WILLS AND TRUSTS

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					WILLS     AND           TRUSTS
 SUBSTANTIVE OUTLINE



       Written by: Joshua Yin




 P ROFESSOR S USAN F. F RENCH




           April 26, 2010
                          TABLE OF CONTENTS

§ 1 INTRODUCTION                                                                 2 
§ 1-1 The Power to Transmit Property at Death: Justifications and Limitations    2 
§ 1-2 Transfer of the Decedent’s Estate                                          3 
§ 1-3 An Estate Planning Problem & Professional Responsibility                   6 

§ 2 INTESTACY: AN ESTATE PLAN                  BY   DEFAULT                      8 
§ 2-1 The Basic Scheme                                                           8 
§ 2-2 Shares of Descendents                                                     12 
§ 2-3 Transfers to Children: Adopted Children                                   16 
§ 2-4 Transfers to Children: Nonmarital Children                                19 
§ 2-5 Transfers to Children: Reproductive Technology                            21 
§ 2-6 Transfers to Children: Surrogate Motherhood and Assisted Reproduction     23 
§ 2-7 Bars to Succession: Murder                                                24 
§ 2-8 Bars to Succession: Disclaimer                                            27 

§ 3 WILLS: CAPACITY             AND   CONTESTS                                  29 
§ 3-1 Mental Capacity: The Test of Mental Capacity                              29 
§ 3-2 Mental Capacity: Insane Delusions                                         30 
§ 3-3 Undue Influence                                                           31 
§ 3-4 Avoiding a Will Contest                                                   33 
§ 3-5 Fraud and Duress                                                          35 

§ 4 WILLS: FORMALITIES             AND    FORMS                                 37 
§ 4-1 Execution of Wills                                                        37 
§ 4-2 Curing Defects in the Execution of Attested Wills                         38 
§ 4-3 Holographic Wills                                                         39 
§ 4-4 Revocation of Wills                                                       41 
§ 4-5 Dependent Relative Revocation and Revival                                 42 
§ 4-6 Revocation by Operation of Law                                            43 
§ 4-7 Components of a Will                                                      44 
§ 4-8 Contracts Relating to Wills                                               46 

§ 5 CONSTRUCTION           OF   WILLS                                           48 
§ 5-1 Mistaken or Ambiguous Language in Wills                                   48 
§ 5-2 Death of Beneficiary Before Death of Testator                             49 
§ 5-3 Changes in Property After Execution of Will                               51 

§ 6 NONPROBATE TRANSFERS                                                        53 
§ 6-1 Will Substitutes and the Wills Act                                        53 
§ 6-2 Will Substitutes and the Subsidiary Law of Wills                          54 
§ 6-3 Pour-Over Wills and Revocable Trusts in Modern Estate Planning            58 

§ 7 RESTRICTIONS          ON THE     POWER     OF     DISPOSITION               60 
§ 7-1 Rights of Descendents Omitted from the Will                               60 
§ 7-2 Rights of Surviving Spouse                                                61 
§ 7-3 Migrating Couples and Multistate Property Holdings                        64 
§ 7-4 Omitted Spouse Statutes                                                   65 

§ 8 TRUSTS                                                                      66 
§ 8-1 Intent to Create a Trust                                                  66 
§ 8-2 Necessity of Trust Property and Beneficiaries                             66 
§ 8-3 Necessity of a Written Instrument                                         68 
§ 8-4 Rights of Beneficiaries to Distributions                                  68 
§ 8-5 Rights of the Beneficiary’s Creditors                                     69 
§ 8-6 Modification and Termination of Trusts                                    71 
§ 8-7 Trustee Removal                                                           72 

§ 9 TRUST ADMINISTRATION: THE FIDUCIARY OBLIGATION                              73 
§ 9-1 The Duty of Loyalty                                                       73 
§ 9-2 The Duty of Care: The Prudent Investor Rule                               74 
§ 9-3 Impartiality and the Principal and Income Problem                         75 
§ 9-4 Subrules Relating to the Trust Property                                   75 

§ 10 POWERS        OF   APPOINTMENT                                             77 
§ 10-1 Creation and Exercise of Powers of Appointment                           77 
§ 10-2 Release and Failure to Exercise a Power of Appointment                   79 

§ 11 FUTURE INTERESTS, CLASS GIFTS,                    AND THE   RULE AGAINST
PERPETUITIES                                                                    81 
§ 11-1 A Review of Property Law                                                 81 
§ 11-1 Construction of Trust Instruments                                        81 
§ 11-2 The Rule Against Perpetuities                                            82 

§ 12 OTHER TOPICS                                                               83 
§ 12-1 Planning for Incapacity: Durable Powers of Attorney                      83 
§ 12-2 Healthcare Directives and Disposition of the Body                        83 
§ 12-3 Charitable Trusts                                                        83 
Vocabulary
When a person who dies intestate (without a valid will), his property passes by intestate succession. Historically,
real property was transferred to heirs through the law of descent while personal property was transferred to next-of-
kin through distribution. Nowadays, we generally don’t distinguish between descent and distribution (or between
personal and real property). If no heirs can be found the property escheats to the government. An administrator is
appointed by the court through letters of administration to administer the decedent’s estate.

When a person dies testate (with a valid will), the testator’s property passes to beneficiaries of his will. A common
misconception was that traditionally a will referred to real property while a testament referred to personal property.
This isn’t true. Historically, will and testament were synonymous, and each encompassed both real and personal
property. A testator (noun) devises (verb) a devise (noun) of real property to devisees (object) through a will. A
testator (noun) bequeaths (verb) a bequest (noun) of personal property to legatees (object) through a will.
Technically, legatee is the object of a legacy, a bequest of money, but normally we don’t worry about it. Nowadays,
we generally just use “devise” or “give” for all property, real and personal. An executor is appointed by the court
through letters testamentary to carry out the terms of the will.




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                                 § 1 INTRODUCTION
§ 1-1 The Power to Transmit Property at Death: Justifications and Limitations
I.   Issue of the Constitutional Right to Transmit Property at Death. Whether there exists a right to transmit
     property at death that is protected by the U.S. Constitution.
     A. Facts of the Constitutional Right to Transmit Property at Death.
         1. Congress enacted a statute, which provided that extremely small property interests were to escheat to
              the Indian tribe without compensation to the would-be beneficiaries under a testator’s will. These
              small undivided property interests were created by an earlier statute which (inadvertently) caused the
              increasingly fractionalized ownership of Indian lands. Plaintiffs sued, alleging a violation of the
              Takings Clause. See Hodel v. Irving (1987).
     B. Law of the Constitutional Right to Transmit Property at Death. In 1942, the U.S. Supreme Court re-
         affirmed the principle that there is no constitutionally protected right to transmit property at death.
         “Rights of succession to the property of a deceased, whether by will or by intestacy, are of statutory
         creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution
         forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition
         over property within its jurisdiction.” Irving Trust Co. v. Day (1942). In Hodel v. Irving (1987), however,
         the Court held that there was a violation of Takings Clause of the Fifth Amendment where Congress
         effected a total abrogation of the right to pass property. In the 19th century, Congress enacted laws
         providing that certain Indian lands would be held in trust by the federal government in order to ensure
         that the Sioux wouldn’t improvidently sell their land to white settlers. The inalienability meant that
         property would become increasingly fractionalized as each successive generation had multiple children,
         such that in the 20th century, a given plot of land could have hundreds or even thousands of persons each
         owning a tiny undivided interest. To remedy this, Congress enacted a statute providing that property
         interests generating income below a certain threshold would automatically escheat to the Indian tribe
         regardless of the testator’s will. There was no per se taking either on the basis of “a permanent physical
         invasion of property” under Loretto or the total deprivation of “all economically beneficial uses” under
         Lucas, so the Court applied the “ad hoc” three factor balancing test from Penn Central, which was based
         on: (1) the “character of the government action,” (2) the protection of “reasonable, investment-backed
         expectations,” and (3) the “economic impact” of the regulation on the owner. The Court recognized the
         proper public policy goal of remedying the problem of fractionated land, and noted the absence of any
         reasonable investment-backed expectations. However, the Court also recognized that while the income
         generated was de minimis, the value of the interests were not. In the end, the Court held that a total
         abrogation of the right to pass property was a taking, but also noted that a lesser infringement by the
         state, such as regulations governing testamentary succession, would not constitute a taking. The precise
         delineation between a total abrogation and mere regulation is not altogether clear. The Uniform Probate
         Code’s limiting intestate succession to relatives no more remote than descendents of decedent’s
         grandparents has never been seriously constitutionally challenged. On the other hand, an amended version
         of the statute at issue in Hodel v. Irving (1987) was held unconstitutional in Babbitt v. Youpee (1997)
         because it cut out lineal descendants.
     C. Analysis of the Constitutional Right to Transmit Property at Death.
     D. Notes on the Constitutional Right to Transmit Property at Death.
         1. Whose Right? Hodel v. Irving (1987) is focused on the testators’ property right to pass on their
              property at death rather any right by the children to receive property. In (most of) American law,
              children have no rights to receive property from their parents—parents may disinherit their children
              entirely if they choose. Recall how “O to A and his heirs” are words of limitation rather than words
              of purchase. A’s heirs don’t receive any property interest. Indeed, they aren’t really heirs at the
              time—only heirs apparent.
         2. Escheat. “Reversion of property (esp. real property) to the state upon the death of an owner who has
              neither a will nor any legal heirs.”
         3. The Takings Clause. The Fifth Amendment provides: “nor shall private property be taken for public
              use, without just compensation.” Almost all government regulations will deprive owners of some



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                 property interests. For example, a zoning ordinance might prohibit the owner of residential property
                 from building a coal mine. If all government regulations constituted a violation of the Takings
                 Clause, then regulations such as zoning ordinances would be fundamentally unworkable. The
                 question is at what point burdens borne by individual owners become sufficiently onerous that
                 fairness and justice demand compensation. The Court has taken two approaches. First, the Court
                 engages in “essentially ad hoc, factual inquiries” based on three factors: (1) the “character of the
                 government action,” (2) the protection of “reasonable, investment-backed expectations,” and (3) the
                 “economic impact” of the regulation on the owner. See Penn Central Transp. Co. v. New York City
                 (1978). Second, the Court has carved out a number of areas where there is a per se taking: (1) the
                 “permanent physical invasion of property,” see Loretto v. Teleprompter Manhatten CATV Corp.
                 (1982), and (2) the total deprivation of “all economically beneficial uses,” see Lucas v. South
                 Carolina Coastal Counsel (1992).
II.    Issue of Transmitting Property Interests Arising After Death. Whether testator can devise an interest in
       property that does not exist at the time of testator’s death.
       A. Facts of Transmitting Property Interests Arising After Death.
            1. Marilyn Monroe’s will provided that whatever not expressly bequeathed was to left for Lee Strasberg
                 (the residuary clause). That interest eventually passed to the Marilyn Monroe, LLC. A lawsuit arose
                 when consolidated defendants began using Marilyn Monroe’s image to do business in Indiana.
                 MMLLC argued that it owned the rights to Monroe’s right of publicity under an Indiana statute,
                 which was enacted in 1994. At the time of Monroe’s death in 1962, there was no such postmortem,
                 descendible right of publicity recognized by any state. See Shaw Family Archives v. CMG
                 Worldwide (S.D.N.Y. 2007).
       B. The Law of Transmitting Property Interests Arising After Death. The majority rule is that for
            personal property, “the law of the domicile of the testator at his or her death applies to all questions of a
            will’s construction.” Shaw Family Archives v. CMG Worldwide (S.D.N.Y. 2007). For the disposition of
            real property by will, the controlling law is the law of the state in which the property is situated. Under
            New York law and UNIF. PROBATE CODE § 2-602, testators may only dispose of interests in property that
            exist and that they own at the time of their death. Conversely, any interests in property not owned at the
            time of testator’s death cannot be disposed of by their will. In Indiana, any property interests arising after
            death vest in heirs specified by intestacy statutes rather than legatees specified in the testator’s will. See
            Shaw Family Archives v. CMG Worldwide (S.D.N.Y. 2007).
       C. California Law of Transmitting Property Interests Arising After Death. In 1985, California began
            recognizing a postmortem, descendible right of publicity. California has recently enacted an amendment
            providing that even if the testator died before 1985, the right “shall be deemed to have existed at the time
            of death . . .” CAL. CIV. CODE § 3344.
       D. Analysis of Transmitting Property Interests Arising After Death.
            1. Is this real or personal property?
            2. For real property, what is the state in which the real property is situated?
            3. For personal property, what was the testator’s domicile at the time of testator’s death?
            4. Did the property interest, which the will is purporting to transfer, exist at the time of the testator’s
                 death?
       E. Notes on Transmitting Property Interests Arising After Death.
            1. Future Interests. It’s important to recognize that a “future interest,” such as a remainder or a
                 reversion, is a presently held interest that isn’t yet possessory. Thus, it’s possible to dispose of a
                 future interest in a will because the testator owned that interest at the time of the testator’s death. The
                 rule in UNIF. PROBATE CODE § 2-602 is focused on interests that do not come into existence until
                 after the testator’s death.
III.   Policy of Passing Wealth at Death. Inheritance encourages productivity and saving by the parents.
       Simultaneously, inheritance also encourages children to care for their elderly parents to avoid being
       disinherited. Inheritance discourages people hovering around a dying person in order to snatch up that
       person’s property upon death. On the other hand, inheritance tends to create an entrenched upper class or
       aristocracy.

§ 1-2 Transfer of the Decedent’s Estate




                                                             3
I.    Issue of Discriminatory Conditions on Inheritance: Whether a restriction within a will conditioning
      inheritance on the beneficiary marrying within religious or racial classes is void.
      A. Facts of Discriminatory Conditions on Inheritance.
          1. Testator’s will provided that plaintiff would receive his bequest only if he married a Jewish girl.
               Plaintiff sued, alleging enforcement of the will by state courts would be an unconstitutional violation
               of the Equal Protection Clause or that the restriction was contrary to public policy and unenforceable
               because of its unreasonableness. See Shapira v. Union National Bank (Ohio Ct. Com. Pl. 1974).
      B. The Law of Discriminatory Conditions on Inheritance. As a general rule, in construing the provisions
          of wills, the “donor’s intention is given effect to the maximum extent allowable by law.” RESTATEMENT
          (THIRD) OF PROP.: DONATIVE TRANSFERS § 10.1 (2003). The rationale is freedom of disposition. See id.
          cmt. a. What isn’t allowable by law? Unreasonable restrictions on alienation or marriage. However, a will
          provision conditioning a devise or bequest on the beneficiary marrying within a certain religious or racial
          class isn’t (necessarily) unreasonable. See Shapira v. Union Nat’l Bank (Ohio Ct. Com. Pl. 1974). On the
          other hand, where the class of potential spouses under the will was very small, the provision may be held
          unreasonable. See Maddox v. Maddox (1854).
      C. Analysis of Discriminatory Conditions on Inheritance. In Shapira v. Union National Bank (Ohio Ct.
          Com. Pl. 1974), the court held that conditioning the testator’s son’s devise/bequest on him marrying a
          Jewish girl was neither unconstitutional nor enforceable as against public policy. The testator had a legal
          right to totally disinherit his son, so a restriction threatening disinheritance doesn’t offend the
          Constitution. Since the restriction wasn’t a total prohibition on the son’s right to marry (he could marry a
          non-Jewish girl and just lose the devise/bequest) and didn’t unreasonably restrict his marrying (because
          there were eligible Jewish bachelorettes), the restriction wasn’t so unreasonable as to be unenforceable as
          against public policy.
      D. Notes on Discriminatory Conditions on Inheritance.
          1. In Estate of Feinberg (Ill. Ct. App. 2008), a trust was conditioned on the beneficiary not marrying
               outside of the Jewish faith, unless the spouse converts to the Jewish faith. The Illinois appellate court
               held it was an invalid provision without considering whether the provision was unreasonable. The
               Illinois supreme court reversed the appellate court, upholding the trust provision.
          2. Rationales. There are two competing policy considerations at work here: (1) freedom of disposition
               (one should be able to dispose their property in any manner they see fit), and (2) avoiding dead hand
               control at the expense of the living.
          3. Cy Pres. The doctrine of cy pres provides that if it becomes impracticable or impossible to carry out
               the settlor’s express wishes in a charitable trust, a court may use its equitable powers to modify the
               terms of the trust in order to give maximum effect to the settlor’s intent. Commonly, where the trust
               provided funding for a charity that ceased to exist, the court would switch the funding to a similar
               charity. There have been cases where this doctrine has been used to excise discriminatory provisions
               from trusts.
          4. Destruction of Property. There’s no clear consensus on whether a provision in a will providing for
               the destruction of testator’s property upon death will be enforceable. The law tends to permit
               executors to destroy property in accordance with the will, but also to permit executors to not destroy
               property in derogation of the will.

Nonprobate Property
Probate is the judicial procedure by which an instrument is established as a valid will, allowing the executor to
distribute the assets in testator’s estate in accordance with that will. All of the decedent’s property can be divided
into probate property, which must go through probate, and nonprobate property, which can be distributed without
going through probate. Due to the expenses and delay involved in probate, there’s considerable incentive in avoiding
probate. On the other hand, heirs or beneficiaries may elect to go to probate in order to discharge future claims by
creditors. What constitutes nonprobate property?
 Sellable without Title. Certain personal property, such as (non-antique) furniture, can often be sold without
     proof of title, and therefore, probate is unnecessarily to establish clear title.
 Statutory Procedures. Most states have statutory procedures for other personal property, such as an
     automobile, for avoiding probate. See, e.g., CAL. VEHICLE CODE § 5910.
 Small Estates. Most states carve out a statutory exceptions for small estates. In California, if the estate is less
     than $100,000, then probate is not necessary. See CAL. PROB. CODE §§ 13000 to 13210. Certain “big-ticket”




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      items (such as motor vehicles, boats, and mobile homes) are not included in calculating the estate’s value,
      making it more likely that the small estates exception will apply.
     Joint Tenancy with Rights of Survivorship. Property held as joint tenants with rights of survivorship are
      nonprobate property. Under the doctrine of survivorship, the surviving joint tenants automatically get equal
      shares of the decedent’s interest upon decedent’s death. Property held as tenants in common will not
      automatically pass by operation of law, and thus must go to probate in order to pass to heirs or devisees.
     Contractual Provisions. Many contracts consider the possibility of death and provide for it. For example, a life
      insurance policy will (generally) have named beneficiaries, and a pension plan with survivor’s benefits will also
      have a payable-on-death provision. Since these contracts already provide for the event of death, there’s no need
      to go to probate.
     Inter Vivos Trust. Property placed in trust does not pass through probate, provided it was an inter vivos
      (“between the living”) trust established during the decedent’s lifetime. Note that testamentary trusts (trusts
      created by a will) pass through probate.
     Surviving Spouse. In California, a surviving spouse can almost certainly avoid probate under a limited form of
      universal succession. CAL. PROB. CODE § 13500 provides that property passing to a surviving spouse, whether
      under testamentary succession or under the decedent’s will, does not need to go through probate. However, the
      surviving spouse also assumes personal liability for the decedent’s debts chargeable against the property.
     Community Property. The interplay of CAL. PROB. CODE §§ 100,101, 6401, 13500 means that when a married
      person dies intestate in California, all community property and quasi-community property passes to the
      surviving spouse without the need for administration. Community property is all property acquired by a married
      person during the marriage while domiciled in California. See ♦ CAL. PROB. CODE § 100. Quasi-community
      property is property that would be community property but for the fact that it was acquired in a non-community
      property state. See ♦ CAL. PROB. CODE § 101. When a married person dies in California, half of community
      property (and quasi-community property) automatically belongs to the surviving spouse and half belongs to the
      decedent. See ♦ CAL. PROB. CODE §§ 100 and 101. If the married person died intestate, then the half that
      belonged to the decedent passes to the surviving spouse. See ♦ CAL. PROB. CODE § 6401. Under CAL. PROB.
      CODE § 13500, any property that passes to a surviving spouse, whether by will or through intestate succession,
      no administration is necessary.

The Probate Process
Probate can be opened either in common form or in solemn form. Common form is faster and cheaper, but if
anyone objects either before or after, the objectors can force probate in solemn form. The process can continue in
either part-supervised or independent administration of the estate—the former being supervised by the court and
the latter being done independently by the administrator. Basically, if the administrator is anticipating a lot of
objections or problems, he’ll choose to open probate under solemn form and follow part-supervised administration
of the estate.

The custodian of a will is liable in damages to the will beneficiaries if he fails to deliver the will to the court and to
the executor within 30 days after learning of the testator’s death. See CAL. PROB. CODE § 8200.

II.    Issue of Timing Out: Whether decedent’s estate will be probated under California intestacy statutes because
       decedent’s will was filed too late.
       A. Facts of Timing Out.
           1. After decedent’s death, A petitioned to administer decedent’s estate. On September 5, 2007, the
                probate court appointed A, and determined that decedent had died intestate. B and three others filed a
                request for special notice. (They wanted in.) On October 22, 2007, A discovered decedent’s will,
                which provided effectively that A was to be the sole beneficiary. After getting the will authenticated,
                A filed a petition to probate the will on February 19, 2008. B objected on the basis that this filing was
                not timely. See Estate of Earley (Cal. Ct. App. 2009).
       B. California Law of Timing Out. Under California law, someone who wants to probate a will (the
           proponent) must petition the probate court within a statutorily specified period after receiving notice. The
           proponent must petition the court to probate a will within the later of either: (1) 120 days after decedent is
           determined to have died intestate, or (2) 60 days after the proponent first learned about the will. See CAL.
           PROB. CODE § 8226.
       C. Analysis of Timing Law. In Estate of Early (Cal. Ct. App. 2009), the court determined decedent had
           died intestate on September 5, 2007. Adding 120 days to that, we get January 3, 2008. A first learned


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        about the will on October 22, 2007. Adding 60 days to that, we get December 21, 2007. Since January 3,
        2008 is the later day, that’s the deadline for A to file a petition to probate the will. Since A didn’t do so
        until February 19, 2008, the trial court found that the petition was untimely under CAL. PROB. CODE
        § 8226(c), and the appellate court affirmed.
     D. Notes on Timing Out.
        1. Holographic Will. “A will that is handwritten by the testator. • Such a will is typically unattested.”
        2. Codicils. “A supplement or addition to a will, not necessarily disposing of the entire estate but
             modifying, explaining, or otherwise qualifying the will in some way. • When admitted to probate, the
             codicil becomes a part of the will.”
        3. Creditor’s Claims. Creditors must file a claim within the later of either: (1) 4 months after letters are
             issued by the court, or (2) 60 days after receiving notice. See CAL. PROB. CODE § 9100.

