor decedent’s mail.
 Identify other creditors that might be more elusive:
• Outstanding litigation
o E.g. malpractice if doctor, lawyer, dentist.
o Car accidents, torts.
 Creditors have limited time to file a claim.
• E.g. 60 days to file claim.
• If estate has no administration, creditors have at most ONE YEAR from date of death to
file claims against estate.
 Two Options:
• File notice via administrator and give them 60 days, OR
• Do nothing and creditors are subject to self-executing one-year from the date of the
death.
 Mortgage lenders have live-enforceable liability against the property.
Why have a will?

• If uncertain about intestacy laws, or know you want your property to go another way.
• Clears up uncertainties.
• Breaks dead-locks of guardianship
• Designates an executor/can have independent administrator
• Gives directions on administration
Why go through probate?

• All surviving members pay off creditors and want to handle it yourselves?
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• Can’t prove good title when its still in decedent’s name.
• Disagreements about terms of wills.
• If you want to bar creditors, opening probate bars them promptly.
• Surviving children or spouse – probate helps claim allowances promptly.
Small ways around probate:

• Small estates: $100,000 or less. Can submit one-page affidavit saying owner is dead and you’re sole heir.
• No probate opened, and 40 days since death.
o Under a statutory procedure, that is enough to let the person in charge of property off the hook.
 E.g. bank where savings are, DMV for car registration, etc.
o You then assume full responsibility for paying off creditors for that property.
o CANNOT apply it to real property owned solely by decedent
• For larger estates, collection by affidavit will not always work.
• Rationale: administering a decedent’s estate almost always includes lawyer and PR fees. Bears too heavily on small
estates.
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Intestacy:
Intestacy Laws:
• Rigid, fixed rules based almost entirely on statute
• Don’t take into account desires, preferences.
Intestate Succession Rules apply when:

• (1) the decedent left NO WILL
• (2) the decedent’s will is DENIED PROBATE, either because
o The will was successfully contested, or
o The will was not properly executed
• (3) the decedent’s will did not make a COMPLETE DISPOSITION of the estate, resulting in partial intestacy.
• (4) may be involved in questions involving a pretermitted spouse or child.
(1) Intestate Share of Surviving Spouse - §6401:

• In almost every state, the first share goes to the surviving spouse.
o They get priority, and whatever is left is devised among other blood relatives.
CA is a community property state:

• The salary of either spouse (and acquisitions therefrom) are CP, owned ½ by each spouse.
• Separate property consists of property owned:
o (1) by either spouse before marriage, and
o (2) during the marriage by gift, will, or inheritance.
• When one spouse dies while the marriage was intact, the community is terminated and each item is split by
operation of law 50/50.
o The estate of the decedent and the spouse become TIC of each piece of property.
CA Probate §6401(a): As to community property, the intestate share of the surviving spouse is the one-half of the
community property that belongs to the decedent under §100.
• All community property ends up with surviving spouse via intestacy.
o If he dies with a will – he can leave it to whoever he wants.
• E.g. Property owned by husband and wife. Husband dies. Who owns the property?
o ½ belongs to decedent’s estate, other ½ belongs outright to his wife.
o The decedent’s ½ goes to his wife by intestacy – she owns BOTH halves.
CA Probate §6401(c): As to separate property, the intestate share of surviving spouse or domestic partner is as follows:
• (1) The entire intestate estate if the decedent did no leave any surviving issue, parent, brother, sister, or issue of a
deceased brother or sister.
• (2) ½ of the intestate in the following cases:
o (A) Where the decedent leaves only one child or the issue of one deceased child.
o (B) Where the decedent leaves NO issue but leaves a parent or parents or their issue or the issue of either
of them.
• (3) 1/3 of the intestate estate in the following cases:
o (A) Where the decedent leaves more than one child.
o (B) Where the decedent leaves one child and the issue of one or more deceased children.
o (C) Where the decedent leaves issue of two or more deceased children.
• No close family members = spouse takes everything
• Where there is some other survivor = spouse will have to share.
o In most cases spouse takes ½.
o Where the decedent leaves more than one child, spouse gets 1/3.
WORKSHEET:
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1.) D dies intestate, survived by a spouse and by various relatives. Intestate share of D’s separate property of the spouse
and other relatives. §6401-§6402.
• One parent, one child:
o Spouse takes ½, child takes ½.
• One parent, two siblings:
o Spouse takes ½, parent takes 1/2
• Two siblings
o Spouse takes ½, siblings split other ½.
• One niece (the child of deceased sister) and two nephews (children of deceased brother):
o Spouse gets ½, all relatives in equal degree share the remaining 1/2.
o All same degree of kinship, they take equally (rather than nephews splitting their ½).
• One parent, one daughter, and two grandchildren (children of deceased son):
o Spouse takes 1/3 – daughter takes 1/3 and grandchildren split final 1/3.
o They are from another deceased child.
2.) D, never married, dies intestate survived by relatives. All survive 12- hours. Proper distribution under §6402:
• D’s mother and D’s paternal grandfather
o 100% to mother
• One maternal aunt and two paternal uncles
o 1/3 to each.
• A maternal great-aunt and paternal first-cousin
o Both 4 degrees, but descendant of grandparents takes first.
o Cousin takes all.
• A great-grand-aunt and second cousin
o Great-grand-aunt takes all.
• A great-grand-aunt and first cousin once removed (grandchild of D’s great grandparents).
o Both 5 degree relatives.
o Cousin is descendant of great grandparents. §6402(f). He gets all.
The CA statutes don’t take into account other relevant factors:

• Doesn’t make spouses share depending on length of marriage.
• Says nothing about property that passes outside of probate (JT’s, insurance, etc.)
• Spouse only gets all intestate property if no other near relations.
• If spouse re-marries, she is free to leave decedent’s property outside of his family.
CA – Domestic Partner
• CA gives rights that are substantially equivalent to spousal rights (e.g. CP treatment).
• Probate code generally includes surviving domestic partnerships.
• Have same rights and responsibilities of spouses.
• Treated the same, but it is technically different status.
• Opposite sex cannot register as domestic partners (unless over 65) – just same sex.
o Either they must be same sex, or opposite sex if at least one of them has reached 65.
o For SS, if claiming retirement and then re-marries, the prior spouse might lose benefits. This is an
attempt to preserve benefits and still allow someone to enter a domestic partnership.
o Narrow group of opposite sex so that lawmakers can say “this isn’t just same-sex.” Elderly become
potential supporters.
• For federal purposes – tax, social security, pension, etc. – a domestic partnership is NOT recognized as a marriage,
no matter what state law says.
Valid Marriage:
• License and ceremony.
• Marriages terminate by divorce or by death.
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• If first marriage is validly intact, any subsequent marriage is void.
• Putative Spouse: one party to a purported marriage believes in GOOD FAITH that the marriage was valid, then she
is entitled to the rights of a putative spouse.
o Not quite as good as fully legal spouse, but she will be able to share the CP with legal spouse.
o Protects the innocent party that got married in good faith.
o Wouldn’t protect husband if he knew that his first marriage was still intact.
Common Law Marriages (CA): Doesn’t exist. If contracted validly somewhere else, we might recognize. But not in CA.
Uniform Simultaneous Death Act §220: If the title to property or the devolution of property depends upon priority of
death and it CANNOT be established by CLEAR and CONVINCING evidence that one of the persons survived the other,
the property of each person shall be administered/distributed as if that person had survived the other.
• If no clear or convincing – property of husband and wife are distributed as if they survived each other.
o It would go to whatever his will says or whoever is next in line.
• If two people die at the same time, it doesn’t make sense to require multiple probate proceedings.
o Presume that he survived as to his property, and she survived as to hers.
o Example: C and S are both killed in a car accident. Neither left a will. C’s estate is distributed to her
surviving heirs as though S predeceased her. And visa versa.
• Requiring clear and convincing cuts down on the amount of litigation.
CA Probate Code §6403: A person who fails to survive the decedent by 120 hours is deemed to have predeceased the
decedent for the purposes of intestacy. If it cannot be established by CLEAR and CONVINCING evidence that a person
who would otherwise be an heir has survived by 120 hours, it is deemed that the person failed to survive the required
period. [Rule does not apply if the rule would result in escheat.]
• A person must survive the decedent by 120 hours in order to take as an heir or beneficiary.
• Rationale: an “instant” is not enough to justify taking his entire estate and letting her successors have it.
o They both died, why give his entire estate to her heirs if she dies within 5 days afterward.
Reconciling §220 and §6403:

• When do we apply 120 hrs and when do we use survival by an instant?
o §6403 is just INTESTATE succession.
o §220 also applies to every other form of succession.
• All that §220 says if you can’t show you’ve survived by an instant, you’re assumed dead.
• For the purposes of intestacy §220, its just another hoop. Not diametrically opposed.
Rationale: §220 and §6403:

• Why does it make sense for the 120 hrs for intestacy, and survival by an instant for other forms?
• §220 – survival by an instant: If they’ve gone to the trouble of drafting a will, then they have given thought to an
individualized plan.
o They may consider drafting around the statute.
o “I leave to my souse if she survives me.” Does that override the statutory default rule? Risk getting into
litigation about the potential conflict.
• §6403 – 120 hours: would give a person with impending death an opportunity to change the disposition of the
property.
o The 120 hours does NOT apply if it would result in escheat.
o It would go through a second probate estate and to other successors.
o NOT an attempt to grab more property for CA.
(2) Intestate Share of Heirs Other Than Surviving Spouse - §6402:
CA Probate Code - §6402: The part of the intestate estate not passing to the surviving spouse or domestic partner via
§6401, or the entire intestate estate if there is no surviving spouse or DP is as follows:
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• To the issue of the decedent, taking equally if they are all of the same degree of kinship.
• If no surviving issue, to the decedent’s parents.
• If no surviving issue or parent, to the issue of the parents or either of them.
• If no surviving issue, parent, or issue of a parent, to the grandparents or the issue of those grandparents.
• If no issue, parent, issue of a parent, grandparent, or issue of a grandparent, then to the issue of a predeceased
spouse.
• Next of kin (or kin of predeceased spouse)…
In every state, the issue almost never have to share with anyone except surviving spouse.
Per Stirpes:
• Still widely used – and can be invoked by will.
• The division of shares is always made at the child level, regardless of whether there are any living takers at that
level.
o Ex: Three pre-deceased children of decedent that all have kids:
 Divide the estate into 3 shares (for each dead child).
 Take A, B, and C’s shares and re-divide among next generation.
UPC and CA: Per Capita with Representation:

• Descendants take per capita at each generation.
• The property is divided into equal shares at the first generational level at which there are living takers.
• Skips generations with no surviving takers.
o If A, B, C are all dead, then ignore that whole layer.
• §240: divided into as many equal shares as there are living members of the nearest generation of issue.
• Each living person takes an equal share – shares combined and then divided equally among the next generation.
• Persons in the same degree of kinship to the decedent always take equal shares.
Note: If there is at least one living taker at the first generational level, there is NO DIFFERENCE between per capita with
representation and a classic per stirpes distribution.
See Worksheet!!
Table of Consanguinity: Pg. 53:

• Collateral relatives are blood-relatives who are neither direct-descendants nor ancestors.
o Siblings, nieces/nephews, cousins.
• Parentellic System: parents and parents’ descendants, grandparents and their descendants, etc.
o Most states follow – move up generation on table, then go down.
o Descendants of grandparents take first from other less-related blood relatives.
o After 3 lines of blood relatives, the system abruptly shifts and abandons parentellic.
• CA §6402(e): If no one in first 3 lines of blood relatives, then the issue of predeceased spouse takes.
o Decedent’s step-children.
o Unusual – most states are concerned only with blood relatives.
 UPC – after first 3 lines of blood, the estate escheats.
 Avoiding the “laughing heirs.”
• CA §6402(f): If there aren’t step-children or near relatives, it goes to “next of kin.”
o The number on the corner of box on table – represents degree of relationship.
o Person closest in degree takes.
o “When there are 2 or more in equal degree, those claimed through nearest ancestor is preferred.”
• CA doesn’t distinguish between paternal and maternal sides (different from UPC).
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Case: In Re Wendell’s Will: (pg. 67): Over 1,600 claimants appeared. Illustrates the problem of deciphering relatives. The
fight is over who has “standing” to contest the will. In order to determine who has standing, the court has to sift through
thousands of potential heirs to determine who is most closely related.
• Even if there is a will, the intestate succession matters for procedural reasons.
• To compute degree of relationship, count each person in the chain of ascent to the common ancestor, and then each
subsequent descendant from the common ancestor to the claimant.
Treatment of Whole/Half-blood Relatives:

• General Rule (CA): Half-Blood are treated the SAME as Whole-Blood relatives.
• Whole-blood: all lineal descendants and ancestors.
o Half-blood: E.g. two siblings that share only one parent.
• All collateral relatives have at least one ancestor in common and are either whole or half to you.
Children and Intestacy:
Difficulties arise when the parent is hard to prove or there are law-proceedings (e.g. adoption).
• (1) Is the child-parent relationship intact?
o Most common scenario is adoption
o If a child is adopted out of the original family, the general rule is that child is no longer treated as a child
of its natural parents. Becomes child of the adopted parents and their relatives for the purposes of the
law.
• (2) Two-way Street
o Inheritance is not always reciprocal.
o There are times a parent is barred from inheriting from or thru the child.
Adopted Children:
An adopted child has the same inheritance rights as a natural child.

• The adopted child and her issue can inherit from the adopting parents and from the adopting parents’ kin.
Case: In Re Estates of Donnelly: (pg. 75): Grandparents John and Lilly. Have children Kathleen and John Jr. Jr. marries
Faith and they have child, Jean Louise. Jr. dies and Faith re-marries Richard. Richard adopts JL so she is now his legal
daughter. At Sr.’s death, JL would have taken through intestacy by representation of her deceased father, Jr. What affect
does adoption have for JL? Can an adopted child inherit by intestate succession from natural grandparents?
• Once a child has been adopted, the child is NO LONGER entitled to inherit from its natural parent.
• Court: JL’s rights of inheritance have been completely cut-off.
Extensions of the court’s reasoning:

• If Kathleen was already dead and only identifiable relative is JL – under the court’s reading, JL still would have
been barred from inheriting.
• If Faith died, is JL entitled to inherit from her mom? If the statutes are taken literally, it might include severance
from natural mother.
• It is absurd, but a real problem with the bright-line, blanket rule that WA court announced (still good law).
Original UPC:
• Similar results to the facts of Donnelly.
• If adoption was done by a step-parent, the relationship with the non-custodial relationship (Jr. and his parents)
would be severed.
o The relationship with the subsisting natural parent (Faith) would remain intact.
Amended UPC
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• Permits JL to have inheritance rights from all three parents.
• She counts as legal child of adopted father, natural mother, and other natural parent.
• But the would not allow Jr. or his parents to inherit from adopted child (ONE-WAY street).
CA Probate Code: §6451(a): An adoption severs the relationship of parent and child between an adopted person and a
natural parent of the adopted person UNLESS BOTH of the following requirements are satisfied:
• (1) The natural parent and the adopted person lived together at any time as parent and child, OR
o The natural parent was married to or cohabiting with the other natural parent at the time the person was
conceived and died before the person’s birth, AND
• (2) The adoption was by the spouse of either of the natural parents OR
o After the death of either of the natural parents.
Requirements:
• Parent either lived with child and had parent-child relationship,
o OR married/co-habiting at time conceived and DIED before child’s birth, AND
• Adopted by step-parent,
o OR adopted after death of either natural parent.
 By step-parent, stranger, or relative – as long as after one parents’ death.
• If satisfied, the adopted child maintains a legal relationship with BOTH natural parents and relatives.
• Note: statute says nothing about divorce.
CA Probate Code §6451(b): Neither the natural parent nor a relative of a natural parent… inherits from or through the
adopted person… UNLESS the adoption is by the spouse or surviving spouse of that parent.
• Jr. and his relatives would be barred from inheriting from JL, but Faith and her relatives would not be.
• Distinction of the natural parent of the spouse adopting and the other natural parent.
• ONE-WAY street.
When it comes to ONE-WAY streets – does that make sense? Is there some reasoning?
• Child has no say in what the parents do – they are a passive participant.
• Don’t want to deprive child when it wasn’t their choice/fault.
o If we have a child up for adoption, the parent ought to expect to forfeit the right to inheritance.
• If it ended up in divorce instead, then presumably both parents have to consent to adoption (e.g. by step-parent). An
implicit part of the bargain (getting rid of his existing support bargains) he also gives up his right to inherit.
CA Probate Code 6451(b): Neither a natural parent nor a relative of a natural parent, EXCEPT for a wholeblood brother
or sister of the adopted person or the issue of that brother or sister, inherits from or through the adopted person…. Unless
the adopting is by the spouse or surviving spouse of that parent.
• The one place where whole-bloods and half-bloods aren’t identical:
o E.g. if JL had another sibling from F and J’s marriage to each other. That whole-blood sibling was not
adopted, and is still able to inherit from JL.
• Whole-bloods do get preferential treatment here. Half-bloods would not be treated the same way.
Worksheet:
Martha and Fred are natural parents of Chloe, whom they give up at birth to another couple for adoption. Martha dies
intestate, survived by Fred and Chloe. Then Chloe dies, survived by Fred.
• Does Chloe inherit from Martha?
o §6451(a): is there a parent-child relationship? Is Chloe still the child of mother/father?
 No – because there was no family relationship (neither parent lived with child as parent-child),
nor did father die after she conceived but before she was born.
o If we don’t meet (a)(1), we don’t even get to (a)(2).
• Does Fred inherit from Chloe?
o No, her relationship was severed.
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• She can’t inherit from them, they can’t inherit from her.
M and F are natural parents of C. They lived together as a family until F’s death. M then gave up C to another couple for
adoption. After the death of C’s adoptive parents, M dies intestate, survived by C. Later, C dies intestate, survived by her
aunt A (M’s sister) and her uncle B (F’s brother).
• Does C inherit from Martha?
o 6451(a)(2): requires the adoption be after the death of EITHER natural parent.
 F died, and then M gave her up.
 Doesn’t matter who did the adoption, as long as after one natural parent died.
o She can inherit through F and M.
o She has 4 potential lines of inheritance (her natural and adoptive parents).
• Do A and B inherit from C?
o Neither can inherit – 6451(b):
 Both natural parents and their relatives are barred from inheriting through the child.
 Neither M or her relatives, nor F or her relatives, are entitled to inherit. Although C can inherit
from them.
M and F are natural parents of C. Lived together as a family until M and F were divorced. M then remarried her new
husband H, who adopted C. F dies intestate, survived by C. Later C dies intestate, survived by F’s brother B.
• Does C inherit from F?
o 6451(a): They lived together as a family.
o Even though parents were alive when she was adopted, she can inherit from EITHER natural parent.
• Does B inherit from C?
o 6451(b): Relatives don’t inherit through the adopted person on the basis of a parent-child relationship,
unless the adoption is by the surviving spouse of that parent.
 They draw a distinction between the relatives of the natural parent.
 Not F’s spouse who did the adoption, so his relatives cannot inherit from C.
M and F are naturals, lived together until M and F divorced. C went to live with M’s parents, who legally adopted her. F
dies intestate, survived by C. Later C dies intestate survived by M and M’s parents.
• Does C inherit from F?
o 6451(a): both parents were still alive (not at death), and adopted by family, not step-parent.
 Some states preserve the rights of the blood relatives involved.
 CA doesn’t have this special rule. Anything other than step-parent adoption after death is the
same as if it were an out-of-family adoption.
 Functionally, a relationship with both natural parents might be intact – but legal adoption under
the statute severs the relationship with them.
o She can’t inherit from F.
• M’s rights from C?
o If she can’t inherit, then her parents can’t either.
o If she was adopted by her maternal grandparents, they are her new parents. They will inherit as her
parents.
o If they die, M is still their child. She can inherit indirectly eventually through her parents.
o But it does sever C’s relationship with and thru M.
o M and C will then be whole-blooded siblings -- If they both have the same parents, then they are whole-
blood sibs.
CA Probate Code §6451: Defines who are parents:

• CA statute says nothing about the difference of adopting adults or minors.
o E.g. Mr. Duke left $ in trust for D. D never had biological issue, but did adopt a friend Kendra in her
30’s, then they had a falling out. Legally, that meant that for inheritance, K was D’s daughter and entitled
to inherit an intestate estate. She can disinherit via will.
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o The question was, under her father’s will, once the parent-child relationship was made, could K inherit
from the trust estate that D’s father left her?
o Her dad, Mr. Duke – did he mean to include her adoptive issue?
• These days in CA and UPC, there are statutes that deal specifically with this.
o CA – if you have an adoptive child, they are treated as a child for a W&T instrument, but ONLY if
adopted in minority (not as an adult).
 Cannot be used to manipulate inheritance.
o Intestacy, there is NO RESTRICTION at all.
o In CA, as in many states, adult adoptions are allowed, and create a synthetic p-c relationship.
• Useful in a number of situations:
o Sizeable estate, and collateral relatives are counting on the inheritance. Property owner has an intimate
friend who he wants to leave everything to, rather than to his collaterals. Not married.
o He could create an instant heir that would pre-empt all those other distant relatives when contesting a
will.
o People use this device (marry or adopt beneficiary) in order to keep relatives from inheriting or contest
the will. The “child” becomes the beneficiary.
Equitable Adoption: Agreement either express or implied where natural parent gives up child to someone else.
• The child is raised by someone else (like a foster parent situation).
• If there is an agreement (written, oral, implied, express) that the new parent is taking over all of the responsibilities
taking in the child and will:
o (1) Treat the child as her own, and
o (2) Will go through an adoption procedure,
• The courts will, in equity, treat the adoption as if it had actually taken place. The child will inherit.
• Even if adoption never becomes complete, child is treated as if adoption happened and entitled to inherit.
• ONE WAY STREET
o The adoptive parent should have adopted but didn’t – essentially breached.
o They failed to adopt. Child gets benefit but foster parent does NOT.
Equitable Adoption: CA
• CA Sup Ct held that you need DIRECT expression of intent to adopt.
o “Informal” situations are not enough to give rise to equitable adoption.
o Look for enforceable contractual agreement or expression of intent (not necessarily in writing).
• E.g.: express understanding that they will raise as own.
• Not just shown up and they decided to take in and not thought about it.
• Even if foster parent does all the right things in caring for child, but there was no direct expression to adopt, and
then dies without adopting, the child has no intestate rights against the estate.
• Pretty harsh rule.
CA Probate Code: §6454: Equitable Adoption

• Foster parents and step-parents.
• Gives child right to inherit if meets BOTH requirements:
o (1) parent-child relationship must have begun during child’s MINORITY and continued throughout joint
LIFETIME of parent-child.
o (2) Foster/step would have adopted but for a LEGAL barrier.
• The second requirement makes the statute difficult to meet.
o CONSENT from either natural parent is the classic legal obstacle.
o Normally, unless one of the natural parents is dead, both would have to consent.
• If the adoption would have occurred but for the legal barrier, then statute allows child to inherit.
Problem: If the child is given to foster parent, and FP agrees to adopt, but one NP refuses.
• If the child is the only known heir of the FP estate, does she inherit?
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o Adoption never took place because there was a legal barrier.
o The legal barrier goes away once child reaches majority – could she inherit then?
• Statute says nothing about how long legal barrier lasts.
• Just that parent/child relationship must commence during minority and continue through joint lifetime.
• CA have interpreted restrictively:
o Legal barrier should last as long as both parent and child are alive.
o If the child reaches majority, that statute no longer applies.
o NO inheritance under statute – equitable adoption still available.
• The FP/AC statute doesn’t apply once no legal barrier.
Children Born Out of Wedlock:
Common Law:
• A non-marital child deemed a child of no one. No inheritance rights from either parents or ancestors.
• Only the child’s spouse and issue could inherit from the child.
• Became a Constitutional question: Sup Ct. in Trimble v. Gordon:
o A statute that allows NO means of proving fatherhood for inheritance purposes denies equal protection.
o State could NOT require that parents be married to each other as a condition for allowing a child to
inherit.
o Heading in direction of strict scrutiny – not substantially related to an important state purpose.
Most states began to amend statutes

• Lalli v. Lalli: If child declared by judicial order during father’s lifetime to be his father, the order would be sufficient
to prove paternity and the child eligible to inherit from father (5-4 decision).
o Problem: When there isn’t a factual dispute between the parents, why would one go to the court?
 E.g. mom and dad live together and both believe that they are parents.
 Child can only inherit, if parents not married, if there is court order declaring dad.
o Requires someone to go into court and get formal court order declaring paternity. Still restrictive.
o Sup Ct said sufficiently related to state interest to withstand strict scrutiny.
o Dissent: this is almost as bad as the old CL rule.
• Most states have moved beyond this.
Modern Law:
• Tremendous diversity in state’s treatments. UPC is fairly representative of many statutes.
UPC 2-109: Recognizes child’s relationship to either natural parent regardless of marital status.
• Determining Parentage:
o (1) Married
 Generally presumed to be child of husband.
o (2) Adjudication before father’s death
o (3) Parentage established after death by clear and convincing proof.
 Even after the father is dead and not in position to contest paternity, if someone can show with
c&c proof that the decedent was child’s father, the child will be allowed to inherit.
• Proof: mother’s conduct, family evidence, DNA, etc.
• No restriction of kinds or timing of proof offered.
• Much more lenient than required by Const.
CA Probate Code §6453: For the purposes of determining whether a person is a “natural parent:”
• A natural parent and child relationship is established where that relationship is PRESUMED and NOT REBUTTED.
• All focus on father’s conduct or involvement during his lifetime, when he would have had an opportunity to contest
or acknowledge paternity.
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• Presumption of paternity:
o (1) Parents married
If married at the time conceived or born, the mother’s child is presumed to be child of husband.

CA – that presumption is hard to rebut (maybe impossible).

Even if not married when child born, but subsequently get married, and father has extrinsic

actions that would raise presumptions of paternity.
o (2) Father takes child home and openly holds child out as his own.
 Vague standard. Behavior is a facts and circumstances test. Not defined.
 Allows all kinds of evidence as to the father’s conduct during life.
o Neither route presents too many difficulties. If they are met, then paternity is presumed.
• If NO presumed father, three ways of proving paternity:
o (1) Court order entered during father’s lifetime declaring paternity.
 E.g. court order for child support.
o (2) Clear and convincing evidence that father has openly held out the child as his own.
o (3) Impossible for father to hold out child as own, but paternity established by c&c evidence.
 E.g. he died before the child was born, was in coma, incompetent.
Problem: seems to create a blanket restriction for the child to come in after death and say “this was my dad, I should
inherit.” Even by clear and convincing evidence.
• E.g. child never known to father, or father never had interest in child.
• UPC would allow it, but not CA Probate.
CA Probate Code §6452: Inheritance from or through child born out of wedlock.
• If a child is born out of wedlock, neither a natural parent nor a relative of that parent inherits from or through the
child on the basis of the parent and child relationship between that parent and the child UNLESS BOTH of the
following requirements are satisfied.
o (1) The parent or a relative of the parent acknowledged the child.
o (2) The parent or a relative of the parent contributed to the support or the care of the child.
• Statute prevents a dead-beat dad from inheriting from child, and prevents his relatives from inheriting.
o Under the UPC, ANY parent that fails to support child is barred.
o CA rule – only the unmarried parent is barred.
o Is that constitutional? Simply b/c not married to child’s mother, can’t inherit?
• ONE WAY street situation.
Most bad conduct has no effect on inheritance rights:

• E.g. abuse, neglect – unless there’s a particular statute indicating otherwise, the parent can inherit.
• EXCEPTION: killing the source of the inheritance.
o Reason: causal link. There is such a close link between the bad deed and the inheritance, the court felt no
reluctance in stepping in.
Unborn Relatives of Decedent:
Common Law:
• As long as child ultimately born alive, and was conceived during decedent’s lifetime, then the child’s birth relates
back to the time of conception.
• CL court’s used to qualify by saying: “IF its in the child’s best interest to do so.”
CA Probate Code §6407: Relatives of the decedent conceived before the decedent’s death but born thereafter inherit as if
they had been born in the lifetime of the decedent.
Problem: How would the court rule if child was born alive and died 60 hours later?
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• §6403: if person fails to survive decedent by 120 hours, she is deemed to have predeceased the decedent for intestate
succession.
• The 120 hour assumes, but doesn’t require, the person to already be in physical existence.
• Anyone’s best guess to how the court would resolve it.
• Most likely outcome: the 120 rule is to cut off the determination of survivors. Not going to tack on the 120 rule on
top of the conception rule. Doubtful that the requirement is born alive and survived 120 hrs.
Children CONCEIVED after parent’s death:

• Is sperm (or any human material) an item of property you can leave in a will?
o If there is a will, intestacy is still important because of survivor benefits.
o §6407 requires conception before death and doesn’t cover this issue.
• Mass. Court: If this child would be allowed to inherit under Mass laws, then the person will also be treated as
surviving child for social security benefits.
o The Court came up with this TEST:
 The children will be treated as children of deceased father, PROVIDED:
• He actually consented to their conception (oral, writing, etc.) AND
• He agreed during his lifetime that he would support them.
CA Probate Code: §249.5: For the purposes of determining rights to property, a child of the decedent conceived and born
after the death of the decedent shall be deemed to have been born in the lifetime of decedent, if the child proves by clear
and convincing evidence ALL of the following:
• (1) Written direction of the decedent
o Permission to use the sperm to conceive after death.
• (2) Written direction must designate someone to control the material
o Within 4 months after death, the person who was designated to have control has to give notice that the
material is out there and they are at least thinking of using it.
• (3) Child must be in utero within TWO years after determination of father’s death.
o Have 2 yr window to get viable fetus.
o Often takes several tries. Period is presumed to be reasonable to make decision and conceive.
• Statute puts a 2 yr moratorium on any beneficiaries:
o No one is entitled to get distribution until it is known if child will come into existence.
o Prohibits bank holding assets, trustee distributing assets, insurance company paying proceeds, etc
o UNLESS person with genetic material waives rights to use it.
o Important to always ask if there is any possibility that more children will come into existence.
Bars to Inheritance:
Advancements:
Common Law:
• “Bringing gifts into hotchpot” – where the parent makes a gift of property to a child, and parent dies intestate, the
child would have to add in their lifetime gifts to make sure they didn’t get a bigger share than the other children.
o The gifts get off-set against the child’s share (but they get to keep it).
o Lifetime gifts are irrevocable – have to divide shares between issue as equally as possible, but can’t take
away from any lifetime gifts (see handout).
o Any lifetime gift to a child was PRESUMED to be an advancement of the child’s intestate share.
• The rule was based on the assumption that a parent would want to treat all his children equally.
• The burden of establishing that a lifetime gift was NOT an advancement is on the party so contending.
o Resulted in a lot of litigation for things that could not be conclusively proven (arguments about valuation,
subjective intent, etc.)
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UPC: (CA Probate Code §6409 follows UPC almost identically):
• Lifetime gifts are treated as advancements ONLY IF:
o (1) The decedent (donor) declares in a contemporaneous writing that the gift is an advancement (to be off-
set of the estate), OR
o (2) The donee acknowledges in writing (at any time) that the gift is to be off-set from her inheritance.
• If either the donor or donee acknowledges in writing that the gift is to be off-set from inheritance, it will be brought
into hotchpot.
• UPC does not abolish CL – just imposes writing requirement.
o The effect seems to be to dry up the litigation (which was the purpose), but it has also dried up application
of the doctrine.
o If there is a writing that expresses this intent, that is normally what we think of as a will.
o Advancements are for intestate estates, so the writing requirement will almost never happen.
o Short of a will, there is virtually no writing that people routinely execute at the time of a gift.
• UPC and CA probate Code have as nothing to say about release from intestate succession due to advancement
Can we enforce releases under Common Law?

• Courts of equity have traditionally recognized a release, provided following requirements are met
o Agreement that whatever is received in exchange represents liquidated advancement
o If there is consideration and not unconscionable
• Enforced even when no written agreement
CA §6409(d): If the recipient of the property advanced FAILS TO SURVIVE the decedent, the property is NOT taken
into account in computing the intestate share to be received by the recipient’s issue, UNLESS the declaration or
acknowledgement provides otherwise.
• If the donee doesn’t survive the decedent, children take by representation, but the advanced property is NOT taken
into account in determining the intestate share.
• UNLESS the written declaration says so.
• Essentially reverses the CL rule
o CL – presumption that gift accounted for; 6409(d) – presumes that gift not taken into account.
Heir Hunters:
• Firms will locate missing inheritances for a fee.
• Looks at probate notices and if there is an estate that has no close heirs, the firms will locate them.
• Technically, the heir is assigning an inheritance (or expectancy).
o In advance of death (property owner still living), can an heir make an assignment of expectancy?
o Legally – NO. Equity – YES.
o Comes down to question of fairness.
o The person who purchased expectancy is entitled to claim the share in expectancy.
• Courts requirements:
o (1) The consideration paid for expectancy is FAIR
o (2) When it matures (person dies), the inheritance is still VALID.
• Concern: Person who assigns expectancy could be taken advantage of.
o They will say we have information – pay us X for this information. The effort they expend is probably
not much different from $100K estate to $10M estate.
o Anyone offering to buy in advance is likely to price pretty steeply.
o They are taking the chance that the assignor doesn’t die before the person assigning the inheritance, and
that will isn’t made/changed in the meantime.
• Probate Code has nothing to say about assignments. CL still governs.
Slayers:
Common Law:
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• There were no special statutes for people that killed their ancestors. They could still inherit.
o E.g.: Carpenter’s Estate: (PA)
o “Intestate laws cast the estate upon certain persons, and this is absolute. The estate cannot be diverted
from those persons and given to others without violating the statute.”
o Statute governs, end of story. He still inherits.
• The CL rule was not unanimous:
o E.g. Riggs v. Palmer: (NY)
o Grandson poisoned grandfather b/c he was a beneficiary and didn’t want him to change his will.
o Does he still inherit?
o NY Court didn’t want to allow grandson to profit from own criminal misconduct.
o Case involved a will – under a will there is no statutory command requiring will be given effect.
o The Court could look to public policy for grounds to override the written will.
 E.g. Unjust enrichment – an equity court could apply its own principles.
 Regardless of statutes on the books.
Generally, misconduct towards decedent are NOT bars to an inheritance.