Casebook pp. 27-48 + Calif. Comp. pp. 1-6 (The Problem of the Dead Hand, Shapira v. Union Nat’l Bank; Transfer
of the Decedent’s Estate, Probate Process)

§ 1-3 An Estate Planning Problem & Professional Responsibility
I.   Issue of Attorney Malpractice: Whether an attorney who drafted testator’s will owes a duty of care to
     intended beneficiaries of that will.
     A. Facts of Attorney Malpractice.
          1. Testor’s will gave to the plaintiff’s stepmother a life estate in the “homestead located at Piscataqua
               Road . . .” but it wasn’t clear whether this meant just the house or the house and all surrounding land.
               Finding “homestead” ambiguous, the probate court admitted extrinsic evidence of the testator’s close
               relationship with plaintiff’s stepmother, and therefore gave plaintiff’s stepmother a life estate in the
               house and all the surrounding land. The problem was that this wasn’t what testator had intended. The
               attorney’s notes (which were not admissible because of the statute of wills) noted that testator had
               intended to give the plaintiff’s stepmother only the house, and to give plaintiff all the surrounding
               land. Plaintiff sued the attorney for malpractice. The attorney argued that a drafting attorney owes no
               duty to the intended beneficiary of a will—only to the testator. Since there was no privity between
               himself and the plaintiff, he owed no duty to the plaintiff, and the plaintiff had no standing to sue.
               See Simpson v. Calivas (N.H. 1994).
          2. The testator, having been diagnosed with a terminal illness, retained defendant attorney to create a
               revocable trust for the disposal of his assets upon death. The assets were to be divided between his
               current wife and his former wife, with whom he fathered a son. Right before he died, the testator
               instructed defendant that he wished to revise the trust and leave all his assets to his current wife. The
               defendant refused, explaining that if the trust was modified at this point, the testator’s former wife
               would almost certainly sue and that there would need to be a psychological evaluation for
               testamentary capacity. Before such an evaluation could be arranged, the testator died, and the current
               wife sued defendant for failing to carry out the testator’s intent and modify the trust. See Chang v.
               Lederman (Cal. Ct. App. 2009).
     B. The Law of Attorney Malpractice. In Simpson v. Calivas (N.H. 1994), the New Hampshire Supreme
          Court held that an attorney drafting a will owes a duty of reasonable care to an intended beneficiary even
          though there’s no privity between the attorney and the beneficiary. The rationale underlying this rule is
          that injury to the intended beneficiary is highly foreseeable. Finally, New Hampshire also rejected
          defendant’s argument that for this kind of liability, the testator’s intent must appear on the face of the
          instrument.
     C. California Law of Attorney Malpractice. In California, lack of privity is not a valid defense for a
          negligence claim by an intended beneficiary against the drafting attorney. See Lucas v. Hamm (Cal.
          1961); Heyer v. Flaig (Cal. 1969). However, a drafting attorney can only be liable to intended
          beneficiaries—not merely potential beneficiaries. If there was no executed instrument reflecting the
          testator’s intent, then the drafting attorney won’t be liable. See Chang v. Lederman (Cal. Ct. App. 2009).
          Thus, California and New Hampshire law are different—California requires that the testator’s intent be
          reflected within the executed instrument itself, but New Hampshire doesn’t.
     D. Analysis of Attorney Malpractice.
     E. Notes on Attorney Malpractice.



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          1.   Statute of Wills. The attorney’s notes were not admitted into evidence by the probate court because
               of the statute of wills. The statute of wills provides that a will must be in writing and either
               holographic or attested by two witnesses. Probate courts will not consider extrinsic writings in order
               to prevent false claims.
          2. Will as an Ambulatory Instrument. A will is not effective upon execution. Rather, the will
               becomes effective only when the testator dies.
          3. Collateral Estoppel. In Simpson v. Calivas (N.H. 1994), the court refused to apply collateral
               estoppel (issue preclusion) to the finding by the probate court because the finding was not essential to
               the judgment. See RESTATEMENT (SECOND) OF JUDGMENTS, § 27. Note that even where a finding is
               essential to the judgment, many jurisdictions will still refuse to apply collateral estoppel to findings
               by a probate court. This is rooted in the traditional view that probate courts are inferior courts, and
               are often staffed by less competent judges and staff.
II.   Issue of Conflict of Interest: Where a law firm has a conflict of interest from representing the husband and
      wife in drafting their wills.
      A. Facts of Conflict of Interest.
          1. A law firm that was representing the husband and wife in drafting their wills realized it was also
               coincidentally representing the husband’s illegitimate son’s mother in a paternity action against the
               husband. (Due to a clerical error, the firm didn’t realize at first that there was a conflict of interest.)
               The will being drafted provided for an equal division of property among the husband’s issue. Since
               the wife didn’t know about the nonmarital child, when she executed her will, she would be
               unknowingly devising an equal share of her property to her husband’s nonmarital child. See A. v. B.
               (N.J. 1999).
      B. The Law of Conflict of Interest. The Rules of Professional Conduct (RPC) require that attorneys not
          reveal confidential information learned in the course of representation, see RPC 1.6(a), and that attorneys
          communicate to their clients all information needed to make an informed decision, see RPC 1.4(b). If an
          attorney represents two individuals who are married to each other, a situation could arise where these
          duties come into conflict. There is, however, an exception—RPC 1.6(c) provides that a lawyer is
          permitted to reveal confidential information if not revealing would assist the client in committing a crime
          or fraud.
      C. Analysis of Conflict of Interest.
      D. Notes on Conflict of Interest.
          1. Defining Children. In A. v. B. (N.J. 1999), the law firm with a conflict of interest wanted to disclose
               the husband’s nonmarital child to the wife. However, if the firm had not wanted to disclose the
               nonmarital child and yet wanted to draft their wills in such a manner as to exclude that child, the
               wills could have simply defined the devisees as limited to marital children.

Casebook pp. 49-50, 54-70 + California Comp. p. 6 (Estate Planning Problem, Classification of Assets; Professional
Responsibility, Simpson v. Calivas, A. v. B.)




                                                           7
            § 2 INTESTACY: AN ESTATE PLAN BY
                        DEFAULT
§ 2-1 The Basic Scheme

                                 ♦ CAL. PROB. CODE § 100. Community property
(a) Upon the death of a married person, one-half of the community property belongs to the surviving spouse and
    the other half belongs to the decedent.
(b) Notwithstanding subdivision (a), a husband and wife may agree in writing to divide their community property
    on the basis of a non pro rata division of the aggregate value of the community property or on the basis of a
    division of each individual item or asset of community property, or partly on each basis. Nothing in this
    subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata
    division of community property.


                              ♦ CAL. PROB. CODE § 101. Quasi-community property
(a) Upon the death of a married person domiciled in this state, one-half of the decedent's quasi-community property
    belongs to the surviving spouse and the other half belongs to the decedent.
(b) Notwithstanding subdivision (a), a husband and wife may agree in writing to divide their quasi-community
    property on the basis of a non pro rata division of the aggregate value of the quasi-community property, or on
    the basis of a division of each individual item or asset of quasi-community property, or partly on each basis.
    Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a
    non pro rata division of quasi-community property.


 ♦ CAL. PROB. CODE § 6401. Surviving spouse or surviving domestic partner; intestate share; community or
                             quasi-community property; separate property
(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 Section 100.
(b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-
    community property that belongs to the decedent under Section 101.
(c) As to separate property, the intestate share of the surviving spouse or surviving domestic partner, as defined in
    subdivision (b) of Section 37, is as follows:
    (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue
         of a deceased brother or sister.
    (2) One-half of the intestate estate in the following cases:
         (A) Where the decedent leaves only one child or the issue of one deceased child.
         (B) Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of
              them.
    (3) One-third of the intestate estate in the following cases:
         (A) Where the decedent leaves more than one child.
         (B) Where the decedent leaves one child and the issue of one or more deceased children.
         (C) Where the decedent leaves issue of two or more deceased children.

When a person dies without a valid will, he dies intestate, and his probate property is passed to his heirs through the
intestacy statutes—the laws of descent (for real property) and distribution (for personal property). Under UNIF.
PROBATE CODE § 2-102, a surviving spouse’s share of the decedent’s estate is determines based on (1) whether there
are any surviving descendents of the decedent who are not also surviving descendents of the surviving spouse, (2)
whether there are any surviving descendents who are also surviving descendents of the surviving spouse, (3)
whether there are any surviving descendents of the surviving spouse who are not also surviving descendents of the
decedent, and (4) whether there are any surviving parents of the decedent.



                                                           8
                                                                                                     UNIF. PROBATE
     His Kids1           Their Kids          Her Kids          His Parents          Her Share            CODE
                                                                                                       Provision
         0                    0                   0                 0                 100%           § 2-102(1)(A)
         0                1 or more               0                 0                 100%           § 2-102(1)(B)
                                                                                First $300,000
         0                    0                   0             1 or more       and ¾ of the         § 2-102(2)
                                                                                balance
                                                                                First $225,000
                          1 or more          1 or more                          and ½ of the         § 2-102(3)
                                                                                balance
                                                                                First $150,000
     1 or more                                                                  and ½ of the         § 2-102(4)
                                                                                balance

If there is no surviving spouse, the estate passes in the following order: decedent’s descendants, decedent’s parents,
decedent’s parent’s descendents, grandparents and their descendents, deceased spouse’s descendents. See UNIF.
PROB. CODE § 2-103. If none of these are alive, then the property escheats to the state. See UNIF. PROB. CODE § 2-
105.

I.    Issue of Surviving Spouse’s Share: How much does a surviving spouse get?
      A. California Law of Surviving Spouse’s Share. In California, the threshold inquiry is whether the probate
          property at issue is community property, quasi-community property, or separate property. Community
          property is property acquired by a married person (1) during the marriage, and (2) while domiciled in
          California. See CAL. PROB. CODE § 28. Quasi-community property is property that would be community
          property but for the fact that it was acquired in a non-community property state. See CAL. PROB. CODE
          § 66. Both community property are quasi-community property are treated the same the death of a married
          person—half of the community property automatically belongs to the surviving spouse and the other half
          belongs to the decedent. See ♦ CAL. PROB. CODE §§ 100 and 101. Decedent has the power to create a will
          and devise decedent’s one-half interest to someone other than the surviving spouse. If the decedent
          doesn’t, then California intestate statutes provide that the decedent’s one-half interest passes to the
          surviving spouse. Thus, when a married person dies intestate in California, the surviving spouse receives
          all of the community property and quasi-community property. See ♦ CAL. PROB. CODE. § 6401. The
          intestacy rules for separate property are more complicated—a surviving spouse’s share depends on (1)
          whether there are any surviving children of the decedent, (2) whether there are any surviving issue of
          deceased children of the decedent, and (2) whether there are any surviving parents of the decedent or
          issue of the parents of the decedent. See ♦ CAL. PROB. CODE § 6401.
      B. Analysis of Surviving Spouse’s Share.
          1. Community or Separate Property. Is the property at issue community property or separate
               property?
               a. Community Property. Community property and quasi-community property end up with the
                    surviving spouse. Half of the property automatically belongs to the surviving spouse under ♦
                    CAL. PROB. CODE §§ 100 and 101. The other half is inherited by the surviving spouse under ♦
                    CAL. PROB. CODE §§ 6401(a) and 6401(b).
               b. Separate Property. For separate property, the intestate share depends on whether the decedent
                    is survived by children, issue of deceased children, and parents or issue of parents.


1
 Assuming the decedent is male and the surviving spouse is female. His kids = decedent’s surviving descendents
who are not also descendents of the surviving spouse; her kids = surviving descendents of the surviving spouse who
are not descendents of the decedent; their kids = decedent’s surviving descendents who are also descendents of the
surviving spouse; his parents = decedent’s surviving parents


                                                          9
                                                 Decedent’s Parents Surviving Spouse’s
                         Issue of Decedent’s                                                        CAL. PROB. CODE
Decedent’s Children                                  or Issue of     Share of Decedent’s
                         Deceased Children                                                             Provision
                                                 Decedent’s Parents2 Separate Property
          0                        0                        0                     100%            ♦ § 6401(c)(1)
      Exactly 1                                                                    50%            ♦ § 6401(c)(2)(A)
                               Exactly 1                                           50%            ♦ § 6401(c)(2)(A)
          0                        0                   1 or more                   50%            ♦ § 6401(c)(2)(B)
      1 or more                                                                    1/3            ♦ § 6401(c)(3)(A)
      Exactly 1                1 or more                                           1/3            ♦ § 6401(c)(3)(B)
      2 or more                                                                    1/3            ♦ § 6401(c)(3)(C)

In California, there’s no difference between same-sex domestic partners and married persons, at least with respect to
rights under the intestacy statutes. There are differences with respect to federal benefits because of the Defense of
Marriage Act (DOMA). Throughout this outline, I will refer to “husband” and “wife”, but you should keep in mind
that in California, registered domestic partners have substantially the same rights as married opposite sex couples.

           ♦ CAL. PROB. CODE § 103. Simultaneous death; community or quasi-community property
Except as provided by Section 224, if a husband and wife die leaving community or quasi-community property and
it cannot be established by clear and convincing evidence that one spouse survived the other:
(a) One-half of the community property and one-half of the quasi-community property shall be administered or
     distributed, or otherwise dealt with, as if one spouse had survived and as if that half belonged to that spouse.
(b) The other half of the community property and the other half of the quasi-community property shall be
     administered or distributed, or otherwise dealt with, as if the other spouse had survived and as if that half
     belonged to that spouse.


              ♦ CAL. PROB. CODE § 220. Disposition of property; insufficient evidence of survivorship
Except as otherwise provided in this chapter, 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 or distributed, or otherwise dealt with, as if that person had
survived the other.


    ♦ CAL. PROB. CODE § 222. Beneficiaries; right to succeed to interest conditional upon surviving another
                                        person; insufficient evidence
(a) If property is so disposed of that the right of a beneficiary to succeed to any interest in the property is
    conditional upon surviving another person and it cannot be established by clear and convincing evidence that
    the beneficiary survived the other person, the beneficiary is deemed not to have survived the other person.
(b) If property is so disposed of that one of two or more beneficiaries would have been entitled to the property if he
    or she had survived the others, and it cannot be established by clear and convincing evidence that any
    beneficiary survived any other beneficiary, the property shall be divided into as many equal portions as there are
    beneficiaries and the portion of each beneficiary shall be administered or distributed, or otherwise dealt with, as
    if that beneficiary had survived the other beneficiaries.



2
 The statute is a bit more complicated than this. It contemplates a parent, parents, issue of either parent, and issue of
both parents.


                                                           10
                                         ♦ CAL. PROB. CODE § 223. Joint tenants
(a) As used in this section, “joint tenants” includes owners of property held under circumstances that entitled one or
    more to the whole of the property on the death of the other or others.
(b) If property is held by two joint tenants and both of them have died and it cannot be established by clear and
    convincing evidence that one survived the other, the property held in joint tenancy shall be administered or
    distributed, or otherwise dealt with, one-half as if one joint tenant had survived and one-half as if the other joint
    tenant had survived.
(c) If property is held by more than two joint tenants and all of them have died and it cannot be established by clear
    and convincing evidence that any of them survived the others, the property held in joint tenancy shall be divided
    into as many portions as there are joint tenants and the share of each joint tenant shall be administered or
    distributed, or otherwise dealt with, as if that joint tenant had survived the other joint tenants.


                    ♦ CAL. PROB. CODE § 224. Life or accident insurance; insured and beneficiary
If the insured and a beneficiary under a policy of life or accident insurance have died and it cannot be established by
clear and convincing evidence that the beneficiary survived the insured, the proceeds of the policy shall be
administered or distributed, or otherwise dealt with, as if the insured had survived the beneficiary, except if the
policy is community or quasi-community property of the insured and the spouse of the insured and there is no
alternative beneficiary except the estate or personal representative of the insured, the proceeds shall be distributed as
community property under Section 103.


      ♦ CAL. PROB. CODE § 6403. Failure to survive decedent by 120 hours; deemed predeceased; application of
                                                      section
(a) A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the
    purpose of intestate succession, and the heirs are determined accordingly. If it cannot be established by clear
    and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours,
    it is deemed that the person failed to survive for the required period. The requirement of this section that a
    person who survives the decedent must survive the decedent by 120 hours does not apply if the application of
    the 120-hour survival requirement would result in the escheat of property to the state.
(b) This section does not apply to the case where any of the persons upon whose time of death the disposition of
    property depends died before January 1, 1990, and such case continues to be governed by the law applicable
    before January 1, 1990.

II.      Issue of Simultaneous Death: Whether a deceased heir or beneficiary will be deemed to have predeceased
         the decedent pursuant to a simultaneous death statute.
         A. Facts of Simultaneous Death.
              1. The will provided that if the testator’s wife died within 30 days of the testator’s death due to a
                   common disaster, the property would go to their nephew. As it happened, the testator’s wife did die
                   within 30 days of the testator’s death, but it was not due to a common disaster. Since the will didn’t
                   provide for how to devise property in this set of circumstances, the estate devolved by intestacy. The
                   nephew, understandably irked, sued the testator’s attorney for malpractice. See Ogle v. Fuiten (Ill.
                   1984).
              2. Husband and wife died after taking Tylenol laced with cyanide. The problem was that it wasn’t clear
                   whether they died simultaneously or not—although the husband was pronounced dead at the scene,
                   the wife was placed on life support for almost two days before being pronounced dead. See Janus v.
                   Tarasewicz (Ill. Ct. App. 1985).
         B. The Law of Simultaneous Death. Under UNIF. PROB. CODE §§ 2-104 and 2-702, an heir or beneficiary
              who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent. Furthermore,
              someone claiming that a deceased heir/beneficiary survived the decedent by at least 120 hours must prove
              survivorship by clear and convincing evidence.
         C. Historical Development of Simultaneous Death. Under the historical Uniform Simultaneous Death Act
              (USDA), the beneficiary is deemed to have predeceased the donor if there is “no sufficient evidence”
              indicating that the donor had died before the beneficiary. The idea behind this is that it doesn’t make a lot


                                                             11
         of sense for property to pass from the donor to a deceased beneficiary, which would then have to pass
         through probate twice. The problem is that whether there is “no sufficient evidence” of the order of
         deaths can be a point of serious contention. For example, in Janus v. Tarasewicz (Ill. Ct. App. 1985),
         husband was pronounced dead at the scene but the wife was placed on life support for almost two days
         before being pronounced dead. The appellate court held that the trial court’s finding that there was
         sufficient evidence indicating the wife survived the husband was not against the manifest weight of the
         evidence, such that the simultaneous death statute did not apply. Due to the ambiguities in a “no sufficient
         evidence” standard, modern law has turned to the 120 hour brightline rule.
      D. California Law of Simultaneous Death. When how property passes depends on who died first, but who
         died first cannot be established by clear and convincing evidence, then property will pass as though
         decedent survived the heir or beneficiary (as though the heir or beneficiary predeceased the decedent).
         See ♦ CAL. PROB. CODE § 220. When a husband and wife both die and who died first can’t be established
         by clear and convincing evidence, then half of the community property (as well as half of the quasi-
         community property) will be treated as though the husband had predeceased the wife and half will be
         treated as though the wife had predeceased the husband. See ♦ CAL. PROB. CODE § 103. Where a gift is
         conditioned on the beneficiary surviving the decedent and it cannot be established by clear and
         convincing evidence that the deceased beneficiary survived the decedent, the beneficiary will be deemed
         not to have survived the decedent. See ♦ CAL. PROB. CODE § 222. Where property was owned by two (or
         more) individuals as joint tenants with rights of survivorship and it cannot be established by clear and
         convincing evidence that one deceased joint tenant survived the other deceased joint tenant, then the
         property will be divided equally as though the property had been owned as tenants in common. See ♦
         CAL. PROB. CODE § 223. If it cannot be established by clear and convincing evidence that the beneficiary
         of a life insurance policy survived the insured, then the beneficiary is deemed to have predeceased the
         insured. See ♦ CAL. PROB. CODE § 224. For the purposes of intestate succession, an heir who fails to
         survive decedent by 120 hours (5 days) will be deemed to have predeceased the decedent. Furthermore,
         someone claiming that an heir survived the decedent by 120 hours has to prove that survivorship by clear
         and convincing evidence. See ♦ CAL. PROB. CODE. § 6403.
      E. Analysis of Simultaneous Death.
      F. Notes on Simultaneous Death.

Casebook pp. 71-86 + California Comp. pp. 7-13 (Intestate Succession, Share of Surviving Spouse, Domestic
Partners, Simultaneous Death, 120-hour survival requirement, Janus v. Tarasewicz)

§ 2-2 Shares of Descendents

                                ♦ CAL. PROB. CODE § 240. Division into equal shares
If a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be
divided into as many equal shares as there are living members of the nearest generation of issue then living and
deceased members of that generation who leave issue then living, each living member of the nearest generation of
issue then living receiving one share and the share of each deceased member of that generation who leaves issue
then living being divided in the same manner among his or her then living issue.


   ♦ CAL. PROB. CODE § 240. Intestate estate not passing to surviving spouse or surviving domestic partner
Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or surviving
domestic partner, as defined in subdivision (b) of Section 37, under Section 6401, or the entire intestate estate if
there is no surviving spouse or domestic partner, passes as follows:
(a) [Decedent’s Issue] To the issue of the decedent, the issue taking equally if they are all of the same degree of
     kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in
     Section 240.
(b) [Decedent’s Parents] If there is no surviving issue, to the decedent's parent or parents equally.
(c) [Issue of Decedent’s Parents] If there is no surviving issue or parent, to the issue of the parents or either of
     them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal
     degree those of more remote degree take in the manner provided in Section 240.



                                                           12
(d) [Grandparents or Issue of Predeceased Grandparents] If there is no surviving issue, parent or issue of a
    parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or
    grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking
    equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more
    remote degree take in the manner provided in Section 240.
(e) [Issue of Predeceased Spouse] If there is no surviving issue, parent or issue of a parent, grandparent or issue of
    a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking
    equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of
    more remote degree take in the manner provided in Section 240.
(f) [Next of Kin] If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or
    issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but
    where there are two or more collateral kindred in equal degree who claim through different ancestors, those who
    claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.
(g) [Parents of Predeceased Spouse or Issue of Parents of Predeceased Spouse] If there is no surviving next of
    kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived
    by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the
    issue of those parents if both are deceased, the issue taking equally if they are all of the same degree of kinship
    to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in
    Section 240.

I.    Issue of Shares of Descendents: How much do children and descendents of deceased children take under the
      intestacy statutes?
      A. The Law of Shares of Descendents. There are three major systems for determining the shares of
           descedents: (1) strict per stirpes, (2) modern per stirpes, and (3) per capita at each generation. Under strict
           per stirpes, each descendents share is determined proportionately according to that descendant’s deceased
           ancestor’s share. Consider if there were a grandmother (A) with two predeceased children (B and C), with
           B leaving one child (D) and C leaving four children (E, F, G, and H). If the grandmother were to die
           under strict per stirpes (and there were no surviving spouse), then A’s share is divided equally between
           B’s line and C’s line—D takes one-half and the C’s four children each take one quarter of the other half,
           or one eighth. Note that this has the somewhat odd effect of meaning that four of A’s grandchildren get
           1/8th each and the fifth grandchild gets one half. It is because of this oddity that the modern per stirpes
           system arose by which the decedent’s estate is still divided evenly, but only at the first generation at
           which there are living takers. Thus, in the hypothetical above, when A dies, each of the five grandchildren
           get 1/5th of the grandmother’s estate, which probably better approximates what the grandmother would
           have wanted. Finally, there is per capita at each generation, which is the approach followed by UNIF.
           PROB. CODE § 2-106(b). Consider if there were a grandmother (A) with two predeceased children (B and
           C) and one living child (D). B has one child (E) and C has four children (F, G, H, and I). Under both strict
           and modern per stirpes, we would get the same result—the first generation with living takers is the first
           generation below A. Thus, under either system, D gets 1/3, E gets 1/3 and C’s four children share 1/3.
           This has the somewhat odd result of one of A’s grandchildren getting 1/3 while the other four
           grandchildren each get 1/12th. The per capita at each generation approach seeks to remedy this oddity by
           providing that the shares of the deceased persons at each level are aggregated and then divided evenly
           among the generation below. Under per capita at each generation, D would still get 1/3, but all of A’s five
           grandchildren would share the other 2/3—each would get 1/5 of 2/3 or 2/15. This probably better
           approximates what the grandmother would have intended because each grandchild receives the same
           share. Note that under per capita at each generation, if you get to a generation where all the would-be
           takers are deceased, then you essentially skip that generation.
      B. California Law of Shares of Descendents. ♦ CAL. PROB. CODE § 6402 describes the order of preference
           for the intestate descent and distribution of decedent’s estate: decedent’s issue, decedent’s parents, issue
           of decedent’s parents, decedent’s grandparents, issue of decedent’s predeceased grandparents, issue of
           predeceased spouse, next of kin, parents of predeceased spouse, and issue of parents of predeceased
           spouse. Persons in earlier categories take to the exclusion of those in later categories. Thus, if decedent
           dies intestate leaving both issue and parents, then issue take to the exclusion of parents. The division of
           property within each category depends on their relationship to the decedent. If all heirs are equally related
           to the decedent, then they all take equally. However, if the heirs are not equally related, then they take



                                                           13
        pursuant to ♦ CAL. PROB. CODE § 240 under the modern per stirpes system of distribution. Under modern
        per stirpes, the threshold inquiry is which generation (1) has living takers or living issue of predeceased
        takers, and (2) is closest to the decedent’s generation. It is at this generation where decedent’s property
        will be divided equally among each member of that generation who either survives decedent or has living
        issue who survive the decedent. Said another way, decedent’s property is divided equally among each
        member of that generation except for those members who predeceased decedent and left no living issue.
        Note that if the decedent’s children are still alive, the modern per stirpes distribution of decedent’s
        property will (almost certainly) be the same as under a strict per stirpes system. It is when the decedent’s
        children have predeceased the decedent that the modern per stirpes distribution of property will be
        different from the strict per stirpes system. Finally, note that ♦ CAL. PROB. CODE § 240 is recursive—“the
        share of each deceased member of that generation who leaves then issue then living being divided in the
        same manner among his or her then living issue.” In extremely rare circumstances, you may have to
        apply modern per stirpes multiple times in order to determine each descendant’s share.
     C. Analysis of Shares of Descendents.
        1. Order of Preference.
             a. Decedent’s Issue.
             b. Decedent’s Parents.
             c. Issue of Decedent’s Parents (Brothers and Sisters).
             d. Grandparents or Issue of Grandparents.
             e. Issue of a Predeceased Spouse (Stepchild).
             f. Next of Kin.
             g. Predeceased Spouse’s Parents or Issue of Predeceased Spouse’s Parents (In-Laws).
        2. Method of Property Division.
             a. Are the persons amongst whom the property is being divided of equal degrees of kinship to
                  the decedent? If so, then the property is divided equally. If not, the property is divided under
                  modern per stirpes pursuant to ♦ CAL. PROB. CODE § 240.
             b. If the property is divided under modern per stirpes, which generation is the nearest
                  generation with living takers? This is the generation at which the property will be divided
                  equally among the living and the dead.
     D. Notes on Shares of Descendents.
        1. Living Ancestors. If any of the issue have living ancestors, then the ancestors take to the exclusion
             of the issue. Thus, when grandmother dies, the grandchildren’s parents take instead of the
             grandchildren.
        2. Deceased Issue with No Issue. If any of the issue predeceases the decedent and leaves no issue of
             their own, then no portion of the decedent’s estate goes to that line.
        3. Disinheritance. Under UNIF. PROB. CODE § 2-101(b), testator may draft a negative will by which
             testator expressly disinherits an heir apparent but doesn’t otherwise dispose of testator’s property.
             The testator’s property will pass through intestate succession as though the disinherited heir
             predeceased the testator (which means that the disinherited heir’s issue can still take under intestacy).
             See also RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 2.7 (1999). California does not
             authorize negative wills by statute, but there is caselaw indicating that negative wills are effective.
             See, e.g., Estate of Dye (Cal. Ct. App. 2001).

Review simultaneous death materials +Casebook pp. 87-91 + Calif. Comp. p.13-15 (Shares of Descendants, Right of
Representation)




                                                        14
II.   Issue of Shares of Ancestors and Collaterals: How much do ancestors and collaterals take under the
      intestacy statutes?
      A. The Law of Shares of Ancestors and Collaterals. All systems of distribution give priority to decedent’s
           issue, parents, and decedent’s issue (first-line collaterals). There are two schemes for who takes if all the
           first-line collaterals predecease the decedent: (1) the parentelic system, and (2) the degree-of-relationship
           system. Under the parentelic system, collateral kin are divided into parentela (persons who can trace
           descent from a common ancestor). The decedent’s issue belong in the first parentela, the issue of
           decedent’s parents (excluding those in the first parentela) constitute the second parentela, the issue of
           decedent’s grandparents (excluding those in the first two parentelas) constitute the third parentela, etc.
           with each precedent parentela having a superior claim to those of successive parentelas. Under the
           degree-of-relationship, each potential heir counts the degrees of relationship to the decedent, and those
           with a higher degree of relationship (fewer steps) take to the exclusion of those with a lower degree of
           relationship.
      B. California Law of Shares of Ancestors and Collaterals. California uses a hybrid of the parentelic and
           degree-of-relationship systems—it follows the parentelic system for three parentelas, then gives



                                                          15
         preference to issue of a predeceased spouse, and then switches to the degree-of-relationship for other
         collateral kin. Under ♦ CAL. PROB. CODE § 6402, the order of preference is decedent’s issue, decedent’s
         parents, issue of decedent’s predeceased parents, grandparents, and issue of predeceased grandparents.
         Said another way, California law gives preference to the first parentela, then the decedent’s parents, then
         the rest of the second parentela, then the decedent’s grandparents, and then the third parentela. At this
         point, California law takes the rather unique approach of giving priority to the issue of a predeceased
         spouse. See ♦ CAL. PROB. CODE § 6402(e). Only if there are no surviving members of the first three
         parentelas and no surviving issue of a predeceased spouse will other next of kin inherit under ♦ CAL.
         PROB. CODE § 6402(f). Where there are multiple next of kin of unequal degrees of relationship, those who
         are more closely related (fewer degrees of relationship) will take to the exclusion of those who are less
         closely related (more degrees of relationship). If there are multiple next of kin of equal degrees of
         relationship, those who claim through a closer ancestor will take to the exclusion of those who claim
         through a more remote ancestor. See ♦ CAL. PROB. CODE § 6402(f). Finally, if decedent has no next of
         kin, then property will go to the parents of a predeceased spouse or the issue of the predeceased parents of
         a predeceased spouse (but not issue of predeceased issue of predeceased parents). See ♦ CAL. PROB. CODE
         § 6402(g). Only if none of these provisions apply will property escheat to the state. See CAL. PROB. CODE
         § 6404.
      C. Analysis of Shares of Ancestors and Collaterals.
      D. Notes on Shares of Ancestors and Collaterals.
         1. Squibs. In California, half-bloods are treated the same as whole bloods. See CAL. PROB. CODE §
              6406.

                   Categories of Persons                                  CAL. PROB. CODE Section
Decedent’s Issue                                           ♦ CAL. PROB. CODE § 6402(a)
Decedent’s Parents                                         ♦ CAL. PROB. CODE § 6402(b)
Issue of Decedent’s Predeceased Parents                    ♦ CAL. PROB. CODE § 6402(c)
Decedent’s Grandparents                                    ♦ CAL. PROB. CODE § 6402(d)
Issue of Decedent’s Predeceased Grandparents               ♦ CAL. PROB. CODE § 6402(d)
   Issue of a Predeceased Spouse                          ♦ CAL. PROB. CODE § 6402(e)
Next of Kin                                                ♦ CAL. PROB. CODE § 6402(f)
   Parents of a Predeceased Spouse                        ♦ CAL. PROB. CODE § 6402(g)
   Issue of Predeceased Parents of Predeceased Spouse     ♦ CAL. PROB. CODE § 6402(g)
   Escheat                                                CAL. PROB. CODE § 6404

Casebook pp. 92-97 + Calif. Comp. pp. 15-19 (Shares of Collaterals, Meaning of Children)

§ 2-3 Transfers to Children: Adopted Children

                                       CAL. PROB. CODE § 6451. Adoption
(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 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.
    (2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural
        parents.
(b) Neither a natural parent nor a relative of a natural parent, except for a wholeblood brother or sister of the



                                                         16
    adopted person or the issue of that brother or sister, inherits from or through the adopted person on the basis of a
    parent and child relationship between the adopted person and the natural parent that satisfies the requirements of
    paragraphs (1) and (2) of subdivision (a), unless the adoption is by the spouse or surviving spouse of that parent.
(c) For the purpose of this section, a prior adoptive parent and child relationship is treated as a natural parent and
    child relationship.

I.    Issue of Adopted Children: Whether an adopted child takes as an heir under the intestacy statutes when the
      decedent was not the adoptive parent.
      A. Facts of Adopted Children.
           1. Decedent married his first wife, with whom he had two children. After they were divorced,
                decedent’s first wife got remarried to her second husband (Arthur). With decedent’s consent, Arthur
                adopted the two children from decedent’s first marriage. Decedent then married his second wife, and
                adopted his second wife’s son, Scott. Decedent and the second wife made reciprocal wills using
                preprinted forms. The second wife died, and then decedent died. Scott petitioned to probate
                decedent’s estate, but one of decedent’s adopted away natural son (along with issue of decedent’s
                other adopted away natural son) objected, seeking a share of decedent’s estate. See Estate of Dye
                (Cal. Ct. App. 2001).
           2. H1 died, survived by his wife, W, and their four children. W got remarried to H2, who adopted those
                four children. H1’s brother died intestate, and those four natural children sued for a part of H1’s
                brother’s estate. See Hall v. Vallandingham (Md. Ct. App. 1988).
      B. The Law of Adopted Children. Under the 2008 amendments to the Uniform Probate Code, the critical
           inquiry is whether there is a parent-child relationship. If there is, then the child can adopt both from and
           through the parent, and the parent can adopt both from and through the child. See UNIF. PROB. CODE § 2-
           116.
      C. California Law of Adopted Children. Under California law, there can be a parent-child relationship for
           the purposes of the intestacy statutes between an adopted person and natural parents, between and
           adopted person and adopted parents, or both. See CAL. PROB. CODE § 6450. Ordinarily, adoption severs
           the relationship with the adopted person’s natural parents. However, adoption will not sever this
           relationship when two requirements are met: (1) the adopted person lived together with the natural parent
           for some time prior to adoption,3 and (2) the adopted person was adopted by the spouse of either of the
           natural parents or was adopted after the death of either of the natural parents. See CAL. PROB. CODE §
           6451(a). However, this exception only applies to the adopted person inheriting from or through natural
           parents—not natural parents (or relatives of natural parents) inheriting from or through the adopted
           person. See CAL. PROB. CODE § 6451(b).
      D. Analysis of Adopted Children. In Estate of Dye (Cal. Ct. App. 2001), the court held that the exception
           in CAL. PROB. CODE § 6451 applied to not sever the parent-child relationship between decedent’s adopted
           away natural sons and decedent. While recognizing that this was probably contrary to the intent of the
           testator (he had never even met the issue of his predeceased natural son), the court presumed that
           decedent understood the intestacy laws and decedent’s failure to expressly disinherit his natural sons
           meant that under those laws, his adopted away natural sons would take equally with his “real” adopted
           son.
      E. Notes on Adopted Children.
II.   Issue of Adult Adoption: Whether an adult takes as a beneficiary under a will or an heir under intestacy
      statutes when the testator/decedent was not the adoptive parent.
      A. Facts of Adult Adoption.
           1. Testator’s will’s created a trust to provide for her husband and her three sons. According to the terms
                of the trust, it would terminate after all four beneficiaries died and the remaining portion of the trust
                fund was to be distributed to testator’s then surviving heirs under state intestacy statutes. The
                husband died, and one of the sons died without descendents. One of the other sons died leaving two
                children. Finally, the third son got married, and then adopted his wife as his child before dying
                without biological descendents. See Minary v. Citizens Fidelity Bank & Trust Co. (Ky. 1967).

3
 There’s also a limited exception for when a natural parent died prior to the adopted person’s birth: “. . . or the
natural parent was married to or cohabitating with the other natural parent at the time the person was conceived and
died before the person’s birth.” CAL. PROB. CODE § 6451(a)(1).


                                                          17
       B. The Law of Adult Adoption. In Minary v. Citizens Fidelity Bank & Trust Co. (Ky. 1967), the Kentucky
           court of last appeal refused to allow an adopted adult to take under the pre-existing trust: “Adoption of an
           adult for the purpose of bringing that person under the provisions of a pre-existing testamentary
           instrument when he clearly was not intended to be so covered should not be permitted . . .” Although the
           court recognized that an adult adoption was effective, the court reasoned that giving the adopted adult
           rights to inheritance would thwart the intent of the testator, cheating the rightful heirs. In most states,
           adult adoptions are effective, and will establish a parent-child relationship for inheritance and
           testamentary transfers vis-à-vis the adopting parent. However, states are more reluctant in allowing adult
           adoptions to effect a parent-child relationship vis-à-vis someone other than the adopting parent.
       C. California Law of Adult Adoption. In California, “adopted persons . . . are included in the terms of
           class gift . . . in accordance with the rules for determining relationship and inheritance rights for the
           purposes of intestate succession.” CAL. PROB. CODE § 21115(a). However, where the testator/decedent
           isn’t the adopting parent, this will only take effect if the adopted person lived while a minor as a regular
           member of the adopting parent’s household (or in the household of a close relative). See CAL. PROB.
           CODE § 21115(b). This second requirement is designed to delineate between two situations: foster
           children growing up in the adopting parents household who aren’t adopted until after becoming adults,
           and adults adopted for the sole purpose of bringing them into someone else’s class gift. Those in the
           former category will qualify for the class gift, and those in the latter will not.
       D. Analysis of Adult Adoption.
       E. Notes on Adult Adoption.
           1. Special Power of Appointment. “A power of appointment that either does not allow the entire estate
                to be conveyed or restricts to whom the estate may be conveyed; esp., a power by which the donee
                can appoint to only the person or class specified in the instrument creating the power, but cannot
                appoint to oneself or one's own estate.” When a testator creates a trust for testator’s children, giving
                the children a special power of appointment would mitigate the situations such as in Minary where
                the son attempts to adopt his wife in order to ensure his wife would be provided for after his death.
                Providing flexibility in a testamentary instrument will also contemplate the possibility that one child
                could have special needs while another child could be materially well off.
           2. Irrevocability. Adoption is irrevocable. Although the adopting parent could disinherit the adopted
                person, the adopting parent can’t do anything about class gifts by persons other than the adopting
                parent.
           3. California Law Foster of Stepparent. Even where there is no formal adoption, there may be a
                parent-child relationship between a person and their foster parent or stepparent if two requirements
                are met. First, the relationship must have started while the person was a minor and must have
                continued throughout their joint lifetimes. Second, there must be clear and convincing evidence that
                there would have been an adoption but for a legal barrier. See CAL. PROB. CODE § 6454. The most
                common legal barrier is when a natural parent of a minor refuses to consent. Once the person reaches
                the age of majority, however, the natural parent’s consent is no longer required, which means there
                would no longer be a legal barrier. Another possibility is when a person lacks the capacity to consent
                to adoption.
III.   Issue of Equitable Adoption: Whether the doctrine of equitable estoppel applies to prevent a party from
       denying that formal adoption took place.
       A. Facts of Equitable Adoption.
           1. The Fords became foster parents for Bean and treated him as though he were an adopted child. In
                return, Bean treated them as though they were his adopted parents. However, the Fords never
                petitioned to adopt Bean because they believed the adoption process would require that Bean be
                moved temporarily to a different foster family, which would endanger him. When the Fords died, a
                nephew and niece, both of whom hadn’t seen the Fords in 15 years, petitioned for entitlement to
                distribution under intestacy. See Estate of Ford (Cal. 2004).
           2. The appellant’s aunt allowed decedent to raise him, but since the aunt didn’t have any authority to
                contract for appellant’s adoption, the doctrine of equitable adoption did not apply. See O’Neal v.
                Wilkes (Ga. 1994).
       B. California Law of Equitable Adoption. Equitable adoption is a doctrine by which foster parents may be
           estopped to deny that formal adoption took place when the person claims an intestate share of the foster
           parents’ estate. For the doctrine to apply, however, there must have been a promise by the foster parents
           (e.g., to the natural parents) that they would adopt the person, or there must have been a representation by


                                                          18
         the foster parents that they did in fact legally adopt the person. The mere existence of a familial
         relationship between the person and the foster parents will not give rise to an estoppel claim. See Estate of
         Ford (Cal. 2004). Rather, there must be clear and convincing evidence that the foster parents directly
         expressed intent to adopt, such as through an invalid or unconsummated attempt to adopt. See id. The
         policy underlying this strict approach is concern that permitting the mere existence of a familial
         relationship to qualify as grounds for equitable adoption would discourage persons from serving as foster
         parents.
      C. Analysis of Equitable Adoption. In Estate of Ford (Cal. 2004), the California Supreme Court
         concluded: “Although the evidence showed the Fords and Bean enjoyed a close and enduring familial
         relationship, evidence was totally lacking that the Fords ever made an attempt to adopt Bean or promised
         or stated their intent to do so; they neither held Bean out to the world as their natural or adopted child
         (Bean, for example, did not take the Ford name) nor represented to Bean that he was their child.”
         (emphasis added).
      D. Notes on Equitable Adoption.

Casebook pp. 101-109, 113-114 + Calif. Comp. pp. 19-25 (Minary v. Citizens Fidelity Bank; Estate of Ford)

§ 2-4 Transfers to Children: Nonmarital Children

                                 CAL. PROB. CODE § 6452. Out-of-wedlock birth
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:
(a) The parent or a relative of the parent acknowledged the child.
(b) The parent or a relative of the parent contributed to the support or the care of the child.


                                    CAL. PROB. CODE § 6453. Natural parents
For the purpose of determining whether a person is a “natural parent” as that term is used in this chapter:
(a) A natural parent and child relationship is established where that relationship is presumed and not rebutted
     pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family
     Code).
(b) A natural parent and child relationship may be established pursuant to any other provisions of the Uniform
     Parentage Act, except that the relationship may not be established by an action under subdivision (c) of Section
     7630 of the Family Code [governing paternity actions] unless any of the following conditions exist:
     (1) A court order was entered during the father's lifetime declaring paternity.
     (2) Paternity is established by clear and convincing evidence that the father has openly held out the child as his
         own.
     (3) It was impossible for the father to hold out the child as his own and paternity is established by clear and
         convincing evidence.
(c) A natural parent and child relationship may be established pursuant to Section 249.5.


                   Cal. Fam. Code § 7611. Status as natural father; presumption; conditions
A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing
with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:
(a) He and the child's natural mother are or have been married to each other and the child is born during the
    marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or
    divorce, or after a judgment of separation is entered by a court.
(b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage
    solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid,
    and either of the following is true:
    (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted
        marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.


                                                         19
    (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the
        termination of cohabitation.
(c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a
    marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared
    invalid, and either of the following is true:
    (1) With his consent, he is named as the child's father on the child's birth certificate.
    (2) He is obligated to support the child under a written voluntary promise or by court order.
(d) He receives the child into his home and openly holds out the child as his natural child.
                                                         ...