• You can behave as badly as you like. Unless disinherited by will, still generally be allowed to inherit.
• E.g. Abuse or neglect.
Constructive Trust:
• When faced with a statute whose terms are not easy to get around, the only way to circumvent a law or statute is to
say: “we know under basic equitable doctrines, we can order remedies that will put the parties in the right position,
even if we have to follow legal doctrine.”
• Combination of making wrongdoer forfeit unjust enrichment, and specifies the alternative takers.
o (1) Lets legal title pass to murdering ancestor, and
o (2) Makes him pass title.
• It is not actually a trust.
• It is the name given to a flexible equitable remedy designed to disgorge unjust enrichment.
o Cannot stop the killing heir from getting legal title.
o Court can impose a judicial order through equitable sanctions.
o Pretend the murdering heir is actually a TRUSTEE.
o He becomes a trustee for the beneficiaries that will inherit
 All the burdens of ownership – management, legal title, etc.
• Ignores the murderer in the chain of intestacy
o Orders him to hand the property to the heirs that would’ve inherited had he not been in existence.
Statutory Solutions:
• There was a wave of statutory responses from legislatures.
• Some required CONVICTION of intentionally and unlawfully killing the decedent.
o E.g. In Re Tarlo’s Estate: Mr. Tarlo killed himself after he shot wife and daughter. He was never
convicted b/c he killed himself. Technically, the requirements of the statute were never met.
o The majority: read the statute pretty narrowly as a targeted exception to the CL rule (in Carpenter).
 Unless it comes within the statute exception, CL still applies.
 Wife’s and daughter’s estate:
• Wife: first to die. If her husband can’t be convicted of killing her, b/c he killed himself
first, he would be major heir of estate.
• Daughter is next: her estate would go to next of kin. Father gets to inherit, so it goes
through his estate and then to his beneficiaries or heirs.
o Dissent: when the statute was made, it may have only been for those guilty of a crime. But clearly it was
a reaction to Carpenter and should be a much broader repudiation of the CL doctrine. It should apply to
other situations of wrongful inheritance, like here.
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UPC §2-803: Rule applies to wills, trusts, intestacy, and probate assets and non-probate assets.
• IF as a result of felonious and intentional killing, the person who would otherwise inherit from the decedent is
BARRED from inheriting.
o Defines what kind of killing and how property should be disposed of.
o The killer will be treated as if he/she had pre-deceased the victim.
• Most other will substitutes require that the beneficiary survive at least an instant – but if they are “pre-deceased”
they are written out of the chain of succession.
CA Probate Code §250: A person who feloniously and intentionally kills the decedent is not entitled to any of the
following:
• (1) any property, interest, or benefit under a will or a trust created by or for the benefit of the decedent
• (2) Any property of the decedent by intestate succession.
• (3) Any of the decedent’s quasi-community property the killer would otherwise require.
• The property interest passes as if the killer had predeceased the decedent.
• Modeled on original UPC.
How do we know if the killing was felonious or intentional?

• CA §254: A criminal conviction is a conclusive finding.
• In the absence of a final judgment, the court may determine by a PREPONDERANCCE of evidence whether the
killing was F&I.
o The burden is on the party seeking to establish that the killing was F&I.
o E.g. When he killed himself first, was acquitted, etc. there is no conviction.
• For probate: civil proceeding. The probate court can use their standards, not necessarily required to be up to the
standards of a criminal trial. Burden on victim’s side.
CA §250: Problem/oversight:
• (a)(1) Will or trust. The killer is not entitled to property, it is passed as if predeceased D.
• (a)(2) Intestacy.
• When CA statute was originally enacted, it included how property is to be passed for both. When amended, they
inadvertently didn’t include what happens by intestacy.
• Two possible scenarios:
o A forfeits property. If he’s ignored, we assume the other’s inherit as if A was not there, OR
o A forfeits his share, and anyone that takes through A doesn’t benefit. §253 provides statutory support
(catch-all).
Example: D is killed by son A. A has sister B, who died. B has one kid, and A has two kids. D has will.
• UPC/CA: Treat A like he predeceased D. All three kids get 1/3.
Related Issues:
• Assisted suicide:
o Generally covered by statutes. In OR, physician assisted is permitted, but very few would leave property
to physician – but if he was a relative and left property, that is not felony so would be okay.
• Killing short of F&I will not trigger forfeiture.
o The statutes distinguish accidental from intentional. Manslaughter etc. would not bar.
o NC – one spouse abandons the other, that is grounds for barring. CA – no such rule.
o Do have a unique provision for ELDER abuse. §259.
• Killer who is insane: technically still inherits. Killing not technically considered F&I.
CA Probate §251: explicitly deals with JT’s, but not particular about what happens with the property.
• The killing is a severance of the interest of decedent, so the killer has no right of survivorship.
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o E.g. Parent and child bought property as JT’s, and child kills parent. Parent’s interest passes as parent’s
OWN property. Results in a TIC.
• The rule doesn’t specify proportions of the property that is TIC.
o E.g. If parent bought property, does parent become full owner, or do they split 50/50?
o Normal CL JT – any property other than bank account, take in equal shares. Unity of interest.
o Slayer rule never requires him to give up his vested rights, just keeps him from inheriting.
o Expect that the killer walks away with undivided ½ of property, and the other ½ passes through slayer
rules.
• Bank accounts: owned in proportion to net contribution.
o If parent puts in all the money, technically parent is owner of account.
o If severed during lifetime, all the parent put in would go back to parent.
o Slayer statutes – we don’t know if its equal or proportion to contribution.
CA Case: parent killed child, and court divided property (real and bank) by each parties’ contribution.
• No penalty for parent that slayed. They walked off with everything.
• Seems contrary to slayer statutes rationale.
• Case never appealed, and no other recent decisions. Most likely a wrong outcome.
Disclaimers:
No one can be compelled to accept a gift against her will.

• The beneficiary can disclaim any gift.
• Could be lifetime gift or heir/beneficiary.
• If disclaimer is valid, the disclaimed interest passes as though the disclaimant predeceased the testator.
Two frequent situations:

• (1) Creditors:
o E.g. Parent leaves gift to child, and child is bankrupt, the gift immediately goes to creditors.
o Child can disclaim -- the gift never comes into his hands, and is not subject to creditors claims.
• (2) Taxes:
o E.g. Parent (D) dies, estate passes by will to 2 surviving children in equal shares. Child A has plenty of
money, but wants to make sure property goes to her issue.
o If she accepts and gives to issue immediately, there are tax consequences.
 When D dies, if her estate is big enough, it is subject to estate tax. If A accepts her share, and
then gifts to her kids, A will also incur a gift tax on the transfer.
o If A disclaims, she is treated as if PREDECEASED parent. Her share goes to her issue.
 The person making the disclaimer is ignored as if she received nothing. Not treated as two
taxable transfers, it would be a single transfer from D to A’s kids.
o If D is married, and the will says property goes to A and B, they can disclaim and then it goes to D’s
spouse. For tax purposes, that is treated as a single transaction.
Statutes:
• Sweep of statues that clean up the CL doctrine.
• Specifies who can make a disclaimer, what procedures are required, and what happens to the property.
• They specify that you can disclaim by any source and any matter.
• CA §277 – a guardian can make disclaimer on behalf of child.
Requirements for VALID Disclaimer: (state law)

• It is important to make sure the disclaimer is VALID – if you mess up its grounds for malpractice.
o Consult state and federal law to make sure you’re complying (especially for tax purposes).
• Writing explaining the interest disclaiming.
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• CA §279: Filed w/in a reasonable time after disclaimant has knowledge of interest.
o What is reasonable in one situation may not be reasonable in another. Not fixed.
When Disclaimer is Made:

• General Rule: treated as if PREDECEASED the decedent.
• CA §282: Notwithstanding general rule, the beneficiary is NOT treated as predeceased for the purposes of deciding
what generation the division is to be made.
o E.g.: A is alive, B is dead. A disclaims. Can A increase the share that would ultimately pass to his kids
from ¼ to 1/3?
o The intention of the rule is to keep A from increasing his kids shares.
• Two Steps:
o (1) Determine the generation where there is one surviving issue.
• §282(a) – he is predeceased; §282(b) – for this purpose, he is still ALIVE.
• The first generation is A’s generation, not grandchildren’s.
• B gets ½, and A gets ½ (which is divided at his kids).
o (2) THEN treat A as predeceased to decide who takes
• Here it would go to A’s issue.
Disclaimers and Advancements:

• CA §282(b)(2): Beneficiary of disclaimed interest is not treated as having predeceased the deceased for 60409(d)
(advancement provision).
• E.g.: If D made advancements to A during life, and A disclaims:
o Disclaimer: For this limited purpose, any advancements made to a will off-set A’s kids gifts.
o Advancement: If A actually predeceased D, A’s issue would get their share with no effect given to the
lifetime gifts.
• Trying to keep A from gaining an advantage to his kids.
o Without this rule, A could disclaim and be treated as if predeceased D, so his kids would get all lifetime
gifts, and equal shares of the will due to his disclaimer. Unfair advantage.
Medicaid Eligibility:
• If patient receives inheritance, that can affect their eligibility.
• Generally disclaiming the inheritance will NOT help them maintain that eligibility.
o Courts have held that the disclaimer is not respected.
o It’s as if they received the inheritance and then gifted it.
o Results in a temporary disqualification from receiving benefits.
• Public benefits is one area where you can’t work around it.
Family Protection:
W&T don’t matter for most people: either they don’t have enough for a will, or creditors will use most of what they have
up.
Statutory Allowances:
• (1) Property Allowances
• (2) Post-debt Allowances
• (3) Family Allowances.
• Must be elected, cannot occur automatically.
• Shelter from probate.
• They are modes, but they can restore enough property for most people (who don’t own real estate/significant assets).
o Regardless of intestate or will, they come off the estate.
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o Protects family from creditors’ claims.
Estate Planning:
• (1) Social Security
• (2) Private Pension
• (3) Private Savings.
Social Security:
• Provides retirement and survivor benefits for individual workers.
• Based on lifetime earnings. Monthly benefit in form of a life annuity.
• SS helps the elderly from falling into poverty. Prevents people from spending everything they have.
• Not public assistance – it is social insurance.
• Spouse that never worked is entitled to 50% of the benefit.
o If she has her own income, she just gets her own SS.
• It is paid for by working people – half by employer, half by employee.
• Projected that in about 2018, SS will no longer bring in more than it pays out. About 2040 there will not be enough
accumulated to pay $ out.
Private SS Accounts:
• Due to the surplus problem, there has been talk of privatizing SS.
• Worker could opt-out of the system and set aside his own $ into private accounts.
• Easier for people to withdraw, more accessibility.
o Run into the same problem of people over-spending and being poor in retirement.
• Govt’ Investing
o If gov’t took the existing funds and invested, it would flood the stock system causing problems.
Intestate Distribution:
Providing for the Surviving Spouse:
In nearly every state, there is some mandatory action providing for surviving spouse:
• Community Property
• Elective Share (Separate Property States).
Community Property:
Partnership Theory of Marriage: marriage represents a partnership. Once a partnership is established (married) the union
has its resources and anything that comes to either spouse in marriage is property of that marriage.
• Doesn’t look outside the marriage to the individual spouse.
• No matter who owns the property, it automatically belongs to both.
• Each spouse has a present, vested interest.
o Community Property: any property that was earned by either spouse during the marriage.
o Separate Property: any property owned by either spouse BEFORE the marriage, and/or property
acquired during marriage by donation (gift, will, or inheritance).
• Presumption: Any property held during marriage is CP.
o Unless it can be traced to a separate property source (i.e. title in the name of one spouse), the presumption
is that its CP.
o Issues come up in maintaining property that was separate or inherited property
o E.g. one spouse inherited property and the other exerted labor and added to its value.
General rule: During Lifetime:

• Any conveyance (sale or gift) of CP requires consent of BOTH spouses.
o Unilateral gifts are not allowed.
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o In theory, even a $10 check as a gift to a 3rd party would require consent of both (the only ones that
actually get litigated are bigger gifts).
o Assumption is that they will manage the property for the benefit of the community.
• Concealed Gifts: If one spouse takes the something from the CP and makes gift w/o telling the other one:
o Remedy: the non-consenting can void (or undo the gift) and get the whole property back for the benefit of
the community.
o Remedy is very much like fraudulent transfers.
In CA – if that wrongful transfer doesn’t occur until death, or the lifetime transfer doesn’t become apparent until after
donor has died, the remedy becomes more strict:
• Surviving spouse can still sue, but after death the surviving spouse can only get back their ½ of the CP.
• At one spouse’s death, the decedent’s estate becomes TIC of CP.
o They get ½ of undivided interest.
• At death, have to divide CP and separate.
o Decide which are CP and which are separate
o CP presumption: anyone asserting separate rights bears the burden of showing that it’s separate.
Case: Estate of Bray: (pg. 152): Husband has son (respondent) from first marriage. Son came to work for him. Without
the knowledge or consent of his wife, the decedent opened a JT savings account with son. Decedent also purchased
Savings Bonds which were registered in name of decedent and son. Wife doesn’t know about it until he died, and she
thinks the $$ is part of CP, and wants ½. Son thinks they belong to him as JT.
• Joint Tenancy are not CP – traditionally a JT was by definition a separate property form of ownership.
o Couldn’t pass CP with survivorship until a few years ago.
• Issue: How should the property be designated? Is it CP or JT?
o He owned business originally before ever got married.
o Court - earnings from the business are CP b/c of current earnings. Whatever he gets as return during
marriage is CP – including salary and appreciation of business thru his efforts.
o Earnings of business, regardless of original source, during the marriage are CP.
• When the decedent dies, what happens to decedent’s half?
o Her ½ half goes to her, and his ½ goes to her.
o If there’s no will, she gets both halves.
o If there is a will, he can do with his ½ of CP as he likes.
o Here he left a will, but he had lifetime transfers.
• Son would argue that they weren’t unauthorized gifts:
o Court: they were clearly gifts to the son b/c put into joint accounts for no consideration.
o Husband is free to make transfers if he gets consideration in return.
o If it was fair consideration, what he got back in exchange would have been CP.
• Possible consideration: his son’s service for years as an employee.
o He had a regular salary. Was this a bonus?
o In general, if you pay all of your employees a bonus, presumably that is additional compensation for the
year’s work.
• If son’s current wife was trying to claim it was CP, she is entitled to his compensation.
o The weakness of son’s argument is that they already got bonuses, and this was on top of it. If husband
folded this into year-end bonus (he performed substantially better than others) then it might’ve stood up.
But this was separate from label of bonus’.
• Treating it as a gift – done without consent or consideration
o Her remedy is limited to getting back her ½ of the gifts that were made.
• In her husband’s will, she was left more than ½.
o If we were looking at aggregate values – she was left more than ½.
o She is still allowed to recover ½ of the gifts because we don’t look at aggregate value under the “Item
Theory” of CP.
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o Each spouse owns ½ of every piece of CP. She can recover ½ of each of those items without regard to
other assets or transfers made at death.
Any other way that Walter Bray could have made these gifts and protect them from wife’s claims?
• If wife consents, that solves the problem.
• If he can’t get consent:
o If he can find any separate property that he owned, he can use that.
o He could sell business to himself for full consideration and make it separate property.
• Wait until death and leave in his will the same amount of benefits from HIS ½ of community assets.
• Could make double the un-consented gift to son, then when the wife gets her remedy, she takes her 1/2, and then the
son gets the original amount.
Widows Election:
• Basic notion: when one spouse dies, the CP terminates and as a matter of legal right, they become co-tenants of
each item of CP. When one spouse dies, he is free to dispose of his separate property and his ½ of CP any way he
wants. But, what if he says “Wife, I want to leave both halves of the CP to our son. If you give up your ½ I will
leave you a separate bequest from my separate assets.”
o Husband has offered wife a bargain: she has her “election” to give up her CP rights for something in lieu,
or she can say no and keep her share of CP.
o Forced Election – he can force her to choose her CP or the alternatives, but the choice is hers.
 Ex: “If she fails to accept this election, she is cut out of the separate property.”
Handout: H and W were married for 30 yrs until H’s death. At his death, H and W owned Black-acre as CP and H owned
White-acre as his separate property. In his will, H purported to leave all of Black including W’s ½ interest to his nephew
N, and left White to W. If W accepts the devise of White, can she also assert her ½ interest in Black?
• If she keeps her ½ of her CP, does she have to give up the separate property left to her in the will?
o Doesn’t require express language of contingency in will, or that the wife has to make an election.
• In determining intent of testator, what you look at is:
o Was he intending to dispose of both halves of the property, and
o Did he intend to have that be linked to other provisions for the surviving spouse?
• Here, he is explicitly trying to dispose of his interest and hers as well.
o Most likely, he did not intend to allow W to take both what she’s left in the will, then to contradict the
terms of the will by taking her ½ of the CP.
o Typically, a widow’s election is not a will contest. We are not saying she has grounds to challenge it.
Instead, she’s just choosing which of two implied gifts she should take.
• You can put a spouse to a forced election without saying so explicitly.
• Obviously the clearer the election is, the easier it is to determine.
What happens if she elects against the will and keeps her ½ of Black?
• Drafting becomes an issue if there is no back-up clause to the selection.
• White would go to intestacy if the will says nothing else.
• She would probably get a portion of that too.
W wants to know what she gets – what advice do we give her?

• As long as the separate devise to W is at least equal to what she is giving up, it makes economic sense to accept the
terms of the will.
What if T leaves all CP in trust to pay income to widow for life, with remainder to children:
• His will combines both sides of CP, and he doesn’t have separate property to buy off widow
• He’s essentially inviting her to exchange a remainder interest in her ½ for an income interest in his 1/2.
• This might look like a good deal to W, especially if she is younger.
• Rationale: to keep together all the CP and avoid it being broken up by co-tenancy interests.
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o Takes some of the friction off wife and children
o Keeps property together, which may make it more valuable.
o Gives wife stream of income
o If kids are common, it might coincide with what she would’ve liked to have done.
o But she doesn’t get to control ultimate disposition of property.
Separate Property:
The property belongs to whoever earned/acquired the property. (CL jurisdictions).

• Doesn’t matter if before or during marriage; gift or earned.
• All of the property the breadwinner earns is his unless he makes a gift of it, or spouse has taken as JT.
OLD CL
• Dower: Provision made for a widow out of the husband’s property. Bulk of title in his name
o At husband’s death, widow entitled to a life estate in an undivided 1/3 share of husband’s estate.
• Curtesy: Husband’s interest was comparable to dower in his wife’s real property.
o Upon wife’s death, husband entitled to life estate in ALL (not just 1/3) of her estate.
o Only if issue were born into the marriage.
Elective Share Statutes: All CL jurisdictions except GA.

• A surviving spouse can elect to take a statutory share of the decedent’s estate.
o Typically flat 1/3 of decedent’s probate estates.
o She can accept what he left in his will, or can elect against the will.
o If chooses elected share, has to give up everything left to her in the will.
• Major Difference: every elective share (dower, traditional, UPC), the only way a spouse is to get her elective share
is if she survives him.
o ONLY at death is the surviving spouse entitled to share of decedent’s estate.
o The first spouse to die never sees a penny from spouses estate!
• Surviving spouse should look to which is greater: what is left to her in the will, or elective share.
o If husband wants her to have as little as possible, he should leave her exactly the same as the elective
share.
• CL Elective Share -- not very effective:
o Easy to drain property out of probate estate via lifetime gifts if he wants to disinherit spouse.
o Doesn’t require wife’s consent, notice, anything for him to get rid of it.
UPC (original): Augmented Estate:

• Instead of flat 1/3 of probate asset, they “augmented” the underlying pool of assets.
o Not just assets in probate, but also a broader set of transfers that occur either at death outside of probate,
or some lifetime gifs made shortly before death.
o Include the couple’s combined assets, including assets titled in or owned by surviving spouse.
• UPC also came up with a differentiated way to satisfy share:
o Instead of having to give up all benefits in the will, they came up with a way to keep benefits in the will,
and allow her to make up the difference in order to add up to a full share.
Handout: Married for 30 yrs. At the time of his death, H was domiciled in a non-CP jurisdiction that follows the UPC. In
his will, H left $90K to his surviving spouse W and the rest of his property (worth $180K) to his nephew A. While
married to W, H also created a revocable trust for the benefit of his niece, B. At H’s death, the trust property was worth
$270K. W, who has property of her own worth $60K has filed a claim for an elective share.
• In a traditional elective share, she would have gotten the same either way
o 1/3 of $180 is $90, or she can take the $90 that he left her.
• Rev. Trust $270K to B:
o UPC augmented estate -- probate estate, and then reaches a bunch of types of transfers.
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o Revocable trust is a primary example – it is the most obvious next component of what we would look for
to drag augmented property back to the estate (also, joint property, life insurance, etc.)
• Looking at the combined assets of the spouses when measuring the size of the share, why?
o We wouldn’t want to give a richer spouse 1/3 share of the poorer spouses assets.
• E.g. wife has $60K of her own. If she dies first, it might be inequitable to say that he gets to keep
everything of his own, plus the $60K she might want to leave to other people.
• If the surviving spouse already owns a disproportionate share of the combined property, we don’t
want that spouse to increase his net benefit while depriving other beneficiaries.
o If H survives, and has all property in his own name, even if his elective share was $90K, he will not be
able to collect anything from W’s beneficiaries. She can leave her $60K estate to her other beneficiaries
entirely.
• So total augmented estate is the $90K to W, W’s $60K, $180K to A, and $270K to B = $600K.
o 1/3 of that $600K is $200K.
o If she’s already gotten that $200K through the will, there would be no point to the elective share.
o Here she has $90K of probate estate and $60K of her own. That is only $150K.
o She has a right to another $50K of assets.
• Once we know the amount of the elected share, the UPC looks at what property the spouse gets under decedent’s
will, value of her own assets, and to the extent that we need to make up the difference.
o Look to the other assets of the augmented estate.
o Everyone will have to cough up a PRO RATA portion of what they would have gotten.
o If we want to inflict an equal amount of penalty on the rest – A and B have to make up same proportion of
their gift. How would we split up A’s (180K) and B’s (270K)?
o A+B = $450K.
• A’s share is 2/5, and B’s share is 3/5.
• $20K from A, and $30K from B.
UPC (amended 1990): Sliding Scale

• Major modification to the fixed 1/3.
o If married less than a year, get very little.
o More than 1 yr, but less than 2 yr marriage, get a 3% share.
o In a long-term, 15+ year marriage, get up to a 50% share.
• Each year up to 15 yrs goes up by 3-4%.
o Increments of 3% up through 10 yrs., then increments of 4%.
Handout: Same fact pattern. Married for 30 yrs.

• Her share would be 50% of the $600K combined assets. Her elective share is $300K.
• $90K from will and $60K from own assets - she would need to make up $150K deficit
• Would get a pro rata portion from A and B ($60K from A; $90K from B).
If they’d only been married for 5 yrs.?

• Elective share is only 15% She won’t claim share if its less than what she gets in the will.
UPC trying to approximate the CP system:

• Assuming a split of accumulated and combined assets depending on length of marriage.
• CP
o Provides automatic, equal sharing. Across the board 50% sharing.
o But have to go back and classify as community or separate. Can get nasty and confusing.
o Indefeasible, presently vested interest. Husband can put to an election, but cannot compel her to give up
her share of any property.
• UPC has some advantages:
o Implements a cut-and-dry sharing rule for a fixed portion and avoids all of the tracing and classification.
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o The spouse whose property it is can do what he wants with assets during life, only after death is it limited
according to the sliding share.
o The rights blossom at death and bear no relation to the property rights during life.
o The first to die can dictate which deeds are used to satisfy the share. Gives tremendous power in deciding
which assets the souse is stuck with.
Migratory Spouses: Quasi-CP:

• People move from state to state.
• If they move from NY to CA:
o Protects the separate property they brought with them.
o CA has quasi-community property statutes.
 Whatever they brought from non-CP state, look at what would be CP in CA.
 Whatever they bring is presumptively CP, treated the same but it is quasi-CP.
o CA makes exactly the same division at divorce or death as it would have for CP.
o No elective share. If decedent dies intestate, surviving spouse gets ½ of the quasi-community property.
• If accumulated in CA then moved to NY:
o Surviving spouse is overcompensated if they got elective and CP. Cannot claim CP and elective share.
o CP doesn’t change when crossing state lines. A present, vested interest doesn’t change.
o Unless they co-mingle the property or let it dissipate, as long as they keep it titled as CP, those rights
remain unchanged.
o Elective share rights DO NOT apply to CP.
• Works well as long as people keep a good record of what is CP and what is separate.
Waivers:
It is increasingly common for spouses to enter into an agreement regulating their property.
• Prenup, agreement during marriage.
• Either restricts what they can do with their own property, or relinquishes rights intentionally so the other spouse can
make a free and unfettered disposition to anyone they like.
• A well-planned marital agreement with waiver:
o Each party represented independently
o In writing
o Includes an appendix w/ general disclosure of each spouses’ assets so they know what they are getting or
giving up.
The Problem: Freedom of Contract:

• Spouses that enter into agreements aren’t standard, arm’s length clients.
• CA Family Code: Spouses owe each other basic duties of fair dealing and disclosure.
o When one spouse relinquishes rights and other walks off with no obligations, there are often questions of
over-reaching, unfairness, etc.
• Faced with the question: is that agreement enforceable??
o Competing tensions: the right to contract, and protecting the weaker, less-informed spouse.
Case: Hook v. Hook: He retains lawyer to draft wills for both spouses. Morning of the wedding, they drive to the
husband’s lawyers office, where she is presented with the docs to sign. He says “what’s yours is yours, what’s mine is
mine.” She signs.
• Contained an anti-nuptial agreement which waives all rights to each other’s property.
o She gave up right to elective and intestate shares.
o If she makes valid waiver, the terms of will are immaterial and she takes NOTHING by will or intestacy.
o The assumption is that she knows what she’s giving up.
• Their divorce wasn’t final when he died, so she is technically a surviving spouse.
• Trial court concluded that the balance of power was disproportionate and the disclosures made were inadequate.
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• Issue: is she entitled to at least her elective share?
o Ohio applied the CL test, which was fairly generous for enforcing waivers:
o Enforceable, IF:
 (1) Fair and reasonable, OR
• Not grossly unconscionable.
 (2) Made voluntarily with adequate disclosure.
o If she wants to attack it, she has to show that it was substantively unfair/unreasonable AND she didn’t
have the ability to find out.
(1) Fair and Reasonable:
• She didn’t know what she was giving up, and the materials on paper were disadvantageous to her.
• Disproportionate benefits - they looked at:
o What is she giving up? What would she have taken by intestacy?
 If she’s getting those shares up front, or in reciprocal rights, etc. then maybe fair and reasonable.
 But if she’s giving up her only shares, and getting nothing in return, that’s probably not fair.
 Doesn’t suggest that anything less than intestate share would be inadequate.
o Do we look at the time the contract was initiated or he died?
 At the time its entered into is the only time they can know what they’re getting into.
 In some circumstances, would look at time they died to see if circumstances had changed enough
to make it unconscionable.
• Both spouses being treated “equally” – giving up rights to each other’s property – and each is free to accumulate
anything they can (what’s mine is mine, what’s yours is yours).
(2) Made voluntarily with adequate disclosure:

• Even if she gets nothing, the notion is that if the agreement is voluntary, AND if there is adequate disclosure, then
she is bound.
• Should disclose:
o Financial positions of each party
o The terms of the agreement
o That she has read agreement or opportunity to ask what was in it
o What rights she was giving up.
• No indication that she had any advice on what she was giving up.
• She had minimal disclosure
o On appeal, they said it WAS adequate.
o As long as adequate disclosure, they don’t worry about whether the terms were fair or not.
Why did they say ADEQUATE on appeal?

• She had enough time and opportunity to read the terms and she should have known what she was signing.
• She had the capacity to enter into the contract.
• Does it matter that she doesn’t have her own lawyer?
o Where there is no foreseeable live conflict, there is no objection to having only one lawyer. But here, by
definition, they are entering into a negotiating contract against each other.
 There was a substantial conflict of interest. Legal ethics would subject to discipline.
 She thought he was representing her interests.
• All that she got was:
o The opportunity to read agreement
o Her husband’s statement
o Financial disclosure that his assets were over $60K.
• The disclosure was MINIMALLY adequate (but that is enough for the court).
Court is basically saying: “unless no disclosure, and the agreement is demonstrably unfair, don’t bother us.”
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UPC §2-213:
• UPC has basically codified
• The waiver is ENFORCEABLE UNLESS:
o (1) NOT voluntary
 Voluntary not defined.
o UNLESS:
 (2) Both UNCONSCIONABLE, AND
 (3) INADEQUATE DISCLOSURE
• Hook would come out the same way. Unable to show inadequate disclosure – so doesn’t matter what the
substantive terms were.
CA Probate Code §141-and following:

• Own special rules. CA Bar examiners regularly test on this.
• Bright line safe harbor rules §143.
• Even if safe harbor is not met, §144 provides a more discretionary determination that court can make on equitable
grounds. Can still enforce if it flunks safe harbor.
• §147 – Prenups aren’t subject to these requirements, but subject to other applicable law.
o Cal. Fam. Code §1615.
Probate Code: Regular agreements between spouses.

• §143: waiver of death-time rights generally enforceable, UNLESS
o (1) No fair or reasonable disclosure of the property or financial obligations of the decedent, OR
o (2) The surviving spouse was not represented by independent legal counsel.
• Major departure from UPC.
• Hook: she could challenge the agreement.
• §144: Even if you flunk §143 (safe harbor), it is enforceable if the court determines:
o (1) At the time of signing, if the disposition of the surviving spouse’s rights were fair and reasonable at
the time the agreement was entered into, it can go ahead, PROVIDED that it doesn’t find that enforcing
the agreement was unconscionable at the time for enforcing the agreement (e.g. at husband’s death), OR
• Gives court chance to look back and see if circumstances have changed.
o (2) Regardless of substantive fairness, the surviving spouse should have known of the property and
financial obligations of the decedent.
• Substantive or procedural fairness.
• Hook: discretionary – up to the particular court.
• Including no access to independent lawyer, and her sophistication.
• Can never be sure at the time agreement is drafted whether it is enforceable for sure,
unless there is independent counsel.
• If no counsel, it will depend on court’s discretionary determination and changing
circumstances.
• At least a material risk the agreement would not be enforceable.
Cal. Fam. Code §1615:

• (a) A premarital agreement is NOT enforceable if the party against whom enforcement is sought proves EITHER of
the following:
o (1) That the party did not execute the agreement voluntarily.
o (2) The agreement was unconscionable when it was executed, AND before execution of the agreement,
ALL of the following applied to that party:
 (A) No fair, reasonable, and full disclosure.
 (B) No voluntary and express wavier in writing of any right to disclosure.
 (C) Party did not have knowledge of financial obligations/property of other party.
• (c) The “Bond’s” amendment – after Barry Bonds’ divorce. Defines what “voluntarily” means in (a).
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o Not voluntary UNLESS:
o (1) The party was represented by independent legal counsel (or knowingly waived right)
o (2) Mandatory 7 day period where you can’t sign. “Cooling period.”
o (3) If one party has no legal counsel, must be informed of the terms and basic effect of the agreement.
o (4) The person trying to enforce the agreement bears the burden of showing that it was NOT executed
under duress, fraud, undue influence, and the parties did not lack capacity.
• Hard enough to prove there was fraud etc. To show that the agreement was NOT executed under
those, raises a very serious obstacle.
• They probably don’t think about documenting an absence of undue influence.
o (5) Any other factors the court deems relevant.
• Have to meet ALL FIVE FACTORS including what else the court deems relevant.
• That is a HUGE burden.
When does 1615 apply, and when does 143 etc.?

• §147: if you are talking about only waivers of death-time rights, there are two ways to satisfy:
o (1) Bring yourself into the provisions of the probate code. If you meet those requirements, then waivers
of death-time rights can be upheld.
o (2) Under (c), if you happen to get to §1615 and manage to satisfy those requirements, that will also be
valid/upheld.
• You have your choice. Any rational person will not try to satisfy §1615. The relatively clear safe harbor of §143
would be better.
o Only disadvantage: probate is ONLY death-time rights.
o If you draft a pre-nup, and are dealing with it NOT at death, you don’t have the options of using the
probate code. Must be done under §1615.
o E.g. divorce, community property rights, etc.
Protection of Pretermitted/Omitted Children
Testator can disinherit any and all children:

• As long as a will is enforceable, that disinheritance will stand.
• UPC and many states have “pretermitted child” statutes to protect kids accidentally omitted from the will.
• Typically applied to any child born or adopted after execution of will, but minority of states apply it to children alive
when the will was executed, as well as to afterborn/adopted children.
Two basic forms (how to interpret will’s silence toward child):

• Missouri-Type: Bright line
o If a child or descendant is not “named or provided for,” then statutory presumption that they are entitled
automatically to an intestate share.
o Mention the child specifically in the will and say you want to omit
o If you’re silent, no matter how clear surrounding circumstances, the omitted child is entitled to that
intestate share.
o Just looks at the four corners of the will
• Massachusetts-Type: Less cut-and-dry, less definite.
o If a child or descendant is not provided for the will, they are presumptively entitled to intestate share,
UNLESS the testator can show that the omission was not an error.
o Merely a rebuttable presumption, allows for far more evidence as to what T intended.
o Trying to carry out testator’s intent
Case: Goff v. Goff: Evidence that Granville never knew about his child or grandchildren. He didn’t provide in his will for
his son Joe and Joe’s two children. The grandkids are claiming share of estate.
• Provision in will that said “I am not married and have no children.”
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• Also purports to disinherit a person that contests the will. They are not contesting: just claiming that under the
statute they get their share as long as not intentionally disinherited.
• Threshold question: Assuming they are his grandkids, was he unaware they existed, or did he willfully misrepresent
the facts? Court: he was not aware they existed.
• For an omitted descendant or spouse, if inadvertently omitted, they automatically claim intestate share.
• If he intentionally disinherited, they get nothing.
• Holding: If a person makes his last will and dies leaving descendants not named or provided for, T shall be deemed
to die intestate as to the omitted child or descendants.
o If he died without will, his entire estate would go to his issue.
o All dispositive provisions are over-ridden. (clauses saying which property to which takers).
If EXPRESSLY disinherited? Ex: 3 grandchildren.