I.    Issue of Nonmarital Children: Whether there exists a parent-child relationship between a nonmarital child
      and a natural parent, such that the nonmarital child (or relatives of the nonmarital child) can inherit from and
      through the natural parent, and the natural parent (or relatives of the natural parent) can inherit from and
      through the nonmarital child.
      A. Facts of Nonmarital Children.
          1. After Griswold was born out of wedlock, his mother filed a paternity action against Draves, which
               resulted in Draves being adjudicated Griswold’s “reputed father” and in Draves being forced to make
               child support payments. Draves did so until Griswold turned 18, but they never had any contact.
               When Griswold died intestate, Draves’ other children petitioned for entitlement to distribution. See
               Estate of Griswold (Cal. 2001).
          2. When Dale Agnew’s mother was pregnant with Dale, the decedent proposed to marry her. She
               refused and instead married Chris Agnew, but both parties agree that decedent was Dale’s biological
               father. Later, the decedent married Linda Burden, with whom they had Tara Burden. Thus, Dale and
               Linda were half-brother/half-sister, having the same father (decedent). When decedent died, Dale
               petitioned for an equal distribution of decedent’s estate, but Tara argued that the probate court erred
               in finding by clear and convincing evidence that decedent openly held out Dale as his son under CAL.
               PROB. CODE § 6453(b)(2). See Estate of Burden (Cal. Ct. App. 2007).
      B. The Law of Nonmarital Children. In Trimble v. Gordon (1977), the U.S. Supreme Court held that state
          statutes denying nonmarital children the right to inherit from the father violated the Equal Protection
          Clause of the Fourteenth Amendment. Today, most states permit paternity to be established by
          subsequent marriage, by acknowledgment, by court adjudication, or by clear and convincing evidence
          after the father’s death.
      C. California Law of Nonmarital Children. A natural parent (or relatives of a natural parent) can only
          inherit from or through a child if the parent acknowledged the child and the parent contributed to the
          support of the child. See CAL. PROB. CODE § 6452. Where a father admits to paternity in court, this will
          by itself satisfy the acknowledgment requirement. See Estate of Griswold (Cal. 2001). Status as a natural
          parent can be established: where presumed (e.g., through marriage) and not rebutted, or in a paternity
          action. However, if natural parentage is to be established through a paternity action, it must be: during the
          father’s lifetime, or by clear and convincing evidence that the father held out the child as his own, or by
          clear and convincing evidence and it was impossible for the father to hold out the child as his own. See
          CAL. PROB. CODE § 6453. In Estate of Burden (Cal. Ct. App. 2007), the court interpreted the
          acknowledgment requirement in CAL. PROB. CODE § 6452(a) as being essentially synonymous with the
          “openly held out” requirement in CAL. PROB. CODE § 6453. Furthermore, while the evidentiary standard
          for this requirement is high (clear and convincing evidence), the substantive burden is low—the father
          need not acknowledge paternity enthusiastically so long as he acknowledges paternity. See Estate of
          Burden (Cal. Ct. App. 2007).
          1. Presumed Natural Father. Cal. Fam. Code § 7611 provides for a number of ways by which an
               individual can be presumed to be the natural father. If paternity is presumed and not rebutted, and the
               requirements in CAL. PROB. CODE § 6452 are met (acknowledgement and contribution), then a
               person can inherit from and through his natural father. Paternity will be presumed if the father
               “receives the child into his home and openly holds out the child as his natural child.” CAL. FAM.
               CODE § 7611(d). In Estate of Chambers (Cal. Ct. App. 2009), the court held that when a presumed
               father under Cal. Fam. Code § 7611(d) is deceased, CAL. PROB. CODE § 6453(b) requires proof of
               paternity by clear and convincing evidence.




                                                         20
            2. Postmortem Paternity. Under California law, a child cannot establish paternity after the father is
               dead. In order for a paternity action under Cal. Fam. Code 7630 to be given effect in probating the
               father’s estate, the requirements of CAL. PROB. CODE § 6453(b) must be met: a court order during the
               father’s lifetime, or the father holding out the child as his own, or it was impossible for the father to
               hold the child out as his own. If none of these requirements is met during the father’s lifetime, they
               cannot be established after the father’s death.
        D. Analysis of Nonmarital Children.
        E. Notes on Nonmarital Children.
           1. Posthumous Children. Children who are conceived before their father’s death but born after are
               treated by California law as though they had been born before their father’s death. See CAL. PROB.
               CODE § 6407.

Casebook pp. 115-117 + California Comp. pp. 25-36 (Nonmarital children, Estate of Griswold, Estate of Burden)

§ 2-5 Transfers to Children: Reproductive Technology

     CAL. PROB. CODE § 249.5. Posthumous conception; child of decedent deemed born in decedent's lifetime;
                                                conditions
For purposes of determining rights to property to be distributed upon the death of a decedent, 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 the decedent,
and after the execution of all of the decedent's testamentary instruments, if the child or his or her representative
proves by clear and convincing evidence that all of the following conditions are satisfied:
(a) The decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception
    of a child of the decedent, subject to the following:
    (1) The specification shall be signed by the decedent and dated.
    (2) The specification may be revoked or amended only by a writing, signed by the decedent and dated.
    (3) A person is designated by the decedent to control the use of the genetic material.
(b) The person designated by the decedent to control the use of the genetic material has given written notice by
    certified mail, return receipt requested, that the decedent's genetic material was available for the purpose of
    posthumous conception. The notice shall have been given to a person who has the power to control the
    distribution of either the decedent's property or death benefits payable by reason of the decedent's death, within
    four months of the date of issuance of a certificate of the decedent's death or entry of a judgment determining
    the fact of the decedent's death, whichever event occurs first.
(c) The child was in utero using the decedent's genetic material and was in utero within two years of the date of
    issuance of a certificate of the decedent's death or entry of a judgment determining the fact of the decedent's
    death, whichever event occurs first. This subdivision does not apply to a child who shares all of his or her
    nuclear genes with the person donating the implanted nucleus as a result of the application of somatic nuclear
    transfer technology commonly known as human cloning.

I.      Issue of Posthumously Conceived Children: Whether posthumously conceived children can inherit from
        and through their genetic parents.
        A. Facts of Posthumously Conceived Children.
            1. Decedent deposited 15 vials of his sperm, and devised those vials to his girlfriend upon his death. See
                 Hecht v. Superior Court (Cal. Ct. App. 1993).
            2. When a childless married couple learned that the husband had leukemia and medical treatment might
                 leave him sterile, they arranged for husband’s semen to be medically withdrawn and preserved. The
                 treatment was not successful and the husband died. After the husband’s death, the mother artificially
                 conceived and gave birth to twin girls using the husband’s preserved semen. The children were
                 denied federal social security survivor benefits on the basis that they weren’t entitled to inherit under
                 the Massachusetts intestacy statute. See Woodward v. Commissioner of Social Security (Mass.
                 2002).
            3. Husband died of accidental causes. Wife directed a physician to extract husband’s semen, which she
                 used for in vitro fertilization. There’s no evidence that husband ever consented to or considered
                 posthumous conception. The posthumously conceived child was denied federal social security



                                                            21
               benefits on the basis that she wasn’t entitled to inherit from the father under the California intestacy
               statutes. See Vernoff v. Astrue (9th Cir. 2009).
      B. The Law of Posthumously Conceived Children. In Woodward v. Commissioner of Social Security
          (Mass. 2002), the Supreme Judicial Court of Massachusetts held that in certain limited circumstances, a
          posthumously conceived could inherit under the Massachusetts intestacy statute. Although the unique
          procedural posture of the case (a certified question from federal district court) mitigated the need for the
          court to make a definitive determination of what those circumstances were, the court outlined the
          requirements. First, the public policy of certainty in administration of the decedent’s estate meant that a
          claim by posthumously conceived child would have to be within a certain limitations period, but the court
          declined to state what that limitations period should be. Second, to protect the father’s reproductive rights
          (and more specifically, his right to not reproduce), the court held that a posthumously conceived child
          could take under intestacy only upon proof the father affirmatively consented both to reproduction and to
          support of the child. The court declined to provide a standard of proof or to decide whether these
          requirements were satisfied on the facts of the case. As a general matter, the issue of posthumously
          conceived children often arises in the context of litigation over federal social security benefits. In order
          for a child to get the deceased father’s benefits, the child must establish dependency under 42 U.S.C.
          § 416(e), and one way of establishing dependency is to establish that the child can inherit from the
          insured decedent under state intestacy laws. See 42 U.S.C. § 416(h)(2).
      C. California Law of Posthumously Conceived Children. In California, a posthumously conceived child
          will get decedent’s social security benefits through one of two ways. First, the Social Security
          Administration has acquiesced to the Ninth Circuit ruling in Gillett-Netting ex rel. Netting v. Barnhart
          (9th Cir. 2004), which means that in the Ninth Circuit only, a posthumously conceived child can get the
          decedent’s benefits by establishing the decedent is the child’s “natural parent” under CAL. PROB. CODE §
          6453. Second, a posthumously conceived child can get the decedent’s benefits by proving the right to
          take under state intestate succession law. Under the California posthumously conceived heirs statute, a
          posthumously conceived child is deemed to have been born during the decedent’s lifetime if (1) the
          decedent consented in a signed and dated writing, (2) notice of the possibility of posthumous conception
          is served on the personal representative of decedent’s estate within 4 months of decedent’s death, and (3)
          the child is actually conceived within 2 years of decedent’s death. See CAL. PROB. CODE § 249.5. There
          are no other ways to establish a posthumously conceived child’s rights to intestate succession of the
          genetic father’s estate. California’s regular posthumous heirs provision only applies to children
          “conceived before the decedent’s death but born thereafter . . .” CAL. PROB. CODE § 6407. The father
          cannot be presumed a natural father under CAL. PROB. CODE §6453(a) and CAL. FAM. Code § 7611(a)
          because the marriage presumption in CAL. FAM. Code § 7611(a) ends after 300 days. Finally, none of the
          provisions in CAL. PROB. CODE § 6453(b) apply. Section 6453(b)(1) requires that the court order be
          entered “during the father’s lifetime.” The decedent can’t openly hold out the child as his own under
          § 6453(b)(2) because the decedent is dead. See Vernoff v. Astrue (9th Cir. 2009).
      D. Analysis of Posthumously Conceived Children.
          1. Consent. Did the decedent consent to posthumous conception? Was that concept in writing? Signed?
               Dated?
          2. Notice. Was notice served on the personal representative of decedent’s estate within 4 months of his
               death?
          3. In Utero. Was the posthumously conceived child in utero within 2 years of decedent’s death?
      E. Notes on Posthumously Conceived Children.
II.   Issue of Class Gifts: Whether a posthumously conceived child is entitled to take from a class gift.
      A. Facts of Class Gifts.
          1. Grantor created trusts to support his “descendents.” When grantor’s son was diagnosed with a
               terminal illness, the son cryopreserved his semen, and provided that if he (the son) died, the semen
               would go to his wife. The son died, and his wife used the semen to give birth to a child. The trustees
               sued for declaratory judgment on the issue of whether the posthumously conceived child qualified
               into the grantor’s class gift. See In re Martin B. (N.Y. Sur. Ct. 2008).
      B. The Law of Class Gifts. The rule of convenience holds that when the donor creates a class gift (e.g.,
          husband to wife for life, with remainder to husband’s children), the class closes once members of the
          class become eligible to take. When the wife dies, the children become eligible to take, and the class
          closes. If the husband as another child (with a second wife), that new child is not eligible to take under
          the class gift. Consider also the Restatement, which provides that unless there is evidence of contrary


                                                         22
        intent, “a child of assisted reproduction [should be] treated for class-gift purposes as a child of a person
        who consented to function as a parent to the child and who functioned in that capacity or was prevented
        from doing so by an event such as a death . . .” RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS §
        14.8.
     C. California Law of Class Gifts. Under the California class gift statute, children born out of wedlock
        qualify as members of the appropriate class (e.g., O to A with A to husband’s children is a class gift to
        A’s children) if they are entitled to inherit under intestate succession. See CAL. PROB. CODE § 21115(a).
        All posthumously conceived children are children born out-of-wedlock because the father’s death
        terminates the marriage. Posthumously conceived children are entitled to inherit under intestate
        succession (and thus qualify for a class gift) if three requirements are satisfied (1) the deceased father
        consented in a signed and dated writing, (2) notice is served on the personal representative of the father’s
        estate, and (3) the posthumously conceived child is in utero within 2 years. See CAL. PROB. CODE § 249.5.
        In conclusion, while a class gift is ordinarily close upon the decedent’s death (the rule of convenience),
        where the requirements of CAL. PROB. CODE § 249.5 are satisfied, the class will not close for an extra 2
        years and the posthumously conceived child will qualify as a member of the class.
     D. Analysis of Class Gifts.
        1. Consent. Did the decedent consent to posthumous conception? Was that concept in writing? Signed?
             Dated?
        2. Notice. Was notice served on the personal representative of the decedent’s estate?
        3. In Utero. Was the posthumously conceived child in utero within 2 years of the decedent’s death?
     E. Notes on Class Gifts.

Casebook pp. 117-126 + California Companion p. 35-43 + Casebook pp. 126-130 (Reproductive Technology &
New Forms of Parentage, Posthumously Conceived Children, Woodward v. Commissioner, Vernoff v. Astrue, In re
Martin B.)

§ 2-6 Transfers to Children: Surrogate Motherhood and Assisted Reproduction
I.   Issue of Surrogate Motherhood: Where a child is born by a surrogate mother, who is the parent for purposes
     of intestate succession?
     A. Facts of Surrogate Motherhood.
          1. Husband and wife entered into contract with surrogate mother by which wife’s egg fertilized by
               husband’s sperm would be implanted in the surrogate mother. After birth, the contract provided that
               the husband and wife would get all parental rights, and the surrogate mother would get none. See
               Johnson v. Calvert (Cal. 1993).
     B. The Law of Surrogate Motherhood. Jurisdictions are divided on how to treat parental rights in a
          surrogate mother situation. UNIF. PROBATE CODE § 2-121 (2008) provides that a parent-child relationship
          for the purposes of intestacy can be established by (1) conclusively by a court order, (2) gestation if the
          gestational carrier is also the genetic mother, (3) gestation if nobody else has a parent-child relationship
          with the child, and (4) based on intent if the person functioned as a parent within 2 years. For same-sex
          couples, UNIF. PROBATE CODE § 2-120 provides that the partner who gave birth to the child has a parent-
          child relationship automatically, and the other partner can have a parent-child relationship if he or she
          functions as a parent within 2 years of birth or consented in writing prior with intent to be parent of the
          child.
     C. California Law of Surrogate Motherhood. In Johnson v. Calvert (Cal. 1993), the California Supreme
          Court held that the intent of the parties, as shown by a surrogacy contract, was determinative of their
          respective parental rights. Does this establish intestate rights? There’s (as of yet) no caselaw on point, but
          the signs point to yes. For same-sex couples, it’s fairly common to have one partner to provide genetic
          material (and possibly, act as the surrogate mother), in which case that partner’s parent-child relationship
          is easy to establish. How about the other partner (who was neither a provider of genetic material nor a
          surrogate mother)? The other partner would probably have to adopt the child in order to establish a
          parent-child relationship for the purposes of intestacy. This act of adoption could arguably sever the
          parent-child relationship with the biological parent under CAL. PROB. CODE § 6451. On the other hand,
          there’s a strong argument under CAL. FAM. CODE § 297.5 that it wouldn’t. The safest solution may be
          something convoluted, such as the non-biological partner adopting, which severs the parent-child
          relationship with the biological parent, followed by the biological parent adopting their own child.


                                                         23
         D. Analysis of Surrogate Motherhood.
         E. Notes on Surrogate Motherhood.
II.      Issue of Advancements: Whether an advancement has any effect on distribution of decedent’s assets under
         intestate succession.
         A. The Law of Advancements. At common law, any payment by decedent during the decedent’s lifetime to
              heirs apparent was presumed to be an advancement, and would be deducted from the total amount the
              heir would receive upon decedent’s death. This is no longer the law. See RESTATEMENT (THIRD) OF
              PROP.: DONATIVE TRANSFERS § 2.6. If the would-be heir predeceases the decedent, then the advancement
              isn’t counted against would-be heir’s children. Thus, the sins of the father aren’t visited upon his
              children.
         B. California Law of Advancements. A payment by decedent to heirs apparent must be in writing to
              constitute an advancement. See CAL. PROB. CODE § 6409. As a practical matter, this effectively gets rid of
              advancements from the law, since a person with enough foresight to make an advancement in writing
              would probably just make a will.
III.     Guardianship and Conservatorship. Guardianships are terrible. Guardians have no power and have to go to
         court to do pretty much anything. “[G]uardianship for a minor’s property is somewhat like going through a
         continuous probate until the child reaches the age of majority. It should be avoided.” Conservatorships are
         better because they afford greater flexibility to the conservator. Custodianships are different from
         conservatorships because custodians have significant discretionary power. This, however, is also a risk
         because the custodian could use the minor’s property to their own benefit. While custodians are fiduciaries,
         they are not closely supervised by the court. Where there’s a lot of money involved, a trust may be preferred
         because the trusts, unlike the other alternatives, don’t (necessarily) terminate when the minor reaches 18 or
         21. Trusts have the most flexibility of these four

Casebook pp. 130-134 (skip problems p. 134), 136-140 + California Companion pp. 43-44 (Surrogate Motherhood,
Assisted Reproduction & Same-Sex Couples, Advancements, Guardianship & Conservatorship of Minors)

§ 2-7 Bars to Succession: Murder

       CAL. PROB. CODE § 250. Person feloniously and intentionally killing decedent; entitlement to decedent's
                                       property; effect on decedent's estate
(a) 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 of the decedent, or a trust created by or for the benefit of the
         decedent or in which the decedent has an interest, including any general or special power of appointment
         conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or
         conservator or custodian made by the will or trust.
    (2) Any property of the decedent by intestate succession.
    (3) Any of the decedent's quasi-community property the killer would otherwise acquire under Section 101 or
         102 upon the death of the decedent.
    (4) Any property of the decedent under Part 5 (commencing with Section 5700) of Division 5.
    (5) Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
(b) In the cases covered by subdivision (a):
    (1) The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had
         predeceased the decedent and Section 21110 does not apply.
    (2) Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power
         of appointment and by reason of the death of the decedent passes as if the killer had predeceased the
         decedent, and Section 673 not apply.
    (3) Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian
         which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had
         predeceased the decedent.


                            CAL. PROB. CODE § 251. Joint tenants; rights by survivorship
A joint tenant who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest



                                                           24
of the decedent so that the share of the decedent passes as the decedent's property and the killer has no rights by
survivorship. This section applies to joint tenancies in real and personal property, joint and multiple-party accounts
in financial institutions, and any other form of coownership with survivorship incidents.


          CAL. PROB. CODE § 252. Named beneficiaries; felonious and intentional killing of decedent
A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and
intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any
benefit under the bond, policy, or other contractual arrangement, and it becomes payable as though the killer had
predeceased the decedent.


     CAL. PROB. CODE § 253. Acquisition of property, interest, or benefit right by killer as result of killing
In any case not described in Section 250, 251, or 252 in which one person feloniously and intentionally kills another,
any acquisition of property, interest, or benefit by the killer as a result of the killing of the decedent shall be treated
in accordance with the principles of this part.


           CAL. PROB. CODE § 254. Judgment of conviction as conclusive; preponderance of evidence
(a) A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this part.
(b) In the absence of a final judgment of conviction of felonious and intentional killing, the court may determine by
    a preponderance of evidence whether the killing was felonious and intentional for purposes of this part. The
    burden of proof is on the party seeking to establish that the killing was felonious and intentional for the
    purposes of this part.

I.    Issue of Murder Barring Succession: Whether a would-be heir or beneficiary is barred from taking because
      they murdered the decedent.
      A. Facts of Murder Barring Succession.
          1. Decedent’s wife was convicted of his manslaughter. The administrator gave the residue of decedent’s
               estate to his parents to the exclusion of the convicted widow. The widow appealed. See In re Estate
               of Mahoney (Vt. 1966).
      B. The Law of Murder Barring Succession. Most states have enacted statutes (“slayer statutes”) to deal
          with intestate succession rights of someone who kills the decedent. In states with no legislative
          enactment, there are three lines of decisions: (1) the slayer his full intestate succession rights, (2) the
          slayer is stripped of his intestate succession rights on the principle that he shouldn’t be allowed to profit
          from his own crimes, and (3) constructive trust. Under the constructive trust approach, the slayer gets
          legal title to the property over which he would otherwise be entitled to take, but a constructive trust is
          created by which equitable title is transferred to those who would take if the slayer had predeceased the
          decedent. The slayer, as constructive trustee, is then required to convey the property to the decedent’s
          next heirs in the line of intestate succession. See In re Estate of Mahoney (Vt. 1966). This third option
          neither allows the slayer to profit from crime nor creates unwarranted judicial legislation. As an equitable
          remedy, a constructive trust may be inappropriate if the murder was equitably justified (even if not
          amounting to a legal defense), such as in cases of serially abused women murdering their sleeping
          husbands. Similarly, where there was no intentionality behind the homicide (i.e., involuntary
          manslaughter), the constructive trust remedy may be inappropriate. See In re Estate of Mahoney (Vt.
          1966). Finally, a murder conviction may not necessarily constitute conclusive or even presumptive proof
          of the crime when it comes to distributing the decedent’s estate. See RESTATEMENT OF RESTITUTION,
          § 187 cmt. d. On the other hand, the uniform code provides that a final criminal conviction is conclusive
          evidence. See UNIF. PROBATE CODE § 2-803(g). At the same time, a prior acquittal is not dispositive on
          the subsequent disposition of decedent’s estate. (Note the different standards of proof—beyond a
          reasonable doubt for the murder case and preponderance of the evidence for the civil case.)
      C. California Law of Murder Barring Succession. California statute prohibits a would-be heir or
          beneficiary from taking from the decedent’s estate if that person “feloniously and intentionally” killed the
          decedent. The California provisions are exceedingly broad—they cover wills, trusts, nominations as



                                                           25
          personal representatives of decedent’s estate, intestate succession, and quasi-community property. See
          CAL. PROB. CODE § 250. They even cover nonprobate property such as property held as joint tenants and
          payable on death contractual benefits. See CAL. PROB. CODE §§ 251 and 252. The slayer doesn’t lose the
          slayer’s own interest in property held as joint tenants—just the right of survivorship. Instead, the law will
          treat the property as though it had been held as tenants in common, and the decedent’s property interests
          will pass on to the decedent’s other devisees or beneficiaries.4 See CAL. PROB. CODE § 251. Finally,
          California has a catch-all provision for similar cases that fall outside the express provisions. See CAL.
          PROB. CODE § 253. California follows the uniform code by providing that a final murder judgment is
          conclusive proof for disposition of decedent’s estate. See CAL. PROB. CODE § 254.
          1. Effect. The California statute treats the slayer as though he predeceased the decedent. Moreover,
               California provides that the anti-lapse statute, CAL. PROB. CODE § 21110, won’t apply. This means
               that the property won’t automatically go on to the slayer’s heirs or beneficiaries (unless, of course,
               the slayer’s heirs or beneficiaries also happen to be next in the line of succession for decedent’s
               estate).
          2. Opting Out? It’s possible to opt out of the slayer statute in Wisconsin. Is it possible to opt out of the
               California slayer statute? Not easily. The California statute is exceedingly broad. Even a gift causa
               mortis5 is covered by CAL. PROB. CODE § 250(4). The only real way to circumvent the statute is to do
               an inter vivos gift that doesn’t qualify as a gift causa mortis before the decedent dies. When does a
               person want to opt out of a slayer statute? In situations of assisted suicide. There’s one other way of
               getting around the statute—if the heir or beneficiary doesn’t himself kill the decedent, but rather
               simply puts the decedent in a position to kill himself. Then, there’s at least an argument that the heir
               or beneficiary didn’t “feloniously and intentionally” kill the decedent.
      D. Analysis of Murder Barring Succession.
      E. Notes on Murder Barring Succession.
          1. Spouse’s Share. Mahoney was a Vermont case, but if it had been a California case, how much would
               decedent’s wife be entitled to under intestate succession if she hadn’t killed the decedent? California
               statute provides that a spouse is entitled to one-half of the decedent’s separate property where the
               decedent leaves no issue but leaves parents. See ♦ CAL. PROB. CODE § 6401(c)(2)(B).
          2. Attorney’s Fees. Would-be heirs charged with murder may be unable to pay attorney’s fees for their
               defense because of the California slayer statute. Either the accused slayer would have to be
               independently financially capable of hiring their own attorney, or the alternative beneficiaries (who
               would take if the accused slayer were convicted) must relinquish their rights and agree to pay the
               attorney’s fees.
          3. Limited Jurisdiction. Generally, probate courts are courts of limited jurisdiction without the
               equitable power to establish rights and remedies in contravention of the intestate succession statutes.
               See In re Estate of Mahoney (Vt. 1966).
II.   Issue of Abandonment Barring Succession: Whether a would-be heir or beneficiary is barred from taking
      from decedent’s estate because they abandoned the decedent.
      A. Facts of Abandonment Barring Succession.
          1. In 1962, the father left his wife and their one year old daughter while the wife was pregnant with the
               decedent. In a marital dissolution judgment, the father was ordered to pay for child support. When
               the decedent died intestate about 43 years later, the mother petitioned to exclude the father from
               decedent’s estate on the grounds that he abandoned them. The father claims to have paid some child
               support, but the mother contends that he didn’t. See Estate of Shellenbarger (Cal. Ct. App. 2008).
      B. The Law of Abandonment Barring Succession. The uniform code prohibits inheritance by a parent
          from a child if the parental rights could have been terminated under state law for nonsupport,
          abandonment, abuse, or neglect. See UNIF. PROBATE CODE § 2-114. California doesn’t follow this
          approach.

4
  Consider where A and B own Blackacre in California as joint tenants with rights of survivorship. Ordinarily, if A
dies, then the doctrine of survivorship means that B automatically gets A’s interest in the property. However, if B
kills A, then CAL. PROB. CODE § 251 extinguishes B’s right of survivorship. As a result, B continues to hold a one-
half undivided interest in Blackacre, but A’s one-half undivided interest goes to A’s other heirs or beneficiaries.
5
  A gift causa mortis is a gift made in contemplation of death. For an inter vivos transfer to qualify as a gift made in
contemplation of death, the donor’s death must be likely or imminent, and intend for the gift to be conditional on his
death. If the donor doesn’t die, the donee is required to return a gift causa mortis to the donor.


                                                          26
       C. California Law of Abandonment Barring Succession. While the child is alive, a natural parent may be
           divested of parental rights (including intestate succession rights) through court adjudication. Once the
           child dies, however, California’s intestate succession statutes don’t provide for barring succession on the
           grounds of abandonment for marital children. California courts have consistently refused to fashion such
           a rule on principles of equity. See Estate of Shellenbarger (Cal. Ct. App. 2008) (“a probate court may not,
           on principles of equity, disinherit a natural parent who abandons a child who later dies intestate . . .”).
           The natural parent of a child born out-of-wedlock may be prevented from inheriting if it can be shown
           that the parent never contributed to the support or care of the nonmarital child. See CAL. PROB. CODE §
           6452.
       D. Analysis of Abandonment Barring Succession.
       E. Notes on Abandonment Barring Succession.
III.   Issue of Abuse Barring Succession: Whether a would-be heir or beneficiary is barred from taking from
       decedent’s estate because they abused the decedent.
       A. Facts of Abuse Barring Succession.
           1. Decedent’s son allegedly abused the decedent physical and financially, and intentionally isolated the
                decedent both from other family members, and from the outside world generally. See Estate of
                Lowrie (Cal. Ct. App. 2004).
       B. California Law of Abuse Barring Succession. California prohibits a would-be heir or beneficiary from
           taking from decedent’s estate if that person committed elder abuse. There are four requirements for this
           provision to apply. First, the person must be found by clear and convincing evidence to have abused the
           decedent. Second, the abuser must have acted in bad faith. Third, the abuser must have been reckless,
           oppressive, fraudulent, or malicious. Finally, the decedent must have been substantially unable to manage
           his own affairs, or resist fraud or undue influence. This statute is limited to property transferred by will, a
           trust, or intestate succession. It does not cover inter vivos gifts. See CAL. PROB. CODE § 259. Alternate
           beneficiaries have standing to enforce this statute. See Estate of Lowrie (Cal. Ct. App. 2004). In order to
           recover property given to an alleged abuser, the claimant would have to allege undue influence rather
           than merely elder abuse.
       C. Analysis of Abuse Barring Succession.
       D. Notes on Abuse Barring Succession.

Casebook pp. 145-152 + California Companion pp. 44-54 (Bars to Succession, Homicide, Estate of Mahoney,
Abandonment, Estate of Shellenbarger, Elder Abuse, Estate of Lowrie)

§ 2-8 Bars to Succession: Disclaimer

        CAL. PROB. CODE § 282. Disclaimed interest; disposition; interest created by intestate succession
(a) Unless the creator of the interest provides for a specific disposition of the interest in the event of a disclaimer,
    the interest disclaimed shall descend, go, be distributed, or continue to be held (1) as to a present interest, as if
    the disclaimant had predeceased the creator of the interest or (2) as to a future interest, as if the disclaimant had
    died before the event determining that the taker of the interest had become finally ascertained and the taker's
    interest indefeasibly vested. A disclaimer relates back for all purposes to the date of the death of the creator of
    the disclaimed interest or the determinative event, as the case may be.
(b) Notwithstanding subdivision (a), where the disclaimer is filed on or after January 1, 1985:
    (1) The beneficiary is not treated as having predeceased the decedent for the purpose of determining the
         generation at which the division of the estate is to be made under Part 6 (commencing with Section 240) or
         other provision of a will, trust, or other instrument.
    (2) The beneficiary of a disclaimed interest is not treated as having predeceased the decedent for the purpose of
         applying subdivision (d) of Section 6409 or subdivision (b) of Section 6410.

I.     Issue of Disclaimer: Whether a would-be heir or beneficiary can refuse to take through a disclaimer.
       A. Facts of Disclaimer.
           1. Decedent died intestate. Disclaimant had ran up a considerable unpaid tax bill, prompting the IRS to
                file a lien against the decedent’s property. Disclaimant disclaimed the property so that it would pass
                directly to disclaimant’s daughter in order to avoid the effect of the lien. The daughter established a



                                                           27
          spendthrift trust using the decedent’s estate with the disclaimant as the trust beneficiary. See Drye v.
          United States (1999).
     2. Mother drafted a will leaving 1/3 of her estate to her son and 1/3 to her daughter. The son had a lot of
          liability of failing to make child support payments, so the children came together and persuaded the
          mother to change the property distribution to leaving 2/3 to the daughter who promises to care for the
          son. See Cabral v. Soares (Cal. Ct. App. 2007).
B.   The Law of Disclaimer. Under the uniform code, if a person doesn’t want take under a will or through
     intestate succession, that person can disclaim their interest, and the distribution will occur as if the
     disclaimant had predeceased the decedent. See UNIF. PROBATE CODE §§ 2-1105 and 2-1106. Disclaimers
     arise when the disclaimant wants to avoid paying taxes, to avoid having the property lost to creditors, and
     to avoid owning undesirable property. For federal tax purposes, the disclaimant has a relatively short
     period (9 months) for filing the disclaimer. See 26 U.S.C. § 2518. The ability of a disclaimant to control
     the disposition of decedent’s property through a disclaimer may by itself be sufficient to establish that the
     disclaimant had dominion over the property for the purposes of federal tax liens. See Drye v. United
     States (1999).
C.   California Law of Disclaimer. California’s disclaimer statute provides that if an heir or beneficiary
     disclaims, the disclaimant is treated as though they predeceased the decedent. See CAL. PROB. CODE §
     282(a). An heir or beneficiary can’t use a disclaimer to take advantage of California’s modern per stirpes
     distribution. See CAL. PROB. CODE § 282(b)(1); ♦ § 240. Similarly, an heir or beneficiary can’t use a
     disclaimer to avoid disadvantage from advancements. See CAL. PROB. CODE § 282(b)(2). California
     statutorily provides that a disclaimer isn’t a fraudulent transfer. See CAL. PROB. CODE § 283. Note that the
     statutory rules for the effect of a disclaimer are merely default rules—the testamentary instrument can
     provide for an alternative.
D.   Analysis of Disclaimer.
E.   Notes on Disclaimer.




                                                    28
              § 3 WILLS: CAPACITY AND CONTESTS
§ 3-1 Mental Capacity: The Test of Mental Capacity

         CAL. PROB. CODE § 282. Persons not mentally competent to make a will; specified circumstances
(a) An individual is not mentally competent to make a will if at the time of making the will either of the following
    is true:
    (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the
          testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C)
          remember and understand the individual's relations to living descendants, spouse, and parents, and those
          whose interests are affected by the will.
    (2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which
          delusions or hallucinations result in the individual's devising property in a way which, except for the
          existence of the delusions or hallucinations, the individual would not have done.
(b) Nothing in this section supersedes existing law relating to the admissibility of evidence to prove the existence of
    mental incompetence or mental disorders.
(c) Notwithstanding subdivision (a), a conservator may make a will on behalf of a conservatee if the conservator
    has been so authorized by a court order pursuant to Section 2580.

I.       Issue of Mental Capacity: Whether a testator lacked mental capacity such that the testator’s will is invalid.
         A. Facts of Mental Capacity.
             1. The testator had Alzcheimer’s disease and couldn’t remember anything. See In re Estate of Washburn
                  (N.H. 1997).
             2. Testator was a batty old lady who had an irrational fear of flooding, had trouble bathing herself, and
                  unnecessarily called the fire department to report non-existent fires. See Wilson v. Lane (Ga. 2005).
         B. The Law of Mental Capacity. There are five requirements for testamentary capacity: testator must (1)
             be an adult (or emancipated), (2) capable of understanding the extent of their property, (3) capable of
             understanding the objects of their bounty, (4) capable of understanding that they’re making a will, and (5)
             capable of understanding all of these four at the same time. See RESTATEMENT (THIRD) OF PROP.:
             DONATIVE TRANSFERS § 8.1(b). Testators are presumed sane, but this is a rebuttable presumption. See In
             re Estate of Washburn (N.H. 1997). In this area, jury findings tend to be more easily overturned that
             findings by a judge. The theory is that juries tend to be more inclined to prevent eccentric persons from
             leaving unnatural distributions while judges are more likely to err in favor of upholding testamentary
             intent.
         C. California Law of Mental Capacity. The due execution of a will creates a rebuttable presumption of
             testamentary capacity. The party claiming the testator lacked capacity has the burden of proof.6
             Specifically, that party must prove lack of mental capacity to (1) understand the nature of the will, (2)
             remember his property, or (3) remember would-be heirs and beneficiaries. See CAL. PROB. CODE §
             282(a). Alternatively, that party must prove that the testator suffered from insane delusions. See CAL.
             PROB. CODE § 282(a)(2). There must be a connection between the insane delusions and the disposition of
             property.
         D. Analysis of Mental Capacity.
         E. Notes on Mental Capacity.
             1. Evidence of Testator’s Intent. Evidence of testator’s intent will be admitted to determine whether
                  the testator had the mental capacity to execute a valid will. However, under the statute of wills,
                  evidence of testator’s intent will not be admissible for the court to determine how to construe an
                  ambiguous provision.

Casebook pp. 152-168 + California Companion p. 54-55 (Disclaimer, Drye v. United States, Wills, Capacity &
Contests, Test of Mental Capacity, Estate of Washburn, Wilson v. Lane)


6
    See, e.g., Estate of Wright (Cal. 1936).


                                                           29
§ 3-2 Mental Capacity: Insane Delusions
I.   Issue of Insane Delusions: Whether a testator suffered from insane delusions and those insane delusions
     substantially affected the testator’s disposition of property in his will, such that the will is invalid.
     A. Facts of Insane Delusions.
         1. Testator’s trust left assets to 8 of 9 of testator’s adult children. The ninth adult child wasn’t left
              anything because he already had substantial assets from the family business. When testator became
              terminally ill, he was hospitalized, and was heavily medicated. Two days before testator’s death,
              attorney drafted an amendment to the trust instrument adding back in the ninth child to the trust.
              There was a dispute among the children, which eventually resulted in a settlement. Five of the 9
              children sued attorney for malpractice. See Moore v. Anderson Zeigler Disharoon Gallagher & Gray
              (Cal. Ct. App. 2003).
         2. Testator was alleged to be insane on the basis that she had a “morbid aversion to men” and
              “feminism to a neurotic extreme.” See In re Strittmater (N.J. 1947).
         3. Testator was totally coked up all the time. He was paranoid, and thought everyone was out to get
              him. Testator left a handwritten will excluding close family members before shooting his dog and
              himself. See Breeden v. Stone (Colo. 2000).
         4. After testator and his wife had a successful 40 year marriage, he developed an obsession that his
              elderly wife was being unfaithful. After visiting relatives in Germany, he drafted a statute that left the
              minimum share required by state law to his wife, and everything else to his relatives in Germany. See
              In re Honigman’s Will (N.Y. 1960).
     B. California Law of Duty to Beneficiaries to Assess Testator’s Mental Capacity. Ordinarily, the
         attorney drafting testator’s will has a duty of care to intended beneficiaries named within an executed will
         or trust. This duty is not automatic, but rather depends on balancing of 6 factors: “[1] the extent to which
         the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of
         certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant's
         conduct and the injury suffered, [5] the moral blame attached to the defendant's conduct, and [6] the
         policy of preventing future harm” Biakanja v. Irving (Cal. 1958). This duty does not, however, run to
         intended beneficiaries where there is no executed instrument. See Radovich v. Locke-Paddon (Cal. Ct.
         App. 1995). See also Chang v. Lederman (Cal. Ct. App. 2009). The policy rationale behind this rule is
         that imposing a duty to beneficiaries would compromise an attorney’s duty of undivided loyalty to the
         testator and incentivize attorneys to pressure clients to execute their wills. A drafting attorney owes no
         duty of reasonable care to a will beneficiary (or the beneficiary of a previous will) to assess the
         testamentary capacity of the testator. Similarly, the concern is that imposing a duty to beneficiaries would
         compromise the attorney’s duty of undivided loyalty, and would discourage attorneys from changing a
         testator’s estate plan if testamentary capacity is at issue. See Moore v. Anderson Zeigler Disharoon
         Gallagher & Gray (Cal. Ct. App. 2003).
     C. The Law of Insane Delusions. An insane delusion is a false belief not susceptible to correction by
         presentment with evidence indicating the falseness of the belief. Generally, the burden of proof falls on
         the party claiming that the testator suffered from insane delusions. In addition to proving the existence of
         insane delusions, that party must also establish a causal relationship—that the insane delusions materially
         affected the disposition of property in the will. See Breeden v. Stone (Colo. 2000). There’s a strong
         argument that the law of insane delusions has effectively morphed into a weighing of competing parties’
         moral claims. See The Myth of Testamentary Freedom, 38 ARIZ. L. REV. 235 (1996).
     D. California Law of Insane Delusions. California’s mental capacity statute provides that a party seeking
         to set aside testator’s will on the grounds of insane delusions must prove the causal relationships—that
         the delusions resulted in the testator’s disposition of property. See CAL. PROB. CODE § 6100.5(a)(2). That
         party has the burden of proof. See Estate of Wright (Cal. 1936).
     E. Analysis of Insane Delusions.
     F. Notes on Insane Delusions.

California Companion pp. 56-61 + Casebook pp. 168-180 (Duty to Ascertain Competence of Client, Moore v.
Anderson et al; Insane Delusion, In re Strittmater, Breeden v. Stone)




                                                         30
§ 3-3 Undue Influence

                                              ♦ CAL. PROB. CODE § 6104.
The execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was
procured by duress, menace, fraud, or undue influence.


                           CAL. PROB. CODE § 21350. Prohibited transferees; definitions
(a) Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any
    donative transfer to any of the following:
    (1) [Drafter] The person who drafted the instrument.
    (2) A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an
        employee of, the person who drafted the instrument.
    (3) Any partner or shareholder of any law partnership or law corporation in which the person described in
        paragraph (1) has an ownership interest, and any employee of that law partnership or law corporation.
    (4) [Fiduciary who transcribes or “causes” a will to be transcribed] Any person who has a fiduciary
        relationship with the transferor, including, but not limited to, a conservator or trustee, who transcribes the
        instrument or causes it to be transcribed.
    (5) A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an
        employee of a person who is described in paragraph (4).
    (6) [Care Custodian] A care custodian of a dependent adult who is the transferor.
    (7) A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an
        employee of, a person who is described in paragraph (6).
                                                         ...


                           CAL. PROB. CODE § 21351. Exceptions to § 21350; conditions
(a) [Relatives] The transferor is related by blood or marriage to, is a cohabitant with, or is the registered domestic
    partner, pursuant to Division 2.5 (commencing with Section 297) of the Family Code, of the transferee or the
    person who drafted the instrument. For purposes of this section, “cohabitant” has the meaning set forth in
    Section 13700 of the Penal Code. This subdivision shall retroactively apply to an instrument that becomes
    irrevocable on or after July 1, 1993.
(b) [Review by an Independent Attorney] The instrument is reviewed by an independent attorney who (1)
    counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to
    determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) signs
    and delivers to the transferor an original certificate in substantially the following form, with a copy delivered to
    the drafter:
                                          [Certificate of Independent Review]
(c) After full disclosure of the relationships of the persons involved, the instrument is approved pursuant to an order
    under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4.
(d) The court determines, upon clear and convincing evidence, but not based solely upon the testimony of any
    person described in subdivision (a) of Section 21350, that the transfer was not the product of fraud, menace,
    duress, or undue influence. If the court finds that the transfer was the product of fraud, menace, duress, or undue
    influence, the disqualified person shall bear all costs of the proceeding, including reasonable attorney's fees.
(e) Subdivision (d) shall apply only to the following instruments:
    (1) Any instrument other than one making a transfer to a person described in paragraph (1) of subdivision (a)
         of Section 21350.
    (2) Any instrument executed on or before July 1, 1993, by a person who was a resident of this state at the time
         the instrument was executed.
    (3) Any instrument executed by a resident of California who was not a resident at the time the instrument was
         executed.
(f) The transferee is a federal, state, or local public entity, an entity that qualifies for an exemption from taxation
    under Section 501(c)(3) or 501(c)(19) of the Internal Revenue Code, or a trust holding an interest for this entity,
    but only to the extent of the interest of the entity, or the trustee of this trust. This subdivision shall retroactively


                                                            31
    apply to an instrument that becomes irrevocable on or after July 1, 1993.
(g) For purposes of this section, “related by blood or marriage” shall include persons within the fifth degree or heirs
    of the transferor.
(h) The transfer does not exceed the sum of three thousand dollars ($3,000). This subdivision shall not apply if the
    total value of the property in the estate of the transferor does not exceed the amount prescribed in Section
    13100.
(i) The transfer is made by an instrument executed by a nonresident of California who was not a resident at the
    time the instrument was executed, and that was not signed within California.