• “Nothing to grandchild A, and the rest to my nephews.”
• B and C don’t show up in will and want shares.
o A gets NOTHING.
o B and C would have been 1/3 beneficiaries each, if he died intestate.
• That is how much they still get.
• Residual 1/3 of the will is still good (goes to nephews), b/c not claimed by B & C.
o The rule is only over-ridden by that amount.
If don’t want to acknowledge descendants by name, how do you deal with it?
• Don’t want anyone not mentioned to take a penny (e.g. hidden children), but don’t want to expressly name
• “Anybody not mentioned in this will” is probably NOT enough.
• “Any heir who would otherwise be entitled gets $1.” Still indefinite, not enough.
• “Any child not otherwise provided for is intentionally omitted.”
o That does the trick. Satisfies UPC, Miss and Mass statutes.
o Pretty boiler-plate in wills now.
o Covers existing and future children, and doesn’t have to expressly name.
UPC §2-302: Drastically limits the scope of protection for omitted children.
• Those born after the drafting of the will are presumptively entitled to their intestate share.
• Existing children:
o Assumption is that leaving them out was deliberate
o No burden of proof on executor
o Existing children omitted unless provided for.
• After-born children:
o Presumed entitled
o Unless will specifically says ALL children or after-born are omitted, the after-born are assumed to not
have been in T’s mind, and are therefore entitled.
o Three exceptions:
 (1) Intent to omit is intentional
 (2) T has existing kids when will executed, and devised substantially all of his estate to the other
PARENT of the omitted child, or
 (3) The omitted child gets nothing under the will, but there is a GIFT intended to be in lieu of
testamentary provisions. Executor can argue it bars the child from intestate share.
 See below.
Differences between UPC and traditional Mass/Miss type statutes:

• UPC limits protection to situations where child was born/adopted after execution of will.
• Old statutes act as standing invitation for court to step in and declare child was inadvertently omitted.
o Represents a potentially disruptive influence on T’s intent.
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o See Goff: seems like court is less interested in what T wanted than to protect innocent people.
• UPC narrows the protection:
• Limits override to cases where it seems MOST LIKELY that he didn’t know: future children.
• Draws bright line:
o Any existing child is known and omission is deliberate.
o After-born children: basic intestate rule holds.
CA Probate Code 21620-21621:

• One MAJOR difference from UPC:
o Failure to provide for child in “testamentary instrument” rather than saying “will.”
• §21601: Phrase “testamentary instrument” and “estate” have special meanings for these provisions.
o “For purposes of this part”:
 Testamentary Instruments
• Means decedent’s will or revocable trust.
 Estate
• Includes a decedent’s probate estate and
• All property held in any revocable trust that becomes irrevocable on the death of the
decedent.
• CA did this b/c so many people were using revocable trusts that they didn’t think they needed a will at all.
o Puts revocable trusts and wills on same footing.
o Where a will says nothing about beneficiaries, but a trust does, that is equivalent.
o Don’t have to get to exception about transfers outside of will if they are in trust.
• If there is a provision in the will or trust, providing for or intentionally omitting a child, that is enough to negate the
general protection of giving her a share.
• Other differences of CA Probate:
o UPC – if omitted child is entitled to intestate share, they do it the same as for creditors.
 Regular abatement rules in residuary etc.
o CA – makes all of the other beneficiaries contribute on pro rata basis.
o CA Probate 21622: If the decedent failed to provide for a living child solely b/c he believed the child to
be dead or was unaware of her existence, the child gets intestate share.
• UPC 2-302(c): If T fails to provide for a living child b/c he believes the child to be DEAD, that
child is entitled to intestate share.
• §21622 adds ground of MISTAKE. If T is father of a child and never knew, CA allows child to
sue for share.
Three Exceptions that may deprive after-born child to intestate share: UPC 2-302(b), CA 21620-21621
• (1) Intent to omit after-born is intentional and on face of will, then we follow testator’s intent.
o If T makes a provision that says “all omissions are intentional,” then its given effect.
o Generally covers the old-style and new-style statutes:
• Makes intent pretty unmistakable, and avoids potential interference.
o Note: If the will itself has successfully been contested, then it goes to intestacy
• If intent to omit is on face of will, but the will fails, no matter how clear the T’s intent was, the
child becomes entitled to intestate share.
• T might leave residuary to charity so estate doesn’t fail b/c no living heirs. Make sure estate
doesn’t land in hands of disinherited children or laughing heirs.
• (2) Gifts outside of the will:
o Non-probate transfer (trusts, life insurance, etc.).
o Transfer to child omitted from will. If the circumstances indicate that it was made in lieu of the will, then
they are barred from taking intestate share.
• Allow oral statements, writing, other people’s recollections, amount of transfer, etc.
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• (3) At the time will was executed, T had at least one child and left substantially all of the estate to the omitted
child’s other parent. Omitted child takes no intestate share.
o Hypo: H’s will: leaves entire estate to W. After-born child demands ½ intestate share of estate.
o (a) No children
• After-born child gets intestate share if no child when will was executed.
o (b) One existing child of marriage
• After-born child doesn’t received intestate share if estate left to other parent.
• If he already had an existing child, we assume failure to provide is deliberate, and since the will
leaves everything to W, it implies that H wanted nothing to his existing children.
• Makes sense to say if existing didn’t get anything, the after-born gets nothing either.
• The assumption is that the after-born child would be provided for by W.
o (c) One existing child from previous marriage.
• The provision doesn’t say anything about the after-born child have the same parents. All it says is
“previous child,” presumably any child from any marriage.
• Will still leaves everything to W. H may have had good reasons for cutting out child from previous
marriage (child in custody of other parent, etc.).
• The child not entitled to intestate share.
Protection of After-Married Spouse
Marriage after execution of the will:

• If married after will in place and T didn’t change while alive.
• At CL, a will was completely revoked upon subsequent marriage (for a woman) or subsequent marriage and birth of
issue (for a man).
• Modern default remedy is to give an after-married spouse an intestate share of the estate.
• UPC 2-301: could be all of the estate or ½ of it, depending on other surviving family members.
• CA §21610: Very close to omitted child statute.
o If T fails to provide for his surviving spouse who he married after the execution of testamentary
instruments, the omitted spouse shall receive a share in the decedent’s estate.
o She gets ½ of all CP, and up to ½ of all separate property (as if he died intestate).
• CA §21611: spouse will not receive share under 21610 if any of the following:
o (1) T failed to provide for spouse deliberately, and that intention is on face of will.
 Provision only meant to aid inadvertent disinheritance.
o (2) Transfers outside of testamentary instruments.
 Left non-probate transfers to the spouse in lieu of testamentary provisions.
 Can look at all evidence to show that it was his intent.
 Remember: testamentary instruments include revocable trusts for this portion of CA Prob
o (3) Valid agreement waiving right to spousal share.
** Remember: This protection is only if born/married after ALL testamentary docs executed. Check for codicils (and
revocable trusts in CA)!**
• Ex: in ’98 T executes a will that gives ½ of estate to wife S and remaining to daughter, R. In 2001, B is born. In
2002, T executes a codicil that changes the executor. The codicil is deemed to have been executed in 2002, so B is
not entitled to any protection under the pretermitted child statute.
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Will Contest:
Grounds for Contest

• Testamentary Capacity
• Undue Influence
• Fraud/Duress/Mistake
Basic Problem: Does the will actually reflect T’s intent, or was there some activity that interfered with expressing those
true intentions?
Overarching Themes:
• Burden of proof
o On CONTESTANT. He has to meet the BOP on factual questions. Generally pretty difficult.
o Successful contestants are rare.
o Settlements might make it worth bringing the contest:
 Often will contests involve private or embarrassing manners. Just the threat of will contest may
be enough to get a settlement so that it doesn’t all come out.
• Remedies:
o Remedies for the successful contest are not well-tailored to carrying out T’s intent.
o General provision is to look at the terms of the will, and strikes the tainted provisions, leaving the rest of
the will intact.
o Ex: Contests based on lack of capacity:
 Did T understand what he was doing? If not, the remedy is to throw out entire will.
 Suck with intestacy, even if doesn’t bear relation to his probable intent.
• Contests are Death-Time:
o Seems perverse to wait until T is dead in order to contest. You would think T would want to get will
verified and authenticated in advance so he knows what will happen at death.
o In CA and most states, there is no procedure for probate during life (anti-mortem)
 The surrounding family members might feel more comfortable contesting after T is dead.
 Court doesn’t want to spend time on it.
 Don’t know who heirs are until T dies. Virtually impossible to know parties when T is still alive
(e.g. he could have more kids).
 Privacy concerns.
o Existing system puts off fact-finding until T is dead, rather than when evidence is at its freshest and most
reliable. Will contests can be extraordinarily time consuming. Weakness of system.
Testamentary Capacity:
(1) Age:
• §6100: A minor (under 18) cannot make a will.
• Can do other will substitutes: revocable trust, deed property, life insurance, etc.
• All non-probate transfers are fine.
(2) Sound Mind:

• Very contextual:
o A person may be perfectly competent to do some things, and not others.
o Ex: get married vs. complicated business dealings.
• Testamentary capacity is an extremely LOW standard.
o Want to make it possible for anyone that isn’t suffering from dramatic impairment to make will.
• Requires ONLY:
o (1) T understands the nature of the testamentary act
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 Understands what a will is
 Must know that he is executing his will.
 Not required to understand the complexities.
o (2) T understands and recollects the nature and situation of his property
 Not required to have accurate financial statement or grasp on it. No intricacies required.
 Not suffering from delusion that he has vast riches when destitute, or visa versa.
 Have some realistic, general understanding as to what he has.
o (3) T is able to remember and understand his relations to family etc.
 Basic awareness of who his family is.
 No misimpression that he has no living relatives when he has extensive family. Some
fundamental delusion affecting his understanding of who is in or out could give rise to a contest.
He should be aware of what is going on.
(3) Delusions:
• Mental disorder that causes T to entertain beliefs that are
o FALSE and
o UNREASONABLE with
o NO BASIS IN FACT.
• Must go beyond the merely eccentric.
• A belief can be illogical, yet not be an insane delusion.
o The controlling question is whether there are ANY facts from which T could have reasoned, regardless of
whether the average person would have reached the same conclusion.
• The delusion must have had some effect on T’s disposition of the property.
o If generally capable, the portion of will that coincides with delusions will be stricken.
o A person with delusions on topics OTHER than will doesn’t mean will is subject to attack.
Barnes v. Marshall: pg. 178: The will itself seems coherent: cut off one of his daughter’s with $5, and left the bulk of
property to various individuals and charitable organizations. He knew who his family was, knew he was disinheriting his
daughter. In a general sense, however, he was clearly living on another planet. The court entertains all sorts of evidence
about his erratic behavior. Diagnosed with mental illness.
• Mental illness does NOT by itself mean that he lacked capacity.
• The problem is the test for “sound mind:”
o Understood what he’s doing, what property disposing of, and who cutting in and out.
• Was he really unable to meet this basic test?
o The cases are replete with saying that peculiarities are not enough to defect on testamentary capacity.
They can have unrealistic beliefs and still have testamentary capacity.
o As long as delusions do not affect the will.
• None of his delusions had effect on will.
o The closest he got was disapproving his daughter’s lifestyle – but any parent can disinherit children
unless he is completely delusional about it.
• The jury concluded that he lacked capacity. What was the jury thinking?
o They were presumably asked if he was of sound mind, and their answer was no.
o Their instructions didn’t confine them to the relevant test.
o On review, it is hard to overturn findings of fact, so the Sup Ct of Missouri finds sufficient evidence to
support the juries finding.
• What appears to have been going on:
o Jury was told what a burden he was to the family, etc. They played on the juries sympathies.
o The T was painted as an unreasonable eccentric, and the jury is likely to find he lacked capacity.
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In Re Honigman’s Will :(pg. 190): Imagined his wife was carrying on with male callers, that she’s dragging them up to her
room by a sheet, passing notes over the fence, etc. He clearly had some capacity (managed business) but was deluded
about his wife’s relations. He cut his wife’s share to min statutory share plus $2500.
• The jury assumed that the beliefs about wife were absolutely false and unreasonable.
• Does this delusion have an effect on the will?
• It is not a question whether the contestant can prove there was a causal affect between delusions and provisions of
will, what matters is if the delusions caused the will.
o He had delusions on the one hand, but might have wanted to leave some to other relatives.
o The majority holds that the will was a product of the delusions.
• CA would require a more clear factual showing.
o Except for the delusions, the T would not have made the will that he did.
o Not just “might’ve” caused.
• If you’re his lawyer: advise that he has an innocuous, sensible reason for why he’s doing it.
o The siblings need it more than she does, etc. Any good reason.
o Keep it to himself that he believes his wife is being unfaithful.
o Tell others that the marriage is great – so that they won’t know grounds for contest.
Power of Attorney:
• Ex: If T lacks capacity, what can T or those around him do to bring the will in accordance with what they think his
intent would be? Provide in advance someone to manage your affairs – power of attorney.
• T can delegate authority to do most acts.
o Write out list of directions or general authority to someone who is designated to act.
o Form of agency arrangement.
o If it meets the requirements, a durable power of attorney survives incapacity.
• The standard of capacity for drafting a power of attorney:
o It is a little higher than capacity for drafting will.
o To authorize POA, have to be capable of doing the same thing you are authorizing agent to do at the time
you set up POA.
• Good advice: exercise the POA at a time when you have capacity to do so (even though don’t need it now) and
provide by its terms that the delegation will remain effective – or kick in – when T loses capacity.
• If drafting a POA b/c of future need, consider assigning a trigger:
o Identify people that if they agree you’ve lost capacity, the power will spring into existence.
Hypo: Assuming the will can’t be revoked, can we make the will ineffective?
• Is there any way to minimize the effect of a will that everyone agrees is outdated?
• If you can’t do anything about the governing instrument, do something about the assets.
o Power of attorney can’t change the will, but might have the power to set up will substitutes.
• Authorize someone to make gifs of your property.
o Ex: Set up trusts and make gifts to spend out estate.
Will Delegation:
• A will is one of the very few things that CANNOT be delegated.
• When the will is drafted, T must be competent.
• Once lose competency, there is NO WAY to revise/make/alter a will.
o Durable POA can authorize agent to make gifts, change beneficiary delegations, etc.
o One function cannot delegate is the power to MAKE a will. That is personal to T. The only person that
can exercise on behalf of T is the conservator.
• EXCEPTION: CA statute allows a conservator to make a new will.
Conservator: CA
• No longer impossible to change an existing will (in CA and some other states).
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• Involves a declaration of incapacity and the appointment of someone to act on behalf of that person.
• Have to go to court, file petition, and allow incapacitated person to be heard.
• Conservator acts under court supervision.
o Always subject to requirement of submitting accounts so family members can review them.
o Court must review terms of new/revised/amended will.
• Tighter control than the informal, private relationship of durable POA.
Matter of Estate of BonJean: pg. 195: She is depressed and convinced her siblings were trying to have her committed.
She kills herself. Completely disinherits her estranged siblings, and left nephew as beneficiary. Siblings filed a petition
alleging that she lacked testamentary capacity at the time the will was executed due to insane delusions which arose from
her misunderstanding their efforts to help her.
• This was NOT an insane delusion. Siblings tried to have her committed -- its an objective fact. They claim their
motives were good, but her perception is that they were trying to control her.
• Focus is on the testator’s state of mind:
o Was there a reasonable basis in fact for her beliefs?
 No matter how false her beliefs were.
• There is a reasonable basis in fact.
• It is perfectly reasonable that BonJean took this point of view.
Bottom Line: There is a qualitative difference from someone completely divorced from reality and those that are a little
more eccentric. It is a spectrum. For insane delusions, the standard is demanding, including causation and no possible
explanation.
Undue Influence:
Basic Concept:
• UI is coerced volition.
o Someone interfered with T’s free and unfettered decisions.
o Forced, coerced, pressured T to execute a will he wouldn’t have otherwise done.
• There is almost always some influence – not all are to the extent of UI.
o Influence is not undue unless the free will of T was destroyed and resulted in an instrument that reflects
the will of the party exercising the influence, not the T’s.
Presumption Test:
• Bursting bubble theory: contestant can try to rebut the presumption. If they can show there is a reasonable
explanation for why the will was drafted as it was, despite a relationship, and the will reflects T’s intent.
o Once presumption is rebutted, the presumption disappears and up to factfinder to decide if influence was
undue or not.
• Presumption is raised if they can show:
o (1) Confidential relationship, AND
• Testator and someone who is alleged to have exercised UI
• Loose term – encompasses:
• Fiduciary relationship (e.g. lawyer that benefits heavily by will)
• Principle, agent, trustee, power of attorney
• Person of influence (e.g. pastor, rabbi, psychiatrist, doctor, close family)
o (2) Active Procurement OR
• Had some role to play in the execution of the will.
• Suggesting terms of will.
• Sitting in on will drafting.
• Causal link b/w person exercising influence on testator and getting final document
drafted and executed.
o (3) Suspicious Circumstances
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• Opens up inquiry to any other facts or circumstances that show that there was UI.
• CA also Requires:
o (4) Undue Benefit:
• Disproportionate, out of line for what would otherwise have gotten.
• By requiring UNDUE benefit – gives the factfinder some leeway to allow a benefit that exceeds
what would normally have been expected, but perfectly consistent in light of the circumstances.
• E.g.: One kid provides care and time to look after parent, and parent makes that child
primary beneficiary.
• Allows unequal distribution to be okay by requiring UNDUE in order to bring the contest.
• Helps filter out some cases where the estate is divided and proportions somewhat different.
• CA: Presumption shifts the burden:
o If managed to raise the presumption, the proponent must show by preponderance of evidence that undue
influence had not materialized (give an innocent explanation to rebut it).
In Re Will of Moses: pg. 211: Fanny was with man (Holland) 15 yrs younger who was a lawyer. She made a will and left
various properties to him. She was a business woman and owned and managed properties. Lawyer in town drafts the will
and she runs it by judge friend and lets him know that’s how she wants the property to go. Sisters disapprove. She dies
and will is offered to probate. Sister’s contest.
• Majority: Holland was in confidential relationship with Fanny, and suspicious circumstances.
o That is enough to raise presumption.
o Under Miss. law, once presumption is raised the proponent must show T had independent counsel and
advice and will was drafted so T knew what she was doing.
o Holland proves this with lawyer that drafted will.
• Dissent: no evidence that Holland had anything to do with the will.
o No grounds to raise presumption.
o Challenges on both grounds: is the presumption raised, and was it properly rebutted?
o Suspicious circumstances cited:
 Age, relation, hints of improper marital relations, alcohol problems.
 Do any of these suggest Holland was pressuring her?
Typical suspicious situations:

• Caregiver situations
• Weakened, dependent, vulnerable state.
o E.g. “friend” moves in on basis of quick friendship that materializes immediate when T is already
vulnerable, then suddenly becomes agent, executes deeds, writes checks etc. and becomes primary
beneficiary.
• Unnatural dispositions.
o String of wills with everything to sisters, and then changes to someone else right before death.
o Size of estate is always relevant: if she is a mult-millionaire and leaves $30K, that’s not much.
Precautions:
• The “impartial lawyer”
o He did what she asked. He could have documented her motives in his records a little better by saying she
was on close terms with Holland and he had nothing to do with prep of will.
o Could have warned her that it might be contested and explain the risk.
o Not much he could have done to get a different result.
• Adult Adoption:
o If she adopted Holland, he would become legally her son and only heir.
o He’d either take by will or intestacy.
• Marriage:
o If they got married, he would be instant sole-heir.
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o Siblings would have no standing in will.
o He’d either take by will, or if no will, he would take by intestacy.
o There are lots of death-bed marriages in cases where T worries about will contests. Almost impossible to
contest once married party is dead.
CA Probate §21350: statute declares invalid any donative transfers to any group of disqualified persons. Intended to give
a bright-line rule that disqualifies these people.
• (1) Person who drafted the instrument
o If involved in drafting the will, any gift is void, unless fits an exception.
• (2) Person who is related (blood, marriage, co-habitant, employee) of person who drafted instrument.
• (3) Law partners
o Not only drafters disqualified – shareholders/partners in which drafter has ownership.
• (4) Any person with fiduciary relationship with transferor who transcribes the instrument.
o Transcriber is person who is directly connected with physical preparation of document.
o Ex: secretary that writes and prints final version.
o Worry is that someone will slip in their name or alter terms.
• (5) Person who is related to (4)
• (6) Care custodian of dependent adult
o Covers nursing home operators and others formally engaged in providing healthcare.
o Dependent adult: over 18 suffering from limitation that restrict ability to carry on daily activities.
HYPO: Elderly testator that is dependant adult, but is in her own home. She is not in an institution, but invites some
friends to live with her and look after her daily needs. She tells her lawyer she wants the caregiver to be a major
beneficiary in the will. The relationship is based on a long-standing friendship.
• Does the friendly caregiver come with in the legislative intent?
o Sup Ct. Definition: Anyone giving substantial and on-going services to the dependent adult.
• What are substantial and on-going services?
o The statute is far from clear.
o The next case will probably have to make another judicial definition of what is meant as “healthcare.”
ALWAYS ARGUE.
Why do we have this on the books?

• It’s a knee-jerk reaction to large-scale abuses by a lawyer named Gunderson who frequented the retirement
community, looked for clients, befriended them, and drafted himself into their wills.
• Bar Assoc. strikes him and goes to legislature to make sure this won’t happen again.
o What does this statute add to the CL rule of Undue Influence?
o This statute does not take the place of UI – it is an overlay of it.
CA Probate §21351: Exceptions to ameliorate the harshness of the rule. §21350 DOES NOT APPLY if:
• (1) Transferor is the relative (co-habitant, etc.) of the person who drafted the instrument.
o If they are related to T, the statutory disqualification doesn’t apply.
• (2) If the instrument reviewed by an independent attorney who:
o (a) Counsels transferor about the nature of consequences of intended transferor
o (b) Attempts to determine if the intended consequence is the result of fraud, menace, duress, UI.
• Flips the burden: imposes duty on lawyer to figure out if any of these things are going on.
o (c) Signs and delivers written certificate of independent review.
• He has looked at the docs and circumstances and is persuaded that everything is good.
• Presumably intended to make sure that an objective person has a chance to determine the
circumstance and satisfy herself that this is not an abusive situation.
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• People aren’t likely to pay for a serious investigation on this prong. They do it on a fairly
perfunctory basis. Just imposes another step on a formal level.
• (3) The court determines by clear and convincing evidence, but not based solely upon testimony of any disqualified
person, that the transfer was NOT the product of fraud, menace, duress, or UI.
o All other disqualified persons can try to show that they weren’t exercising F, M, D, UI.
o Opportunity for the disqualified beneficiary to REBUT.
o Can introduce testimony of drafters, but cannot rely solely on that evidence.
Not sure if these statutes have really helped with UI, or if its caused more problems than its solved.
Hanes v. First National State: pg. 218: Isabel, the testatrix, disapproved of her granddaughter’s lifestyle. Moves in
with daughter D. Her daughter and son-in-law started to take interest in what she is going to do with her money. The
drafter of will left property per stirpes (1/2 to D, and ½ to grandchildren). Once Isabel moved in, family lawyer and
D’s husband’s business lawyer, BM, also takes active interest.
• BM advises her to change domicile from Penn to NJ.
• BM drafts new provisions that gives grandchildren base sum, rest to D.
• Lower courts uphold the arrangement, and any presumption of UI was adequately rebutted.
• NJ Sup Ct: Reviewed standard and sent back.
o Where a lawyer who drafted the will has a conflict of interest, the standard of rebutting the
presumption of influence should be higher.
o D should have to show by clear and convincing standard that there was no tainting.
o Conflict of interest: BM represented D and family, now purporting to represent her mom, to leave
things to D.
• Heightened burden of proof b/c greater potential for UI. Hard to tell if he’s working for D or I.
o Rules of Prof. Conduct: 1.7: prohibits lawyer with conflict of interest from undertaking
representation, unless:
 (1) L reasonably believes there is no adverse affect on interests of either client, and
 (2) Client gives informed consent.
• What should BM have done?
o Validity of will is at risk unless there is a heavier showing to rebut the UI.
o He should have recommended they use another attorney.
o If he gets Isabel’s clear consent, he still has to worry about
 (1) showing that the consent was voluntary (not from UI).
 (2) conclusion that there is no adverse affect – hard to tell.
o Safest route is to get another L.
Bottom Line:
• Professional conduct standard (1.7) is independent of whether the will should be upheld.
• He could get off without professional reprimand, but that doesn’t mean will passes probate.
• Still have the presumption requiring clear and convincing evidence.
• CA statutes (disqualified person rules) don’t reach him b/c he’s not a beneficiary.
No-Contest Clauses:
• Any person challenging validity of the doctrine takes nothing.
• Intended to scare of contestants with the threat that anyone who tries to mess with the enforcement of the terms of
the document offered for probate risks losing everything.
• They are widely used and generally upheld
o Variation among states as to limitations.
o Haynes: grandchildren either sit quiet and get their small inheritance, or risk getting nothing by contesting
the will. If will is enforced, they get nothing.
• Sup Ct of NJ: looks hard at enforceability of no-contest clauses.
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o NJ used UPC: No contest clauses are enforced UNLESS the contestant had probable cause.
o UPC does not define probable cause, but seems to mean:
• If there is a reasonable basis for believing the contestant will prevail, even if the contestant loses on
the merits and will is upheld, the UPC refuses to enforce the no-contest clause.
Why does the UPC have that clause?

• What the UPC is trying to do is keep out frivolous suits.
o If you bring a frivolous will contest – you will lose everything.
o If there is a reasonable basis, they want to protect right of the contestants.
• If you are counseling an unhappy beneficiary:
o How much of a gift does the will provide? If disinherited completely, there is no risk. There is nothing to
lose. If will provides substantial gift, should consider the merits more closely.
o If they contest the will and win, then the no-contest dissolves with the rest of the will.
The widespread and old-fashioned rule is that no-contest clauses were enforced:
• The Sup Ct took the UPC as an expression of policy and changed the CL too.
CA Probate §21300 and following:

• 21303: codifies the CL rule – if will is valid, then a no-contest clause is also enforceable.
• Two Exceptions:
o 21306: Despite the general rule, the no-contest clause is not enforceable if the beneficiary has reasonable
cause for bringing contest based on:
 (a) Forgery (signature isn’t genuine),
 (b) Revocation (will superseded by another one), or
 (c) Action to establish invalidity by §21350. .
• Narrowly focused exception – unless there is a will that grossly favors the drafter or
caregiver, the exception probably won’t do you much good.
 21306 doesn’t go into UI, lack of capacity, etc.
o 21307: A no-contest clause is not enforceable against the beneficiary with probable cause that contests a
provision that benefits:
 (a) Person who drafted or transcribed the instrument
• This statute opens up those who benefited b/c of the exception in 21351 (relatives, people
with independent review) to a penalty-free challenge.
 (b) Person who gave instructions to the drafter, unless the transferor affirmatively instructed
drafter to include those provisions.
• Would give penalty-free contest if D gave directions to BM.
• If BM followed D’s instructions rather than T’s, the will can be contested.
• But if the T gave the same instructions, then can’t use this provision.
• Some evidence that Isabel did affirmatively direct those provisions be included.
Bottom Line: we have a pretty restrictive regime.

• The underlying question is what constitutes a CONTEST?
o E.g. Disputes over the classification of property (comm. or sep.) is not a will contest, even though it may
upset the will.
o Construction contests (what did the testator really mean – ambiguous terms)
• CA – allows potential contestants to bring a request for declaratory judgment to determine if what they want to do is
actually a will contest.
Fraud:
Basic Concept:
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• Fraud is the willful deception as to the character or content of an instrument, or as to extrinsic facs that induced the
will or gift.
o Refers to deliberate, intentional deception
o Assumes specific purpose to deceive and disrupt the will.
• If tainted provision can be severed, they usually do that. If they can’t, then the whole will is stricken.
Two possible types of fraud:

• (1) Nature of instrument itself: (Fraud in the execution):
o Includes cases where T was tricked into signing a doc not knowing it was a will, and where one “will”
was substituted for another.
o T had no testamentary intent as to instrument signed.
• (2) Fraud in the inducement
o T has requisite intent, but is fraudulently induced into making the will or gifts.
o Ex: Beneficiary tricks T by misrepresenting what other beneficiaries have done. “Joe has lost his mind
and is an insane asylum. You don’t want to give your money to him.”
Latham v. Father Divine: (pg. 239): She gave almost her whole estate to Father Divine, leader of a religious cult. The
distant cousins (Π ’s) allege taints involved in the testamentary process: fraud, duress, murder.
• Π ’s are not contesting the will – no standing – they are not beneficiaries or disinherited heirs.
o The case has already been up for probate.
o Runs contrary to what we’ve heard before -- that it has to be signed during life.
• Seek a constructive trust:
o They allege she intended to leave them money, and state a claim for equitable relief.
o If Π can show the will was never made b/c FD interfered, they can collect.
o By means of fraud, duress, and UI, T prevented from signing new will.
• Bottom Line: in order to enforce a constructive trust, need to show some kind of wrongdoing and a breach of a
relationship of trust and confidence (something other than that father divine was being unjustly enriched). If they
meet that burden, it is possible to get equitable relief.
Wills:
Basic Concept:
• A will is a written instrument executed in accordance w/ formalities that directs the disposition of T’s property at his
death.
• The principle distinction between a will and other conveyance:
o A will takes effect only upon the DEATH of the maker.
o It is ambulatory: no operative effect during T’s lifetime.
o It is fully revocable or amendable at any time.
o Beneficiaries have no rights under the will until T dies.
• Wills can serve other purposes:
o Name guardians
o Disposal of bodily remains.
Statutory Formalities:
• Goes back centuries. There are still states that follow the original wills statutes, which require:
o Will signed at the end by the T
o Attested by two present witnesses at the same time
o Witness must sign in T’s presence.
UPC Formalities: §2-502

• (1) Writing:
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o Will must be in writing.
o Physical piece of paper.
o Congress authorized the use of electronic sig. on contract docs. but not on W&T.
• (2) Signed
o What is a signature?
• Any mark made with the intent that it be an authentication by T.
• Signature by nickname, alias, initials if intended to be signature, that is fine.
• Illiterate/physically disabled - a simple X if it is affixed with the intent to authenticate.
o Doesn’t require signature to be at the end.
• E.g. where will is cramped for space and crawls up to margins, more has been added, or another
clause added that follows T’s sig.
o T can have will signed by another person at her direction and in her presence.
• (3) Witnesses:
o (a) Adequate number
• Two witness’ required (some forms require 3 just to make sure).
o (b) Observe
• Witness has to observe something about the T and the written doc.
• T signed will or acknowledge her earlier signature in the presence of attesting witnesses.
o (c) Signing:
• Must make observation about T and doc so they can affix their own signature.
o (d) Presence:
• No longer requires all witnesses to be present at the same time.
• Witnesses must still “witness” something the T did: the signing itself, acknowledgment of the
signature, or acknowledgment of the will.
• Their own signatures need not be affixed in T’s presence.
• The signatures need only be placed on the will within a “reasonable time” after the witnessing took
place, even if that is after T’s death.
CA Probate §6110:
• (a) Writing
• (b) Signed by T with any mark of intent:
o Or in T’s name by some person in T’s presence and by T’s direction (disability etc.)
• (c) Witnessed by two people:
o Being present at the same time:
 Witnessed the signing of the will or
 T’s acknowledgement of the signature of the will, and
 Understand that the instrument is the T’s will.
o Presence – conscious presence test.
o Don’t have to sign will in each other’s presence (or in T’s), but must observe at same time
 UPC doesn’t have this requirement.
o Can witness sign after T’s death?
 Decisions are split. Need to wait for CA SC to tell us.
 UPC – as long as w/in reasonable time after witnessing took place. Flexible.
Noticeably Absent: NO date requirement:

• Most have date anyway.
• Would think with all these other formalities, we would require dates. But nope!
Attestation Clauses:
• Also NOT required.
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• Usually placed immediately below T’s signature and above witnesses signatures, reciting all elements of a duly
executed will.
• Serves several useful purposes:
o (1) Raises a rebuttable presumption:
 The clause, in proper form, raises a presumption that the facts recited actually occurred.
 The burden of proving the contrary is on those contesting the probate of the will.
o (2) Evidentiary support
 If witness signed will but says that it didn’t happen the way the clause recites, the L can impeach
credibility of the witness on cross: “were you lying then or now?”
o (3) Cheat Sheet:
 Serves as a choreographed set of directions, so L can go through it and ensure compliance
Burns v. Adamson: pg. 260: Wife of beneficiary, F, saw everything. J signed will, then left. T signed his own name, and
then E signed as second witness. The sequence of the signing was not in conformity with statute.
• J signed will before T and then left so she wasn’t present when second witness attested.
• J’s signature has no legal affect b/c she did not acknowledge T’s signature.
• Must observe first, then sign. She would have to re-sign after observing (can’t just come back and perceive
signature and leave her original one).
• F is standing there all along and wants to sign as 3rd witness – that would have satisfied UPC and CA.
• Can she sign once T has died?
o CA statute says nothing about it.
o Court concluded that §6110 requires everyone to sign during T’s lifetime.
In Re Estate of Weber: pg. 266: T is ill and has friend drive him to bank. Bank President Holmes takes down what T
wants in will and has it typed up. Brings it back to car, T signs it, and a couple of bank employees inside building are
watching. Witnesses take the signed document, put it on the window so T can see, and they sign it.
• Was the presence requirement met?
o (1) Witnesses could see T sign will, but couldn’t hear what was going on.
• If T is signing, does “presence” mean they have to see what’s going on, be in same enclosed space,
etc.?
o (2) When witnesses sign, they are supposed to be in T’s presence.
• When they signed, T could see them, but did not have physical vision of pen on paper.
o Strict view: Line of sight test: required that person have an uninterrupted view of act of signing.
o Lenient view: Conscious presence test: general observance and awareness is enough.
o CA: Follows the CONCIOUS PRESENCE TEST. Other states might take different approach.
• T’s instructions to Holmes were to leave part to his wife, and part to his niece. Holmes got it wrong and ended up
leaving everything to niece.
o The signature wasn’t contested, it was the mistake in drafting the will.
o Unintentionally disinherited spouse.
o The only defense is to get will thrown out. Courts sometimes bend over backwards to admit wills where
there was non-compliance, or throw out wills on technicalities b/c the judge/jury finds something
disagreeable. Probably could find an arguable flaw here to protect wife.
Why have formalities?