I.    Issue of Undue Influence: Whether a donative transfer is invalid because of undue influence.
      A. Facts of Undue Influence.
          1. Elderly testator was befriended by Roger Jacobs, who became the only person she had contact with.
               Testator executed a will leaving all of her estate to Roger. In a tape made by the drafting attorney,
               testator was easily distracted, had trouble focusing, and made comments indicating she had a
               weakened intellect and was out of touch with reality. See Estate of Lakatosh (Pa. Super. 1994).
          2. Shirley was a wonderful daughter who cared for her ailing decedent father in every way imaginable.
               Lawrence was a terrible son who moved away to Colorado to retire. Decedent decided to give
               Shirley his home, but was apparently too weak to sign it himself. Decedent instructed Shirley to sign
               it on his behalf in the presence of decedent’s best friend. See Estate of Stephens (Cal. 2002).
          3. The alleged wrongdoer didn’t actually draft the instrument by which the decedent was transferring
               property to the wrongdoer. However, the alleged wrongdoer arranged to have the instrument drafted
               by an attorney and executed by the decedent. The former residual beneficiary, who would be cut out
               under the new instrument, claimed that the changes had been procured by undue influence. See Rice
               v. Clark (Cal. 2002).
          4. Defendants were longtime friends of the testator. They lived with the decedent and took care of her
               for the three months prior to her death. Testator amended her living trust giving each defendant a
               50% share. Plaintiffs, relatives of the decedent, challenged this amendment on the basis that
               defendants were “care custodians” within the meaning of CAL. PROB. CODE § 21350(a)(6). See
               Bernard v. Foley (Cal. 2006).
          5. Testator’s caretaker sued testator’s drafting attorney for alleged negligence when the gift failed
               because the caretaker was disqualified under CAL. PROB. CODE § 21350(a)(6). See Osornio v.
               Weingarten (Cal. Ct. App. 2004).
          6. Old lady’s attorney became her lover even though he was 15 years younger. She was seriously ill,
               disfigured by surgery, and addicted to alcohol. She devised almost all of her property to her lover,
               cutting out her sister, but used an attorney other than her lover. See In re Will of Moses (Miss. 1969).
          7. Testator and the intended beneficiary under testator’s will were a (suspected) homosexual couple in
               the 1950s. The testator’s family sued alleging undue influence. See In re Kaufman’s Will (N.Y.
               1965).
          8. Testator’s will gave all her property to two of her children (defendants) and none to her three
               grandchildren from a deceased child (plaintiffs). The will itself was drafted by one of the defendants,
               an attorney, and included a very long provision that was clearly written by an attorney by which the
               testator purported to explain her reasoning for disinheriting her grandchildren. See Lipper v. Weslow
               (Tex. Ct. Civ. App. 1963).
      B. The Law of Undue Influence. A donative transfer procured by undue influence is invalid. Undue
          influence exists when a wrongdoer exerts influence that overcomes the donor’s free will, causing the
          donor to make a gift he otherwise wouldn’t have made. See RESTATEMENT (THIRD) OF PROP.: DONATIVE
          TRANSFERS § 8.3. Undue influence may be proven by circumstantial or even inferential evidence. There
          are four requirements to raise a presumption of undue influence: (1) susceptibility, (2) opportunity, (3)
          disposition, and (4) result. First, the donor must have been susceptible to undue influence. Second, the
          alleged wrongdoer must have had an opportunity to exert undue influence. Third, the alleged wrongdoer
          must have had a disposition to exert undue influence. Fourth, the resulting disposition of property must
          appear to be the effect of undue influence. In Estate of Lakatosh (Pa. Super. 1994), the trial court found
          by clear and convincing evidence that (1) there was a confidential relationship between the alleged
          wrongdoer and the testator, (2) the alleged wrongdoer received the bulk of the estate, and (3) the
          testator’s intellect was weakened. This was sufficient for the court to court to shift the burden of proof



                                                         32
         onto the alleged wrongdoer to rebut a presumption of undue influence. Analytically, there are three
         critical questions. First, was there a confidential relationship between the testator and the alleged
         wrongdoer? Second, were there suspicious circumstances surrounding that relationship? See
         RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 8.3 cmt. h (non-exhaustive list of eight
         suspicious circumstances). Third, can the alleged wrongdoer rebut the presumption of undue influence by
         proving he acted in good faith and that the testator acted voluntarily? There’s at least an argument that
         juries used undue influence as a way of condemning perceived “immoral” or “abnormal” relationships.
         See In re Will of Moses (Miss. 1969) (elderly woman’s lover was 15 years her junior); Estate of Reid
         (Miss. 2002) (octogenarian’s lover was a law student in his 20s); In re Kaufman’s Will (N.Y. Ct. App.
         1964) (homosexual couple).
      C. California Law of Undue Influence. Under California common law, certain circumstances can create a
         rebuttable presumption of undue influence. For example, in Estate of Stephens (Cal. 2002), a purported
         amanuensis7 of the grantor was also the recipient of an inter vivos gift. The court held that the interested
         amanuensis had the burden of proving the grantor’s voluntary donative intent. In addition to common
         law, California has statutorily invalidated transfers to certain transferees under CAL. PROB. CODE
         § 21350. This class of disqualified transferees includes the drafter, a fiduciary who “causes” an
         instrument to be transcribed, and a care custodian. See CAL. PROB. CODE §§ 21350(a)(1), 21350(a)(4),
         and 21350(a)(6). As a general rule, this disqualification does not apply when there is review by an
         independent attorney or when there is a judicial finding not based solely on the transferee’s testimony that
         the transfer was not the product of undue influence. See CAL. PROB. CODE §§ 21351(a) and 21351(d).
         However, where the person who drafted the instrument is the transferee, the disqualification cannot be
         rebutted by clear and convincing evidence of the donor’s intent. See CAL. PROB. CODE § 21351(e)(1). In
         Rice v. Clark (Cal. 2002), the California Supreme Court interpreted the “causes” to be transcribed in CAL.
         PROB. CODE § 21350(a)(4) narrowly as meaning only those directly involved in the donative instrument’s
         physical preparation. In contrast, persons who materially assist the donor (such as by telling a drafting
         attorney what to include) but did not directly participate in the transcription do not “cause” the instrument
         to be drafted within the meaning of CAL. PROB. CODE § 21350(a)(4). Care custodians under CAL. PROB.
         CODE § 21350(a)(6) are not limited to professionals—this category includes preexisting personal friends
         rendering services for no compensation. See Bernard v. Foley (Cal. 2006). A drafting attorney can be held
         liable for failing to get an independent attorney review under CAL. PROB. CODE § 21351(b). See Osornio
         v. Weingarten (Cal. Ct. App. 2004).
      D. Analysis of Undue Influence.
      E. Notes on Undue Influence.
         1. Durable Powers of Attorney. Ordinarily, powers of attorney are destroyed by operation of law
              when the principal becomes incompetent. In contrast, durable powers of attorney remain effective
              even after the principal becomes incompetent.
         2. Evidence of Testator’s Intent. Evidence of testator’s intent will be admitted to determine whether
              the testator had the mental capacity to execute a valid will. However, under the statute of wills,
              evidence of testator’s intent will not be admissible for the court to determine how to construe an
              ambiguous provision.

Casebook pp. 180-186 + California Companion pp. 61-79 (Undue Influence, Estate of Lakatosh, Estate of Stephens,
Presumptions, Disqualified Transferees in California, Rice v. Clark)

California Companion pp. 79-92 Casebook pp. 186-193 (Bernard v. Foley, Osornio v. Weingarten, In re Will of
Moses, In re Kaufmann’s Will)

§ 3-4 Avoiding a Will Contest

                                      CAL. PROB. CODE § 21310. Definitions


7
 Under the amanuensis rule, “where the signing of a grantor’s name is done with the grantor’s express authority, the
person signing the grantor’s name is not deemed an agent but is instead regarded as a mere instrument or
amanuensis of the grantor, and the signature is deemed to be that of the grantor.” Estate of Stephens (Cal. 2002).


                                                         33
As used in this part:
(a) “Contest” means a pleading filed with the court by a beneficiary that would result in a penalty under a no
    contest clause, if the no contest clause is enforced.
(b) “Direct contest” means a contest that alleges the invalidity of a protected instrument or one or more of its
    terms, based on one or more of the following grounds:
    (1) Forgery.
    (2) Lack of due execution.
    (3) Lack of capacity.
    (4) Menace, duress, fraud, or undue influence.
    (5) Revocation of a will pursuant to Section 6120, revocation of a trust pursuant to Section 15401, or
         revocation of an instrument other than a will or trust pursuant to the procedure for revocation that is
         provided by statute or by the instrument.
    (6) Disqualification of a beneficiary under Section 6112 or 21350.
(c) “No contest clause” means a provision in an otherwise valid instrument that, if enforced, would penalize a
    beneficiary for filing a pleading in any court.
(d) “Pleading” means a petition, complaint, cross-complaint, objection, answer, response, or claim.
(e) “Protected instrument” means all of the following instruments:
    (1) The instrument that contains the no contest clause.
    (2) An instrument that is in existence on the date that the instrument containing the no contest clause is
         executed and is expressly identified in the no contest clause, either individually or as part of an identifiable
         class of instruments, as being governed by the no contest clause.


                                 CAL. PROB. CODE § 21311. Enforcement of clause
(a) A no contest clause shall only be enforced against the following types of contests:
    (1) A direct contest that is brought without probable cause.
    (2) A pleading to challenge a transfer of property on the grounds that it was not the transferor's property at the
         time of the transfer. A no contest clause shall only be enforced under this paragraph if the no contest clause
         expressly provides for that application.
    (3) The filing of a creditor's claim or prosecution of an action based on it. A no contest clause shall only be
         enforced under this paragraph if the no contest clause expressly provides for that application.
(b) For the purposes of this section, probable cause exists if, at the time of filing a contest, the facts known to the
    contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested
    relief will be granted after an opportunity for further investigation or discovery.

I.    Issue of No-Contest Clause: Whether a no contest clause is enforceable against a person who would
      otherwise be a beneficiary.
      A. Facts of No-Contest Clause.
          1. As part of their divorce settlement, settlor was required to set up a $950,000 irrevocable trust for
               their children and to make monthly spousal and child support payments. The trust included a no
               contest clause. After settlor died, his ex-wife filed a safe harbor application in order to determine
               whether filing a creditor’s claim for the spousal and child support payments would violate the no
               contest clause. See Colburn v. The Northern Trust Company (Cal. Ct. App. 2007).
      B. The Law of No-Contest Clause. A no-contest or “in terrorem” clause provides that beneficiaries who
          contest the will (and lose) forfeit anything they would otherwise receive. (Obviously, if the beneficiaries
          win and the will is invalidated, the beneficiaries may take under intestate succession.) In order for such a
          clause to have effect, it must be “baited” in the sense that the will must give a sufficiently large devise to
          would-be contestants that they would be deterred from contesting the will’s validity. If the would-be
          contestants get nothing under the will or a very small devise, they have nothing (or very little) to lose by
          contesting the will. Due to conflicting policy concerns, states are divergent on the enforceability and
          treatment of no contest clauses.
      C. California Law of No-Contest Clause. Under the California no contest statute, a no contest provision
          will only be enforced against three specific types of contests: (1) a direct contest (a contest alleging
          invalidity based on forgery, undue influence, disqualified transferee under CAL. PROB. CODE § 21350,
          etc.) brought without probable cause, (2) a challenge to transfer based on the grounds that it was not the


                                                          34
          transferor’s property (e.g., a claim that transferred property was community property), and (3) filing of a
          creditor’s claim. The latter two will only be enforced if the no contest clause itself provides for them. See
          CAL. PROB. CODE § 21311. If the contestant has probable cause about a basis for invalidating the
          instrument, the contestant can bring a direct contest without worrying that the no contest clause will be
          enforced against her. See CAL. PROB. CODE § 21311(b). A no contest clause can effectively protect other
          instruments, but only if those other instruments are in existence when the no contest clause is executed
          and those other instruments are expressly identifiable. See CAL. PROB. CODE § 21310(e). It’s possible for
          a no contest clause to result in a forced election by beneficiaries. For example, in Colburn v. The
          Northern Trust Company (Cal. Ct. App. 2007), the court held that decedent’s trust’s no contest clause
          was enforceable against his ex-wife and their children even this effectively forced them to choose
          between their right to support under the divorce settlement (by filing a creditor’s claim) and the amount
          granted by the trust. Note that Colburn was decided under the old California statute. Under the new
          California statute, a no contest clause will be enforced against a creditor’s claim only if the clause
          expressly provides for such. See CAL. PROB. CODE § 21311(a)(3).
      D. Analysis of No-Contest Clause.
      E. Notes on No-Contest Clause.
II.   Planning for and Avoiding a Will Contest.
      A. Correspondence Between Attorney and Testator.
      B. Ante Mortem Probate.
      C. Professional Examination.
      D. No Contest Clause.
      E. Inter Vivos Trust.
      F. Inter Vivos Gift.

Casebook pp. 193-207 + California Companion p. 92-99 (Lipper v. Weslow, No Contest Clauses, Colburn v. The
Northern Trust Company, Planning to Avoid a Will Contest)

§ 3-5 Fraud and Duress
I.    Issue of Fraud: Whether a will provision may be invalidated because of fraud.
      A. Facts of Fraud.
          1. Wife and husband got married. Or so she thought. It turns out he was a “marital adventurer” and had
               multiple living spouses, thus voiding her marriage. The question was whether her devise “to my
               husband J. Gamble Carson” was invalid because of fraud in the inducement. See Estate of Carson
               (Cal. 1920).
          2. Testator’s evil nurses systematically isolated her from her family and friends. They planted and
               nurtured the idea that her family was irresponsible and spendthrift and wanted to put her in a nursing
               home (neither were true). See Puckett v. Krida (Tenn. Ct. App. 1994).
      B. The Law of Fraud. A will provision may be invalided because of fraud if two requirements are met.
          First, the testator must have been deceived by a deliberate misrepresentation. Second, there must be
          causation—testator must have made a testamentary disposition that he wouldn’t have made were he not
          deceived. There are two types of fraud: fraud in the inducement, and fraud in the execution. Fraud in the
          inducement occurs when the fraudster lies to the testator in order to cause him to execute or revoke a will
          (or refrain from so doing). Fraud in the execution occurs when the fraudster intentionally misrepresents
          an instrument for the testator to sign.
      C. Analysis of Fraud.
      D. Notes on Fraud.
II.   Issue of Duress: Whether a will may be invalidated because of duress.
      A. Facts of Duress.
          1. Father Divine was either a principled progressive or a murderous leader of a religious cult. Testator’s
               will left a large portion of her estate to Father Divine. Plaintiffs sued alleging that testator was
               physically prevented from executing a new will that would cut out Father Divine (and associates)
               which would have favored plaintiffs. See Latham v. Father Divine (N.Y. 1949).
      B. The Law of Duress. If physical force or the threat of physical force is used to get testator to leave
          property to the beneficiary (or to prevent testator from excluding the beneficiary in a subsequent will),
          then the beneficiary is liable for unjust enrichment. It doesn’t matter if the person using duress and the


                                                         35
           person benefitting aren’t the same person. See RESTATEMENT (THIRD) OF RESTITUTION § 46(1). See also
           Pope v. Garrett (Tex. 1948) (constructive trust imposed on innocent heirs in addition to the wrongdoers).
           The equitable remedy here is a constructive trust by which the actual beneficiaries under the will are
           constructive trustees compelled to transfer property received to those who would have received property
           were there no duress.
       C. Analysis of Duress.
       D. Notes on Duress.
III.   Issue of Tortious Interference with an Expectancy: Whether.
       A. Facts of Tortious Interference with an Expectancy.
           1. Brother was the sole beneficiary under testator’s old will. Caretaker took over caring for testator and
                used undue influence to get testator to execute a new will making caretaker the sole beneficiary.
                After testator died, caretaker petitioned to probate the will, and didn’t inform the brother about his
                sister’s death until the estate was closed. The brother sued for intentional interference with an
                expectancy of inheritance. See Schilling v. Herrera (Fla. Ct. App. 2007).
       B. The Law of Tortious Interference with an Expectancy. “To state a cause of action for intentional
           interference with an expectancy of inheritance, the complaint must allege the following elements: (1) the
           existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct, (3)
           causation; and (4) damages.” Schilling v. Herrera (Fla. Ct. App. 2007). This common law tort claim is
           predicated on an injury to the decedent’s right to dispose of property without interference. Furthermore, it
           generally uses the tort statute of limitations, which starts running when the plaintiff discovered or should
           have discovered the fraud or undue influence. Finally, such a claim does not trigger a no-contest clause
           within a will. Indeed, such claims do not attack the validity of a will, and may be brought long after
           probate has closed.
       C. Analysis of Tortious Interference with an Expectancy.
       D. Notes on Tortious Interference with an Expectancy.


Casebook pp. 207-221 (Fraud, Puckett v. Krida, Duress, Latham v. Father Divine, Tortious Interference with
Expectancy, Schilling v. Herrera; Anna Nicole Smith & the Probate Exception)




                                                          36
           § 4 WILLS: FORMALITIES AND FORMS
§ 4-1 Execution of Wills

                       ♦ CAL. PROB. CODE § 6110. Necessity of writing; other requirements
(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
    (1) By the testator.
    (2) In the testator's name by some other person in the testator's presence and by the testator's direction.
    (3) By a conservator pursuant to a court order to make a will under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator's
        lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the
        signing of the will or the testator's acknowledgment of the signature or of the will and (B) understand that
        the instrument they sign is the testator's will.
    (2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in
        compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence
        that, at the time the testator signed the will, the testator intended the will to constitute the testator's will.

I.    Issue of Execution Formalities: Whether a will is invalid for lack of Execution Formalities.
      A. Facts of Execution Formalities.
          1. Two witnesses signed the will but weren’t in each other’s presence when they did so. See In re
               Groffman ([Some English Court] 1969).
          2. Two witnesses signed the will but didn’t actually see the decedent sign the will. See Stevens v.
               Casdorph (W. Va. 1998).
          3. The witness’ signature was subscribed after the testator’s death. See Estate of Saueressig (Cal. 2006).
      B. The Law of Execution Formalities. Three formalities required for a will are: (1) in writing, (2)
          execution, and (3) attestation by two witnesses. See UNIF. PROBATE CODE § 2-502(a). Alternatively, a
          will may be holographic. See UNIF. PROBATE CODE § 2-502(b). Some jurisdictions also require
          publication—a statement by the testator that the instrument being executed is the testator’s will. Although
          attestation clauses aren’t strictly necessary for a will to be declared valid, such clauses are nonetheless
          important. The omission of an attestation clause may be grounds for malpractice liability. Attestation
          clauses create a presumption of due execution, and allow for admission to probate even if the witnesses
          are dead (or otherwise unavailable) or provide contrary testimony. There are a number of formal
          requirements: the two witnesses must be in the testator’s presence, they must be in each others’ presence,
          and must actually see the testator sign the will prior to signing the will themselves. Occasionally,
          substantial compliance may be sufficient, but as a general rule, formalities are critical. See Stevens v.
          Casdorph (W. Va. 1998) (will held invalid because two witnesses didn’t actually see decedent sign the
          will). There are two approaches to the presence requirement: the line of sight test, and the conscious
          presence test. Under the line of sight test, the testator must have been able to see the witnesses sign. The
          uniform code dispenses with the presence requirement altogether. See UNIF. PROBATE CODE § 2-502(a).
      C. Rationale Underlying Execution Formalities. Will formalities serve a number of important functions:
          the ritual function, the evidentiary function, the protective function, and the channeling function.8
      D. California Law of Execution Formalities. Formalities required for a will include: (1) in writing, (2)
          execution, and (3) attestation by two witnesses. See ♦ CAL. PROB. CODE § 6110. Attestation has a
          number of sub-requirements: [1] during the testator’s lifetime, [2] simultaneous presence, [3] witnessing
          the signing or acknowledgment, and [4] understanding by witnesses that it’s a will. See ♦ CAL. PROB.
          CODE § 6110(c). See also Estate of Saueressig (Cal. 2006) (will invalid because witness signed after
          testator’s death). These formalities are not required if the will is holographic (written in the testator’s
          handwriting). Note that although the witnesses must be simultaneously present when the testator signs the
          will (or acknowledges the signature), the witnesses themselves need not be in each other’s presence or in

8
 See Ashbel G. Gulliver and Catherine J. Tilson, Classification of Gratuitous Transfers, 51 YALE L.J. 1 (1941). See
also John H. Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489, 494 (1975).


                                                          37
          the testator’s presence when they sign the will. If one or more of the attestation sub-requirements are not
          satisfied, the will may nonetheless be held valid if the proponent proves the testator’s intent by clear and
          convincing evidence. See ♦ CAL. PROB. CODE § 6110(c)(2).
      E. Analysis of Execution Formalities.
      F. Notes on Execution Formalities.
II.   Issue of Interested Witnesses: Does the will devise property to a witness (exceeding the witness’ intestate
      share), such that the witness is interested, and if so, what are the consequences?
      A. Facts of Interested Witnesses.
          1. There were three witnesses but one of them was interested. See Estate of Morea (N.Y. Sur. Ct. 1996).
      B. The Law of Interested Witnesses. Under the purging statutes, if one of the witnesses is interested (and
          there aren’t otherwise two disinterested statutes), the will is invalid and cannot be admitted to probate.
          Just because a will devises property to a witness doesn’t necessarily mean the witness is interested—if the
          share the witness would receive under the will is less than the share the witness would receive under
          intestate succession, then the witness isn’t interested. See Estate of Morea N.Y. Sur. Ct. 1996). Can an
          interested witness become disinterested by disclaimer? Probably not.
      C. California Law of Interested Witnesses. If an interested witness signs the will (and there aren’t two
          disinterested witnesses), the will is still valid, but a presumption of undue influence arises with respect
          to the gift to the interested witness. See CAL. PROB. CODE § 6112. The interested witness thus has the
          burden to prove the absence of undue influence. The OLD California statute was a purging statute that
          would cause a gift to an interested witness to automatically fail.
      D. Analysis of Interested Witnesses.
      E. Notes on Interested Witnesses.

Casebook pp. 223-242 + California Companion pp. 101-106 (Wills: Formalities and Forms, Execution, Stevens v.
Casdorph, Estate of Saueressig, Estate of Morea)

§ 4-2 Curing Defects in the Execution of Attested Wills
I.    Issue of Curing Execution Defects: Does a defect in execution necessarily render the will invalid or can the
      defect be cured by substantial compliance doctrine or the harmless error rule?
      A. Facts of Curing Execution Defects.
          1. Attorney drafted reciprocal wills for a couple, but they mistakenly signed each other’s wills. The
               wills were substantively identical—both purported to leave their property first to the other spouse
               and otherwise to a common beneficiary. See In re Pavlinko’s Estate (Penn. 1959); In re Snide (N.Y.
               1981).
          2. In drafting the attestation clause, attorney mistakenly used language for the second step of a two-step
               self-proving affidavit. See In re Will of Ranney (N.J. 1991).
          3. Testator and his wife executed a joint will in their attorney’s office but there were no witnesses.
               Later, testator instructed his wife to destroy an older will, which she did. See In re Hall (Mont. 2002).
      B. The Law of Curing Execution Defects. Courts may create an ad hoc exception and hold a will valid
          notwithstanding defects in execution. See In re Snide (N.Y. 1981) (substantively identical switched will
          properly admitted to probate). Or not. See In re Pavlinko’s Estate (Penn. 1991) (opposite outcome on the
          same facts). Under the substantial compliance doctrine, an execution defect won’t invalidate the will if
          the defective execution nonetheless fulfilled the purposes of will formalities. See In re Will of Ranney
          (N.J. 1991) (will held valid even though attorney, in drafting the attestation clause, mistakenly used
          language appropriate for the second step of a two-step self-proving affidavit rather than for a self-proving
          affidavit). There are four functions to consider: (1) the ritual function, (2) the evidentiary function, (3) the
          protective function, and (4) the channeling function. Under the harmless error rule (or dispensing
          power), noncompliance with formalities may be excused if the proponent can prove by clear and
          convincing evidence that the decedent intended the instrument to be his will. See UNIF. PROBATE CODE §
          2-503; RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 3.3.
      C. California Law of Curing Execution Defects. Under the California harmless error provision, a defect
          in execution may be cured if [1] the defect was regarding the attestation of the will and [2] the will
          proponent can establish the testator’s intent by clear and convincing evidence. See ♦ CAL. PROB. CODE §
          6110(c)(2).
      D. Analysis of Curing Execution Defects.