• (1) Ritual
o Want to make sure T knows that it’s a serious document with legal consequences. Don’t want wills being
admitted that might be preliminary musings. Want to be sure it’s the final document. Intended to impress
on him the seriousness of what he’s doing.
• (2) Evidentiary Requirement
o Requiring writing form that’s easily distinguishable from drafts/other docs prevents confusion.
• (3) Protective Function
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o Guarding against undue influence, fraud, duress. To some extent, if you have witnesses present, they can
testify that it was voluntary, T didn’t seem to be out of his mind, etc.
Criticisms/Why not change system?

• No compelling reason for witnesses except that its part of history.
• The formalities are enforced far too rigidly and can be a trap for the weary.
• Execution statutes don’t change rapidly:
o L’s who draft wills are happy to comply with signature and attestation requirements.
o Gives them a sphere of competence they can assert
o Formalities themselves are not all that burdensome.
o Legislatures don’t have much of an incentive to make it run more smoothly.
• Non-probate alternatives have fewer formalities since they developed outside of probate system.
Interested Witnesses:
CL – under original statute of frauds, to have a valid will, must be 3 competent witnesses.
• A witness-beneficiary was NOT a competent witness.
• Even if one witness was left $ in the will, it was denied probate.
Purging Statute:
• If an attesting witness is also a will beneficiary, the gift to the witness is VOID.
o Result is not to throw out will, just void benefits to witness.
• Can count the witness for purposes of allowing into probate, but witness loses any benefit.
• Other states required the witness forfeit an incremental benefit.
• Rationale: remove the incentive for a beneficiary to try to get additional benefits by participating.
• Criticism: nothing inherently evil about someone wearing both hats. Often, T was unaware of legal restrictions, and
drafter hadn’t thought to ask, not that the witness was scheming.
UPC §2-505:
• (1) Any person generally competent to be a witness may do so.
• (2) Will or any provision thereof is NOT invalid because it is signed by an interested witness.
o Abolished the interested witness will.
o Neither the will nor its provisions are affected when attesting witness is also beneficiary.
o Leaves to will contest procedure to decide if there was anything incompetent.
CA Probate §6112: Remnants of purging statutes. CA doesn’t disqualify, but raises a rebuttable presumption.
• (a) Starts like UPC – requiring any person generally competent.
o No age requirement
• (b) A will/provision is not invalid because it is signed by an interested witness.
o Removes the CL disqualification for disinterested witnesses.
• (c) Unless there are at least TWO other subscribing witnesses to the will who are DISINTERESTED, the fact that
the will makes a devise to a subscribing witness creates a PRESUMPTION that the witness procured the devise by
duress, menace, fraud, or UI.
o The witness has the burden to show that none of these things happened.
o Presumption does NOT apply where devise to witness is made solely in a fiduciary capacity.
• (d) If the presumption applies (not rebutted) the interested witness takes a proportion of the devise that does not
exceed the share of estate he’d get if the will were not established.
o Result is not throw out will, just pick out incremental benefits gained by the interested witness.
o Measures whether their share has gone up b/c of act as interested witness.
Net Result: In CA, the bright-line (UPC – anyone can be witness; purging statute – get no benefit) into a case-by-case
rebuttable presumption. He court has to inquire into the grounds and witness bears burden.
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• Flood of litigation
• Still need to worry about who the witnesses are:
o Unless there is are TWO other disinterested witnesses, this kicks in.
o If you have an interested witness (or you’re unsure), just get two other disinterested’s.
Hypo:
• If T executed a previous will?
o Look at terms of earlier wills.
o If prior will gave him less, he might only get that amount.
o If prior will gave everything to church, W takes nothing.
• Assuming W is NOT successful in rebutting presumption, and W is an heir, what does (d) do?
o If that is only will T ever executed, then heir would take intestate share.
• What if there are five nieces and nephews?
o Each would take a 1/5 share
o Purging statutes do NOT limit taking by intestacy – just purges excess benefit from WILL.
In Re Estates Watts: pg. 275: T left bequest to V, with residual to C. If C is not still alive, the residual also goes to V and
her husband F. She has V, F, and C sign as witnesses. Not even one disinterested witness.
• All lose their bequests when admitted to probate. Their provisions are struck, and will goes to intestacy.
o If there was another bequest to X and Y, the will itself is admissible, and the non-interested beneficiaries
(X, Y) could keep bequests. The portion struck would be V, F, and C.
• Could they carve up will into separate provisions so there are 2 disinterested W’s to each provision?
o Court won’t do it. The idea is not to have them do reciprocal back-scratching.
o Look at the whole will, and if interested in any of it, then NOT a disinterested W, even though not
included in certain provisions.
o If W is a beneficiary to any of it, their gift is stricken.
Hypo: V and F get together and decide to give up bequests to make sure C gets everything, in the hopes that he’d share.
Can they DISCLAIM their shares under the will? And validate the devise to C?
• C would be the only interested witness, V and F would be disinterested.
• No – this won’t work. The purging statute will operate before the disclaimer.
• It is a question of timing:
o Purging statute – witness becomes interested at time of EXECUTION of will
o Disclaimer – treats beneficiary as predeceasing T – at time of DEATH.
• Can look at it either way, but one way or another the purging statute will operate before disclaimer.
o (1) Disclaimer applies at death, not execution, so W is already interested beneficiary, or
o (2) Purging already negated gift, so there is nothing left for the disclaimer statute to operate on.
Substantial Compliance:
Langbein:
• If wills are difficult to execute, it can trigger will contests, and people will look for alternatives.
o Why don’t we just allow courts to determine whether the formalities have been adequately met?
o If court is satisfied, even if the strict statute hasn’t been met, court should be liberal.
• Essentially, he’s advocating an equitable doctrine on contract principles.
o Courts could do this outside w/o legislatures changing statutes.
o Problem: Courts feel constrained by precedent and don’t want to take on the initial burden.
• He ends up advocating for a statutory proposal:
o Might be easier to persuade legislature to act rather than the courts. They are subject to pressure or
influence from groups like the probate bar.
• Substantial compliance approach, rather than strict compliance.
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UPC §2-503: Dispensing Power: codification or refinement of substantial compliance.
• Allows the probate court to excuse literal compliance with the formal requirements for executing a will.
o Substantial compliance: requires T must have come close to satisfying the statutory requirements (a near-
miss standard)
o UPC: a will can be admitted to probate without regard to the statutory requirements if there is clear and
convincing evidence that T INTENDED the document to be her will.
• Essentially gives the courts discretion.
o Tells courts to go ahead – they won’t be accused of overriding legislative intent.
• Has been adopted in a few states, but is largely untested.
Hypo: Will prepared for T while on deathbed. L prepares will and gets T’s approval. There was a typo misspelling
beneficiary’s name. L takes it back to get it corrected, and then T dies.
• MUST have a writing.
o Even if undisputable evidence of T’s intent.
o Writing is necessary for statute and for Langein.
o Here there is writing unsigned and not witnessed.
o Credible evidence that T approved and accurately reflects his wishes, would have signed if alive.
• Should it be admitted under UPC §2-503 (or something like it?).
• Arguments both ways:
o Bring it in:
 Non-material change
 Statute just says writing intended as decedent’s last will.
 He knows what he’s doing, knows it’s a will
 Not subject to pressure or defrauding
 This will is undoubtedly what he wants.
o Keep it out
 Didn’t sign the corrected first will
 Looks like a draft, and we would never admit a draft.
 Unsigned will has problems – until he signs it, we can’t be sure whether he reached final position.
Never reached “this is final, and I’m signing to indicate that.”
• Australian court threw the will out. Said an unsigned document would require a very special set of circumstances,
and weren’t sure this was T’s final intent.
• What should L do to prevent this from happening?
o Tell T to sign now, and have witnesses sign next to the marked changes on the will.
o Or sign this, and if you live long enough, I’ll come back and we’ll replace it.
Hypo: L prepares mirror wills for husband and wife. At a joint execution, each spouse mistakenly signs the will prepared
for the other. Mistake comes out after husband’s death. (Matter of Snide, pg. 246)
• Wills were signed, just mistake as to which one.
• Dispensing Power:
o Commentary lists mirror wills cases as a prime example of using court’s discretion.
o Look at it as a question of mistake. Three kinds:
 (1) T was mistaken about instrument signing, or
 (2) The terms of agreement, or
 (3) The external events
• e.g. misunderstood how much his kids from 1st marriage loved him, or wife hated and
was planning to file for divorce.
o If there was wrongdoing (tricked, misled, defrauded), the will would probably be thrown out.
o If T’s own mistake, unless insane delusion, kinds of mistake where will is thrown out are generally
limited to mistake of instrument.
 E.g. thought it was power of attorney, but it was a will.
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 If doesn’t amount to lack of T capacity, they probably won’t throw it out.
• Here, trying to get will IN. The mistake doesn’t help to get it in.
• Court: granting equitable remedy (reformation).
o Willing to correct mistake of expression.
o Treats as if scrivener had prepared the will for her to sign, and accidentally gave it to him.
o Everything is the same except his name and wife’s were switched.
o Error in supervising execution.
• Problem: most courts have traditionally held that you can’t correct a mistake in a will.
o Can ignore language included in mistake, but CANNOT change or add words, even if certain of T’s
intent and the mistake was on part of scrivener.
o Rationale: will is full and final expression. The parole evidence rule prohibits courts from stepping in
and reforming a will (even though they can for non-testamentary docs).
• Snide court:
o Approaches as REFORMATION case.
o It was so clear what he intended that they can treat the doc as if he had said it was his last will.
o Highly controversial – would have been a great case for substantial compliance, but court decided not to
apply it. Don’t directly address the wills formalities or contest arguments.
Hypo: Will signed but not witnessed:

• Some indication that will was final expression of T’s wishes.
• Dispensing statute seems to say you can dispense with any formalities except WRITING.
o Langbein: some formalities are more fundamental than others:
o T’s own signature usually shouldn’t be dispensed with.
o Some other requirements – like witness signatures – seem to be less crucial.
 Raises less doubts as to T’s wishes.
 If it represents withholding by T, then it might discourage letting in the will
• e.g. it isn’t a doc of his wishes, so he hasn’t had witnesses sign.
 If its because of some timing issue, acceptance might be encouraged.
• No sinister motive, just an oversight, they will probably let it in.
Hypo: Husband and wife write wills by hand and invite neighbors over to witness. H signed his but W forgets to sign
hers. The omission goes unnoticed, and neighbors both sign as attesting witnesses. After W’s death, her witnessed but
unsigned will is offered to probate:
• If just negligent oversight, can we forgive absence of her signature?
o Langbein: this raises a substantial doubt.
• The signatures of witnesses are pretty good evidence that she would’ve signed if she remembered.
• Australian Court: should admit to probate b/c of surrounding circumstances.
In Re Will of Ranney: Self-proving affidavit. Two lawyers and 2 secretaries sign affidavit instead of will by accident.
Will is signed by him, and not by witnesses, but attached to affidavit with all signatures.
• Self-proving Affidavit: purpose is to avoid dragging live witnesses into probate proceeding. Pre-probate, advance
document that serves in place of live testimony.
• NJ Sup Court:
o SPA is technically a separate instrument that serves a different function than will.
o It doesn’t matter that the language is similar.
o Court officially adopts SUBSTANTIAL COMPLIANCE.
o Acts were done to reasonably comply w/ statutory requirements. Permit will to enter probate.
o Treats signatures as if singed in the will itself and not on SPA. Moving signatures.
o SPA no longer valid, so W’s will have to give live testimony.
• Two points:
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o (1) Should have been an easy case. Without making a big thing about substantial compliance, other
cases have allowed the will. Virtually every court would have allowed the signatures without staking the
ground on substantial compliance.
o (2) Don’t know how NJ Sup Ct would deal with more difficult case. The decision has been superseded
by statute, so NJ has dispensing authority.
 When NJ considered better case for substantial compliance, they said by paring down the
formalities, the ones that are left should be taken more seriously and strictly enforced.
• CALI: Ranney problem is essentially a non-problem.
o The UPC changed SPA – now authorizes will to be executed with single set of signatures that give effect
also to SPA. Only need one set for both purposes.
Holographic Wills:
General:
• Wills signed by T, and in T’s own handwriting.
• NO attesting witnesses.
• Traditionally, required: entirely handwritten, dated, and signed.
o Caused problems:
 Dated 6/7/06: is that June 7th or July 6th?
 People forgot to date (or didn’t know it was required.
 T included date, but it wasn’t ‘complete.’
 If will was written on letterhead of hotel, is that ENTIRELY handwritten?
UPC §2-502:
• Holographic will is valid if MATERIAL PORTIONS are in T’s handwriting.
o Valid if the material provisions are in T’s handwriting, and its signed.
o Dispensed of the “entirely handwritten” and dates requirements.
CA Probate §6111:
• SURPLUSAGE doctrine:
o CA courts are willing to disregard printed matter that had nothing to do with will.
 E.g. hotel letterhead
o Valid if T’s handwritten words express complete, coherent testamentary intent, and its signed.
• §6111(b): lack of date doesn’t invalidate, but creates two problems:
o (1) Inconsistent wills/provisions:
 If any doubt about which provisions of a will or an inconsistent will are controlling, the
holographic is invalid to the extent of inconsistency.
 Can only avoid if you can show holographic was executed after the other will.
 If can’t tell which will came first, both are disallowed to extent of inconsistency.
 If you have undated holographic and inconsistent attested will:
• Attested will always prevails in the absence of proof.
• The holographic will’s inconsistent provisions will be stricken.
o (2) Testamentary Capacity:
 If T lacked capacity at any time during which the will might have been executed, the will is
invalid unless its established that it was executed when T had capacity.
 Have to prove that it was executed before T lost capacity.
 Unless you show that it was, the will is null.
• Ex: undated holographic will at T’s home. For year of life, T was incompetent.
• If we don’t know when executed, it is ineffective and estate will pass by intestacy.
o Bottom line: date is not required, but it is highly suggested!!
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*Florida* does not permit holographic wills – even if they are from a state that permits them.
In Re Estate of Muder: pg. 302: got pre-printed form with boilerplate provisions and inserted blanks. He intended as a
witnessed will – space for four witnesses and a notary. He wrote in names and disposition, and signs. Has it notarized,
and signed by one witness.
• Arizona court says that its supposed to be an attested will, and that requires two witnesses.
o He only had one, and AZ courts not ready to say you can dispense of witnesses.
o He had notary – can’t we treat her as a witness?
o Some courts have held that it could serve as second attested witness.
o Make that argument! There is good authority to support.
• Issue: what does “material provision” mean?
o Blanks were filled in by hand.
o Did the UPC mean that all of the boilerplate is disregarded as surplusage? Then the doc would make little
sense b/c no operative language.
o Slew of cases of handwritten notes that say rudimentary things and we can’t tell if it’s a memo or
intended will, etc. “$20K to Berk.”
• Court: can borrow the intent from pre-printed material and integrate the handwritten parts to fulfill statute.
o The pre-printed can give context to the handwritten provisions.
o Handwritten provisions would not stand up on their own.
o Willing to overlook other people’s handwriting (witness, notary), and didn’t say it was attested will
botched in execution (only one signature). Instead, they stretch the terms of statute to allow it in as
meeting requirements for hand-written will.
o Several other similar cases that generally come to same result.
CA/UPC: amended statutes to permit taking into account non-handwritten provisions to determine T’s intent.
• Can consider other language as long as not crucial or operative, and signed by T.
• §6111(c): any statement of testamentary intent can be set forth either in T’s handwriting or in a commercially
printed form will.
Two Points:
• (1) CA presumably allows someone to make holographic will if he signed the pre-printed form.
o Gives people incentive to do it.
o Even if no attempt to comply with statutes.
o If T has heard you can prepare will and write out provisions, that is misleading:
 Must be commercially printed form.
 Own form filled in and signed does not qualify.
o L’s never advise writing of own wills.
 For people who don’t know what they are doing, it minimizes formalities.
 Allows T to write own wills if they insist on doing it.
• (2) Testamentary intent
o Formal will almost always recites that it’s a will and makes a disposition of property.
o Earmarks of a traditional will.
o Holographic is much less standardized.
o Often a question if a handwritten doc is a will if it makes testamentary noises of some sort.
o Is it intended as a will?
o Fisher: T says he wants new will drafted to cut out wife’s relatives.
 Intent is clear, problem is that it was done in anticipation of having will drawn.
 They thought it was more like an instructive letter.
o Another problem: “I may not come back from Iraq alive, and if I don’t…”
 Makes it back safe, and years later letter is found.
 Conditional will and condition is unfulfilled. Do provisions take effect?
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 Courts take flexible attitude:
• Holmes: the language of the condition was not meant to be taken literally.
• Wasn’t intended to limit the application of terms to the strict meeting of condition
• Just reflected the immediate occasion, and his incentive.
o CA: will should be admitted or rejected in CONFORMITY with condition (not sure what the means –
McCouch doesn’t either. Might be to codify CL and CL rule was lenient).
The Documents of the Written Will:
Four Doctrines:
• (1) Integration
• (2) Re-Publication
• (3) Acts and Events of Independent Significance
• (4) Incorporation by Reference
(1) Integration:
• Process of embodying several sheets/docs into single, entire will validated by a single action of execution
o All pages/other writings intended to be part of will must be present at time the will is executed.
o Doctrine concerns this question: what sheets were present at the will’s execution?
• Every will on its face is presumed to be a complete statement of the T’s intended disposition.
o Likely to be various drafts.
o Hope there is a single, final execution draft which is the one signed and witnessed.
• To be part of the integrated document, the terms must be in WRITING, and:
o (1) Must be physically present:
 If its in a different place or yet to be printed, the doc can’t be intended as part of the will.
 Lots of situations where stray pages are missing or substituted with technical corrections.
o (2) Must be Intended
 Pages from prior drafts, extraneous dos, etc.
 E.g. associate fixes typo and then re-inserts into the will. If that page has been removed, there is
at least doubt as to whether that part of the will has been expelled.
 In practice, most will take precautions so there is no doubt:
• Attestation clause will include number of pages
• Initial each page
• Number each page
• Pages physically attached to one another.
(2) Re-Publication: (codicil)

• Codicil: testamentary instrument executed after the execution of a will, that alters, modifies, or expands the
provisions of the will in some manner.
o Must be executed with the same formalities required for execution of a will.
o Any addition, alteration, interlineation, deletion made after the will has been signed and attested is
ineffective to change the will, unless the will is REEXECUTED with proper FORMALITIES, or the
changes qualify as a valid holographic codicil.
• Essentially a subsequent will intended to be read together with, and form a part, of the original will.
o It can be a separate document, or appear on the same piece of paper as the will it amends.
o Does not have to be same form as will
o Can have a holographic codicil to a type-written will, and visa versa.
• Re-publication: when a codicil is executed, the presumption is that the codicil is to be read together with original
will as part of single, re-executed document.
o Not always clear whether subsequent instrument is intended to replace the earlier one.
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o The execution of a codicil “republishes” the will itself, so that the will is deemed to have been re-dated
and re-executed as of the date of the codicil.
• In theory, only one time when the will is actually executed.
o The time of the most recent codicil.
o Deemed re-execution of original will.
Hypo: CA: T’s child born after execution of all testamentary instruments is entitled to an intestate share.
• If will originally executed in ’90 and child is born in ’95.
• Subsequent codicil, under republication, the codicil will be deemed to be a re-execution of the original will
• Any child that comes into existence before codicil is out of the intestate share.
• Whether or not the codicil provided or related to child or had nothing to do with it.
• Simply a matter of when last instrument was executed.
Hypo: Original will signed by T and 2 interested witnesses.
• The will is validly executed and T does unrelated codicil.
• If the witnesses to that codicil are disinterested, re-publication deems the original provisions to be merged as part of
single, legally affected act.
• All of the taints are purged if subsequent codicils are attested by disinterested witnesses.
(3) Acts and Events of Independent Significance: CA §6131; UPC §1512

• T refers in will to extrinsic acts/events that have some independent significance for the purpose of designating
beneficiaries or designating property that is the subject of the gift.
o E.g. “I leave my furniture to X” or “I leave $1K to each of my servants employed at my death.”
o T’s act of hiring or firing servants or decorating living room has a lifetime purpose or motive
independent from its effect on his will.
o E.g. “All books in my library.”
o Does he mean library as in the room in his house, or library as in his entire collection of books?
• Allows the executor and beneficiaries to look OUTSIDE the will to extrinsic acts and events to give meaning to the
terms of the will.
o Can make a class that lets in other people or other property that changes over time.
o Not limited to identifiable number when executed.
• Rationale: challenges like “not all the books were specified w/in 4 corners of document” won’t work.
o Statute warns against allowing complete end-run around the will by leaving too many blanks.
o Puts a limit on the acts/events that you can look outside of the will in order to give meaning.
o Dividing line is events that have independent significance in giving meaning to will.
o Totally open-ended delegations are not enforceable.
o E.g. “I leave all property in accordance to my known wishes.”
• TEST: Does the extrinsic act/event have legal significance apart from/independent of the will?
o The act or event must be one that ordinarily has some non-testamentary motive or function.
Hypo: “I leave $1,000 to each person employed at my business at the time of my death.”
• This is valid because the act of hiring or firing employees is normally done to enhance the business of T, not to
designate the beneficiaries in a will.
• The event of employment has “independent significance” from its effect on disposition.
Hypo: “I leave all contents in safe deposit box to X.”
• Contents can be changed freely. Might be using box as will substitute.
• All that’s necessary is plausible non-testamentary purpose, e.g. storing valuables
Hypo: “all cash in drawer to X.”
• That is okay – can change cash freely, physically change amount.
Hypo: “Cash in drawer to people whose names are on envelopes.”
• The only reason for having names on envelopes is to have an effect on disposition of will. This would not be okay
unless you had another reason for named envelopes.
Hypo: Revocable Trust: “$100K to A.” Will: “All to trustee of revocable trust.”
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• Combines compliance with will formalities with flexibility of will substitute.
• Avoids disclosing anything about ultimate beneficiary b/c will passes through probate and to trustee.
o Trust instrument not a public doc.
o Anyone that wants to find what came of T’s property will find it went to revocable trust.
• “Pour-over” arrangement:
• Trust is already in existence as an inter-vivos trust, which means its not subject to probate supervisions.
o Revocable trust is serving to specify the ultimate disposition of probate assets.
o Trust has significance outside of testamentary purposes:
 Lifetime gifts
 Arrangements for administration of property if you fall ill or disabled.
 Change in legal relationship between settler and trust property.
 Creates fiduciary relationship between whoever is trustee and the beneficiaries.
• One requirement: for independent significance, there must be fund property in trust.
(4) Incorporation by Reference:

• A duly executed will may, by appropriate reference, incorporate the terms of an extrinsic document or writing, even
though the other document was not properly executed and is not of testamentary character.
• CA Probate §6130: A writing in existence when a will is executed may be incorporated by reference if the language
of the will manifests this intent and describes the writing sufficiently to permit its identification.
• Requirements:
o (1) Document must be in existence at the time will was executed
o (2) Will must identify and describe document so clearly that there can be no mistake as to identity of
document referred to.
o (3) Will must show intent to incorporate the terms of extrinsic doc as part of the will.
o (4) Must be in writing
• Holographic Will: Can you incorporate a non-handwritten document into a holographic will?
o In CA – yes, and in most other states.
• Doctrine useful to give effect to earlier instrument that would be ineffective b/c not validly executed.
o Ex: T signed will and had one witness. She did not know she needed 2. Later that year, she made
changes to will, and properly executed it w/ codicil that expressly includes all terms of the previous will.
The codicil incorporates by reference the terms of the earlier, invalid “will.”
• Incorporation by reference is the cleanest way to show these docs can be read together
o NY is the exception – doesn’t recognize IBR.
Hypo: Typewritten will that is not signed or attested. T writes on bottom in hand “give $10 to my X, this will is
complete.” T then signs the document.
• If we decide its integrated (entire writing present at the time he signs), then under the surplusage doctrine, it’s a
valid holographic will and the rest will be excluded.
• By saying “this will is complete” we infer the hand-written part was to be read with the rest of it.
o Hope that is enough for court to see it not as integrated, but incorporated by reference.
o Not republication b/c must have a properly executed will in order to republish.
o Could be codicil – nothing says can’t write codicil on last page.
**Note** DO NOT CONFUSE: codicil as validation of an earlier will or for republication:

• (1) Republish a prior VALID will, or
o Republication by codicil: only if earlier instrument was VALIDLY executed.
• (2) Incorporate by reference to validate a prior INVALID will
o Incorporation by reference allows T to validate earlier instrument that is ineffective b/c NOT validly
executed by incorporating it into the subsequently executed codicil.
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Clark v. Greenhalge: pg 321: T wants to make disposition of personal property, but doesn’t want to do so in a will. She
makes a separate memo to incorporate into a will. She lists property and her beneficiaries and then says any leftover goes
to her nephew, and he is to be in charge of disposing of property as set forth in memo “according to her known wishes.”
In a separate notebook (1979) and in her own writing there are additional notations of beneficiaries and specific tangible
items. Will executed in ‘77 and two codicils in ‘80.
• There is only one will (one integrated document).
o Court knows what she wanted to do. If court can give effect to instructions in notebook, it will.
• Notebook:
o Not part of integrated doc and is subsequent to will
o However, when she made codicils and re-published will, the notebook is no longer a subsequently
executed document, so it can be incorporated by reference.
• NOT a candidate for acts of independent significance
o Has no other non-testamentary significance.
• Stumbling block:
o “memo” is ambiguous. Can it refer to two separate writings?
o Statute requires sufficient identification.
o Mass Court says it can. She intended for both to be given effect, so they’ll allow it.
• Except for the accidental occurrence of codicils, the court would not have been able to give effect to subsequent
lists. If any subsequent markings are after execution, there are foreseeable problems.
Pour-Over Trusts:
• A “pour-over” gift is a testamentary gift to a trust created during the decedent’s lifetime.
• The testamentary assets to be administered and distributed as part of that trust.
o Ex: C creates a revocable trust and later executes a will devising her residuary estate “to the First Bank
trustee of the trust that I executed.”
• The objective is to provide a single, unified trust management and disposition of:
o (a) Assets transferred to the trust during life, and
o (b) Assets owned by T at death.
Ways to conceptualize:
• If will refers to the trust and trust already exists, T can incorporate by reference.
o If T wants to make changes to trust, none of those changes are properly incorporated into will.
o It’s not a great solution.
• If trust has other non-testamentary significance
o It has uses other than as a pour-over will, then any amendment T makes to trust is valid.
o Doesn’t have to go back and change will each time he changes trust.
o But the trust must be funded – have to have assets in it.
• People wanted the best of both worlds – to avoid having to amend the will every time they change the trust, but also
wanted to avoid having independent property in the trust.
o §6300 combines the desirable parts of both by saying you can incorporate and amend freely even though it
has no property and no independent non-testamentary significance.
CA Probate §6300: Uniform Testamentary Addition to Trusts Act:

• A will may validly pour over property to the trustee of a trust, provided the trust is:
o (1) Identified in the will
o (2) Terms set forth in a written instrument (other than will)
o (3) Executed before or concurrently with the execution of the will.
• Sounds like incorporation by reference, but goes beyond by saying:
o The devise is not invalid because the trust is amendable, revocable, or both, or because trust was
executed after the will or after the death of the T.
o Trust can be amended or revoked even after will is executed.
o Doesn’t matter whether funded or not.
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Widely Used:
• Allows for confidentiality
• Changes require less formalities than changing a will
• Allows T to avoid probate to the extent that the trust is funded during lifetime.
• Funded pour-over will take care of incidental assets at death.
Clymer v. Mayo: pg. 328: Issue – concerned the testator’s implied intent. In 1973 Clara Mayo executed a will and a
revocable trust. Under the will the bulk of her estate was to pour over into the trust, of which James Mayo (husband) was
the principal beneficiary. They divorced in 1978. Clara died in 1981.
• Does Mass. Statute that revokes any disposition to a former spouse made by a will apply to revoke dispositions to
the former spouse made by a revocable inter vivos trust that has no funding or practical significance until the
decedent’s death.
• Court: In the absence of an expressed contrary intent, the statute also applies to these circumstances.
o Note: problem with pour-overs – if the will and trust are as closely aligned as they seem to be, to what
extent do the wills rules apply to the property that pours into the trust?
o Here the court said that statute controlling will also control the trust.
Will Contracts:
Contract Law Controls:

• An alleged promise to make a testamentary gift is governed by contract law rather than the law of wills.
• If contracted party and T’s wishes conflict in the agreement?
o (1) Is there an enforceable contract?
 Offer
 Acceptance
 Consideration
 Capacity
o (2) If there was an agreement, what are the terms of the contract and what do they provide
 What did the K consist of if the mind’s did meet?
o (3) What remedies are available for breach?
 Damages
• Value of property promise
 Constructive trust
• Operates like specific performance
• Gives the promisee the very property contracted for.
Recurring Fact Patterns:

• (1) Contract for health care services:
o T concerned with providing for his healthcare agrees to pay someone at death for their services.
Assumption that there isn’t property immediately available, but will pay w/ property out of will.
o Happens often with kids “mom said she’d leave me property in will if I took care of her.”
• (2) Agreement in contemplation of marriage/divorce
o One spouse agrees to marry the other in return for compensation
o Spouses divorcing. If one dies, there is a provision for kids/spouse in will to extend the property
settlement past his death.
• (3) Spouses in marriage
o Mutual dispositions of assets
o Save estate planning fees by having lawyer draft a joint will or prepare separate mirror wills.
Joint Wills:
• Two or more people executed a single testamentary instrument.
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Wiggins: Husband dies first, and the value of the combined property appreciates substantially over her life.
• Bad drafting. Want to figure out what the spouses intended.
• Joint will never on face makes clear that it’s a joint will and that it governs both of them and their assets.
• Court – did the joint will intend that both parties be bound?
• The court infers that they intended it to be binding and contractual.
• (1) As long as both spouses are alive and competent, there is no enforceable contract.
o If it’s a contract, it becomes enforceable at one spouses death.
o This is different from most K’s. Usually is enforceable with the exchange of promises.
o Because wills are freely amendatory while living, the courts says wills K are a little different than
mainstream K law. Only enforceable at one spouses death.
o Once you die, believe the k is in effect, can’t undo agreement.
• (2) Was there a binding k?
o All it says is that the will is intending to dispose of their joint assets.
o At first spouses death, property goes to surviving spouse.
o Court looks to the use of the plural words, restrictions on disposition at death, etc.
o H and W did intend to impose a binding restriction, can’t change terms after death.
• (3) Once court finds agreement – what restrictions did the agreement impose?
o W survives for fair amount of time, and property changed in value.
o W was not trying to change the basic schemes, she just wanted to increase some of the bequests to
beneficiaries b/c now they had more value in property.
o Trying to update for changed circumstances.
o Problem with binding k disposition, it is difficult to account for changes in circumstances.
 The property could gain value.
 She might re-marry and new H might acquire rights which bear modify likely intent.
 Most people will not foresee all possible changes.
• Holding: if joint will creates binding contract, it becomes irrevocable upon death of first T.
Dealing with 2 separate bodies of law:

• (1) What is the state of the testamentary documents in probate law?
o She executed a codicil adjusting amounts of the bequests to take account of new beneficiaries.
• (2) What is the state of affairs at k law?
o Is it binding
o Has it been breached
o What are available remedies?
• There was k, and now a codicil technically admissible to probate.
o She was bound not to make changes, but she did with codicil.
o Both instruments admissible to probate, but as a matter of contract law – the initial beneficiaries have an
action for remedy against wife’s estate.
o Not questioning validity of codicil – their claim is for relief on contract law.
o Will sue for damages (wife is dead) or specific performance/constructive trust.
o Go after the property and compel the executor to distribute by the terms of the contract.
• The beneficiaries under joint will are claiming the same status that any creditor would.
o Claim against estate or right to specific performance.
o Seeking standard contract remedies.
• They are successful. As a matter of contract law, the first contract is enforceable and entitled to remedies.
Mirror Wills:
• Separate wills of two or more people that contain reciprocal provisions.
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Oursler v. Armstrong: When wills drafted, husband leaving bulk to his kids during previous marriage, and wife agreed.
Each of them in their respective wills made identical bequests to his kids.
• Is there an enforceable k?
o Never executed any written agreement.
o Didn’t recite on wills that it was a contractual agreement.
o But they understood that this was part of a coordinated arrangement.
• Husband dies, wife inherits, and decides her kids should be beneficiaries of combined estate.
o She makes new will and leaves everything to own kids.
• Is there a contract?
o Court acknowledges relationship, husband expected his wife would leave both wills in effect, wife
understood that was husband’s expectation, but NO EXPRESS agreement.
o Had their been an express agreement, probably would have enforced in equity.
o Mere implicit understanding, even if bolstered by confidential relationship, isn’t enough.
• Problem: spouses in confidential relationship, but contracting like at arm’s length.
o Court lays out bright-line: must be express agreement (written or oral).
o In absence of specific agreement, no enforceable agreement.
o Should have reached an agreement more like arm’s length k.
• Solution: should have made the will contract irrevocable.
o Wills are always ambulatory and can be amended freely.
o But if spouses want to adhere to a contract, they can have an enforceable contract not to revoke.
o Imposes remedies for breach.
UPC Approach:
• In order to enforce any contract concerning a T disposition, UPC requires some WRITING.
o (1)Terms of contract set forth in the will,
• Easiest place to ensure contract is complied with is by putting terms on face of the will.
o (2) Writing signed by decedent evidencing contract
o (3) Reference in will to another instrument that sets for the contract.
• MUST be in writing to show that when the will was done, it was intended not to be subject to revocation.
CA Probate §21700:
• If meet standard equitable requirements, courts of equity have felt free to get around it.
• Allows enforcing of contract with written evidence, or clear and convincing evidence of intent.
o (1) Provisions of a will or other instrument stating the material provisions of the contract.
o (2) Expressed reference in will or other instrument to contract and extrinsic evidence proving the terms of
the contract.
o (3) Writing signed by decedent evidencing the contract.
• Like UPC (1-3), then allows will contract to be enforced even if NO WRITING, if:
o (4) Clear and convincing evidence of an agreement between the decedent and the claimant or a promise
by the decedent to the claimant that is enforceable in equity.
o (5): C&C of agreement or promise between decedent and other person for the benefit of the claimant if
enforceable in equity.
 Sends you back through existing case law to find out what is enforceable in equity.
Bottom Line:
• If entering into a will contract, put it in writing. Just executing them at the same time is not sufficient.
• Will contracts become enforceable and binding at the death of first party:
o During T’s lifetime:
 No remedy is available if T revokes before death because other party has not suffered any loss.
He is free to change his own will too.
o After T’s death:
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 If surviving party revokes will and executes a new one, the new will is admissible to probate
notwithstanding breach of contract.
 Beneficiaries have remedy in contract law.
 Constructive trust: beneficiaries under new will hold a constructive trust for the benefit of the
contract beneficiaries.
Closing comments:
• Will contracts are hard to draft, don’t account for changing circumstances etc.
o Ex: married clients with joint plan – is there an alternative arrangement you would recommend?
• Some sort of trust: trust comes into force the moment it’s funded with property.
o Trustee is charged with the disposition of property.
o Trustee’s can distribute according to intent.
HANDOUT:
Hypo: T is dying and asks niece N on telephone to come take care of her. He says he will leave her all his property by
will. N does it. Testamentary instrument found after T’s death is will executed years before which leaves all T’s property
to a Church. How should T’s estate be distributed?
• T’s sole heir is Sam. Assuming that estate enters probate with no problem, Sam probably has no claim.
o On exam, run through intestate share about omitted kids to see if he would get anything.
• UPC – If found no enforceable k, if the estate or beneficiaries would be unjustly enriched by not paying her for
services she’s performed, she would be entitled to at least the value of her services.
o Quantum Meruit. If she performed by contract can’t be enforced for some reason, she ought to get value
of performance back.
• If statute said you needed writing, can she get equitable remedy?
o To enforce through specific performance, rather than to what she just provided.
o If you can show promises and that she relied on those promises, the courts have used this rationale for
centuries for getting around statute of frauds. (some courts divided).
• CA – think legislature would tolerate same kinds of equitable remedies.
o They actually wrote it into the statute to deal with these questions of oral will contracts.
o They would be enforceable in equity.
• Other states – open question. Before CA had these statutes, they were reading UPC flexibly.
o Some - by not putting in express exceptions for equitable doctrines, they meant to make it bright-line.
o Unless writing, you are out of luck.
Hypo: T performs – executes will that conforms with his promise. She takes care of him for a month and decides she cant
take it. He says okay, and hires someone else to look after him. Now she never performed, but he left a will which
conforms with contract and leaves everything to her. Does she still get the terms of will?
• Will itself – probably admissible to probate.
• Contract claim: no one else is a party to contract. It is basically dead – no one is a party to the k.
o She’s not trying to enforce, she is willing to say that it was breached.
o She is happy to take what comes to her through the will.
• Can the Church attack the will? T made will based on promise and the promise was then dead.
o Does that broken promise make the will unenforceable?
o Should N be put under penalty b/c she made a promise that she was released from? Either as a matter of
k law or of wills law?
• No matter his motivation, after N left he had an opportunity to change it if he wanted to.
o He never did. Will still remains in effect without any formal or substantive defect.
o Once k went away, he could have revoked will and she couldn’t do anything about it.
o But since he didn’t, it remains. N will probably walk off with entire estate.
Revocations of Wills:
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General:
• T always has the power to revoke his will at any time.
o Even T who has validly contracted not to revoke his will may do so
o Although he may be subject to remedy such as constructive trust for breach contract law.
• Revocation of will may occur in three ways:
o (1) By subsequent testamentary instrument
o (2) By physical Act
o (3) By operation of law
• CA Probate §6120 (UPC §2-507): Will can be revoked by subsequent written act or physical act.
(1) Revocation by Subsequent Instrument:

• A will may be revoked in whole or in part by a subsequent will or codicil.
• The revocation may be express or implied, but subsequent instrument MUST be testamentary
• Written instruments are favored.
o For the same reasons we want a will to be in writing, we want subsequent changes to be formal.
o Must comply with all will formalities, and intended to revoke all or part of earlier will.
o An express revocation clause is highly referred.
o A single document is preferred to sequence of codicils.
• The revoking instrument need not be dispositive:
o It can do nothing more than revoke an earlier will.
• The T’s words must show a present intent to revoke.
o In instruction to another, “please destroy my will” is insufficient.
o The words themselves must accomplish the revocation.
Implied Revocation by Inconsistency:

• If a subsequent testamentary instrument does not expressly revoke an earlier will, both instruments are admitted to
probate, and the second instrument is treated as a codicil.
• The second instrument revokes the first only to the extent that its provisions are inconsistent with first will.
• Partial Inconsistency:
o Court reads both together to determine T’s intent.
o Where the provisions of the two are inconsistent, the subsequent instrument controls.
o Subsequent will is construed to supplement the prior will to extent not wholly inconsistent.
o Note: a residuary requires in prior instrument is not revoked by a specific bequest in subsequent will,
although the size of residuary may be reduced.
Gilbert v. Gilbert: pg. 345: Three separate pieces of paper, all executed with testamentary formalities. Basic will executed
is formal (signed and attested) leaving $50K to J and M. A couple of years later, he makes two other testamentary hand-
written docs. All three docs are found together at his death.
• Both have indicia of testamentary intent:
o “$50K in safe deposit box.”
o “$20K to Jim and Marg., rest to other siblings.”
• If he expressly revoked an earlier will, it is valid. Can revoke by holograph or type-written.
• Since there was no express revocation, we have to figure out what to do with them.
o If courted treated it as separate testamentary instruments:
 The doc talking about the $50K would have no operative effect.
 The $20K – “the REST” to my other siblings
 J and M would get the first $20K, and the rest of the property would be the entire estate.
 That disposition is completely inconsistent with what was done in original will.
 It revokes by inconsistency the entire first will.
• Court: kept will as original doc then read $50K doc as an additional claim.
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o It says nothing about revoking the prior will, so it is treated as a codicil.
o $50K in safe deposit box (of which $20K would go to J and M, and rest of $50K to siblings).
• In order to treat the reference of the “rest” as the rest of the $50K, the court has to treat the other docs as part of a
single holographic codicil because it modifies the preceding will without obliterating it.
o Giving directions for $50K in SD, while leaving all provisions of formal attested will.
o Rationale: he had done the elaborate attested will 2 yrs before. It would be odd that he casually
eliminated all careful dispositions by hand-written sentences without any real function. Give legal effect
to both of hand-written pages as integrated codicil.
• Suggests that in attacking wills and codicils, always be aware of original scheme.
o Figure out how provisions of subsequent documents compare to the existing will.
o If want to use a codicil, identify it as a codicil and which will it should relate to, what provisions
revoking, and which provisions its meant to supplant.
o And close with final remark “except to the provisions of this codicil, the original will is…”
Holographic Changes:
• A holographic instrument may revoke a type-written, attested will.
o He could hand-write changes on face of will.
• Problem: T won’t know formalities, unlikely to make complete, coherent statement of testamentary intent.
o More likely: T will just cross out name and write in new name. Or new amount.
o That does NOT VALIDATE it as a holographic codicil.
o No operative language to imply testamentary intent.
 Ex: crossing out $10K and putting $30K would not qualify. If it said “I leave $30K to B” that
would enforceable.
o CA statute allows such notations on printed commercial forms.
• §6110, §6111: Subsequent instrument must comply w/ testamentary formalities:
o The subsequent will or codicil must either be:
 (1) Attested, or
 (2) Qualify under holographic formalities
• T’s handwriting
• Signature
• Complete statement of intent
Will Holographic in First Place:

• Ex: T makes changes in writing and never bothers to re-sign. Are changes valid?
o Wouldn’t be if original was attested will and amendments were holographic.
• CA: Courts routinely hold that these changes are VALID.
• Reasoning: holographic will can be written over period of time. If signed at beginning, T could continue to make
changes.
o Nothing in statute that requires it meet final form when he signs it.
o By implication, every change re-adopts the original signature.
o As long as all material provisions still handwritten, signature appears, and we can figure out the net
effect of all changes.
HANDOUT:
1.) T executes an attested will that gives a diamond ring to A, $20K to B, and the rest of her property to C. One year later
T executes a holographic will that gives $10K to B. At T’s death, does B take $20, $30, or $10?
• CA §6120: Subsequent will revokes prior will or part expressly or by inconsistently.
o How do we make sensible distribution?
o Revocation by inconsistency. Presumption is not to revoke unless inconsistent.
o If not complete disposition, then presumed NOT to be replacements of earlier bequests, but IN
ADDITION.
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• Probably added to B’s estate, not subtracted from. B would get $30K.
• Would it make any difference if the $10K were left to D?
o D would get $10K that would come out of C’s residuary share.
o It would be reduced by $10K to make way for new bequest to D.
• What if $10K to B and residuary to D?
o There is no way to read that will without completely affecting disposition of first will.
o Explicitly disposes of entire first estate.
• UPC: “The subsequent will is presumed to replace the earlier will if it makes a complete disposition of estate.”
o If instruments are explicitly/entirely inconsistent, then second will serves as revocation of first.
o Meant to reflect what courts seem to be doing.
(2) Revocation by Physical Act:

• CA Probate §6120: A will may be revoked by being burned, torn, cancelled, obliterated or destroyed w/ the
INTENT and for the purpose of revoking by either T or someone in T’s presence and at T’s direction.
• Not recommended – many ambiguities. Easiest cases involve destroying entire will rather than part.
• Must be done with intent to revoke:
o Any could also be by accident (house fire, tore wrong doc, etc.) That is not intent to revoke.
o Courts are liberal in evidence they allow to show intent.
Types of Physical Acts:

• Burning: Revoked if a material portion of the will’s language is burned by T.
o Merely singing edges is insufficient.
• Tearing: Generally sufficient to revoke if it is a material part.
o If only one of the will’s several pages is torn, this indicates T did not intend to revoke entire will.
• Obliterating or canceling: generally requires damage to a material part of the will.
o Inking out or erasing over the text intended to be revoked.
Hypo: existing will executed w/ formalities. Original will in safekeeping with T’s lawyer. She calls paralegal and says
“please get my will and destroy it.” Paralegal does it, is that valid?
• No, has to be while T is physically present.
Hypo: Type-written, properly executed. In own handwriting at bottom T writes “cancelled” w/ intent to revoke.
• In order to have valid revocation, has to be one of physical acts in statute.
• This is closest to canceling
o Inking out or erasing the text trying to cancel (e.g. drawing lines through it).
• If she wrote on the will in a blank space, that is NOT good enough.
o The word cancellation in the margin has no more legal effect than reciting it has been burned.
o Cannot look at the meaning of written word in order to determine relevance of physical act.
o Must be on the words of the will.
Holographic will:
• She could strike out some words and amend them.
• She is presumed to re-adopt.
• Problem becomes one of timing:
o If T marks up successive times, writes text indicating intent to revoke, there is potential problem.
o If we aren’t sure it’s the last thing T wrote, problem of inconsistent holographic instruments.
o To the extent of inconsistency, neither can be given effect.
Will Can’t be Found:

• CA Probate §6124: If will last seen in T’s possession, and neither the will nor a duplicate original can be found, it
is presumed that T destroyed the will with intent to revoke.
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• Rebuttable presumption:
o Can show the reason its not there was something other than deliberate revocation.
Harrison v Bird (pg 349): General CL. Had existing will with a duplicate. Left one with lawyer and other to primary
beneficiary for safekeeping. T decided to revoke the will, called lawyer and asked him to revoke for her. He tore up and
told her will was revoked, then wrote cover letter about what he did. He sends torn will back to her, but the pieces can’t
be found at death. Did she die intestate, or is duplicate original will still valid?
• (1) Presumption of lost, mutilated or missing will – how does it apply?
o If lost or missing, just like if lines through will, we presume it was done with intent to revoke.
o When lawyer tore up, no valid act of revocation.
 If she died, and her will was found in her possession w/ cover letter, what would happen?
 She did not perform act of tearing, so its still unrevoked unless she does some other action
(tearing herself, etc.)
o It wasn’t revoked by tearing, but when its lost at her death, it invokes the presumption.
o Unless other evidence T did it by accident or someone else tore and lost it, presumption is T revoked
• (2) What about second duplicate not revoked?
o When you tear up one piece of paper (original will) you have revoked the legal instrument.
o Doesn’t matter if there are duplicates sitting out there.
o Once T revokes any original copy, its effective to all the wills sitting out there.
• Executing duplicate wills is not very effective as a safeguard. Destroying the original invalidates all.
• T’s that think they are making sure there will be a valid will at death by executing several is being misled.
CA Probate: §6124: A will that can’t be found at T’s death is presumed to be revoked, if
• (1) Will was last in T’s possession
• (2) T was competent until death
o If will was in possession but she was out of it, then the presumption is limited
o It might have been destroyed during incompetence.
o Not going to overthrow valid will based on mere presumption.
• (3) Neither the will nor a duplicate original can be found at T’s death.
In Harrison v. Bird duplicate CAN be found. So would 6124 call for a different result?
• CA Probate 6121: A will executed in duplicate or any part thereof is revoked if one of the duplicates is destroyed,
burned, canceled etc.
• We don’t get to 6121 unless we think that original was revoked.
• If two copies of a will are executed, destruction by T of an executed duplicate in his possession revokes the will,
including the untouched duplicate.
Reconciling the two statutes:

• Bird had a duplicate original that can be found.
o The presumption in 6124 does not apply.
• If evidence demonstrates that the original will was revoked, then 6121.
o All duplicates are also destroyed.
o It becomes a battle of extrinsic evidence.
o If enough evidence (any evidence) sufficient to persuade fact finder that T destroyed the will, then 6121
would apply and she dies intestate.
• Why does 6124 presume that if there is a duplicate, it was not revoked?
o Designed to give relief to T’s who didn’t realize what he was doing w/ wills in duplicate.
o If T misguided enough to execute duplicates, she probably believed that any of them could be admitted to
probate if one goes missing.
Handout:
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2.) Leaves $10K to A, and the rest to B. At T’s death, the will is found in her desk with a line drawn through the amount
$10K and the word “nothing” written above in T’s handwriting. How should the estate be distributed?
• The line-drawing is a cancellation of A’s bequest.
• Even if she didn’t write anything above it in own writing, the line itself is a valid revocation.
• Presumption is she is the one that drew line.
• NOT giving effect to the writing as any kind of codicil b/c not following formalities.
What difference does it make if the handwritten amount is $50K?

• In order to amend the will, have to execute a new one. She did not do that.
o No signature or testamentary context.
o This does not qualify as a codicil.
• Any way that A can get $50K?
o Only if holographic amendment – T’s handwriting, signature, complete statement of intent.
Can A salvage the $10K?

• If she intended to revoke only in event that she could substitute larger request, then she didn’t really intend to
revoke. A can still take $10K by saying no valid revocation b/c not what she intended.
What if she wrote in 1K?

• Reducing request but not revoking entirely.
• If she didn’t intend to revoke – A keeps the $10K.
• But she didn’t intend him to take nothing, either
• Look for extrinsic circumstances to see what she would have preferred if she would have known.
• There is no presumption either way – courts will look at what they think she most wanted.
(3) By Operation of Law:

• Revocation of will or portion may result from change in family circumstances of T.
• Despite T’s lack of affirmative action, the law presumes an intent to revoke
Marriage
• CL
o Marriage followed by birth of issue revoked a man’s will
o Marriage alone revoked a woman’s will.
o Presumes that will didn’t provide for subsequent spouse and T wants to provide for them.
o Some states use CL law still.
• Modern
o T’s after-married spouse gets an intestate share in limited circumstances.
o Compared to CL entire revocation.
Divorce:
• CL -- No provision for divorce
o Even if T executes will during marriage, then divorces from spouse and dies unmarried, the provisions in
will that are in favor former spouse survive.
o Not consistent with most T’s intent.
• Modern -- CA §6122; UPC: Revocation by Divorce
o Unless the will expressly provides otherwise, if after executing a will T’s marriage is divorced or
annulled, both the beneficial provisions leaving spouse property, and nominations naming spouse as
executor/trustee are revoked.
 Doesn’t deem entire existing will revoked, just provisions for former spouse.
 More aligned with T’s likely intentions.
 Property passes as if former spouse failed to survive T.
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o If aware client entering divorce proceedings, think of two issues:
 If divorce becomes final:
• Advise to make new will.
• Big change, probably worth reviewing existing provisions.
 Between time spouse files for divorce and its finalizing:
• A lot can take place.
• Might not want to wait until divorce is final to do some updating.
• Draft a new will immediately
• If proceedings are amicable, might want to try a some waive/settlement agreement to
override existing wills.
*Note* CA/original UPC refer to provisions in the will. Revocable trusts & pour-over as appendages to will.
Clymer v. Mayo: pg. 362: Raises conceptual question about relationship between will and pour-over trust. While married,
T left income to husband for life, and provided income to nieces and nephews as long as under age 30, with remainder to
University. Then got divorced.
• Trust was standard arrangement: (1) marital trust (portion of decedent’s estate passes free of estate tax), (2) family
trust (portion potentially taxable).
• Trust completely unfunded until death. Revocable.
o This is a generally valid pour-over. No longer requires independent non-T significance.
• When she divorced she didn’t change her estate planning docs.
o Revocation by divorce statute – provisions for husband are revoked.
o But the trust is technically a separate document.
• Husband trying to claim benefits under trust which was funded entirely by will at her death.
o Marital trust – easy to dispose of, he is not her husband anymore.
o All that money goes to family trust.
o If revocation by divorce operates, husband’s life interest is defeated.
o Claiming statute is only for will, which doesn’t reach the trust.
• CL Approach:
o Court wants to delete LE to husband b/c that is what T wanted and legislature probably intended.
o Statutory interpretation – read statute to eliminate provisions in trust and will.
• Can they bring trust into will by saying she never amended the trust after original execution. (OH did this)
o It is incorporated by reference into the will.
o But she didn’t choose to incorporate by reference.
o There is a reason not to make it same as will – so its amendable and can avoid probate
o The whole point of separate trust and pour-over is so you don’t have to re-execute new will w/
testamentary formalities for every change. MA court takes this seriously.
• Mass.: it would not be sensible to treat trust as if outside of revocation by divorce statute.
o Don’t announce they are re-writing statute, but saying that on facts of this case the statute reaches beyond
just the will.
o These docs were to be taken in tandem. The trust is subject to will – that’s all it is funded with.
o Not leap of logic to say the probate statute should follow the property even when it lands in another
vehicle and disposed of in another instrument.
o Property has already gone under the will and through probate, so apply same rule of revocation.
• Court leaves a lot of unanswered questions:
o What if trust not solely funded at death?
 She put property into it so that it had independent, non-testamentary significance?
o What if will left residuary estate to beneficiary named in life insurance policy (instead of trust)
 A totally different type of vehicle
o What if same trust instrument, funded in whole or part from other sources?
 Insurance – makes payable to trustee to be held and administered as part of trust
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 Are life insurance proceeds covered by same rule?
o Life insurance made payable to husband, the she divorces.
 No revocation statute about insurance policies.
 No basis to keep husband from taking those proceeds.
• UPC: tried to remedy statute to fix problems.
o Extends to all will substitutes, including life insurance policies.
• CA §5600, §5601:
o Corresponds to §6122 -- Additional provisions that provide substantially the same language for non-
probate transfers to spouse after divorce.
o Reaches some but not all substitutes
o In the case of non-probate transfers generally, transfers to the former spouse are deemed revoked
 §5601: severs JT and turns to TIC.
 §5600(e): Provides for everything other than LIFE INSURANCE.
o Why doesn’t the statute reach life insurance policies??
 Problem still alive in CA.
 Life insurance gets all kinds of special treatment, this is just one example.
 McCouch guess: The life insurance lobby leaned on it to get themselves exempted.
 LI co.’s find it less difficult to pay out to who is on the policy rather than tracking down the
intended beneficiaries. Let them battle it out in court themselves.
Relatives by Affinity:
• T is married w/ un-adopted step-child. She lives estate to husband and step-child. They get divorced. Do the
provisions in will revoked by divorce extend to husband’s relatives?
• Revised UPC: Although probable intent is less clear, most T’s would prefer to have step-children and relatives by
affinity excluded. Covers relatives of spouse as well as spouse.
o UPC - Won’t look outside of the will.
o Automatic revocation unless will EXPRESSLY provides otherwise.
• CA follows original UPC – limited to provisions of spouse.
o Some courts that have taken statute at it’s word and says step-child still gets to inherit
o CA Ct of App: ready presume that gifts in a will to a divorce spouse’s relatives are also revoked.
o Rebuttable presumption. Look to ALL EXTRINSIC to determine her intent.
o Case-by-case, gives max effect to what T would have actually wanted.
Revival of Revoked Wills:
General:
• Often involves this situation:
o Two wills: (1) to beneficiary A; (2) to beneficiary B.
o Completely inconsistent. If he died and both were found, (2) would control.
o T successfully revokes (2).
o Her intentions with respect (1) may or may not be known.
o Does it remain revoked? Does it again become effective? Did she intend to die intestate?
• CL: Two approaches:
o (a) No part of a will is effective until death of T.
 If revoking instrument (will 2) is itself revoked before T’s death, (1) remains in effect and is
operative upon the death of T.
 Destruction of (2) revives (1).
o (b) Ecclesiastical: presumption against revival, leaves open ability to show what T intended.
 If no evidence to show what T intended, when she destroyed (2), then she dies intestate.
 Unless some affirmative evidence that (1) remains in effect.
• English Parliament: (not followed in CA)
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o Anti-revival statute: bars a prior will from being revived unless there is:
 Re-execution, or
 Testamentary Act (like later codicil)
o Makes it difficult to bring forward pre-existing will and bring new life to it.
CA and UPC: Ecclesiastical with modifications:

• Will (1) and will (2). Will (2) revoked all or part of (1), and has since been revoked.
o Required: revocation of (2).
o Only in this sequence are we faced with revival.
• CA Probate §6123:
o Presumes NO revival, but allows presumption to be rebutted.
o Presumption rebutted if sufficient evidence of contrary intent.
o The kind of evidence permitted depends on how revocation of (2) occurred.
 Revoked by PHYSICAL ACT:
• If she intended to revive #1, its allowed.
• Can look to extrinsic evidence.
 Revoked by SUBSEQUENT INSTRUMENT:
• Revive (1) ONLY if intent to revive appears in four corners of (3).
• If T went to trouble of executing (3) to revoke (2) in order to bring back (1), we would
expect to see that intent on the face of the document.
Hypo: Will (1): Ring to A, rest to B. Will (2): ring to C, rest to D. T tears up (2) intending to revoke.
• At her death, the remains of (2) and pristine (1) are both found and offered for probate.
o If she kept (1) around, that is evidence that she intended it to be revived.
o CA: presumption AGAINST revival unless sufficient evidence of intent to revive.
o CA §6123: requires
 First will revoked (not revived), unless evident from circumstances from:
• Revocation of second will, or
• T’s contemporary or subsequent declarations
 That T intended to first will to take effect as executed.
• If she said to A, “I’ve revoked second will, so you’re back in” that is enough to let (1) back in.
• Relatively lenient rule.
Hypo: (2) doesn’t contain a residuary gift to D. Will is partially inconsistent.

• Obliterates part, but leaves rest intact. Essentially, it’s a codicil.
• CA: Where (2) doesn’t completely replace (1), there should be a presumption of revival.
• Leave the terms of first will in place.
• UPC: The previous will or its revoked part is revived to the extent it appears from the terms of the later will that T
intended the previous will to take effect.
Dependent Relative Revocation:
Generally:
• Court may disregard an act of revocation if it determines the act of revocation was premised on a MISTAKE of law
or fact as to the validity of another disposition and the revocation would not have occurred but for the T’s mistaken
belief that another disposition was valid
• Intended to limit damage rather than give effect to what T wanted.
o Revocation of (1) is dependent on and relates to mistaken belief on part of T.
o Connection is close enough to say T would rather leave original will than go to intestacy.
• DRR is an equity-type doctrine.
o Does not produce automatic result.
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o Court should look at alternative decision it could reach.
o Original will or intestacy – matter for the court to decide using discretion.
o Which is least offensive outcome knowing what T actually intended.
Where DRR Comes Up: Two Basic Patterns

• (1) Existing will. T decides she will substitute new disposition. Draws line through will executes new one (also
type-written). She signs, but no new witnesses.
o What she did to old will (drew lines) is a complete revocation with intent to make new will.
o The transaction as a whole – we think she intended to revoke assuming new will is valid.
o Formally valid act of revocation premised on mistake
o If new disposition cannot be given effect, DRR allows ignoring what looks like valid revocation.
o Leaves original will in effect.
o Invokes a legal fiction: CONDITIONAL INTENT:
• T cancelled conditions with intent to revoke, but only if new valid will.
• Since new will not valid, the condition isn’t met, and never properly revoked.
• (2) Original will – bequest to nephew T thinks is dead, so she strikes bequest. But she was mistaken.
o Makes a valid act of revocation (striking his name).
o Can re-cast as conditional intent
• She intended to revoke only if her belief that beneficiary was dead is true.
• She didn’t intend to unconditionally revoke the bequest.
o Courts disregard what looks like valid act of revocation.
Rationale for Doctrine:

• Don’t want to give effect to a revocation that is known to be contrary to T’s intent.
• Courts can’t reform the language of a will – can’t look behind it and change words.
• Next best thing: undue the revocation and cap doctrine so it doesn’t reach too far.
• Generally applied only if attempt to make new disposition fails, or if new document is a mistake of fact or law on its
face.
Schneider v. Harrington: pg. 357: Will leaves estate to niece and two sisters. Wants to revoke one beneficiary’s share and
increase others. Valid act of revocation, coupled with intent to modify existing will. Because cancellation of one share is
next to the increasing of other shares, court can apply DRR.
• Cannot give effect to what she tried to do. Writing new amounts is not enough.
• Stuck with damage control: two choices:
o Ignore revocation and leave original will intact, or
o Leave revocation in effect and stick her with consequences (1/3 would pass thru intestacy).
• Holding: court leaves original will intact.
o Since T can’t increase other two shares the way she tried, next best thing is to ignore revocation
Hypo: T executes attested will giving all property to A. T later tears up original will and executes new will that gives all
property to B. B is one of the two attesting witnesses, so he must forfeit his bequest by virtue of a purging statute. At T’s
death, how should estate be distributed?
• Revocation of first will is closely linked to new attempt to leave property to B.
• New will can’t be carried out, so either:
o Will (1) is revoked and goes through intestacy, or
o DRR leaves will (1) in effect.
• Look to T’s intent:
o Did he tell anyone what he was trying to do?
o Does he have good relationship with A?
o If (1) was premised on mistake of (2), we can look at everything to find probable intent.
Hypo: What difference does it make if T does not tear up original will, but keeps together with (2)?
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• Is (2) is inconsistent with (1), therefore revoking by inconsistency?
o If inconsistent, probably wouldn’t even need act of revocation.
o Arguably no valid act of revocation.
o If B’s bequest is void (b/c of purging statute), there is no inconsistency.
• DRR wouldn’t be premised on proper revocation of will.
Hypo: Will (2) includes clause expressly revoking original will:

• Revocation by subsequent instrument
• Courts: if there is some indication on face of new will indicating nature of mistake, can look behind it and apply
DRR.
Ambiguity & Mistake: The Plain Meaning Rule:
A lot of wills litigation comes from interpreting provisions of wills:

• Few statutes that deal with interpretation
• Problems of drafting
o Some problems types that are foreseeable and statutes may help out the drafter, but its best to avoid
relying on statute b/c they change and don’t necessarily give clear or desirable outcome.
• Questions of changes in circumstances between will executed and T’s death.
o Ex: dispose of property that you left someone in will.
o Ex: Name beneficiaries and some die, others come into existence.
• More basic problem:
o In theory, w/in 4 corners of will, need complete statement of testamentary intent. Formalities.
o It is supposed to be complete statement
o Almost inevitably going to be some gaps
 Trying to apply words of wills to circumstances.
 Have to look outside four corners to see if beneficiary’s are still around, etc.
• Wills formalities and parole evidence: start w/ words of will and assume they represent T’s wishes.
o What do we do if they are unclear, or you think there is a mistake?
o Courts spout rules about latent ambiguities, plain-meaning, qualifications, exceptions
o Words of the will generally govern
 Court will not re-write or re-form will
 Will not supply missing words
 Will not re-write to give meaning that is at odds with meaning in 4 corners
 Still leaves courts with discretion.
Plain meaning rule:

• Useful rule as long as doesn’t become iron-clad with no flexibility
• In hands of reasonable court – means nothing more than presumptive preference for the primary meaning of words
in will, if we can find it.
o If the words are susceptible to several interpretations, there might not be single plain meaning.
o Simple words like “heirs” can mean different things to different courts.
• Where you have will drafted by lawyer, enhanced potential for mistakes and ambiguities.
o Think they are faithfully transcribing, but in using legal language, there is almost always some blurring of
what T said.
o May make it easier to see, or could create disagreements about what was actually intended.
• In general, have to start with words in the will.
o Depending on facts words, circumstances, courts may be more or less generous and flexible.
Ambiguity or Mistake:
• Basic lines court draw is at ambiguity or mistake
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• Mistake
o Words were used or omitted by mistake
o They will not correct that kind of mistake
o Can selective ignore here and there, but cannot add or change.
• Ambiguity
o Courts allow more flexibility.
o If a word of phrase has more than one plausible meaning, courts are not bound as strictly by single,
presumptively correct plain meaning
o They can, and sometimes must, look outside document to see what the other meanings are and what was
likely T’s intent.
• Reason it matters:
o Mistake – courts will say too bad. Whether drafter or T’s mistake. They are stuck with it.
o Ambiguity – free to look outside terms of will to figure out what T meant, and as long as they can find a
supportable, plausible meaning for probable intent, they can it effect.
Hypo: Clymer and Mayo: Wanted to leave to nieces or nephews. But T had no blood relatives that fall into primary
definition. She had none related by blood, yet she gifted to N/N. What could she have meant?
• Her then-husband had bros/sis and therefore n/n so she probably intended to leave by marriage.
• Wouldn’t know it until you look outside terms of will.
o That is example of ambiguity.
o They think that she meant husband’s relatives
o Revocation by divorce – they don’t think the meaning changes when she gets divorced, and don’t think
that it extends the revocation to his relatives that are beneficiaries.
• If she left income to “my brothers and sisters” and turns out she doesn’t have any, that is a mistake.
o Doesn’t (arguably) mean the same thing as it did with n/n. Would take much more of a stretch.
Hypo: “My nephew john.” And there are several nephews john. That is classic ambiguity. Court will look outside the
will to see which nephew john it is meant for.
Hypo: Gifts to charity

• “I leave all my property to cancer society.”
• There are local chapters, nat’l society, and 50 different organizations that could be intended.
• That is more of a problem than with named individuals.
• Can pull up lists of charitable organizations and check the legal name before drafting this kind of bequest.
• That is an ambiguity – look to which they meant.
Hypo: “To Mr. and Mrs. William R. Heff.” They didn’t remain married, and he got re-married. Second wife was
claiming she’s entitled. Ambiguity – look outside terms to see which T intended.
Mahoney v. Grainger: Still good law. T is unmarried, no kids. She realizes she is not going to make it much longer.
Tells L she wants a will, he asks about family members/closest relatives. She said she had about 20 first cousins and
wants to split equally between all. He translates to her will “estate to heirs at law” thinking that would be the same as
closest heirs. She reads over will, approves, and dies. It’s offered for probate.
• Turns out that her heirs at law are a single aunt that she forgot about.
• Blood relative closer than the cousins she intended.
• Is this a mistake or ambiguity?
o Court held its mistake.
o “Heirs at law” has single, plainly defined meaning.
o Under plain meaning rule, can’t upset plain words of will.
o Doesn’t matter what she meant – it matters what the words mean.
o They have a plain meaning that is defined and clear. Can’t look outside the 4 corners of will.
o Language of the will is controlling b/c of formalities and parole evidence.
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o Can’t look outside to see if mistake or what to be done about it.
• Problem: what T told drafter and what the court ends up taking as meaning.
Hypo: How could this be characterized as ambiguity?