                                                           38
      E. Notes on Curing Execution Defects.
         1. California on Attestation Clauses. In California, a self-proving affidavit must either include or
             incorporate the attestation clause by reference. For the sake of simplicity, it may be a good idea to
             simply use a one-step self-proving affidavit if the client is likely to die in California. If it’s possible
             that the client may die in a state other than California, it may be a better idea to use a two-step self-
             proving affidavit.

Casebook pp. 242-264 (In re Pavlinko’s Estate, In re Snide, In re Will of Ranney, In re Estate of Hall)

                                            ♦ CAL. PROB. CODE § 6113.



I.    Will Validity in the Absence of California Statutory Requirements. Just because a will doesn’t meet the
      California requirements doesn’t necessarily mean that the will is invalid. See ♦ CAL. PROB. CODE § 6113.

§ 4-3 Holographic Wills

                          ♦ CAL. PROB. CODE § 6111. Holographic wills; requirements
(a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the
    signature and the material provisions are in the handwriting of the testator.
(b) If a holographic will does not contain a statement as to the date of its execution and:
    (1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will
         are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its
         execution is established to be after the date of execution of the other will.
    (2) If it is established that the testator lacked testamentary capacity at any time during which the will might
         have been executed, the will is invalid unless it is established that it was executed at a time when the
         testator had testamentary capacity.
    (c) Any statement of testamentary intent contained in a holographic will may be set forth either in the testator's
         own handwriting or as part of a commercially printed form will.


                         ♦ CAL. PROB. CODE § 6111.5. Extrinsic evidence; admissibility
Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or
6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear.

I.    Issue of Holographic Wills: Whether a will lacking formalities may nonetheless be given effect because it
      was a holographic will.
      A. Facts of Holographic Wills.
          1. Uneducated father wrote a letter to his sons. The letter indicated the possibility of harsh weather
               ahead, and stated that if anything happens to him, certain items of real and personal property goes to
               his sons, George Darl and Irvin Kepp. He also instructed them to keep and lock up the letter because
               “it may help you out.” The letter was signed, “Father.” When the father died that very day, the
               question was whether this was a proper holographic will. See Kimmel’s Estate (Penn. 1924).
          2. Decedent filled in the blanks of a preprinted will form. However, the instrument wasn’t valid under
               state statute as an ordinary will because it wasn’t signed by two witnesses. The question was whether
               the instrument was valid as a holographic will, and in particular, how to treat the preprinted language
               in determining whether the instrument demonstrated decedent’s testamentary intent. See Estate of
               Gonzalez (Me. 2004).
          3. Decedent left a handwritten note titled “Last Will etc. or What? of Homer Eugene Williams.” The
               decedent’s name was written in block letters. The problem with using this note as a holographic will
               is because the decedent didn’t sign the note at the end of the will. See Estate of Williams (Cal. Ct.
               App. 2007).



                                                          39
    4.  Decedent had no spouse or children. She began corresponding with the North Shore Animal League
        (NSAL) because she was interested in leaving her estate to their organization. Although decedent
        never prepared a formal will, she did write on a signed and dated NSAL donor card “My entire estate
        is to be left to North Shore Animal League.” See Estate of Southworth (Cal. Ct. App. 1996).
   5. After declining decedent’s request for him to draft a will, the lawyer advised the decedent to consider
        making a holographic will (questionable legal advice). The decedent made a handwritten list of
        property dispositions, photocopied that list, and then added all the will components (signature,
        statements indicating that this was a will, voiding a prior will, and naming an executor) to the
        photocopy. Both the original handwritten list and the photocopy with all the will provisions were
        available for probate. See Estate of Brenner (Cal. Ct. App. 1999).
   6. Decedent’s relationship Elizabeth Shannon went well beyond an ordinary illicit extramarital affair.
        For one, the relationship lasted for almost 30 years during which time decedent provided substantial
        financial support for Shannon and her children. In 1989, he executed a holographic will leaving
        behind his Montana property to Shannon. In 1994, he executed a formal will, which didn’t mention
        the Montana property, leaving behind other property to his wife and children. When decedent
        became suddenly and mysteriously ill, he wrote a letter to Shannon stating: “I’ll have the lawyer visit
        the hospital to be sure you inherit the rest of the place in [Montana] if it comes to that.” In re Estate
        of Kuralt (Mont. 2000).
B. The Law of Holographic Wills. Even in the absence of other formalities, such as two attesting
   witnesses, an instrument indicating decedent’s testamentary intent may be given effect as a holographic
   will if the signature and all material provisions are handwritten by the decedent. In assessing this, a
   number of factors, including formality or the decedent’s education, may be considered, but are not per se
   dispositive. See Kimmel’s Estate (Penn. 1924) (handwritten letter held to be holographic will). Where
   part of a will is preprinted, jurisdictions are divided on how to treat the preprinted language. Some
   jurisdictions hold that the preprinted language may be considered as context to determine whether the
   instrument demonstrates testamentary intent. Specifically, the preprinted language is incorporated by
   reference into the holographic will. Other jurisdictions hold that the preprinted language must be ignored,
   and only the handwritten portions may be considered in determining whether the instrument demonstrates
   testamentary intent. See Estate of Gonzalez (Me. 2004).
C. California Law of Holographic Wills. Even in the absence of other formalities, such as two attesting
   witnesses, an instrument indicating decedent’s testamentary intent may be given effect as a holographic
   will if the signature and all material provisions are handwritten by the decedent. See ♦ CAL. PROB. CODE
   § 6111(a).
   1. Signature Requirement. The signature must appear somewhere on the face of the instrument. See
        Estate of MacLeod (Cal. Ct. App. 1988); Williams v. Towle (Cal. Ct. App. 2007). A holographic will
        must be signed, but that signature need not be at the bottom of the instrument. Nor does a signature
        necessarily need to be in cursive. However, a purported signature that is not at the bottom of the
        instrument or a purported signature in block letters both give rise to question whether the decedent
        intended his name to be a signature. See Estate of Williams (Cal. Ct. App. 2007).
   2. The Date Quasi-Requirement. Just because a holographic will isn’t dated doesn’t necessarily mean
        it’s invalid—it may still be valid. However, a number of problems arise if the holographic will isn’t
        dated. First, if there’s any doubt as to whether the holographic will was created before or after
        another will (that is dated), then the dated will is controlling, at least to the extent there are
        conflicting provisions. See ♦ CAL. PROB. CODE § 6111(b)(1). Second, if there’s any doubt as to
        whether the testator had testamentary capacity on the specific date when drafting the holographic
        will, then a rebuttable presumption arises that the will was drafted when testator lacked testamentary
        capacity. See ♦ CAL. PROB. CODE § 6111(b)(2).
   3. Testamentary Intent Requirement. In determining whether a handwritten note qualifies as a
        holographic will ♦ CAL. PROB. CODE § 6111(a), two provisions are helpful where there is preprinted
        language. First, the preprinted portions of a “commercially printed form will” may be incorporated
        by reference into the instrument for determining testamentary intent. See ♦ CAL. PROB. CODE §
        6111(c). In order to qualify as a “commercially printed form will,” the document must have been
        “drafted to serve as a will.” Estate of Southworth (Cal. Ct. App. 1996) (donor card didn’t qualify as
        “commercially printed form will”). Second, extrinsic evidence is admissible to determine whether a
        document is a will and to determine the meaning of unclear provisions. See ♦ CAL. PROB. CODE §
        6111.5. It’s not enough for the testator to have future testamentary intent. “[E]vidence of present


                                                   40
             testamentary intent provided by the instrument at issue is paramount . . .” Estate of Southworth (Cal.
             Ct. App. 1996) (incorporating preprinted portions, the purported holographic will only evidenced
             future testamentary intent).
         4. Handwriting. Although the signature and material provisions of the will must be handwritten in
             order for the will to qualify as a holographic will under ♦ CAL. PROB. CODE § 6111, there’s no
             requirement that it be an original ink writing. “[S]ection 6111 is properly construed to allow
             photocopies of the testator’s handwritten disposition, properly authenticated, as well as original ink
             writings.” Estate of Brenner (Cal. Ct. App. 1999) (testator handwrote property distributions, made a
             photocopy, and then signed the photocopy; both the photocopy and the original were available).
      D. Analysis of Holographic Wills.
      E. Notes on Holographic Wills.
         1. California Law of Conditional Wills. Under California law, a conditional will requires that the
             condition be met for the will to be given effect. See ♦ CAL. PROB. CODE § 6105. However, this
             condition must be clear from the language of the will, and absent such clear intent, California courts
             prefer to construe conditional language as merely precatory.

Casebook pp. 265-280 + California Companion pp. 106-114 (Notarized Wills; Holographic Wills, Kimmel’s Estate,
Estate of Gonzalez, Estate of Williams)

§ 4-4 Revocation of Wills

                             ♦ CAL. PROB. CODE § 6120. Acts constituting revocation
A will or any part thereof is revoked by any of the following:
(a) A subsequent will which revokes the prior will or part expressly or by inconsistency.
(b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by
    either (1) the testator or (2) another person in the testator's presence and by the testator's direction.


                                       ♦ CAL. PROB. CODE § 6121. Duplicates
A will executed in duplicate or any part thereof is revoked if one of the duplicates is burned, torn, canceled,
obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another
person in the testator's presence and by the testator's direction.

I.    Issue of Revocation of Wills: Whether an otherwise valid will is invalid because it was revoked by the
      decedent prior to death.
      A. Facts of Revocation of Wills.
          1. Testator had a falling out with the beneficiary named in testator’s executed will. Testator called her
               drafting attorney and informed him that she wanted to revoke the will. The attorney ripped the will
               into four pieces, and then mailed the pieces to the testator. When the testator died, those pieces could
               not be found. See Harrison v. Bird (Ala. 1993).
          2. A photocopy of testator’s will but not the will itself was found in the testator’s possession after death.
               See Lauermann v. Superior Court (Cal. Ct. App. 2005).
          3. Testator validly executed a will and a codicil to that will. She decided she wanted to revoke the will
               so she had the would-be executor (who had the will) and her attorney (who had the codicil) met at
               her home. She told the attorney to destroy both. Instead of destroying them, she decided to retain
               them as memoranda in case she wanted to execute a new will. The attorney drafted a notation on the
               cover stating that testator intended to void the instrument, and the testator signed that notation. She
               never got around to executing a new will. See Thompson v. Royall (Va. 1934).
      B. The Law of Revocation of Wills. An otherwise valid will may be revoked by the testator through either
          a subsequent will or by a physical act such as destruction of the will. In order for a revocation by
          destruction to be effective, there are two requirements: intent and destruction. First, the testator must
          intend for the will to be revoked. Second, the testator must destroy the will or have someone else destroy
          the will in the testator’s conscious presence. See UNIF. PROBATE CODE § 2-507(2). If someone other than
          the testator destroys the will, but does so outside of the testator’s presence, the act of revocation is not


                                                          41
         effective. See Harrison v. Bird (Ala. 1993) (attorney ripped up the will after being instructed over the
         phone to do so by testator). If a will is in the possession of the testator but cannot be found after the
         testator’s death, a rebuttable presumption arises that the will was destroyed. See id. (pieces of ripped will
         were mailed to testator but could not be found after her death). For revocation by physical act, common
         law required that the destruction actually touch the text of the will. See Thompson v. Royall (Va. 1934).
         This is no longer the law. See UNIF. PROBATE CODE § 2-507(a)(2).
      C. California Law of Revocation of Wills. California statute closely tracks the uniform code. Revocation
         may be done by a subsequent will or by a physical act. In order for a destruction to be effective, there are
         two requirements: intent and destruction. California allows for partial revocation by physical act. See ♦
         CAL. PROB. CODE § 6120. Under California’s presumption of destruction statute, a rebuttable
         presumption arises that a will was destroyed, but only if the will was in the testator’s possession and
         neither the will nor a duplicate original can be found after death. The presumption affects burden of
         production rather than the burden of proof. The party claiming the will wasn’t revoked only needs to
         produce some evidence supporting their position in order to rebut the presumption. See CAL. PROB. CODE
         § 6124. A photocopy of a will is not a “duplicate original” under the statute. Rather, the statute refers to
         (the poor legal practice of) multiple copies of the same will being executed by the testator. See
         Lauermann v. Superior Court (Cal. Ct. App. 2005) (presumption of revocation by destruction where a
         photocopy of the will but not the will itself found in testator’s possession after death). Thus, where the
         testator executed multiple copies of the same will, so long as one will is found, the presumption of
         revocation under CAL. PROB. CODE § 6121 does not arise.
      D. Analysis of Revocation of Wills.
      E. Notes on Revocation of Wills.

California Companion pp. 115-121 + Casebook pp. 280-290 (Estate of Southworth, Estate of Brenner, Estate of
Kuralt; Revocation, Harrison v. Bird, Lost Wills)

§ 4-5 Dependent Relative Revocation and Revival

         ♦ CAL. PROB. CODE § 6123. Second will revoking first will; effect of revocation of second will
(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part,
    is thereafter revoked by acts under Section 6120 or 6121, the first will is revoked in whole or in part unless it is
    evident from the circumstances of the revocation of the second will or from the testator's contemporary or
    subsequent declarations that the testator intended the first will to take effect as executed.
(b) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part,
    is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears
    from the terms of the third will that the testator intended the first will to take effect.

I.    Issue of Dependent Relative Revocation: .
      A. Facts of Dependent Relative Revocation.
          1. Testator drafted a will leaving half her property to her nephew and the other half to her friend Aurea
               Senecal. Either they got the nephew’s legal name wrong or the nephew legally changed his name.
               Anyway, the testator subsequently drafted a codicil changing the nephew’s name on the will but
               otherwise leaving the property dispositions unchanged. Well, that’s fun and all, but then it turns out
               one of the subscribing witnesses for the second will was Aurea Senecal’s husband. Thus, the second
               will was invalid. The question was whether the first will was still valid. See LaCroix v. Senecal
               (Conn. 1953).
          2. Decedent destroyed a later will on the mistaken belief that doing so would revive an earlier
               (properly revoked) will. See Estate of Alburn (Wis. 1963).
      B. The Law of Dependent Relative Revocation. Under the doctrine of dependent relative revocation, a
          purported revocation founded on a mistake of law or fact is ineffective if the testator wouldn’t have
          revoked the will had he known the truth. This most commonly occurs when a testator revokes an earlier
          will on the mistaken belief that a later will is valid. If, for some reason, the later will isn’t valid, then the
          revocation isn’t effective on the presumption that testator lacked the necessary intent. See RESTATEMENT
          (THIRD) OF PROP.: DONATIVE TRANSFERS § 4.3. Dependent relative revocation only applies where (1)



                                                           42
         there is an alternative plan of disposition that fails, or (2) the mistake is established by clear and
         convincing evidence. Dependent relative revocation can also apply when a testator revokes a later will on
         the mistaken belief that doing so will revive an earlier will. See Estate of Alburn (Wis. 1963) (revocation
         of later will ineffective because it was predicated on mistaken belief that its revocation would revive
         earlier will).
      C. California Law of Dependent Relative Revocation. The California dependent relative revocation
         statute provides that where a later will (which revoked an earlier will) is revoked by physical act and it
         appears from the circumstances that testator intended this act to revive the earlier will, the earlier will is
         effective. See ♦ CAL. PROB. CODE § 6123(a). This doesn’t necessarily work where the revocation was by
         a subsequent writing rather than by physical act. If the testator drafts a third will expressly revoking the
         second will but not expressing intent (on the instrument itself) to revive the first will, then the California
         revival statute won’t work. The provision requires that the testator’s intent be on the third instrument
         itself. See ♦ CAL. PROB. CODE § 6123(b).
      D. Analysis of Dependent Relative Revocation.
      E. Notes on Dependent Relative Revocation.

California Companion pp. 121-124 + Casebook pp. 290-305 (Lauermann v. Superior Court, Thompson v. Royall;
Dependent Relative Revocation & Revival, La Croix v. Senecal, Estate of Alburn)

§ 4-6 Revocation by Operation of Law

     CAL. PROB. CODE § 6122. Dissolution or annulment of marriage; provisions revoked; other change in
                                              circumstances
(a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or
    annulled, the dissolution or annulment revokes all of the following:
    (1) Any disposition or appointment of property made by the will to the former spouse.
    (2) Any provision of the will conferring a general or special power of appointment on the former spouse.
    (3) Any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian.
(b) If any disposition or other provision of a will is revoked solely by this section, it is revived by the testator's
    remarriage to the former spouse.
(c) In case of revocation by dissolution or annulment:
    (1) Property prevented from passing to a former spouse because of the revocation passes as if the former
         spouse failed to survive the testator.
    (2) Other provisions of the will conferring some power or office on the former spouse shall be interpreted as if
         the former spouse failed to survive the testator.
(d) For purposes of this section, dissolution or annulment means any dissolution or annulment which would exclude
    the spouse as a surviving spouse within the meaning of Section 78. A decree of legal separation which does not
    terminate the status of husband and wife is not a dissolution for purposes of this section.
(e) Except as provided in Section 6122.1, no change of circumstances other than as described in this section
    revokes a will.
(f) Subdivisions (a) to (d), inclusive, do not apply to any case where the final judgment of dissolution or annulment
    of marriage occurs before January 1, 1985. That case is governed by the law in effect prior to January 1, 1985.

I.    Issue of Revocation by Operation of Law: Whether changes in testator’s family circumstances cause his
      otherwise valid testamentary gift to be revoked by operation of law.
      A. Facts of Revocation by Operation of Law.
          1. Testator’s 1989 will provided the residue of his estate would go to his two stepdaughters. Testator
               and his wife (the stepdaughters’ mother) divorced in 1994, and testator died in 2002. See Estate of
               Jones (Cal. Ct. App. 2004).
          2. Decedent and his wife got married in 1972, had two children, and then got divorced in 1982. In 1983,
               decedent wrote a holographic will leaving behind all his property to his (soon-to-be) second wife.
               They got married in 1984, and then got divorced in 1988. Even after divorce, they continued living
               together and experienced various periods of breakup and reconciliation. See Estate of Reeves (Cal.
               Ct. App. 1991).



                                                         43
      B. The Law of Revocation by Operation of Law. Upon divorce, all instruments leaving property to the
         former spouse are automatically revoked. See UNIF. PROBATE CODE § 2-804. If testator marries after
         executing a will, the new spouse receives her intestate share notwithstanding failure by the will to so
         provide. See UNIF. PROBATE CODE § 2-301. The same is true of children born after the will. See UNIF.
         PROBATE CODE § 2-302.
      C. California Law of Revocation by Operation of Law. If testator’s will devises property to a spouse, then
         that devise is automatically revoked by operation of law upon divorce. See CAL. PROB. CODE § 6122.
         This is true even if the will was executed prior to the marriage. See Estate of Reeves (Cal. Ct. App. 1991).
         The same is true of domestic partners. See CAL. PROB. CODE § 6123. Although not expressly provided by
         the statute, this automatic revocation by operation of law extends to the former spouse’s separate children
         if the former spouse’s separate children is an alternative contingent beneficiary to the former spouse. See
         Estate of Jones (Cal. Ct. App. 2004) (gift to expressly named stepchildren revoked by operation of law).
         This is predicated on the notion that most people probably don’t want to devise property to their former
         spouse’s separate relatives. Note that Jones seems to leave open the possibility that automatic revocation
         won’t apply if the testator continued to have a relationship with the former spouse’s separate children.
      D. Analysis of Revocation by Operation of Law.
      E. Notes on Revocation by Operation of Law.
         1. Nonprobate Transfers. Under California law, not only are probate gifts to a former spouse revoked
              by operation of law upon divorce, but a number nonprobate gifts are also revoked by operation of
              law. This, however, is not true for life insurance policies—the insured must change the named the
              beneficiary after divorce.

§ 4-7 Components of a Will

            CAL. PROB. CODE § 6130. Writing in existence at execution; incorporation by reference
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.


      CAL. PROB. CODE § 6132. Writings that direct disposition of a testator's tangible personal property
(a) Notwithstanding any other provision, a will may refer to a writing that directs disposition of tangible personal
    property not otherwise specifically disposed of by the will, except for money that is common coin or currency
    and property used primarily in a trade or business. A writing directing disposition of a testator's tangible
    personal property is effective if all of the following conditions are satisfied:
    (1) An unrevoked will refers to the writing.
    (2) The writing is dated and is either in the handwriting of, or signed by, the testator.
    (3) The writing describes the items and the recipients of the property with reasonable certainty.
(b) The failure of a writing to conform to the conditions described in paragraph (2) of subdivision (a) does not
    preclude the introduction of evidence of the existence of the testator's intent regarding the disposition of
    tangible personal property as authorized by this section.
(c) The writing may be written or signed before or after the execution of the will and need not have significance
    apart from its effect upon the dispositions of property made by the will. A writing that meets the requirements
    of this section shall be given effect as if it were actually contained in the will itself, except that if any person
    designated to receive property in the writing dies before the testator, the property shall pass as further directed
    in the writing and, in the absence of any further directions, the disposition shall lapse.
(d) The testator may make subsequent handwritten or signed changes to any writing. If there is an inconsistent
    disposition of tangible personal property as between writings, the most recent writing controls.
                                                            ...
(g) The total value of tangible personal property identified and disposed of in the writing shall not exceed twenty-
    five thousand dollars ($25,000). If the value of an item of tangible personal property described in the writing
    exceeds five thousand dollars ($5,000), that item shall not be subject to this section and that item shall be
    disposed of pursuant to the remainder clause of the will. The value of an item of tangible personal property that
    is disposed of pursuant to the remainder clause of the will shall not be counted towards the twenty-five thousand
    dollar ($25,000) limit described in this subdivision.