• What does “heirs at law” mean?
o We know what it means for intestacy, but what does it mean in a will?
o Does it mean heirs at law as defined on the books, or something else?
o Is it a single, undisputed plain meaning?
• Similar case: woman left residuary “to my heirs in accordance w/ intestate succession in the state of CA.”
o She intended to go to her sister, or if she died, to her n/n.
o What she didn’t realize was that in CA there is a special statute §6402.5:
 Property received from pre-deceased spouse goes to that spouse’s relative via intestacy.
 Technically, the woman’s property would be divided between her own blood relatives and her
predeceased husbands relatives if took “heirs at law” as it is in probate code.
• Words of will, even if appear to mirror statute, supposedly an individual expression.
o T doesn’t necessarily know what statute says, and might have meant something quite different.
o They treated it as one of ambiguity – b/c she meant ‘heirs at law’ as blood relatives, they were willing to
look at it as how she intended it to be.
o The CA court did it, even though it seemed to be explicit cross-reference to probate.
• The line courts divide between ambiguity and mistake is not as clear-cut as they want it to be.
o Could fall into trap thinking that there is a term that defines what T wants.
o T may have understood differently from what trained lawyer thought.
o T often thinks if they put wishes in well-recognized formats, they will reduce dispute.
o Probably more like a continuum between mistake/ambiguity than bright-line.
• “I leave nothing to child b/c he’s dead, so I leave all to True Church.”
o Probate code leaves relief for child, but if it was n/n, no recourse for mistake n/n.
o “I leave nothing to my child b/c he doesn’t need it.” that kind of mistake has no relief.
In Re Estate of Russell: Holographic will. T was not fond of niece, left token bequest. Left the rest (residuary) to Chester
Quin and Roxy Russell. On its face, know who CQ is – turns out to be her tenant. Roxy Russell is her dog. She had first
Roxy (who died) and later got replacement and called her Roxy too.
• Term “Roxy Russell” is an ambiguity.
o Have to look outside will to surrounding circumstances to determine.
o It is dog, and the second one.
• Court explains that language of will has single plain meaning:
o Chester and Roxy get the residuary.
o Result: CA law: CQ gets ½ of estate – but cannot leave property directly to non-human.
 Roxy’s ½ fails. It is an invalid bequest.
 What happens to her ½?
o Today it would all pass to CQ.
 He is other residuary beneficiary and would take.
o At the time, CL, that share passed by intestacy.
o Georgia, the niece, gets other ½.
o In her will, it was very clear that G was not supposed to get more than her token gift.
• Issue: Is it a mistake or ambiguity?
o Court says ambiguity about who is RR, but NO ambiguity in meaning of devise to CQ and RR.
o They re-define the term: clearly a bequest in equal shares as TIC.
 Left ½ to each. That is TIC. Non-human share fails, and goes through intestacy.
 But her will said nothing about equal shares and TIC.
o Court says that its plain meaning that can’t be altered.
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• If it was used instead as ambiguous language, and look outside the will, you’d recognize that she clearly did not
want to die intestate, and she didn’t want ½ to go to G.
o Presumably intended to dispose of in a valid way.
o Named 2 living beings as beneficiaries, and was holographic will.
o Not intended to have technical meanings that we’d normal attribute (like TIC).
o Lower court: intended to leave property to CQ for benefit of himself and to take care of RR.
 Plausible argument: some other way to give effect to language to benefit CQ and RR
 Rather than saying clear meaning of TIC.
o In situations like this, lower court’s reasoning its not that far-fetched.
• The CA Sup Ct:
o Goes to length to rationalize using extrinsic in resolving ambiguity for finding which RR
o Then puts a straight-jacket on plain meaning in resolving words to figure out what she meant.
o They don’t have a plain meaning. Should be the very definition of an ambiguous request.
o The court loses us here.
Ademption, Abatement, Satisfaction, Exoneration & Lapse:
Problem: when T executes a will, you don’t know when he will die or what property will be left.
• Inexperienced drafters and T’s drafting own wills don’t know how to deal with these issues.
• What do you do with:
o (1) Property unexpectedly in estate or disappeared from estate?
 Ex: T sells B-acre before death.
o (2) Beneficiaries that come into existence or predecease before T dies (doctrine of lapse).
Classification of Testamentary Gifts:

• (1) Specific
o Gift of particular item of property that is capable of being identified and distinguished from all other
property in T’s estate.
o A specific devise or bequest can only be satisfied by distribution of the specific asset.
 Look to description in will, and outside to property owned, and match it up.
 Generally easy to identify.
 Ex: My house at 1937 Broadway Street.
 Ex: My bank account: if identifiable apart from other assets in estate.
• (2) General:
o Gift that is payable out of the general assets of the estate and does not require delivery of any specific
asset or satisfaction from any designated portion of T’s property.
 Ex: I leave $15,000. There are more than one group of $15K
 Ex: 150 shares of AT&T stock
• If lots of stock, that is general.
• If identified by stock certificate number, then specific.
 Ex: 10 acres of my land.
• If can identify which 10 acres, it is specific; if any 10 acres, it is general.
• (3) Residuary:
o The balance of T’s property on hand after payment of administration expenses, taxes, and claims against
the estate, and after satisfaction of all specific, general, and demonstrative bequests.
o Also after creditors, statutory gifts, etc.
 If T leaves entire estate to 3 sisters, that is not specific or residuary.
• It’s general gift, not residuary b/c doesn’t expressly cover any failed gifts and what’s left.
• Only reason it matters is deciding what would happen to failed gift.
• CA legislature -- it would be divided among other 2 instead of falling to intestacy.
 Residuary requires a separate bequest clause.
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 That is why Schneider v. Harrington noted no residuary clause.
 CL - when one fails, it goes through intestacy.
• (4) Demonstrative
o A gift of a general amount to be paid from a specific source or a particular fund.
 Ex: “$10K to my niece to be paid out of proceeds from the sale of AT&T stock.”
 Looks like general because of amount, but from a specific source.
o Hybrid of specific and general.
 Advantage: specific bequest for purposes of determining priority in abatement, BUT
 Receives benefit of being treated as general bequest for purposes of ademption.
Ademption:
• Applies ONLY to specific gifts.
• If specifically devised property is not in T’s estate at the time of death, the gift is ADEEMED (e.g. it fails).
o Applies when property that was to satisfy the bequest is not in the estate.
o T cannot make a gift of property she does not own.
• General Rule
o When the property ceases to be owned by T, the specific gift is specifically revoked.
o If specific gift is adeemed, the beneficiary is out of luck.
• Purely judicial (no statute). Only statutory exceptions to the doctrine.
o Statutes: certain times where courts recognize that defeating the gift is NOT what T intended
o Leaves wiggle room for courts to develop exceptions.
In Re Estate of Nakoneczny: (pg 384): Will and codicils executed. Left tavern to his son. The property was taken over by
Redevelopment Authority. Father dies, will unchanged. He took proceeds from condemnation and invested them. Son
couldn’t get property, back, but wants the bonds as substitute.
• Identity Approach: Ademption is bright line.
o Objective test.
o Doctrine applies without regard to the T’s probable intent.
o Only issue is whether the specifically bequeathed property can be identified as being in T’s estate at
death.
o If specific asset is not in estate for ANY reason, the gift is adeemed.
• Once determined tavern was specific, and not owned at death, the general rule prevents him from taking it.
UPC and some courts:

• Intent Approach: More flexible. Looks to what T’s intent would have been.
• CA Courts have been ambivalent:
o Murmurings of CA Ct of App that they will be more flexible.
o Will allow taking property closely related yet slightly different.
Exception for Mere Change in Form: judicial – not codified

• T has shares in Acme, which merged with another company and becomes MicroAcme.
• Courts have opened door to see if the replacement property is really a continuation of the original investment in a
slightly different form.
o Some courts are relaxed, some are stricter.
o CA Ct of App on flexible end: allows him to take property related, yet slightly different.
• Austin: CA Ct dealt with will where T left specific not for loaned money.
• She left note in will specifically and then friend re-paid note.
• She re-lent money to someone else.
• Does the original not from X work for Y?
• Court: allow Y to take the same amount even if note was originally for someone else.
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CA Probate §21133 (and UPC)
• Recipient of specific gift gets to take the subject matter of specific gift still owned by transferor, and four categories
of replacement property.
o (1) Balance of purchase price still outstanding on property sold.
o (2) Eminent domain award
o (3) Unpaid proceeds for fire or casualty insurance for injury to property
 Ex: house burns down and pending insurance claim
o (4) Debt instrument secured by mortgage or lien, and because of default T foreclosed and got underlying
security in place of original debt.
 While living borrower foreclosed on loan. The property gotten back as security is replacement.
• Adeemed property is taken for granted – assumed predicate. If fall outside terms of statute, then adeemed
Handout: Ademption, Abatement and Lapse:

1.) T executed will leaving B-acre to her son S and the rest of her property to daughter D. Later T sold B-acre to X for
$100K and invested the sale proceeds in a 10 yr Treasury note which T held until her death. What are the respective
interests of S and D in T’s estate?
• There is no replacement property. The $100K re-invested does not go to S b/c gift is adeemed..
• (a) If X paid the $100K purchase price of B-acre with a $20K cash down payment, and an $80K mortgage note. At
T’s death, the outstanding principal balance on the note is $30K.
o The outstanding balance goes to S.
o S gets whatever property is in the estate specifically devised (he sold it) and any balance of the purchase
price OWING at death from purchaser to transferor.
o Every dollar received by T while still alive is adeemed.
o General assets of the estate go to the D.
• Notion is that it is very easy to identify unpaid proceeds under purchase and sale agreements and treat them as a
continuation (mere change in form) of the original property.
o The line they have drawn is of convenience.
o Isolates amounts yet to be received by T before death, and treats as replacement property.
• (b) T becomes incapacitated and appoints an agent under durable power of attorney.
o CA Probate §21134:
o They can remain physically alive for years.
o Agent may have to sell property and take out insurance, etc.
o The agent is standing in for T.
o What do you do if property changes form by the agent, rather than the T?
o Case law is all over the place.
 All we had under UPC was a section like 21133 and say these are the only 4 exceptions.
o UPC came up with a more generous solution –
 In this case (conservator, agent) - allow beneficiary not just to take unpaid amounts, but the entire
net sale proceeds.
 Convert original specific request into a general request.
o Nakoneczny: if he had agent acting b/c he went into a coma, and property taken or sold, the statute would
allow a reading of the will as if it left not just the tavern, but as if it left the net sale proceeds of the tavern.
 No longer have to worry about ademption at all.
 Converted from specific to general bequest.
o If T didn’t have capacity to manage own affairs, presumably not capable of executing new will or how to
handle the sale, condemnation, etc.
o If T didn’t make decision personally, we presume that she would’ve wanted the replacement proceeds to
be substituted under terms of will.
o Only exception: T recovers the incapacity and survives at least a year before dying.
 Then she has time to revise will.
 If she does nothing, the general rule kicks in.
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Satisfaction of Bequests:
• Hypo: T leaves $1000 to A in will. The next year he makes gift of $1000 to A. By making lifetime gift, did he
mean to satisfy the will, or is it in addition?
o Looks like advancement.
o Main difference: advancements are intestacy; SATISFACTION is when there’s a will.
• CL: If there was a substantial gift, the presumption that gift was intended to satisfy testamentary gift.
• Specific gifts: not much of a problem.
o If T makes lifetime gift of specific item, doctrine of ademption applies.
o Leave child house in Lake Tahoe, and then give that same house to child when alive.
o When satisfied, it becomes adeemed.
• General gifts:
o Trying to figure out what T intended is very difficult.
o CA §21135: Property given by transferor during life is treated as a satisfaction of an at-death transfer
ONLY if in writing that the gift is in satisfaction of the testamentary transfer, and value is to be deducted.
 In order to treat as satisfied, the intent must appear in writing.
• Difference between advancement and satisfaction:
o If intended beneficiary predeceases T:
 Advancement (intestacy)
• Kids step in to represent.
• They take full intestate share without any off-set of property given at lifetime.
 Satisfaction (by will)
• Kids still entitled to take by will (representation)
• The share is off-set by any advancements during lifetime.
o Opposite outcomes.
Abatement:
• Arises in cases where, after all creditors’ claims have been paid, there are insufficient assets remaining to satisfy all
of the gifts made by the will.
o Deals with “who is going to bear the burden of paying expenses.”
• T can specify in her will how claims against estate are to be paid, and the order the gifts are to be abated.
o If T has not done so, the following rules apply:
o CA §21400 and following:
 Residuary bequests go first, then general, then specific.
 Supposed to coincide with what T intended, and what’s easiest.
o Within each class, CA gives preference to T’s spouse and other relatives of T.
 Family members abate last, but within each category.
Handout:
2.) T leaves MG to his son A, B-acre to B, legacies of $20K and $80K to nephews C and D respectively, and the rest to E.
• At T’s death, his probate estate consists of the following assets:
o MG ($40K)
o B-acre ($60K) and
o General assets worth $200K.
• Debts, taxes, and administration expenses are payable from the estate. How should the estate be distributed?
• General assets in $200K – will have to cover residuary and general bequests.
o Might have to generate cash to pay C and D.
• Debts: $50K
o $200K to pay off $50K of debts.
o $50K comes off top to pay the debts.
o MG and B-acre is taken care of.
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o C and D get their $100K total
o E gets $50K
• Debts: $150K
o E gets nothing.
o MG and B-acre get their specific property.
o C and D were promised $100K, but only $50K left of general assets.
• §21402: abate ratably within each category.
• Within general gifts, 20% would have gone to C, and 80% to D.
• Since there isn’t enough, they are going to get abated ratably.
• Both get 1/2 of what promised (they were originally left $100K and there is only $50K left).
• Debts: $250K
o Nothing to E.
o Nothing to C or D
o MG and B-acre also have to abate ratably.
• Could sell off and then pay the ½ owed to creditors.
• Is there any way to avoid selling off the property?
• Distribute B-acre to them subject to the debt. Borrow against it.
• B will end up either B-acre or some property worth $30K, same with MG.
Exoneration:
• T owns B-acre, specifically devises by will to A. B is residuary beneficiary. T takes mortgage on B-acre. Property
is worth $100K and mortgage $80K. At death, still subject to mortgage.
o Between A and B, who carries economic burden? Who’s responsible for mortgage?
• CL: presumed A was entitled to have the lien against her specific devise exonerated from the residuary estate.
o Entitled to pass burden on to B. Have it paid off from residuary estate.
• CA Probate §21131:
o Unless will indicates intent to let A take free of debt, presumption she takes property subject to debts.
o Reverses CL. Reflects UPC and what most T’s would probably intend.
• Bright-line rule.
Lapse:
• If a beneficiary named in will dies during T’s lifetime, the gift to beneficiary lapses (the gift FAILS).
o A will cannot make a gift to dead person b/c dead person cannot hold title to property.
• CA Probate §21109: Transferee that fails to survive transferor does not take
o Every time T makes a disposition by will and beneficiary dies first, beneficiary loses their bequest.
o Failed to survive are treated as predeceasing.
o Transferee/transferor language b/c not talking just about wills.
o Also talking about any other gifts under written instrument.
o NO 120 hour rule for succession under instrument by will, revocable trust, or will substitute
o Clear and convincing evidence rule – if can’t be sure they survived, then presumed deceased.
o All we care about is survival by an instant.
• To prevent gift from lapsing when beneficiary fails to survive:
o Can draft something in the will to specify: “Leave to A if she survives me, if not, then to B.”
What do we do with failed gift?

• Hypo: ring to A and $10K to B, residuary to C.
o If A dies, the bequest lapses and goes into residue.
o Likewise with B – falls into residue.
o If C dies, residuary clause has no effect and It falls into intestacy.
• Hypo: To A, B, and C in equal shares:
o Roxy Russell case (follows CL).
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o CL each residuary share fails on its own.
o UPC: if more than one residuary taker, and share of one of them fails for any reason, the failed share gets
re-distributed among other residuary shares.
Anti-Lapse Statute:
• All states have them.
• Provides substitute takers if the predeceasing will beneficiary was within specified degree of relationship to T, and
left descendants who survived T.
o Such descendants are substituted as takers of the gift.
o Purpose is to prevent gifts from lapsing by designating a substitute taker.
• (1) Identify beneficiary and what relationship she bore to T:
o Does beneficiary fall within specified group?
 UPC: Devisee is grandparent or lineal descendent of grandparent. Same as intestate share.
 CA: no laughing heir statute. Expands to all blood relatives and spouse or former spouses’ heirs.
o If not in group, the anti-lapse statute fails.
• (2) If beneficiary is in group, have to decide if the beneficiary survived.
o UPC – 120 hour rule applies.
o CA – fail to survive by instant, treated as dead.
• (3) A-L statutes typically favor deceased beneficiary’s issue, if any:
o A was child of T, and predeceased T, leaving issue.
o Would substitute and will would be read as if said “to A or A’s surviving children.”
o If A’s issue survives T, they are substituted.
• UPC and CA: blood relatives are all covered.
o SPOUSE is NEVER covered in anti-lapse statute.
o Rationale: If will doesn’t specify, A-L is to sort out family that T might want A-L protection.
 Statute presumes that T would have wanted to preserve A’s share for A’s kids.
 If spouses share preserved for issue, either the issue are also going to be issue of T (so would
qualify by intestacy), or issue by a different spouse and step-children are not assumed to be
prioritized beneficiaries.
The questions to ask:

• Is beneficiary in general circle of surviving relatives?
• Did he predecease T?
• Are there issue?
CA Probate §21110:
• If transferee is dead, the issue of the deceased transferee take in the transferee’s place.
• Two wrinkles:
o (1) Applies only to class gifts.
 Applies both to individual gifts and class gifts.
• Preserves dead class members gift for his/her issue.
 Treats each class member as an individual taker.
 Transferee under a class gift shall be a transferee for the purpose of this subdivision unless the
transferee’s death occurred before the execution of the instrument and that fact was known to the
transferor when instrument was executed.
 If T knew that child A was dead when instrument executed, A’s issue don’t take by
representation. His gift fails. Gets re-divided under §21111.
 T presumably wouldn’t refer to A, B, and C if he knew that A was already dead.
 If he left “to my children in equal shares” and one child is dead, and two are living when will is
executed. The assumption is that T only meant to include living children, not the ones that are
dead and their issue.
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o (2) Substitute gift can be overridden if will says something different.
 Issue of deceased do not take in transferee’s place if instrument expresses contrary intention.
 UPC: issue takes as substitutes unless the instrument expresses contrary intent.
Handout:
3.) T leaves $60K to “be divided equally among my kids A, B and C or the survivor of them” and the rest of the property
to the church. B died without issue, and C died leaving two kids. T dies, survived by A and C’s children. How should
T’s estate be distributed?
• Does the estate go to A, and C’s kids, or does A take everything?
• Terms of the will govern if the terms of the will are clear.
o The anti-lapse is only default – designed to fill in gaps.
o CA statute: if the instrument expresses a contrary intention, it goes there.
• This will says “or the survivor of them.”
o Requirement that the initial transferee survived is presumed to override anti-lapse statute.
o If there is at least one surviving child the terms of the will provides what will happen.
• What happens if there are no surviving children, but C and A leave issue?
o Courts have generally held if T leaves bequest to surviving children, its an intent that they survive T.
o The survival requirement indicates intent to negate the anti-lapse statute.
o CA makes explicit:
• Requirement that the initial transferee survives the transferor constitutes a contrary intention.
• Statute applies only if no contrary intention.
• Burns Ct: survivorship language:
o Although generally take it to mean that anti-lapse doesn’t protect, some cases have allowed it to survive.
o She may have contemplated the death of a child, but she did no contemplate that all 3 would predecease.
• If that’s the case, the survival language doesn’t apply to the facts as they unfolded.
• This court: they should be able to disregard the survival language, if that’s what she intended.
o Argue there’s a gap in the will to be filled, and the anti-lapse statute could fill it.
• Suppose A’s kid does survive, and along with Burns we allow anti-lapse to apply. How do we distribute the $60K?
o §21110(a): If a transferee fails to survive T, then the issue of the deceased transferee in the manner
provided in §240.
o Is it a gift to 3 separate people, or to a class?
• Separate people – they are named.
o §21111: when you can substitute the dead beneficiary’s kids.
o Lapse statute applies first, then if there’s no taker, look at what happens to failed shares.
o Do we take $60K and spread it evenly, or take A’s share and give her $20K?
• Issue takes in transferee’s place.
• A’s child steps into A’s shoes, and C’s two kids do the same.
• If these are three separate gifts:
• B’s share ($20K) goes to the residuary gift. She did not leave issue.
• The anti-lapse statute preserves each dead beneficiaries’ share.
• Doesn’t recombine and get redistributed.
• A’s kid gets $20K, and C’s kids share the $20K. Divide among issue.
Difference between handout example and Burns (pg. 395):

• Burns was residuary bequest to the 3 sisters. T siblings C, F and I named in will.
• Two other dead siblings. She had about 15 nieces and nephews all claiming share.
• T left her residuary estate to C, F, I or the survivors of them.
o All siblings predeceased T.
o F was the sibling who left surviving issue (5).
o F’s 5 kids step up into F’s shoes.
 Do they get F’s 1/3, or the entire residuary?
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 The other 15 nephews argued that they should split the whole estate with F’s kids.
• F’s kids end up taking EVERYTHING.
o Anti-lapse says issue gets to step into F’s shoes.
o What about C and I? They have no issue – so where does their estate go?
 If it were CL, their two shares would drop into intestacy and the other nieces and nephews would
share with F’s kids in the failed 2 shares.
 But here they had a statute that says if we’re talking about a residuary bequest to several people,
it gets re-divided among the residuary takers.
 Treat F’s kids as taking F’s place, they get the same as if F was sole beneficiary.
 Any residuary entitled to take share. F would have been that person.
o Read survivor as meaning descendents and surviving heirs.
o Leaves room for anti-lapse b/c no contrary intent.
Gifts:
Three elements to Valid Lifetime Gift:

• (1) Donative Intent
• (2) Delivery
o If a donative gift is not delivered by T’s death, then it must be through will or testamentary bequest.
• (3) Acceptance
o Typically, courts presume acceptance. Rarely insist on express words.
Real Property (Land):
Statute of Frauds:
• SoF requires signed writing for any conveyance of land.
• Identifies land and indicates intent to make conveyance.
• Delivery is of DEED
o Not delivery of possession of land.
o SoF does not require deed in any particular form, but recording statutes specify formalities.
o Recordable form, once filed, makes transfer effective against the rest of the world.
o Constructive notice: once deed is filed, everyone else is on notice that legal title has changed hands.
Mertz v. Arendt: Wanted to give farm to kids. Son farms for years, making improvements w/ understanding that gift had
been made. When parents died, question of title comes up. No signed writing indicating land intended to be sons.
• Oral gift of land with no written evidence.
• Is there any way to make gift effective?
o Yes, if he’s willing to go to court.
o SoF has no exceptions for good faith reliance, but courts have developed escape hatches.
• Part Performance:
o Attempted gift of land, but legal title not transferred, courts in equity step in to prevent unjust enrichment.
o Requirements:
 (1) Clear and convincing evidence of intent to gift.
 (2) Donee took possession of land and physically, and has done something more.
• Ex: made improvements based on assumption of valid gift.
• He has to do something more in reliance.
• Practical point: this kind of case shouldn’t arise in first place. Should execute deed and record it.
Lenhart v. Desmond: pg 408: Father intends to gift house to daughter when dies. Executes formal deed to land, deposits in
safe deposit box, and tells D that when he dies she could get it and deed is hers. He goes to hospital and she gets the
papers. When he gets out, he looks in box and deed is gone. She had recorded and claimed right.
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• He did not have immediate donative INTENT.
• His intent was only to give in future.
• No matter what legal title record says, if there was no intent, can use grounds for contest to undo recorded deed.
o Like will executed w/ formalities – if no intent or tainted, that is grounds for contest.
Bottom Line: recorded deed is always advisable, thought not essential (Mertz), and it is not a foolproof way of retaining
title. Always have to look behind formal change of title for intent.
Delivery Deferred:
• Hypo: father has executed deed and wants daughter to take property at death, but doesn’t want to make will. Can he
deliver that deed and transfer valid title while alive, but prevent her from taking possession?
• Deed delivered during life:
o With understanding that it won’t be recorded until death.
o Technically, it works. Complies with donative intent and delivery of deed is sufficient.
o Requires cooperation of daughter to comply until his death.
• Life Estate:
o She can record that. He’s LT and she’s remainderman.
o Present gift of future interest. Rights possessory only at future time.
o Not ideal for borrowing against land or convenience of clean title transfers (if he wants to sell).
o If transfer is at death, its subject to estate tax rather than gift tax:
 If he wants structure of lifetime gift, he is better off not remaining in possession until death.
 Gives him no tax advantage like other lifetime gifts.
• Doesn’t want daughter to know of transfer, and wants to live in the place:
o No requirement that donee know of the transfer of gift.
 Delivery is focused on DONOR’s actions – his giving up control of property.
 Has very little to do with donee’s conduct.
 Could, in theory, even transfer to future donee (someone not yet born).
o Could give to 3rd person to hold onto until his death, and then record.
 If holding it on behalf of donee, and assuming delivery is irrevocable, then its completed
delivery.
• Delivery for an instant:
o Hands deed to daughter and she hands it back.
o If he parent never realistically gave up anything, that’s not really a transfer.
o He could have torn up deed and there’s no record.
o NOT recommended.
Personal Property:
Generally:
• Jewelry, furniture, cars, etc.
• Delivery is physically handing over property.
Constructive Delivery:
• If bulky, inconvenient, or (as in Gruen) he wants to retain LE and give away remainder
• Doesn’t make sense that donor pick up property and hand it over to donee.
• Delivery is satisfied by giving something like key to trunk.
• Must have donative INTENT.
Symbolic Delivery:
• Intangibles: stocks, bond, cash – may or may not be physically available.
• Delivery is like what we do with land.
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• Execute a deed of gift – writing that by its terms stands as symbol of completed gift.
• Typically a direction to agent or assignment for reciting terms of gift and date.
Intended to fulfill these functions:

• Donative intent
• Irrevocable delivery of property
• Some physical evidence
Gruen v. Gruen: pg. 417: Father wants to gift paining to son. Gave it as lifetime gift to avoid estate tax. Widow attacks
gift. Can you make a valid gift of a future interest in tangible property by writing and delivering a letter?
• Allowed for intangibles and land, but unclear if valid for tangibles.
• Need present, donative intent even for future interest.
o Have to give something away right now.
• Delivery depends on circumstances:
o Type of property, what is being given away, alternatives available.
• Holding: delivery requirement was NOT adequate given kind of interest involved.
Intangibles:
• Gifts of money. People write checks all the time intending to gift those funds.
• What happens if donor writes check and it doesn’t clear until after T dies?
o Timing can matter for lots of reasons (taxes, etc.). Lifetime or death-time transfers.
o When death occurs unexpectedly or death-bed gifts and T doesn’t survive long enough for check to clear.
• Checks: written evidence of intent to transfer funds.
o Really isn’t delivery of anything.
o Signing a check results in nothing, even if you hand it over. Doesn’t transfer immediate rights.
o Until the check clears, its technically revocable.
• If T dies before check clears, there was no delivery, so the funds pass through will or intestacy.
o What should bank do when presented with check?
o UCC protects the bank, even if it has notice that check-writer is dead.
o Banks permitted up to 10 days after death to pay checks.
o Protects them from having to ascertain whether T is still alive or if they’ve been notified of T’s death.
• Executor is still entitled to go after donee and demand return of those funds.
o Must determine if it’s a gift, or if check was given for consideration.
o If gift, have to persuade donee to give it back.
Gifts Causa Mortis:

• Gifts of personal property (not land) made in contemplation of impending death.
o She doesn’t have time to make will, but wants to get rid of property in case she dies.
• REVOCABLE by definition.
o If she doesn’t die, the gift won’t take effect.
o Other gifts: delivery is not complete if revocable.
• Differences/similarity to will bequest:
o Both become irrevocable only at death.
o Just a different formality – in theory it requires delivery like lifetime gift.
o But like will it is revocable.
Sherer v. Hyland: She kills herself after writing note to boyfriend. Endorses check for insurance proceeds to friend R, and
leaves on kitchen table. No valid will, only suicide note.
• She hasn’t handed over physical custody. No in-hand delivery.
• In theory, she could always come back and undo the check. Decision to kill herself not irrevocable.
• Can someone who takes own life make valid gift causa mortis?
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o Fact she took own life doesn’t make death less imminent.
o She was still making gift in anticipation of impending death.
o Court: doesn’t matter if threat is from disease, outside agency, or intent to take own life.
o Gift just has to be made in contemplation of impending death.
• Delivery adequate?
o This is VERY lenient.
o Generally, require that she have donative intent, and wants to make gift immediately. She has both.
o Check to Robert: present gift.
 Trying to make irrevocable and presumably conditioned on own death.
 Under circumstances, she probably took all steps she could’ve been expected to make to show
that it was final and intended to give it up.
o Court: when she left apartment and had no intent of coming back, that was sufficient for delivery.
Hypo: what if she hadn’t been intending to kill herself, but went for walk and got hit by car?
• If death was accidental, is that adequate delivery?
o She did same objective acts with check and leaving apt.
o NOT gift causa mortis.
• Is it a failed attempt of regular complete gift?
o In theory, delivery is the same for GCM as outright during life.
o But GCM is always revocable.
o Not much to distinguish it from incomplete gift where delivery is in future.
Will Substitutes:
General:
• A very messy and undefined area. Limitless ability to try and come up with ways to transfer property at death.
• Several ways to approach a transfer of property:
Contracts
• Do contracts that call for transfer of property at a person’s death hold up?
o Life Insurance: Courts in the late 19th century began to accept the pay-on-death beneficiary.
• Is there any reason why any other type of beneficiary designation wouldn’t work?
o Ex: POD agreement with bank.
 Is the POD contract valid? Courts up until the 60’s were still divided.
• As a matter of CL, POD’s were generally void.
o Courts said contract was testamentary, and these will substitutes posed threat to all of probate machinery.
o Made it too easy to circumvent probate protections.
o Nothing specifically in contract law restricted POD’s, but court said b/c “testamentary” it can’t be used.
• Eventually got statutory interventions.
o Legislators and UPC stepped in to validate specific types of will substitutes, usually for specific property.
o Stepped into almost every kind of contract with POD.
 Ex: Bank Accounts in CA and most states are specially regulated.
• Provisions specify ownership rights of individual, joint, lifetime and death-time rights.
• Valid as POD and is non-testamentary.
• All controversy surrounding the validity of the non-probate transfers as “testamentary” is solved.
• “Testamentary” is often misused. Phrase has no meaning unless you know substance that lies behind it.
Non-probate transfers at death:

• Another statute originating in UPC. Version in CA: §5000
• “A provision for non-probate transfer on death is not invalid because the instrument does not comply with the
requirements of execution of a will.” (lists whole bunch).
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• What it means: not only the enumerated types, but ANY provision for non-probate transfers at death are valid.
o It’s intended as a catch-all. Not limited to enumerated. Any similar written instrument.
Hypo: parent wants to make death-time transfer of real property (house) to daughter. She wants to keep ownership until
death, and may not even want daughter to know. She is reluctant to execute will, so she executes deed to the house, and
stuffs it in safe deposit box (no delivery) and tells daughter that when she dies she can go in there and she will find will
and other papers. Parent dies, daughter goes, and picks up deed and wants to record it.
• Problem: CL gifts, this deed was never delivered during lifetime, so can’t stand as lifetime conveyance.
o Also can’t stand up as a will b/c not executed according to wills formalities.
o And on its face indicates outright transfer (should have taken place at lifetime, not death).
• Does the statute hold up so that the daughter wins?
• §5000(b): Included in this general rule are:
o (1): “Money or other benefits due to, controlled by, or owened by decedent before death…”
 Standard POD on bank account.
 Shift of ownership that occurs at death with reference to money or other benefits.
o (2): Self-cancelling notes:
 Child agrees to pay money back to parent, but if debt outstanding when parent dies, the debt is
forgiven.
o (3): Property controlled by or owned by the decedent before death.
 These are pretty vague.
 Deed is really an outright transfer. Doesn’t say anything about retaining ownership at life and
then transferred at death.
• Why wouldn’t any botched will then fit into this statute?
o The drafters were not intending to do away with the statute of wills.
o Not saying that they can work if it looks like a deed or contract.
o They were assuming there would be a limiting feature that is not set forth on the face of the statute.
o Very hard for litigants to know where protected category ends and prohibited begins.
o Two courts have come out on opposite sides of the line in this situation.
o One said its okay, other said its not what drafters had in mind.
 UPC: OFFICIAL COMMENT now specifically addresses it.
 Language is not intended to provide relief for the absence of delivery in lifetime gifts.
 Not intended to make irrelevant wills formalities.
Bottom Line: statute can be very useful if trying to provide for non-probate transfer, but it is sufficiently indefinite so that
unless its something pretty standard (bank account, life insurance, marital property) don’t stretch it too far.
Hypo: Two elderly sisters with lots of property, they don’t want will. Decide to do a private version of probate and
execute a contract signed by each: “upon death of first one of us, the survivor will collect all assets, pay off any creditors,
and will distribute remaining assets according to decedents’ wishes in this agreement or separate writing.”
• Essentially a joint will without formalities.
o Promises to each other, mutual consideration, and survivor does everything executor would normally do,
but not through probate process.
• Not what UPC drafters had in mind. Why doesn’t it work?
o Ex: life insurance: almost always have a third party in control of property that is not affiliated with the
beneficiary who has interest that transfer takes place according to directions.
o Statute didn’t state certain limitations, although they had them in mind.
• This would undermine the importance/validity of probate process.
Two recurring problems: Life Insurance Policies and Joint Tenancy:
Life Insurance:
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Hypo: Life Insurance policy where owner has designated spouse as beneficiary. They divorce. No mention of the
insurance policy that was taken out in wife’s name and is separate property. No reference in settlement agreement where
he relinquished his rights, nor did she promise to maintain him as beneficiary or name anyone else. She dies unexpectedly
and never changed it. At her death, her ex claims insurance.
• Life Insurance co. is protected by paying out to him.
o He is on the policy.
o LI co. doesn’t have to investigate if there was a divorce, etc.
• Executor claims it was revoked on divorce, and will says that she specifically leaves the policy to her kids.
o Husband and executor have a dispute. Is there anything we can rely on?
o Still a problem: under contract, will doesn’t govern.
 Doesn’t go through probate.
 Will has no effect to change designation of beneficiary.
• What about divorce?
o If it were any other type of property, §5600 – 5601.
o But life insurance is specifically exempted to the revocation by divorce.
• Rule still in CA: unamended, unrevoked beneficiary designation is still valid.
o He gets to keep proceeds unless overriding document:
 Change in beneficiary designation (and its formalities)
 Property settlement agreement that specifically deals with it.
 Ex-husband voluntarily waives rights
o Simple agreement doesn’t get there.
• Still major problem with life insurance. Comes up repeatedly.
Joint Tenancy:
For any type of property, a JT can be created.

• Two people have property, while both are alive they own property together in equal, undivided shares.
o When first of two dies, that persons interest terminates and disappears. Survivor takes full ownership.
o NO TRANSFER at the death of first LT.
• Lots of interesting consequences:
o People often think of JT and right of survivorship as a will substitute, but not much more.
o They function in part like one b/c avoid probate, but don’t function very well as will sub.
• JT is created by expressing that intent
o In the names of A and B, as joint tenants, with right of survivorship (R of S must be expressed).
o During lifetime, JT’s have immediate, concurrent, vested rights to property in undivided shares.
• JT’s actually have nothing to do with simple will substitutes – major functional differences
o (1) One can always sever JT by transferring their interest to another person.
 No notice or intent required.
 JT becomes TIC.
o (2) Creditors of each JT can reach that interest
 A has debt -- they can reach A’s interest and foreclose on property. B is TIC with A’s creditor.
 Wouldn’t happen if property was owned by a spouse as sep. property or a parent wanted to leave
property by will.
o If they want to do JT as a way around probate, they’re building in some difficult lifetime consequences.
• What happens at death?
o Assuming JT is validly created, there are some kinks.
o (1) The right of survivorship is very inflexible – whoever dies first loses the interest.
 If parent bought property and took as JT with child, most of the time parent will die first.
 But if child dies first, property is right back in parents hands and nothing has been accomplished.
 It doesn’t guarantee any back-up disposition when people die in unintended order.
 It cannot be modified or revoked by will.
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• Perfect will substitute – want the designation to be subject to amendment, revocation,
change if circumstances change.
• Can’t do it in JT – all goes to survivor, no one else.
o (2) Creditors
 During lifetime, creditors of each JT can reach ½ of the property.
 If parent dies and child survives, and parent has lots of debt, creditors may try to reach the assets.
 Once parent dies, interest disappears.
 If creditor hasn’t attached the interest, there is nothing more to attach.
 BUT they will probably try to find them before they die.
o JT looks like good creditor-avoidance device (leave them with no recourse when you die). But its not.
Take away points:

• Can mess up credit.
• If interests diverge, it can create an untenable relationship and unstable relationship.
o During life, survivorship right can be undone at the stroke of pen if either JT wants out of arrangement.
o At death, changing or altering beneficial rights is difficult.
 Even if will says one JT wants interest to go to someone else, those provisions have no effect on
the JT. Terms of the will are irrelevant, even if intent is very clear.
• For those reasons, JT’s are not really a great planning advice.
Bank Accounts:
• Very widespread methods of obtaining beneficiaries.
o Can be vague and too flexible – hard to tell exactly what is going on.
o Traditionally: joint accounts were cheap solution to probate problem.
o Designates someone else to take at death w/o going through probate. Joint holders of the account.
• The question of parties’ intent came up:
o (1) They intend what the arrangement says on face – to create CL JT.
 Ex: Parent-child account.
 Possible that parent wanted child to have vested interest in each dollar in account.
 Problem: very unusual to treat a fluctuating fund as real, equal, undivided interests.
 Administrative headache.
o (2) Intended to avoid probate aspect
 They weren’t worried about lifetime rights, just concerned with probate.
 Since parent contributed all amounts in account, as long as both were alive, parent would own
and child wouldn’t interfere, but easily puts it in child’s hands at parents death.
 Problem: a POD arrangement. If there’s no statute that allows you to set up POD account, the CL
courts would strike down as testamentary contractual relationship.
o (3) Considered lifetime, but not death-time aspects.
 Substitute for durable power of attorney. Acting as parent’s agent
 Parent worried about becoming incapacitated, puts kid as party to account so she could write
checks and manage the money.
 Maybe didn’t even realize that kid would be owner at death.
• Problem: Joint account can be interpreted to cover any of these.
o Unclear from terms of account what the parties actually intended.
o Real mess of case law in absence of statutes where courts have to figure out what the parties’ intended.
• UPC: allows max flexibility w/o cramping rights. Form of JA w/ specified lifetime and death-time rights.
o During Life: presumption during life that each contributor owns in proportion to her net contributions.
 Ex: A and B open JA.
 If all funds came from A, then during parties’ joint lifetimes, those funds belong to A.
 If they withdraw more than ratable share, they are responsible to other party.
 Different than CL JT which is undivided, equal shares.
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 JA is essentially equivalent to a revocable transfer during lifetime.
 Bank is protected to paying out to either party.
o At death: rebuttable presumption that the survivor is entitled to the whole account.
 Recognizes that they might have intended a convenience account without survivorship rights.
 Allows executor to come in and try to prove that the JA was not intended to confer survivorship
 UPC does not require the surviving tenant to get full ownership.
 Flexible – but also a recipe for litigation.
 Creditors can still reach decedent’s interest if probate estate is insolvent.
• End up with arrangement that we call JA – even though looks nothing like JT.
o Proportion of contribution
o Rebuttable presumption for survivorship rights.
o Really has very little resemblance to JT in other types of property.
• Why do we still have joint accounts?
o Financial institutions have no stake – they don’t care if parties litigate.
o They can offer ambiguous form of account and aren’t responsible.
o It is self-interest of banks.
• Alternative
o POD account
 No interference during lifetime - leaves original depositer of owner during life.
 Beneficiary has no lifetime rights, but claims at death.
o Power of Attorney
 If client wants child to manage account
 Agency arrangement.
Bottom Line: JA are not recommended. Clarifying beneficiaries’ interests, creditor’s rights, and lifetime/death-time
rights, it is a headache. If there is a dispute or if tested, it is likely to be more trouble than worth.
Revocable Trusts:
Generally:
• Best of both worlds:
o Retained ownership during life
o Lifetime transfer doesn’t take effect until death.
• Trustee has all management powers that legal title holder (owner) would have.
• Beneficiaries have all rights to beneficial enjoyment.
Trustee owes fiduciary obligations to beneficiary.

• Trustee manages for named beneficiaries.
o Beneficiaries have right to sue trustee if he misbehaves.
o Can compel him to account for its management.
• The relationship of rights/duties gives rise to the trust.
o Definition of trust: relationship between trustee and beneficiary with respect to particular property.
o Heart of the trust is not an entity – it is the relationship.
• Trust allows dividing ownership
o To separate present interest and future interests
o Also ownership of testamentary estate and beneficiary estate.
• Perfect instrument for transferring from A for life to B outside of probate system.
o Legal title in hands of trustee. When A’s interest expires, the property is already titled in trustee’s name,
and all he has to do is distribute the property to B. Has nothing to do with probate.
• Wrinkle: traditionally, trusts were irrevocable.
o Settler would put property in hands of trustee, and then he eventually paid it out to the remaindermen.
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• The notion of a revocable trust is relatively recent.
o Settler keeps beneficial interest during lifetime, AND retains legally enforceable power to revoke the trust
and get the property back during lifetime.
o Looks like a will – have full authority to amend, change during life.
 Only difference: settler technically made transfer of future interest during lifetime
 No actual transfer that takes place at death, just falling of remainder interest.
• If settler maintains the power to revoke, what is different than a revocable gift?
o Revocable gifts ARENT VALID.
o Courts have recognized that in setting up trust, you can retain right to revoke trust, even though you
couldn’t with outright gift or property.
o Farkas case.
Why do courts worry about dividing line between lifetime and death-time transfers?
• Trust and fiduciary obligations
o From beneficiary’s standpoint, he has an “equitable interest.”
o Beneficiary has a bundle of rights primarily enforceable against the trustee.
o That is what we mean when we say B’s “interest” in the trust.
• Like any other property, it can generally be transferred unless there’s a valid, enforceable restriction.
Basic idea of will substitutes and trusts:

• Farkas is good pre-UPC discussion that indicates the conceptual framework that court’s used
• Generally, a fiduciary relationship of property that arises from settler’s manifestation of intent in making the trust.
• What a trust needs:
o (1) Expressed intent on part of original settler
o (2) Trust property
o (3) Parties:
• (a) Settler (provides property used to fund trust and to express intent to create trust)
• (b) Trustee
• (c) Beneficiaries
• In traditional types of trust – the standard form was irrevocable trust that had trustee different than settler.
o Pretty easy to see if trust had been created.
o Presumably delivery of property from settler to trustee.
o Different than formalities in executing will.
• Will becomes effective only after T dies and admitted to probate.
• Transfer of interest in trust happened during lifetime irrevocably.
• In mid-20 century, people came up with idea of REVOCABLE TRUST.
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o Here we’re comparing it with gift (rather than will).

• To have completed gift, must have delivery that it is irrevocable.
o Concept of revocable trust is nice hybrid – has best of both words.
• Similar to gift of property inter vivos.
• But if he includes the power to revoke – that doesn’t look like a gift. Looks more like a will.
• Unlike will - the formalities for creating a trust look like formalities for lifetime transfer.
Farkas v. Williams: Vet he wanted to transfer property to at death to associate Williams. Instead of will, opened mutual
fund account and wanted to designate W as death-time beneficiary. Tried to find way to get around wills formalities.
• Mutual fund company (IDS) came up with one-page trust.
o Mr. Farkas as settler, identified property, and named himself as trustee (he can do that).
o Complied with what seems like an inter vivos trust.
o Nothing in trust law to prevent settler from designating beneficiaries in the future, or to revoke the trust.
o Can’t do it with a gift – can with a will but then you have to comply with will formalities.
• On its face, nothing wrong with it in trust law.
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o What he’s doing looks a lot like what he would do with will disposing of specific assets
o But he hasn’t complied with formalities of will.
• Issue: is there a valid trust or not? Trust law point of view:
o (1) Did Farkas give up full ownership and control?
 He gave up at least a scintilla. He can’t be settler, trustee, AND sole beneficiary.
 Beneficiary W had no present rights.
 Beneficial interest vested at F’s death if the trust hadn’t been revoked. Looks like a will.
 Did F retain too much in way of ownership/control?
o (2) Did a beneficial interest pass between F and W?
 Viewing as transfer in interest in property.
 Did any enforceable interest/right pass to W when F did this?
Did any identifiable beneficial interest pass from F to W?

• If interest passes, then almost by definition is a valid trust.
• It’s hard to identify what interest W received.
o If court had to identify interests that pass, it is a vested remainder subject to complete divestment.
• What do the rights consist of?
o There was never a breach of trust (F dies, and claim is between W and executor).
o W would have to sue F in order to find out if W has rights (F was trustee).
o But F didn’t do anything that would give W cause of action or complaint.
• Court: trustee owed fiduciary duties to beneficiary.
o In theory, F could’ve breached trust, and if he had and if W sued, he could have gotten relief:
o What if F spent all money in the trust?
o If W decided to sue, what relief could he get? Legally or practically?
 F would respond that it’s a revocable trust, he reserved right to revoke it.
 He constructively revoked.
o If F had sent written notice to revoke trust (e.g. to IDS offices), that would have been express.
 If he just withdraws funds w/o giving notice to issuer, that’s just a technicality.
 He is the trustee, so why does it matter?
• He didn’t follow trust requirements for revocation, and the terms can be held against him.
o IDS created canned form of trust with terms indicating they wanted notice.
 Wanted to know if changing beneficiary so they can pay to correct person at death.
 Effectively saying “if you don’t comply, we are not responsible if we pay out to named person.”
 Protects from double-liability.
• No valid revocation unless follow exact format required under trust instrument.
• Would be amazing if that stands between valid trust and getting around wills formalities.
• Conceptually, hard to imagine where there are enforceable rights by W against F.
o Hard to imagine what conduct F could have done to breach this trust.
o It is so easy for settler to revoke trust.
o There is nothing in trust law that requires you give notice to 3rd person (IDS just wanted it).
o In theory, he could just revoke by tearing it up.
o Normally, it is easy as against trustee – if he’s careless in investing, spends trust property, etc.
• No realistic rights that W had.
Result:
• Court throws up an elaborate edifice of legal fictions to justify a conclusion that trust is valid:
o They are confident no risk of fraud or abuse.
o Terms were clear
o Third party involved
o Safeguards and formalities were adequate to make sure it won’t lead to abuses.
• As a realistic matter, court is bowing to society.
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o There is a demand for will substitutes, and revocable trusts meet that demand.
o There is no reason not to let them go forward.
• Not very different from what courts were doing earlier
o Banks, knowing they couldn’t offer POD accounts, resorting to trust fictions to provide the equivalent.
o Totten(?) Trust: Depositor in savings account who opened in this form:
 A wants account payable at death to B.
 No statutory basis for it – so A opens savings account, “A as trustee for B.”
 At A’s death, is bank account part of estate, or is there valid trust for B?
• Court stretched trust law and found valid, enforceable trust they called “tentative trust.”
• Property, parties clearly defined (settler, trustee, beneficiary), intent to create trust.
• Only question: could they imply terms to make it an enforceable trust.
• Court read in implied terms:
• A is creating trust to take effect at death
• Its revocable contingent on B surviving A.
• If B is still alive, she gets to claim account in trust.
 Complete legal fiction because B has no enforceable rights during life.
 It was a way to validate formula as a method of transferring property at death.
• Totten trust spread like wild-fire.
o No real substantive difference between these than POD accounts.
o All it is – an express trust where all terms are implied from simple phrase.
o Court bent over backwards to give substance to it.
Formality: Parties for Life-Time Trusts:

• Settler and trustee can be same person.
• Settler/trustee cannot be the same person as sole beneficiary.
o CANNOT have those be the same person.
o Can have trustee that acts for himself and another person (A acting for A and B is fine).
o Can have A and B act as co-trustees for the benefit of B alone.
• It can be either someone else named as trustee, or a person who names himself as trustee.
Trusts:
Inter vivos:
• Pour-overs
• By agreement
• By declaration
• Don’t need probate to get trustees or to get ongoing supervision of administration.
• Trustee not obligated to submit accounts to probate etc.
• Handled outside the system unless some dispute arises.
Testamentary:
• Only way to dictate disposition of property at death is through will.
• Testamentary trust must meet same formalities as will and be created by will.
• Inclusion in will:
o Terms set out in will, or
o Incorporate by reference
o Otherwise, passes by intestacy.
• Named trustee has to go through probate process.
• Under ongoing duty to submit regular accountings and get court approval
• More cumbersome than inter vivos generally.
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Methods to Create Inter Vivos Trust:
• (1) By agreement
o Have an agreement between settler and someone else who acts as trustee
• (2) By declaration
o Settler names himself as trustee
o Farkas.
Why does it matter?

• (1) By agreement:
o When someone else is acting, need to have a transfer of trust property.
o Trustee must have legal title to administration of property.
o Same formalities as other lifetime transfers:
• Land
• Statute of frauds – written memo of transfer of land.
• Intangibles
• Ex: Stocks and bonds
• Re-title and put in name of trustee.
• Tangibles
• Ex: artwork
• Physically hand over property or deed of trust and transfer by symbolic delivery.
• (2) By declaration
o Teliaferro.
o Increasingly popular – very convenient and informal.
Taliaferro v. Taliaferro: Declared himself as trustee of various properties and set out terms of trust in written instrument.
No delivery of property to someone else or re-registration of title. Dies, and wife unhappy, claims trust never came into
existence b/c the property was never actually transferred.
• Court: husband created a sufficient trust. Written document is enough to determine present intent.
o No legal requirement in trust by declaration that you deliver property to yourself or to re-title.
o Unlike agreement situation, where there’s no other way to get property into 3rd persons hands, the settler
owns legal title, and title staying in own hands. No formal requirement to re-title.
o When trust is created, the EQUITABLE interests are being transferred – severed from legal title and
going from settler to beneficiaries.
 If trust is valid, there are other beneficiaries.
 He is only beneficiary during life and has full power to revoke.
 If he’s successfully transferred, we tell if it was valid by if beneficiaries got their interests
• By signing the document, he raises a presumption that he intended what he signed.
o His subsequent conduct just shows he was violating terms of the trust.
o Permits action by beneficiaries to assert rights b/c of fiduciary relationship.
• Practical Matter:
o Litigation can be avoided if he went through formalities that aren’t required, but recommended.
o Submit change of ownership designation to life insurance company and for stocks and bonds.
o If property re-titled on record of 3rd parties to keep track of it, matters would have been simplified.
The written instrument:

• Nothing in law REQUIRES written instrument generally:
o In theory, to set up inter vivos of stocks, bonds, or cash, could do so just by standing in empty room and
declaring self trustee of all for the benefit of self and some other beneficiary.
o Technically enforceable, but not a good idea. Want good evidence of terms.
o No one will be sure of intent to make declaration, property included, etc.
o If had enough proof to persuade court that the declaration was made with requisite intent, it would stand.
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o CA §15207: Preference of written trust instrument.
 (1) To enforce oral – have to do so by clear and convincing evidence.
• Heightened burden of proof (instead of preponderance).
 (2) Oral declaration of settler standing alone is not sufficient.
• Not enough by itself. Need something more.
• Statute doesn’t say what else.
• Could be upheld as long as other c&c in addition to settlers oral statements.
• Some specific cases, it is required:
o CA Probate §15206: signed writing in order to create trust of land.
o Whether by agreement or declaration, if trust includes land interest, signing is required.
o Statute of frauds – requires written memo to make valid transfer of interest in land.
Hypo: grandparents want to provide fund for gkids education. Come up with $50K and give it to their son for his
daughter’s education. He deposits the funds and then uses them for other things. By time daughter is ready for college,
nothing is left. D wants to sue her father for the funds. This was an Oregon case.
• Oral trust if it meets requirements:
o (1) Settler – Grandparents
o (2) Beneficiary – Daughter
o (3) Trustee – Father
o (4) Intent to Create Trust
 She said, “this money is to be used for D’s education.”
 Although she didn’t say “give to you in trust” it is clear what her intent was.
 She might have never heard of trust – if her intent is arrangement that corresponds to what we
think of as a trust, that is enough.
o Daughter would win.
• Would it be a valid trust in CA today?
o §15207: Need evidence in addition to settlers oral declaration.
o If someone is asked to serve as trustee, the trustee has to accept the property and terms.
o We assume when he accepted the property, he expressly or impliedly agreed to the terms.
o Another party is involved. His words/conduct accepting it are extrinsic evidence in addition to the oral
declaration by settler.
o His acceptance and understanding is enough – c&c.
• The provision is meant to keep people from claiming money based on what settler said.
o We want evidence of transfer to 3rd party (at least).
o If trust by declaration, want a writing or some other persuasive evidence that can’t be faked.
• Much easier just to do it all in writing.
Result of trust by declaration:

• Clearly permissible.
• Issuers of stocks, bonds, etc. have no way of knowing whether he owns them or has trust beneficiaries.
• They will look for his signature on a transfer of property.
• If he dies, and is sole trustee, how will beneficiaries get property?
o If properly customized, trust instrument will provide for alternative trustees.
o If original becomes incompetent, someone else would step in there too.
o If properly drafted and not testamentary, don’t need to go to court to assert rights of trust instrument.
 The successive trustee would have all the same powers.
 Could claim life insurance, transfer stocks and bonds, etc. Can take over seamlessly.
 If no one is appointed, there is a big gap.
• If vacancy for trustee and no successor or procedure for naming one, can always go to court and have one named.
Revocable Trust vs. Gift and Will:

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• A revocable trust that can be taken at death and clear of lifetime gift formalities, looks a lot like a revocable gift. Or
looks like will that doesn’t go through formalities and probate.
o Courts are aware of this.
o Cases have a lot of defensive comments:
o Ex: daughter argues that father took steps to transfer property at death, not a will and not a gift, so maybe
he wanted to be trustee. Trying to put invalid gift into pigeon-hole of oral trust.
• Courts say they won’t torture defective gift into trust declaration.
o Courts won’t come to assistance of careless donor unless sufficient evidence trust was intended.
o Need to show that there was intent to name other person or himself as trustee.
o Need to show it was bonafide trust, not failed gift.
Every trust needs property:

• Can’t have valid fiduciary relationship without property.
o Normally easy to identify.
o Don’t need to re-title property (although good idea).
• Problem: a settler who wants to create trust but doesn’t yet own underlying property. Future interests.
o Can’t make a valid trust from expectancies. Must have something in existence.
Speilman v. Pasqual: Pasqual purchased the rights to make stage adaptation of Shaw’s My Fair Lady. He didn’t have
writer, funding, it was just a glint in eye. He had mistress and wanted to assign to her future royalties of play that he had
yet to produce. Wrote her a note assigning some future royalties to her. Turns out to be a massive hit, and question was if
it was a valid assignment of royalties. Is there property here?
• Either as completed gift or valid trust agreement
o Property capable of being transferred:
 Royalties: Need a work of art in order to generate royalty.
 If you have the work in physical form, you could transfer the work or the copyright or share of
future royalty to be earned.
 Problem here was that there was no play, or even a contract to make the play.
 It was nothing more than an idea – and an idea is not transferable property.
o Ct App. NY: because intention so clear, if he had to identify an existing property right, could look back to
the existing play that Shaw had written, and the contract he had with Shaw’s executors that gave him the
exclusive right to produce the play.
 The contract right is assignable. Thats enough for him to hang the rest of the transfer on.
 Transferring rights to future profits.
• Point: when identifying trust being created, along with parties and type of trust, want to think about what is the trust
property. Matters to trustee and to the beneficiaries when they come to get their shares.
o Want to identify what property went into trust and what happened to it.
• Black letter: trust property must be in existence and ascertainable.
o Bright-line from existing and expectancies.
o Can’t make a valid trust today of expectancy that you will get from parent’s many years away.
o Pasquel: existing property right was the right under existing contract.
 They had to identify something as being in existence, and that’s what they accepted.
Farmer’s Loan v. Winthrop: Valid trust with $5K of seed money. What property will end up in the trust? Husband died
at some previous time. Sets up revocable trust, names bank as trustee. She is expecting to get millions from husband’s
estate, which can’t happen until probate court gives decree. But she sets up trust so bank can collect the assets from
husband’s estate and add to trust. Purpose: she wants to sign off on all paperwork at once. Court issues its decree, and
bank goes down to executor and asks for the property. They said it’ll take additional paperwork and take a few weeks. In
a few weeks they make partial distribution, bank accepts and deposits in trust account. Same day, settler (widow) dies. A
few months later, executor gets around to making rest of distribution.
• Problem: transfers of property into trust.
o Did she have an existing property interest capable of being transferred.
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• Cardozo: she had existing property interest.
o If she wanted to, she could assign interest in husband’s estate into trust she was creating.
o Could have funded it with assets she was expected to receive.
o Crucial date for acquiring property interest – the date of his DEATH.
o That’s when he died and transfer by his will took place, even though probate courts took awhile.
o She had enforceable, transferable interest from moment he died.
• Cardozo: if she could’ve transferred her future distribution directly into trust, why didn’t she?
o Would’ve been present assignment rather than direction to the bank.
o Cardozo: she didn’t express intent to make present transfer
 It wasn’t transferred during lifetime.
 Since agency is revocable and expires when she dies, bank has no power to do anything further.
o The final distribution ends up being passed in different proportions. Trust instrument didn’t govern.
• Two points:
o (1) This case is extreme and arguable.
 Restatement takes different view.
 Commentary: on facts like this: a trust agreement and clearly expressed intent to create a transfer
of existing assets to trust, and settler has done everything in order to make enforceable.
 If settler dies before transfer completed, ought to give equitable relief.
 Cause completion of transfer. Give the beneficiaries right to enforce collection of those assets.
 Narrow exception – but goes beyond Cardozo.
o (2) Why did she do it this way?
 Anyone that knew what she was doing could have merely recited transfer.
 This was normal - it is pretty standard to have trustee clean up all of it and create the trust.
 She didn’t foresee the possibility that she would die. If she didn’t die, it would’ve been fine.
 What has not yet been completed by the time she dies cannot be done on her behalf after death
unless pursuant to validly executed will.
Beneficiaries Interest vs. Trustee:

• Ordinarily – rights are enforceable against trustee.
• Ex: Trustee makes distribution to wrong person (accident or not).
o If they aren’t entitled, the rightful beneficiary has COA against trustee personally.
 Benefits of a trust: beneficiary has right to pursue trust property in hands of 3rd party.
 3rd party not bonafide purchaser; they got windfall b/c of distribution in error.
 Beneficiary can pursue that property.
 That is a powerful remedy.
o Not just against trustee personally, but also 3rd parties.
• If property has gone up in value, and was improperly distributed, can get property itself back and appreciated value.
• Beneficiary has very valuable parcel of rights.
Transferability of Trust: Generally:

• Like other property, it is generally transferable.
o We think beneficiary’s interest in trust is a species of equitable property ownership.
 Ex: Could sell/give away life income interest.
 Pledge as security for loan, transfer life income to someone else, etc.
o Could be reached by creditors. If A runs into debt, and has no other assets except for income from trust.
 Creditor could reach trust to pay debt.
 Procedurally, creditor could sue A to get judgment.
 If no other assets there to pay, creditor would launch equitable suit against trustee.
 Force trustee to pay him instead of to A. Compels trustee to pay off debt. Income diverted.
 If there’s nothing in trust that prevents that, interest generally transferable.
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Spendthrift Trust:
• Special about trusts: Unlike outright ownership, it can be made subject to restraints.
o Possible for settler of trust to make beneficiary’s interest inalienable.
o All they have to do is specify that B’s interest is not subject to transfer or alienation.
o Not only can B not sell or give away own interest, but B’s creditors can’t reach it.
• Ex: B gets income from trust, and not enough to live on. Creditors advance credit without realizing that he had no
property of his own to collect.
o The provision is to ensure that B could not pledge the trust interest to creditors.
o The terms of the trust made the interest non-transferable
• As a matter of trust terms itself, A’s interest is non-transferable.
o A could NOT do this with own property. He can’t shield from creditors claims.
o The settlers intent restricts B’s interest such that it can’t be transferred voluntarily or to creditors.
o Creditor’s can still sue trustee, but the trustee can say that they don’t get it, and A still does
• Blocks creditor from being able to force trustee to pay in satisfaction of claim before distribution.
o Once income gets distributed to B, then it becomes assets in B’s hand like any other asset.
o If creditor is fast enough to catch A while he still has it, he can reach it like any other asset.
• All we are talking about is making it procedurally difficult for creditor.
o Have to go against the B, not the trustee.
o Much easier to get funds when they are still with trustee.
Exception Creditors:
• With spendthrift trust, as a matter of policy courts have carved out exceptions.
o Several categories of creditors that may attach interests in trust, no matter what trust instrument says.
o Settler’s intent isn’t any different – courts have just set up limits.
• (1) Spouses and Children seeking support.
o Deadbeat dad situation. Dad is beneficiary of trust. He is making no payments in alimony.
o Wife and kids can come to trustee and enforce support rights.
o Once they have judgment, whether or not the trust includes spendthrift provision, they can collect.
o To the extent the income is there, trustee can be compelled to pay it.
 All equitable remedies – court can always tell trustee to pay off at the rate of X.
 Court can allocate priority of who gets paid what, when.
o Rationale: child entitled to support from beneficiary who isn’t paying.
 They will seek payment from public welfare.
 Instead of hoisting the responsibility on general society, they will make B pay.
• (2) Necessary Items
o Creditors that have provided necessaries
 Landlord which gave him place to live, merchant that gave him clothes, etc.
o Doesn’t come up all that often: trustee can’t deny B basic needs of sustenance.
 One of trustee’s capacities is to administer trust for benefit of beneficiary.
 If B has no place to live or clothing, the trustee is probably in breach of fiduciary duty.
 If trustee has wrongfully refused to make distributions to cover necessaries, and someone else
provides it for them, the person who provides it gets claim in collecting amounts that are due.
• (3) Services that Benefit Beneficiaries Interest
o Trust lawyers that want their fees paid.
o B wants to sue trustee in order to enforce trustee to do something.
o If B PREVAILS, and gets a better deal, lawyer wants to get paid for services.
o That lawyer is entitled to pierce spendthrift trust and to get paid if B has no other means to pay.
 Rationale: prevent B from being unjustly enriched at cost to L.
 Want to encourage B’s to vindicate rights under trust instruments.
o Obvious assumption: people that wrote these exceptions have bias in favor of trust L’s.
• (4) Governmental Claims
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o Used to be primarily tax claims.
o Often claims of reimbursement of medical or housing benefits, etc. that can be reclaimed from trust.
Beneficiary can always disclaim interest in trust just like in an outright will.
• Can disclaim any gift – trust, will, lifetime gift, etc.
• As long as he goes through all the formalities.
• If he starts receiving income and then wants to cut off creditors later, can’t do it. Too late.
Spendthrift clauses have been recognized for a long time.

• Creditor’s haven’t objected too strongly
o It doesn’t really matter to most creditors. They can protect themselves in other ways.
• Ex: banks to homebuyers: will take back a security interest.
o They might just take security for the loan. If debtor doesn’t pay back, they can foreclose on security.
o Or take out credit insurance and try to spread the risk .
• Most creditors have a variety of ways they can manage to avoid getting stiffed by specific, individual debtors.
Tort Creditors:
• One category where creditors don’t have avenues around it.
• Sly Case: mother sets up ST trust for son. He gets into car crash and causes lots of injuries. Tort victim sues trust
beneficiary and discovers he has no other assets except he’s living comfortably on trust his mother set up.
o Victim can’t make other arrangements
o Can’t choose not to be in accident, and not arms-length like contract.
• Aside from limited categories of creditors, the standard law is that even tort creditors don’t get to pierce ST clause.
o Tort creditors are particularly disadvantaged. They are involuntary creditors.
• Should they honor settler’s intent? Or concern for effect on B? Or should we worry about creditors interest?
o Tort victim is in much worse position.
o R3d recognizes the 4 categories of preferred creditors, but leaves it open to courts to expand.
o Tort creditors is one avenue.
o This is first case to take R3d.
• Then Miss. enacts statute that limits the categories and reaffirms the CL restrictive views.
o No jurisdiction in country where tort creditor has recourse against beneficiary’s interest.
o Every other state that this has come up has reached the result that the tort B has NO remedy.
Discretionary Trust:
Spendthrift provision is NOT the only way to protect B’s from creditor claims:
Spendthrift assumes that they’re entitled to receive some amount.
Ascertainable right to periodic distribution.
All that stands in between B and creditors is that ST clause.
Discretionary Trust:
Gives trustee discretion as to when to make distribution, how much to distribute, and even to whom.
They can be given discretion to “sprinkle” income to the descendants, or
Broad discretion to all or none to any of the B’s.
B has no enforceable right against trustee unless trustee is abusing terms of discretion
The creditors can only reach what B has.
If B has no entitlement to distribution in trust, they have no standing in better position.
EVEN if they are preferred creditors.
This is how settler’s normally do it
Give discretion to trustee to limit B’s interest.
Very effective in staving off claims of all creditors
Puts B at disadvantage, b/c they could also be cut off. “If the spigots turned off, it’s off to everyone.”
Puts B more on par with creditors.
If creditors go away, then the discretionary trust can be re-opened to B.
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Spendthrift and discretionary can overlap, but conceptually they are different.
Self-Titled Trust:
• B can set up trust for own benefit, even if includes a DT or ST provision, creditors can reach retained interests.
o Settler sets up trust and retains beneficial interest
 He’s both settler and beneficiary
 Protection is UNAVAILABLE against own creditors.
 Cant set up own to shield from own creditors.
• Ex: create own trust at local bank and give bank as trustee discretion to give any principle to you.
o If run up debt, creditors can still reach income interest as a matter of course.
o As to trust corpus: have no right to compel trustee to make distribution of trust property.
 None of the underlying trust property.
 Those distributions are only at trustee’s discretion.
o What about creditors?
 Settler’s creditors can reach max amount that could properly be distributed back to settler
assuming max trustee discretion.
 If trustee could terminate trust and give it back to B directly, then the creditors could reach the
trust corpus as well. Even though B can’t do it on own behalf.
• What that means:
o People can’t protect own property as easily as when a family member creates trust in their benefit.
o A few states that have modified rule, but they are like Alaska, SDakota, Delaware.
 Places that don’t have a lot of trust business, but are seeking to get more out of state.
o Debate raging whether those other places will start “race to the bottom” and do away with all these
formalities, or whether existing trust centers will be able to maintain their business and not be undercut.
 So far, in most of the big centers of trust business, they seem to be fine.
Husbands and wives seeking to use each other as straw parties to protect each other:
• Can’t do it for yourself, so you gift it as trust.
• If strawperson involved and clear crossing of transfers, courts usually assign trust to that original person.
o Setting up for each other’s benefits.
o Courts will uncross transfers and say you are deemed to do it for your own benefit.
o Can’t get around it that easily.
• If no strings attached gift to sibling etc. and no immediate contemplation of claims that might come up, valid gift
(not fraudulent transfer), no prior understanding or arrangement, and that person decides to set up trust to your
benefit (independently) then they wont collapse that. But that doesn’t happen that often.
Handout Problems:
1.) S creates irrevocable trust of $1M with T as trustee. No spendthrift clause. By the terms of the trust, A is to “receive
all of the trust income for life, along with distributions of principle at such times and in such amounts as the trustee its
sole discretion deems appropriate.” At A’s death, any remaining principle is payable to A’s surviving issue. A incurred
over $50K in legal fees in a recent divorce, and has negligible assets apart from the trust interest. A’s lawyer brings a bill
in equity against the trustee to compel payment from the trust property of the outstanding legal fees. What result?
• What kind of creditor is lawyer? Does it matter at this point?
o Any creditor can reach any amount that A can receive.
o As far as A’s life income interest goes, creditor can reach. Not protected by ST.
o If L brings bill in equity, L will be able to get court order compelling trustee to distribute income to L in
order to satisfy, or order A to sell income interest and from the proceeds to pay L’s claim.
• If $50K is far more than income reaches.
o This is a discretionary trust. L is in no better position than A would be. Steps into A’s shoe.
o The trustee can refuse to make distributions and L would have to wait to get paid off by income interest.
• What if we slapped on spendthrift clause?
o Income interest – have to pay closer attention to what kind of claim.
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o If standard creditors claim, if A’s income interest is protected, is L a preferred creditor?
o NOT here. Litigation did not involve protecting or enhancing A’s interest.
o Not a claim to enforce support payments.
o This is just general creditors claim. ST clause would defeat that L’s remedy.
o Would overlap with the discretionary provisions to reach corpus. No recourse against trust principle.
o He would be out of luck for both types of interest.
• What difference if A is sole trustee?
o Has unlimited discretion to reach trust property.
o A is not actually the settler
o Under CL of trusts, this is still discretionary trust. No creditor can force A to exercise that discretion.
o Even if he holds the strings to open assets for his own benefit, if he doesn’t want to make distributions to
himself, he can keep creditors from getting them either.
o This is at the edge of beneficiary protection. R3d and CA Probate Code take different view:
 In CA this would be treated as if A had set up trust for own benefit b/c holds sole discretion.
 But CA has taken unusual approach and opened up this to creditor claims.
o This will not be on exam.
Termination, Revocation of Trusts;