                                                          44
(h) As used in this section, the following definitions shall apply:
    (1) “Tangible personal property” means articles of personal or household use or ornament, including, but not
        limited to, furniture, furnishings, automobiles, boats, and jewelry, as well as precious metals in any tangible
        form, such as bullion or coins and articles held for investment purposes. The term “tangible personal
        property” does not mean real property, a mobilehome as defined in Section 798.3 of the Civil Code,
        intangible property, such as evidences of indebtedness, bank accounts and other monetary deposits,
        documents of title, or securities.
    (2) “Common coin or currency” means the coins and currency of the United States that are legal tender for the
        payment of public and private debts, but does not include coins or currency kept or acquired for their
        historical, artistic, collectable, or investment value apart from their normal use as legal tender for payment.

I.    Issue of Incorporation by Reference: Whether a will may validly incorporate the terms of another writing by
      reference.
      A. Facts of Incorporation by Reference.
           1. Testator’s will provided that all property would pass to her cousin except those designated in a
                memorandum. She kept the memorandum in her desk drawer and periodically revised it. In that
                memorandum, she provided that a specific painting would pass to her friend. After testator’s death,
                the cousin refused to give the painting to testator’s friend. See Clark v. Greenhalge (Mass. 1991).
           2. Testator’s will provided that $4,000 shall be paid to those named in a letter dated March 25, 1932 to
                be found in his effects. After his death, no letter dated March 25, 1932 was found, but one dated July
                3, 1933 was found. See Simon v. Grayson (Cal. 1940).
      B. The Law of Incorporation by Reference. Under the doctrine of incorporation by reference, a will can
           incorporate another writing provided the other writing is in existence at the time of execution and the
           writing is sufficiently well described for identification. See UNIF. PROBATE CODE § 2-510. The executor
           may even continue to modify the writing incorporated by reference, and those modifications will be given
           legal effect, even if they are done without will formalities. See Clark v. Greenhalge (Mass. 1991). Note
           that the doctrine of republication by codicil can work in conjunction with incorporation by reference to
           allow for incorporation of a writing created after the execution of the will but before the codicil. Modern
           law tends to move away from strict requirements that the other writing be in existence at the time of
           execution and that it may not be modified by the testator. See UNIF. PROBATE CODE § 2-513.
      C. California Law of Incorporation by Reference. The identification need not be perfect so long as it’s
           sufficiently good to identify the other writing. See Simon v. Grayson (Cal. 1940) (will described letter
           with wrong date). California has enacted an incorporation by reference provision. See CAL. PROB. CODE §
           6130. California has also enacted a provision based UNIF. PROBATE CODE § 2-513, which allows a will to
           refer to a writing not in existence at the time of execution. This provision is limited to tangible personal
           property (not money), but the total value of items identified cannot exceed $25,000 and the individual
           value of any single item cannot exceed $5,000. See CAL. PROB. CODE § 6132.
      D. Analysis of Incorporation by Reference.
      E. Notes on Incorporation by Reference.
           1. Republication by Codicil. It’s important not to get incorporation by reference confused with
                republication by codicil. Under republication by codicil, execution of a codicil republishes the prior
                will as of the date of execution of the codicil. See RESTATEMENT (THIRD) OF PROP.: DONATIVE
                TRANSFERS § 3.4. See also Estate of Nielson (Cal. Ct. App. 1980) (handwritten modifications to
                typed will along with “Revised by [testator]” held to be holographic codicil, which republished the
                typed will).
           2. Acts of Independent Significance. A will may dispose of property with reference to acts of
                independent significance. See UNIF. PROBATE CODE § 2-512. For example, if testator leaves “the car
                I own at death” to a beneficiary, when he buys a new car and sells the old one, the testator effectively
                changes the testamentary gift. California has enacted an acts of independent significance provision.
                See CAL. PROB. CODE § 6131. The critical element here is independent significance. Specifically, the
                testator must have done the act for a reason other than solely to make a testamentary disposition.
                Thus, in the example above, the testator got a new car so that she’d have a new car to drive around.
                On the other hand, if the testator bequeaths “all items in the silver chest in my attic”, there’s at least
                an argument that the testator added and removed items solely for their testamentary disposition, in
                which case there wouldn’t be independent significance.



                                                           45
Casebook pp. 305-307 + California Companion pp. 124-132 + Casebook pp. 307-316 (Revocation by Operation of
Law, Estate of Jones, Estate of Reeves; Components of a Will, Clark v. Greenhalge)

§ 4-8 Contracts Relating to Wills

♦ CAL. PROB. CODE § 21700. Contract to make will or devise; establishment; effect of execution of joint will or
                                       mutual wills; applicable law
(a) A contract to make a will or devise or other instrument, or not to revoke a will or devise or other instrument, or
    to die intestate, if made after the effective date of this statute, can be established only by one of the following:
    (1) Provisions of a will or other instrument stating the material provisions of the contract.
    (2) An expressed reference in a will or other instrument to a contract and extrinsic evidence proving the terms
         of the contract.
    (3) A writing signed by the decedent evidencing the contract.
    (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.
    (5) Clear and convincing evidence of an agreement between the decedent and another person for the benefit of
         the claimant or a promise by the decedent to another person for the benefit of the claimant that is
         enforceable in equity.
(b) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or
    wills.
(c) A contract to make a will or devise or other instrument, or not to revoke a will or devise or other instrument, or
    to die intestate, if made prior to the effective date of this section, shall be construed under the law applicable to
    the contract prior to the effective date of this section.

I.    Issue of Contracts Promising Not to Revoke a Will: Whether a contract promising to make a will or
      promising not to revoke a will is enforceable.
      A. Facts of Contracts Promising Not to Revoke a Will.
          1. Spouses entered into an oral agreement by which the wife promised to die intestate and to not
               convert her interest in their property from joint tenancy to tenancy in common in exchange for the
               husband’s promise to execute a will leaving 50% of their property to wife’s daughter. The wife
               performed, dying intestate without converting her interest. The husband, however, breached the oral
               agreement, leaving 100% interest in the property to his two grandchildren. The wife’s daughter filed
               a creditor’s claim. See Stewart v. Seward (Cal. Ct. App. 2007).
          2. Husband and his first wife executed mutual wills, which stated that they had entered into an
               agreement not to change the distribution of their estate. After his first wife died, husband remarried.
               He died without drafting a new will. The second wife filed a petition to take her elective share or
               pretermitted spouse’s share as provided by state law.9 The children, beneficiaries of the will, sued the
               estate claiming that by remarrying, their father had breached the contract. See Via v. Putnam (Fla.
               1995).
      B. The Law of Contracts Promising Not to Revoke a Will. Contracts relating to wills are generally
          governed by contract law, and thus require all elements ordinarily needed for an enforceable contract
          such as consideration. These contracts generally only come into effect when one of the spouses die. Many
          states have enacted a Statute of Frauds provision requiring that contracts concerning wills be in writing
          (or evidence by a writing) in order to be enforceable. See UNIF. PROBATE CODE § 2-514. Note that in the
          absence of an enforceable contract, the beneficiary may be entitled to quantum meruit. Courts may

9
  A pretermitted spouse statute provides that where testator executed a will prior to marriage (and didn’t
subsequently execute a new will or republish the old one by codicil), the testator’s new spouse is entitled to take a
share of the testator’s estate. In effect, such statutes assume that testator would have intended their new spouse to
take a share had the testator taken the time to draft a new will. In contrast, an elective share statute simply provides
that a surviving spouse may elect against the testator’s will and instead take a forced share of the testator’s net
estate. Note that all surviving spouses will qualify for an elective share statute, but a surviving spouse will qualify
for a pretermitted spouse statute only if the will was executed prior to their marriage.


                                                          46
        decline to enforce an otherwise enforceable contract to not revoke a will if doing so would contravene
        public policy. Under the majority rule, third party beneficiaries prevail over testator’s second spouse. See
        Via v. Putnam (Fla. 1995) (contract not to revoke will held unenforceable due to public policy favoring
        protection of surviving spouses).
     C. California Law of Contracts Promising Not to Revoke a Will. Contracts relating to wills must have
        consideration. See Borelli v. Brusseau (Cal. Ct. App. 1993) (since spouses have a legal duty to care for
        each other, wife’s promise to care for her husband wasn’t sufficient consideration). California has a
        Statute of Frauds provision that requires either that contracts concerning wills be in writing or that oral
        agreements be proved by clear and convincing evidence. See ♦ CAL. PROB. CODE § 21700. An action for
        breach of contract to make a will must be brought within one year of death. See CAL. CIV. PROC. CODE
        § 366.2. Filing a creditor’s claim with the estate’s administrator does not toll this statute of limitations.
        See Stewart v. Seward (Cal. Ct. App. 2007).
     D. Analysis of Contracts Promising Not to Revoke a Will.
     E. Notes on Contracts Promising Not to Revoke a Will.
        1. Joint Will. A joint will is a single instrument executed by two persons to be probated twice for each
            person as testator. Mutual wills are two wills with reciprocal provisions. Under California law,
            having joint or mutual wills doesn’t create a presumption of a contract not to revoke. See ♦ CAL
            PROB. CODE § 21700(b).

California Companion pp. 132-137 + Casebook pp. 323-334 (Unattested Writing Disposing of Tangible Personalty,
Acts of Independent Significance, Contracts Relating to Wills, Stewart v. Seward, Via v. Putnam)




                                                        47
                     § 5 CONSTRUCTION OF WILLS
§ 5-1 Mistaken or Ambiguous Language in Wills
I.    Issue of Mistakes or Ambiguities: Whether.
      A. Facts of Mistakes or Ambiguities.
          1. Testator told her attorney that she wanted to leave her property to her 25 first cousins in equal shares.
               The attorney drafted the will to give equal shares “to my heirs at law living at the time of my decease
               . . .” The problem was that her maternal aunt was still alive, and was entitled under state intestate
               succession laws to take 100%.10 See Mahoney v. Grainger (Mass. 1933).
          2. See Estate of Black (Cal. Ct. App. 1962).
          3. Testator devised her one-half undivided interest in “No. 304 Harrison Avenue, Harrison, New
               Jersey.” Problem was that testator didn’t own and never owned any property at that address. She did
               own a one-half undivided interest in No. 317 Harrison Ave. both at the time of execution and at the
               time of her death. See Arnheiter v. Arnheiter (N.J. Super. Ct. Ch. Div. 1956).
          4. Two days before his wedding, testator executed a will providing for his soon-to-be wife and her
               children. The will was apparently predicated on the mistaken belief that it would be valid even after
               getting married. See Erickson v. Erickson (Conn. 1998).
          5. Testator’s two natural sons were adopted away with his consent by his ex-wife’s second husband.
               Testator adopted his second wife’s son. Testator’s adopted son argues that he should take all of
               testator’s estate because of testator’s mistaken belief that the adoption had severed the two natural
               sons’ intestate succession rights with the testator, leaving testator’s adopted son as the sole heir. See
               Estate of Dye (Cal. Ct. App. 2001).
      B. The Law of Mistakes or Ambiguities. Traditionally, two rules governed the construction of wills: the
          plain meaning rule and the no reformation rule. Under the plain meaning rule, extrinsic evidence may be
          admitted to resolve latent ambiguities but not to create ambiguities in otherwise unambiguous language.
          See, e.g., Mahoney v. Grainger (Mass. 1933) (distribution according to the drafter’s unmistakable but
          mistaken language). Extrinsic evidence would not be admitted to resolve patent ambiguities. Under the no
          reformation rule, courts will not change the express terms of a will. Courts have used novel approaches to
          accomplishing the same goals as reformation without actually reforming the will. See, e.g., Arnheiter v.
          Arnheiter (N.J. Super. Ct. Ch. Div. 1956) (using falsa demonstratio non nocet to strike certain language).
          Both the plain meaning rule and the no reformation rule have fallen out of favor. See RESTATEMENT
          (THIRD) OF PROP.: DONATIVE TRANSFERS § 12.1 (allowing for reformation); UNIF. PROBATE CODE § 2-
          805 (same); Erickson v. Erickson (Conn. 1998) (openly reforming wills for mistake). This is founded
          mainly on four rationales: unifying probate and nonprobate systems, experience, preventing unjust
          enrichment, and avoiding malpractice liability. On the other hand, countervailing rationale is that doing
          so would “open the floodgates of litigation . . . .”
      C. California Law of Mistakes or Ambiguities. Extrinsic evidence may be admitted not only to resolve a
          patent ambiguity but also to identify a latent ambiguity. See Estate of Russell (Cal. 1968). In order to
          establish a latent ambiguity, it’s not enough to prove that the testator had a mistaken belief of law. There
          must more than one possible application of the language. See Estate of Dye (Cal. Ct. App. 2001) (no
          ambiguity that would allow for extrinsic evidence). Drafting an ambiguous provision in a testamentary
          instrument does not create malpractice liability. See Ventura County Humane Society v. Holloway (Cal.
          Ct. App. 1974). The drafter may, however, be liable for negligence to intended beneficiaries.
      D. Analysis of Mistakes or Ambiguities.
      E. Notes on Mistakes or Ambiguities.




10
   There are two implications here. The first implication is that Massachusetts (in 1933) follows the degrees-of-
relationship system of intestate distribution for collaterals because the maternal aunt is entitled to take to the
exclusion of the first cousins. The second implication is that the decedent’s children, grandchildren, great-
grandchildren, parents, siblings, nephews/nieces, grandparents, and uncles/aunts (with the exception of the one) all
predeceased the decedent.


                                                          48
Casebook pp. 335-351 + California Companion pp. 139-143 (Construction of Wills, Mahoney v. Grainger,
Arnheiter v. Arnheiter, Erickson v. Erickson, Estate of Dye, Part II)

§ 5-2 Death of Beneficiary Before Death of Testator

     ♦ CAL. PROB. CODE § 21110. Transferee's death; taking by representation; contrary intent in instrument
(a) Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing
    to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee
    take in the transferee's place in the manner provided in Section 240. A 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 the instrument was executed.
(b) The issue of a deceased transferee do not take in the transferee's place if the instrument expresses a contrary
    intention or a substitute disposition. A requirement that the initial transferee survive the transferor or survive for
    a specified period of time after the death of the transferor constitutes a contrary intention. A requirement that
    the initial transferee survive until a future time that is related to the probate of the transferor's will or
    administration of the estate of the transferor constitutes a contrary intention.
(c) As used in this section, “transferee” means a person who is kindred of the transferor or kindred of a surviving,
    deceased, or former spouse of the transferor.


                                    ♦ CAL. PROB. CODE § 21111. Failed transfers
(a) Except as provided in subdivision (b) and subject to Section 21110, if a transfer fails for any reason, the
    property is transferred as follows:
    (1) If the transferring instrument provides for an alternative disposition in the event the transfer fails, the
         property is transferred according to the terms of the instrument.
    (2) If the transferring instrument does not provide for an alternative disposition but does provide for the
         transfer of a residue, the property becomes a part of the residue transferred under the instrument.
    (3) If the transferring instrument does not provide for an alternative disposition and does not provide for the
         transfer of a residue, or if the transfer is itself a residuary gift, the property is transferred to the decedent's
         estate.
(b) Subject to Section 21110, if a residuary gift or a future interest is transferred to two or more persons and the
    share of a transferee fails for any reason, and no alternative disposition is provided, the share passes to the other
    transferees in proportion to their other interest in the residuary gift or the future interest.
(c) A transfer of “all my estate” or words of similar import is a residuary gift for purposes of this section.
(d) If failure of a future interest results in an intestacy, the property passes to the heirs of the transferor determined
    pursuant to Section 21114.

I.      Issue of Lapsed Devise: Where the beneficiary dies after due execution but before the testator’s death,
        whether this causes the devise or bequest to lapse.
        A. Facts of Lapsed Devise.
            1. Testator executed a holographic will leaving “everything I own” to her friend and her dog. Testator’s
                niece sued, arguing that because the devise to the dog was void, the 50% residuary devise to the dog
                lapsed, and should pass intestate because of the no-residue-of-a-residue rule. See Estate of Russell
                (Cal. 1968).
            2. Testator’s two natural sons were adopted away with his consent by his ex-wife’s second husband.
                Testator adopted his second wife’s son. Testator and his second wife executed reciprocal wills
                leaving their property to each other. Testator’s adopted son argues that although testator’s second
                wife predeceased the testator, the gift to the second wife didn’t lapse because of California’s anti-
                lapse statute. See Estate of Dye (Cal. Ct. App. 2001).
            3. Testator devised one-half of his residue to his stepdaughter “if she survives me.” Well, she didn’t
                Under Connecticut’s antilapse provision, when a devisee stepchild predeceases the testator “and no
                provision has been made in the will for such contingency” then the devisee’s issue take. The issue
                was whether the survivorship language was sufficient to qualify as a provision made for such
                contingency, and thus defeat the antilapse provision. See Ruotolo v. Tietjen (Conn. 2006).


                                                            49
      B. The Law of Lapsed Devise. If a general or specific devise lapses (fails by reason of the beneficiary
          predeceasing the testator), the devise falls into the residue. If a residual devise lapses, that devise is
          distributed according to intestate succession statutes rather than going to another beneficiary of the
          residual devise. This no-residue-of-a-residue rule has fallen out of favor. See RESTATEMENT (THIRD) OF
          PROP.: DONATIVE TRANSFERS § 5.5 cmt. o; UNIF. PROBATE CODE § 2-604(b). Many states have enacted
          antilapse statutes, which overrule the no-residue-of-a-residue rule by substituting a new beneficiary in for
          the predeceased devisee if certain conditions are met. See UNIF. PROBATE CODE § 2-605. Instead of the
          devise passing to the heirs by intestacy, the devise passes to the devisee’s issue. Since antilapse statutes
          are predicated on the testator’s presumed intent, an express contrary intent by the testator will override
          the antilapse provision. Precisely when testator has expressed contrary intent isn’t always clear. There is
          much debate whether words of survivorship (“to [beneficiary] if he survives me”) by themselves
          constitute sufficient contrary intent. See UNIF. PROBATE CODE § 2-603(b)(3); RESTATEMENT (THIRD) OF
          PROP.: DONATIVE TRANSFERS § 5.5.
      C. California Law of Lapsed Devise. Under California’s anti-lapse statute, if the beneficiary predeceases
          the testator,11 then the beneficiary’s issue take under a modern per stirpes distribution if the beneficiary is
          a kindred of the transferor (or the transferor’s spouse). See CAL. PROB. CODE § 21110. Kindred requires a
          relationship by consanguinity (by blood) and not merely by affinity (by marriage). Thus, gifts to spouses
          cannot qualify under the anti-lapse provision. See Estate of Dye (Cal. Ct. App. 2001). If the testator
          expressly provides for an alternative beneficiary, then the antilapse provision obviously doesn’t apply.
          See CAL. PROB. CODE § 21111(a)(1). Words of survivorship are by themselves sufficient to establish
          express contrary intent to override California’s antilapse provision. See ♦ CAL. PROB. CODE § 21110(b).
          These expressions of contrary intent are illustrative, not exclusive. Since the no-residue-of-a-residue rule
          has been rejected in California, class gifts only matter for a general or specific devise. Where a residual
          devise goes to two devisees, if one predeceases, then the other takes the whole residual devise. See CAL.
          PROB. CODE § 21111(b).
      D. Analysis of Lapsed Devise.
      E. Notes on Lapsed Devise.
II.   Issue of Class Gifts: Whether a devise is a class gift such that the fact that a would-be beneficiary
      predeceases the testator doesn’t cause the gift to lapse.
      A. Facts of Class Gifts.
          1. Testator devised an undivided one-fifth interest in property as follows: “One-half (1/2) of my interest
               therein to Stewart Wilson, a nephew . . . and One-half (1/2) of my interest to Gene Burtle, a nephew .
               . . .” One of the nephews predeceased the testator, and the question was whether that nephew’s share
               lapsed or not. If the devise was a class gift, then the other nephew would take the entire one-fifth
               interest. If not, then the predeceased nephew’s share would lapse into the residuary. See Dawson v.
               Yucus (Ill. App. Ct. 1968).
      B. The Law of Class Gifts. At common law, if testator made a class gift, and a member of the class
          predeceased the testator, then that predeceased beneficiary’s share was divided among the surviving
          members of the class. Thus, if the devise was a class gift, the common law rule causing the share to lapse
          doesn’t apply. Generally, the question is whether a devise is or isn’t a class gift. There are three
          categories that a devise can fall into: (1) “to my grandchildren,” (2) “to my grandchildren John and Jane,”
          and (3) “to John and Jane.” The first is a class gift, but the last is not. See RESTATEMENT (THIRD) OF
          PROP.: DONATIVE TRANSFERS § 13.2(c). As for the second, there’s a rebuttable presumption against the
          devise being a class gift. See RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 13.2(b). Another
          method courts have taken to resolving ambiguous language is whether the share each beneficiary to
          receive is to receive is set or not. For example, a devise “of ½ of my estate to each of my nephews” isn’t a
          class gift because there can only be two, but a devise “to my nephews in equal shares” is a class gift. See
          Dawson v. Yucus (Ill. App. Ct. 1968).
      C. California Law of Class Gifts. California’s antilapse provision doesn’t apply to dispositions to class
          members who die prior to the execution of the will. After all, the testator (presumably) knew about the


11
  Or is otherwise treated as failing to have survived the testator. For example, if the instrument has a requirement
that the beneficiary survive a specified period of time and it can’t be proven that the beneficiary did so by clear and
convincing evidence, then the beneficiary is treated by law as having predeceased the testator. See ♦ CAL. PROB.
CODE § 21109.


                                                          50
         class members’ death(s) and would have expressly provided for the class members’ issue were that the
         testator’