• Most well-drafted trusts will make it clear on the face of instrument:
o (1) Whether settler contains power to revoke or not.
 Can make trust revocable or irrevocable.
 Crucial to make it clear which kind.
o (2) If revocable, will specify a method of revocation.
 Must say what steps to take in order to revoke.
• Unlike will, inter vivos trust does not have set of readily recognized statutory formalities.
o You’re writing own charter.
o Can give settler right to revoke in any number of ways.
Barnett: Pre-fabricated, tear-out form. Canned trust declaration of stock. Declared to be revocable, and could be revoked
at any time by settler giving notice to trustee or transferring stock. He got involved in divorce with wife and decided to
leave stock to son instead, and in his will he declared stock separate property and leaving it to son. Does the stock pass
under trust or was it revoked and passed by will? No revocation by terms of trust. What do you do when trust instrument
is silent (or ambiguous) about methods of revocation?
• CL – unless indicated intent to be revocable, presumed irrevocable. Have to express intent.
• CA – default rule is opposite.
• Methods of revocation
o He clearly wanted to revoke. Wanted stock to go to son.
o Didn’t comply with terms of trust he signed.
o Look to default rule for methods of revocation:
o CL – can revoke trust by any method in trust instrument, or by any other reasonable method if trust
instrument doesn’t specify.
• Court says that he intended to revoke but didn’t do it by methods set out.
o What indications do we have that he intended to revoke?
o Will with contrary intent. That is pretty good indication.
 Says we cant look at terms of will. Why??
 Trust says nothing about revoking by will – not specified.
o Will ambulatory as long as still alive.
 Not effective while alive.
 Contrary provision in will is not effective.
 Ignores provisions of will.
o Made it clear to lawyer that he wanted to revoke.
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 Oral declarations to L was valid method of revocation, even though trust said nothing about it.
 Court clearly bending over backwards to carry out his intent.
• R3d: only if there is NO method specified do we allow reasonable manifestation of intent.
o Here he had revocation methods on trust, but didn’t use any of them.
o Court is just trying to be equitable, so they create problems for us.
• CA §15400: Unless trust says differently, it is presumed to be REVOCABLE.
o Many use as will substitutes, and they don’t know to specify.
o If you want irrevocable, have to say so.
• CA §15401: Two methods:
o (1) Exercise method of revocation specified in trust instrument and, or?
o (2) Trust can be revoked by a signed writing OTHER THAN WILL delivered to trustee during lifetime.
 The person most interested is trustee. Provide written notice to her.
 Unless trust specifically makes method, then written delivery to trustee is good enough.
• How would Barnett come out?
o He could have given written notice to self, but will is not enough.
o Has to be OTHER THAN WILL.
o Oral declarations don’t count in CA. Mrs. would probably get the stock.
• Less safe than ever to think you know default rules with regard to revocation
o Think about who trustee may be
o Want something in writing
o Want it to be clear whether instrument of revocation taking effect immediately during lifetime or whether
ambulatory until death
Early Termination or Modification of Trust:

• Deviation
o Trustee or beneficiary unhappy with trust terms goes into court and asks court to allow him to do
something differently than what trust terms command or permit
o Has been applied narrowly – only applied to administration
o What must be met for deviation
 Some circumstance not foreseen by settler
• Runaway inflation
• If irrevocable, can beneficiaries who own all the trust property agree to terminate the trust, or re-write terms?
o YES, provided that they:
 (1) Agree unanimously
 (2) All are competent and ascertained (they are all together), AND
 (3) What they want to do doesn’t contravene any material purpose of the trust.
o VERY difficult standard.
• Have to determine they are all ascertained persons, in existence, and competent.
o Most trusts are going to be set up for long-term arrangements providing for several generations.
o Usually ends up with some class that are unascertained (might even be unborn).
o Very difficult to identify all beneficiaries and be sure you have them all together.
o What do you do if beneficiaries are unascertained, unborn, minors, etc.?
 Courts have been willing to allow virtual representation
 Guardian representing interests, or
 Might allow one beneficiary that is similarly situated to give consent on behalf of unborn
• If interests are sufficiently aligned.
 Very slow trend to relax formal requirements to have all B’s consent.
• Unanimity
o Interests may or may not coincide, but usually its very hard.
• Material purpose is the real hurdle. Claffen doctrine
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o Ex: trust – income to son, distributions of corpus at ages 20, 25, and 30.
o Tug of war between settler and beneficiary.
o Since made in installments and paid out at age 30, would termination interfere with material purpose?
 YES – when you have schedule of distribution, ages, spendthrift provision, trustee discretion etc.
 Almost any term of a standard trust would reflect material purpose.
 Prevents beneficiaries from overriding and terminating early.
o This is an important limitation.
o The only examples that R3d gives that do NOT run afoul:
 (1) Trust “income to A for life, remainder to B.”
• If A and B get together and decide to terminate trust, and get present value.
• If no discretionary term or deferring of payments to ages, or no ST provision providing
support for A, then they can terminate.
• It is a good hypo example, but probably wouldn’t happen.
 (2) Settler is still alive and consents to do it.
• If all B’s and settler are unanimous, b/c original terms reflect his intent, and he wants to
change his mind, he can do that, and re-write terms of trust.
• If S is dead, you can’t get consent - almost impossible to compel early termination.
• Practical matter: two points:
o (1) What is trustee’s role?
 In theory, the doctrine does not permit early termination.
 If settler is dead, and B’s convince trustee to do it, there is NO ONE to complain.
 No one else has standing. B’s have all agreed.
 Most trustees won’t want to do it. They will have misgivings and want to do job right.
o (2) What is the Court’s role?
 Court has no role to play as long as B’s agree. No court approval is required.
 Almost never happens without litigation.
 If trustee resists they will likely try to compel a termination.
 Once court becomes involved, they can actually insulate trustee from liability by giving order.
 Trustee has no option but to obey order.
 Courts don’t usually want to jump in.
WEEK 14 – END
Fiduciary Administration:
Fundamental Duties: Trustee’s obligations can be summarized in terms of:

• Carrying out trusts intent
• Administering Trust for benefit of beneficiaries (duty of loyalty)
• Almost always trustee must invest – not just holding the property (prudent investment).
o Making trust property productive, and doing so prudently
• Duty of impartiality
o Trustee is obligated to treat beneficiaries fairly.
Duty of Loyalty:
• No way to eliminate the duty of loyalty – although trust terms can tailor or relax that duty.
• Standard formulation: trustee administers the trust SOLELY for beneficiaries interests.
• Implies two separate limits:
o (1) Trustee is absolutely prohibited from engaging in self-dealing, or
 Trustee acting on both sides -- as fiduciary and participates in any type of transaction involving
trust property where he is acting for own personal interests or someone else.
o Ex: trust property includes real estate to be sold. If trustee buys the asset acting
in individual capacity, that is a clear form of self-dealing. Generally prohibited.
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o Others: lending property to trust for his own benefit, investing trust funds in
stock for own benefit.
• General rule
o (2) Trustee puts himself in position where there is a material conflict of interest.
• General rule: self dealing or conflict of interest: unless transaction authorized by terms of trust instrument, if trustee
engages in either, the ONLY two ways he can justify it:
o (1) Advance court approval
 Ex: Some reason why he has to sell property to himself. If he can persuade the court, it will
prevent any beneficiary coming in later and trying to attack it.
 Assumes when trustee goes in, notice to interested persons who have chance to be heard, court
makes own investigation, etc. Don’t just trust the trustee.
o (2) Consent of ALL beneficiaries
 The trustee has to locate all beneficiaries. That part can be very difficult.
 Trustee must make FULL disclosure of all relevant circumstances
• What is relevant? What he thinks is relevant could be different from beneficiaries.
• Trustee bears burden to make sure it was fair and reasonable in all respects.
o No incentive for trustee to get anywhere near self-dealing or conflict of interest.
Remedies:
• Rothko: (pg. 666): left estate to charitable foundation. The paintings would be sold off and foundation would pursue
charitable aims. His kids weren’t happy with it, and NY said they had right to intestate share. Since this was
charitable gift, the restrictions on that gift allowed kids to come in and challenge. The kids became the three heirs.
He had attic full of hundreds of paintings not available on open market.
• Three executors – an art dealer (Rice); an aspiring artist (Stamos); and anthropology professor (Levine).
o They were all amateurs, charged with task of finding buyers for the mountain of artwork.
o They decide to strike a deal – instead of public auction. They make deal with local gallery.
o The gallery was run and controlled by Rice. They other executors decided to go along with it.
o The deal involved 50% commission.
• The beneficiaries sued. And by the time it came to trial, the value of paintings went through the roof.
• Is there a conflict of interest?
• Stamos was trying to get rid of his paintings too. The same gallery agreed to buy some of his as well
o Conflict of interest – intended to prevent not just sale by trustee personally, but to prevent the executors
from using their position to enhance their welfare even in unrelated transactions.
• Levine was aware, but didn’t make waves. He consulted L and they told him that a court would not give approval or
advice on whether a sale was appropriate. Expect executor/trustee use their discretion.
o What he was really asking is that he was stuck and he wasn’t comfy – what should he be doing to protect
himself and make sure estate properly administered. The L didn’t really give answer.
• Measuring damages: General rule:
o To put the trust back in same position it would have been in if no breach of trust had occurred.
o Usually easy: sue trustee, then they are personally responsible to re-pay trust for whatever the property he
undersold/profited from.
o Here the problem was not that artwork sold for less than value (although we could argue about that),
under the “NO FURTHER INQUIRY” rule, it doesn’t matter. Once self-dealing or conflict of interest,
courts generally do not require whether the sale price was fair, the terms of sale were fair and reasonable,
or even if trustee acted in good faith.
 Once breach duty of loyalty, all they care about is if there was a defense:
• Court approval or beneficiary consent.
 If you have no defense, the general rule is that the transaction – even if it was entered into good
faith – it is voidable at the request of the beneficiary.
• In most cases, if it was fair and reasonable –
o If he sold b-acre to himself and he sold it fair and reasonable, and good for trust,
then no beneficiary will complain and its okay.
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o As a practical matter, they will complain only if sold for too low of a price, or if
its gone way up in value and sale was improper.
o Here, if they made a sale in a way that was prohibited b/c violated duty of loyalty, are they on hook for
original value of paintings (we could argue about that), or the current value?
 Appreciation damages.
o The case stands for: if trustee breaches duty of loyalty (here flagrant conflict of interest) and the property
has been sold, even to a bonafide purchaser for fair price at time of sale, if there was a breach, the trustee
is personally liable for all appreciation until court gives decree.
 At least Rice and Stamos – they are jointly and severally on hook for full appreciation.
 Levine – liable for regular damages, but not for appreciation because he didn’t have any conflict
himself. Not personally at fault except that he didn’t prevent it.
• Responsibility for others acts
o What should Levine have done?
o Every executor/trustee has duty to monitor own conduct, to participate in managing trust and prevent co-
trustees from wrongful conduct.
o If he couldn’t talk them out of the deal, he should have gone to court.
 He should have gotten order to prevent co-executors from entering into the deal.
 Get injunction.
o Levine didn’t get good advice.
Broader Implications:
• Holds fiduciaries to strict responsibilities.
• Other side – it is very harsh, even if the transaction might have been good for the trust.
• Are the costs too high?
o Must write self and all other conflicting interests out of deal.
o Have to deal in arms length.
• Argument that’s made:
o Anybody who knew Rothko, all have inherent conflicts of interests.
o Will not find someone reputable to make a favorable deal who doesn’t have a network of connections
with galleries etc. Its an incestuous culture.
o Argument: if inherent conflicts of interests, one way is to allow more flexible standard:
 Don’t prohibit categorically from dealing with people they know
 But to examine each case on merits.
• Sounds like reform proposals in wills formalities:
o Duty of loyalty does something similar – it overprotects.
o Maybe it should be relaxed and make it a rebuttable presumption and look at each case.
o It would allow trustees to engage in transactions that would be beneficial on whole.
o The response: we have a harsh prophylactic rule b/c there is a risk that beneficiaries as a class don’t have
perfect info and trustees are subject to temptation. If you look at indirect benefits that trustees are in
position to reap, it can be very hard to detect violations. Fear that they will get indirect benefits never
disclosed and hard to figure out/measure. The really stiff barrier should scare them away.
Trustees are generally entitled to reasonable compensation:

• Conflict – he wants as much compensation as possible for as little time and interest.
• We think its necessary for them to compensate, but has to be reasonable.
• That is ordinarily carved out as exception to conflict of interest.
• Question is of reasonableness – performing services that justify compensation that it keeps.
• Most commercial trustees will publish a fee schedule which entitles them to a fixed percentage of value of trust
assets, and the annual income they earn.
o Gives them incentive to max income, etc.
o But also gives them incentive to attract large trust business.
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• Today some banks have in-house staff to provide the services.
o Huge incentive to hire army of specialized agents.
o To the extent that trustee is off-loading responsibility for managing specialized requirements, they are
also, by implication, be paying those agents out of his reasonable fee.
o He should get fair, reasonable compensation for what he retains personally.
o Question of delegation.
o CL – trustee must perform all personally – but now by statute and by prudent investor rule – most states
are coming around to the opposite view.
 Trustee is not only permitted, but in some cases required, to delegate those functions prudently to
a trained agent.
Where does that leave us for fiduciary obligations if no longer doing it himself?
• If trustee exercises fair, skill, and caution in:
o (1) Selecting agents
 Look carefully at requirement of trust, fees, functions, recommendations, etc.
o (2) Retains some overall supervisory responsibility
 Sets the grand strategy at some general level
o (3) Monitoring the agents
 Make sure they perform.
• Then he has satisfied his duty of prudence and can successfully delegate the trust functions.
o Even discretionary ones – like investment.
• He is not expected to be expert in all these fields.
Trust Investments:
• What conduct is prohibited?
• Uniform prudent investor rule: has been adopted in CA and most states.
• What’s changed:
o Not so much law on books as the practice of investing.
o CL – courts had notion as the prudent man as the standard. As long as trustee knew what he was doing
and knew what other men of discretion did with own property, and treated trust property in the same
manner (informed judgments) then all it required was good judgment. Those days investments were
prudent if they were not risky or speculative.
o Today that looks simplistic. Now we look at the universe of available investments.
 The rule restores original flexibility instead of looking at each investment as prudent or
speculative.
 What we have today is a notion that every trustee is required to meet standard of prudence, which
means that there is no particular investment that is categorically prohibited. Every investment has
its risk. Even speculative assets may be permitted in proper context.
 “Modern portfolio theory” – how does each investment fit into overall portfolio.
• Doesn’t make sense today to say that its okay to put $50 in T-bills. That is low-risk but
also low-return.
• Instead most people would expect to have some trust assets in stock market, some in
publicly traded stock, some in private companies, in tax exempts, etc.
 The notion that there are all sorts of factors to take into consideration.
• All the Act does is say that in making decisions, trustee is expected to take into consideration all relevant:
o (1) Terms of trust
 Might tell them to keep certain asset, etc.
o (2) What’s reasonable distribution requirements
 Is it life income for elderly widow – may make sense to give her regular stream of income, vs. a
trust that gives distributions to grandchildren who might be well-fixed for income and the goal is
to grow capital value over time.
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o (3) since no particular investments or approaches that are categorically good or bad, trustee is supposed to
balance every other relevant circumstance:
 Taxes
 Inflation
• Informed prudence investor must have good judgment and knack for navigating all different investment products.
Underlying modern portfolio theory: 2 concepts:

• (1) Relationship between risk and return
o Investments are not just “safe” or “risky.”
o Not enough to look at gov’t bonds or certain stocks and say “either its safe b/c its guaranteed and fixed
level of income or that Kodak grew for years, so its safe.”
o The question is not whether its risky or not – just what kind of risk and the level.
o How does the risk of an asset interact with other investments in same portfolio.
o Levels of risk: Theory tries to distinguishes between:
 (1) Firm SPECIFIC risks
• The risks that are specific to a particular operation
o Classic example is suntan lotions and umbrellas.
o Only risk is more sunshine or more rain. Distinguishes which would do better.
On own, each investment is risky, but if we allocate portfolio evenly between the
two of them, they will off-set each other’s risks.
o For given expected level of return, each of investments in isolation looks risky,
but taken together they are a stable combination.
• For a given level of risk, you can minimize the overall volatility by balancing
investments with off-setting risks.
 (2) MARKET risks
• Some types of risks are likely to affect all markets in same way.
o Ex: inflation picks up, and will have similar effects on all equity in stock market.
Some types of risks are compensated by market. Can’t be diversified away.
o Market will reward you if you’re willing to assume higher level or risk over time.
If you’re reasonably confident that over time it will appreciate.
o Best way of getting optimal return is to diversify.
o No matter how well trustee expects single stock to do – if they dump all money
in it, they are probably getting themselves in trouble.
o If terms of trust say that he has to keep it all in one stock, and then it falls and the beneficiaries say that it
was imprudent. Often good idea to seek permission from court to deviate from investment instructions.
In some cases court will allow you to do that if it looks like circumstances might change or it is imprudent
to stick with the trust investment procedure.
How do you diversify?

• (1) Actively picking stocks.
o Costly – requires lots of research on own part or paying someone else.
• (2) Passive approach
o Invest in market.
o Mutual funds.
 Allow small investors to achieve instant diversification.
 Can decide to go into a particular sector and the firm will offer you sector funds.
o Or get stake in overall market and get index fund.
o Advantage – get market rate of return – investing in market at whole for very little cost.
Question is if they made an informed decision taking into account what an informed investor will do.
There are no bright lines:

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• We end up under prudent investor rule a question of process:
o How did he make the decision.
• Major problem that trustees’ run into:
o Not that they lost money, but making prudent decisions.
o If the decision turns out not to be a winner, that is not their fault.
o Most trustees that run into trouble – the problem is not that they lost money but failed to pay enough
attention to what they were doing, or making decisions that aren’t properly documented.
 Have to review the portfolio and pay attention to what’s happening.
 Must document discussions, factors, etc for how decision was reached.
• Losing investments will be tested to see if they were proper or not
o Part of sensible, coherent strategy
o Balance of risks
o Hedging investment risks, instead of leveraging them.
• If it was left in portfolio because trustee never thought about it – breach of trust in purchasing or maintaining, any
loss makes trustee personally liable.
o Cannot offset losses from one imprudent investment from the gains.
o If rest of the trust is performing fine, we shouldn’t be using those to subsidize trustee’s carelessness with
respect to other investments
• What about gains from imprudent bets?
o Went to Vegas and gambled?
o Cannot offset.
o If we allowed trustee to offset losses from proper investments to other improper, we are encouraging them
to gamble. Bet on something twice as risky to cover past losses. Not good policy.
o The anti-netting rule – holding trustee responsible for improper losses still holds.
Duty of Impartiality:
• (1) Trustee has to decide when to make distributions
o Cant favor/cut off because you like/dislike.
o Basic fiduciary obligation to treat fairly.
• (2) Investments
o Deciding to invest – that decision has to be made impartially.
o Ex: trust to pay out all income to beneficiary, and then all corpus to the remaindermen, whatever the
trustee strategy he chooses, it will effect these beneficiaries. E.g. – over time the income beneficiary
would get more than the remaindermen. That could be viewed as unfair to remainders.
o Competing, inconsistent interests – trustee has to treat fairly and mediate competing interests.
o Hard to make sure you are being far to different classes of beneficiary, and getting best possible return in
most efficient way.
• Modern statutes contemplate different arrangement than income to one set, principle to another set of beneficiaries.
To balance the interest while having prudent investment:
o Define current b’s share by looking at total return.
o Try to erase differences and combine returns so that categorization doesn’t matter.
o Look at together as total return on trust property.
o Split fairly b/w current and future is by giving current a percentage share each year of value of trust.
o Trustee can pursue strategy for overall return instead of worrying if its going to be current or appreciate
later. Over time, UNITRUST arrangement balances present and future b’s interests as if partners in total
return of trust.
o Trustee less likely to be caught in a bad place.
Future Interests
Most future interests are created in trusts and fall into fairly well-defined patterns:
• Trust arrangements allow carving up of beneficiary enjoyments (present and future).
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Present enjoyment
• limited term of time – usually measured by lifetime of B’s or for fixed term of years
• Usually income to someone for life, and then remainder to someone else (or class).
• “To my wife for life, with the remainder to my issue.”
Identify the interest created:

• Determine who gets what, what time, and how much.
• Who is member of class, when entitled to receive, what do we do with gaps.
Rule Against Perpetuities – have to worry about validity.

• Spot them and resolve them, and avoid uncertainty, litigation, etc.
• At planning stage, resolve those issues accurately and correctly.
• If not in planning stage, and deciding if interests are valid, it may pay to get familiar with the rule or find someone
who does understand it.
Identifying the Interest:

• (1) LIFE ESTATE
o Present interest measured by duration of life.
• (2) REVERSION.
o If property is to return to original owner:
o If T is still alive and creates inter vivos trust and property goes to him if he survives her.
• (3) REMAINDER
o Any future interest created in someone other than transferor.
o Interest must come into effect at natural end of all prior interests.
o Can’t be an interest in X that springs into existence 10 yrs from date of death – that wont work.
o Can’t divest anybody else’s interest.
o Life interest in settler’s widow, remainder to issue.
• (4) EXECUTORY INTEREST
o Any kind of future interest that takes effect after a gap in time or that divests some other transferee’s
future interest
o Condition – wife gets income until she remarries. If she remarries, property to children.
o The children’s interest cuts short (divests) wife’s interest.
Vesting:
• Can make difference between interest that’s valid or void.
• Rule against perpetuities strikes down interests that vests remotely.
• Reversions are always vested. No matter what kinds of condition, they are vested.
o Always pass rule of perpetuities.
• Executory interests are NEVER vested.
o They are non-vested, so must always be tested for perpetuities problems.
• Remainders can be vested or contingent:
o Contingent
 (1) Remainder subject to a condition PRECEDENT.
• To my children who survive me
• To children who reach 21.
• Usually related to age or survival.
• Distinguish: condition subsequent would cut off or divest.
 (2) Taker is unborn or unascertained.
• Income to widow for life, remainder at death to issue THEN LIVING.
• May be additional children/gkids born.
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• Don’t know if they’ve died etc.
• Exact takers are unascertained.
o Vested
 (1) Indefeasibly vested:
• To pay income to A for life, remainder to B.
• No condition attached to B’s remainder
• B is identified, named.
• Nothing that could cut off or divest B’s interest.
 (2) Vested subject to divestment:
• Income to A for life, remainder to B, but if B fails to pass the bar exam…
• If there is some condition attached, that could divest B’s interest.
• Subject to condition SUBSEQUENT.
 (3) Subject to open
• Income to A for life, remainder distributed to children.
• Gift to class of people where the class is still open.
• As long as he’s alive, there is still possibility of additional children.
• There are children, but don’t know if there will be more.
HANDOUT – Classification of Future Interests:
G conveys to A for life, then

• (1) to B
o Indefeasibly vested remainder.
o Not subject to conditions and B is ascertained.
o If no EXPRESS condition for survival, it won’t be implied.
o Assume B doesn’t have to survive.
o If B dies first, it becomes part of B’s estate and will pass by will/intestacy.
o Will take effect at A’s death no matter when A dies – even if B died first.
• (2) To B if B survives A
o Contingent remainder.
o Subject to condition precedent.
o If B dies first, his interest fails.
o The interest would go back to G – there’s a gap that doesn’t say what happens to property if condition is
not met. Implied reversion.
o If you want to impose survival conditions, write it on face of instrument, and as condition precedent so it
will prompt you to ask what happens if B doesn’t survive A. Gives you chance to do something with it
and fill in gap.
• (3) To B if B survives A, and if B fails to survive A then to C.
o B – Contingent remainder
o C – Alternative contingent remainder.
o C takes property only if B is already dead. Condition precedent.
o No express survival requirement for C:
o The property goes through C’s estate if B and C pre-decease A.
• (4) To B, but if B fails to survive A then to C.
o B – remainder subject to divestment. Condition subsequent.
o He gets it immediately – not attached to description of B’s interest, but to C’s.
o Something that could cause B’s interest to fail – but attached to C’s interest.
o C – executory interest.
o It divests another transferees interest.
o One remainder cannot divest another remainder.
o Notice: (3) and (4) are pretty much the same, but are identified differently.
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• (5) To A’s children
o Have one or more of the children been born?
o The existing children have vested subject to open.
o Gift to group of people where the group may either increase or decrease.
o Gift takes effect immediately upon A’s death, when A’s life estate terminates naturally.
o Child has a vested remainder subject to partial divestment because he is member of class.
o What are interests of unborn children? They have contingent remainder. Unascertained.
• (6) To A’s surviving children
o Contingent remainder.
o Contingent on survival.
o Their remainders vest when A dies and then condition precedent is removed.
• (7) To A’s issue
o If the gift is to issue, we look at time of A’s death for his descendants.
o Until A dies, the takers are unascertained.
o Gift to issue/descendants implies that there is a survival requirement, plus a gift over by lines of descent
to issue of any deceased taker.
o As long as A has some living descendants, dispose of entire property that way, just what form of rep. and
how they take share of property.
o Probably take by some form of representation as is described by intestacy statutes.
• (8) To A’s children or their issue
• (9) To A’s children, the issue of any deceased child to take such child’s share
• (10) To A’s issue and if A dies without issue to B.
Class Gifts:
• Implies that the numbers of members of class can increase or decrease.
• Won’t know until A’s death how the property is to be divided, among how many people and who is in class.
• Main problem: determining at what time, and how, we know for certain who gets the shares.
• Two variations:
o (1) Determining time when class closes.
 At what time can you say that the max membership of class has been established?
 Anyone born after doesn’t get a share.
 In most cases, you take a snapshot when property is to be distributed.
 Theoretically, could have class that closes at different time than distribution.
o (2) With respect to class members, what conditions are imposed on that members’ entitlement?
 Usually, its that they survive to time of distribution or some age.
 Can apply on individual basis for class member.
 Time for determining that vesting does not necessarily have to be same time as class closing.
Class Closing:
• Class can close naturally when it is physically impossible for more members to come into existence.
o Ex: A’s children. Assume at CL that A is capable of having additional children as long as A is alive.
o Once A dies, any child not in gestation, closes naturally when parent dies.
• Leaving to issue is tricky
o CL: A’s children can have children and continue line of descendants.
o Rule of Convenience: rule courts developed to allow trustees/administrators to determine when class
closes. Very straight-forward:
 If a class has not already closed naturally, it will close when any existing class member becomes
entitled to his share of property.
o When property has to be divided – at that point it would be inconvenient to hold class open.
 When anyone is entitled to share of property, close the class.
o If no existing members that can claim share, leave it open until it closes naturally.
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Conditions on Class Members:

• Conditions apply individually to each member.
• Have to make sure all conditions are satisfied.
Handout:
T dies, survived by A and 5-yr old named X. In T’s will, T leaves Blackacre:
• (a) To A’s children
o A is alive, class is not yet closed.
o When T dies closes the class.
• (b) To A’s children who reach age 21
o Existing child who isn’t 21. Class is still open.
o No one at T’s death entitled to claim immediately.
o As soon as has 21 yr old child, the class closes.
o Other children that aren’t 21 are entitled to their share, but only when they get to 21.
o If one dies at 18, his share fails. He was a class member, but doesn’t meet condition.
o The failed shares gets re-divided among other members of class that reach 21.
o Class can close at one point, but the vesting of each interest may occur at different times.
• (c) To A for life, then to A’s children
o Gift postponed until A dies.
o Class closing: once A’s dead. Closes naturally. We assume A can’t have anymore children.
o Distributable to kids at that point too.
o What if A had child who died after T died, but before A did? That child had issue. Do they get gift?
o Look at each child’s interest to see if met requirement
o Child not required to survive. No express survival requirement.
o Any child in existence after T’s death and up to A’s death and divide accordingly.
• (d) To A for life, then to A’s children who reach 21.
o Same as C. Class closes naturally at A’s death.
o If A leaves children all under age 21 – wait until those children are 21 before vested.
o If die before 21, share is re-divided among other class members.
• (e) To A’s children when the youngest reaches age 21.
Rule Against Perpetuities:
CL form: voids future interests that might vest remotely.

• Ex: “No interest is valid unless it must vest, if at all, within 21 yrs of some life or being within creation of interest.”
• Whenever future interest, identify all present, future interests created and classify.
o To extent that its already vested, the rule is automatically satisfied.
• With respect to each created, the question is what is the latest possible time that it will vest or be defeated?
o If contingencies are resolved within some identifiable existing person’s lifetime, or within 21 yrs after
that person’s lifetime, that is fine.
o Up to 21 yrs after any life or being.
• Applying Rule
o (1) Identify time of creation.
 If not vested, must determine time of creation
o (2) What is latest time that it can vest?
 If within 21 yrs after person’s life, then that’s cool.
o (3) Who can serve as validating lifetime?
 Problems: 1-4 on handout
• (1) If you have gift to A, and A is living but has to survive until estate is probated, what
could happen to postpone vesting?
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o What happens if T dies and everyone else dies before will is probated?
o Then probate could go on for centuries – long past the rule’s period.
o Here, gift is good because we only care about A.
o If A is still living, then A takes. If A is dead, then gift fails. A is validating life.
o This is fine.
o Would not work “to gkids who are living at time estate is probated.”
o They might be living when he dies, but class of after-born takers that depends on
some event that might not happen for a long time.
o Don’t make contingent on survival of probate decree. Make it on some person
who is living.
• (2) Income to A’s widow for life with remainder to A’s children:
o Remainder is vested when all children are vested. At A’s death, that class will
close. Each interest will vest when they come into existence.
o The latest time the class gift is at A’s death.
o Up until then it might remain open.
o This can create problems – remainder to A’s issue then living – that is a
condition precedent on “then living” which may not be resolved until her death.
What if A gets married after T dies, and marries someone not yet born – very
young girl – she becomes his widow, and everyone has to wait until her death to
know if interests are vested. If she wasn’t in existence, then that would violate.
 Solutions:
• (1) Do it yourself drafting:
o If you are uncertain about future interests in trust distributions, and want to make
sure that none of those future interests might vest remotely, its easy to make sure
they wont. Just draft a savings clause:
 Specify a group of lives in being (existing people), all of whom are in
existence at time trust is to take effect, and say that if the trust has not
already terminated by own terms when last survivor of these people dies
(21 yrs after) the trust will terminate. Specify what to do with it.
• (2) Uniform Statutory Rule: CA
o Didn’t repeal CL – superimposes separate 90 yr fixed period onto the rule.
o If an interest is not valid under CL rule, then you have 90 yrs o wait and see if it
vests and fails. If still subject to some unresolved contingency, the court will
reform trust and decide how it should be distributed to conform to likely intent.
o Not desirable – who knows what settler wanted 90 yrs from now.
Email: gmccouch@sandiego.edu
619-260-7716
(home) 543-1261
He’ll be here Friday, Monday, Weds afternoon.
Bring CA statute, Outline, Book, Commercial outlines, Case briefs
OLD EXAMS ON FILE: shows what issues he’s likely to ask.

• Take them with time constraints. He doesn’t have model answers.
• Essay – several issues. Usually room for some discussion to get to answer.
• He won’t talk about the exam questions, but will answer questions about the specific topics and how to deal with it.
Two parts: 50% each: time should probably be split equally as well.
• Multiple choice: 30-35 questions, about 90 mins.
o Designed to be difficult. Trying to find issues on bright-line basis.
o Lots of statutory material questions. Either right or wrong.
110
o Read FACTS CAREFULLY – gives relevant facts.
o If you think you spot a problem/ambiguity/mistake, mark note in margin to professor. But this is
unlikely, don’t do that readily. Think again first. Pay close attention to what’s being asked.
o Lots of questions will be inviting you into traps – looks like right outcome for wrong reason.
• Short answer/essay (3 short answers).
Assume CA law applies – only responsible for the statutory supplement that he gave us.
• For those that aren’t in supplement, then look to CL or case law. Those are more likely to be in essay so that there is
discussion.
Be careful about time constraints. Pay attention to CA and UPC in preparing for exam. If CA statute follows the UPC,
and UPC courts have come out with an answer, that will help apply what court’s will come to in CA.
• Read facts and the question CAREFULLY.
• Organize it well and make sure answer shows where you’re going.
• Don’t reiterate question or tell him what the rule is. Focus on ANALYSIS.
o Tell him issue by issue how you think it comes out and why.
o Analysis, arguments, conclusion. Get right into the issue, rule will probably come out via analysis.
o Probably 3-4 issues worth discussing in each problem.
• Spot issues, discuss and analyze them.
• If you think you see problems/ambiguities, call attention to it. Use judgment, answer question you think being
asked
Won’t hesitate to ask about whether a fiduciary invested reasonably, or something generally about future interests/rule
against perps.
111

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Wills & Trusts Outline - Fall 2006 - McCouch

Intro: Death-Time Transfers:

Why does it matter if its probate or not?

The Hodel Decision:

Ways to make gifts of property:

Three typical areas:

Conditions Against Public Policy:

Conditions NOT Against Public Policy:

Overall Goal: Promoting family security and stability.

Home for Incurables: racial restrictions on a bequest.

(1) Narrower Meaning: The Probate Process:

Original Will is Missing:

(2) Broader – General Probate System:

Why have a will?

Why go through probate?

Small ways around probate:

Intestate Succession Rules apply when:

(1) Intestate Share of Surviving Spouse - §6401:

CA is a community property state:

The CA statutes don’t take into account other relevant factors:

Reconciling §220 and §6403:

Rationale: §220 and §6403:

(2) Intestate Share of Heirs Other Than Surviving Spouse - §6402:

UPC and CA: Per Capita with Representation:

Table of Consanguinity: Pg. 53:

Treatment of Whole/Half-blood Relatives:

Children and Intestacy:

An adopted child has the same inheritance rights as a natural child.

Extensions of the court’s reasoning:

CA Probate Code §6451: Defines who are parents:

CA Probate Code: §6454: Equitable Adoption

Children Born Out of Wedlock:

Most states began to amend statutes

Most bad conduct has no effect on inheritance rights:

Unborn Relatives of Decedent:

Children CONCEIVED after parent’s death:

Can we enforce releases under Common Law?

Generally, misconduct towards decedent are NOT bars to an inheritance.

How do we know if the killing was felonious or intentional?

No one can be compelled to accept a gift against her will.

Two frequent situations:

Requirements for VALID Disclaimer: (state law)

When Disclaimer is Made:

Disclaimers and Advancements:

General rule: During Lifetime:

W wants to know what she gets – what advice do we give her?

The property belongs to whoever earned/acquired the property. (CL jurisdictions).

Elective Share Statutes: All CL jurisdictions except GA.

UPC (original): Augmented Estate:

UPC (amended 1990): Sliding Scale

Handout: Same fact pattern. Married for 30 yrs.

If they’d only been married for 5 yrs.?

UPC trying to approximate the CP system:

Migratory Spouses: Quasi-CP:

The Problem: Freedom of Contract:

(2) Made voluntarily with adequate disclosure:

Why did they say ADEQUATE on appeal?

CA Probate Code §141-and following:

Probate Code: Regular agreements between spouses.

Cal. Fam. Code §1615:

When does 1615 apply, and when does 143 etc.?

Protection of Pretermitted/Omitted Children

Testator can disinherit any and all children:

W&T Good OUTLINE

W&T Good OUTLINE

Note DO NOT CONFUSE: codicil as validation of an earlier will or for republication: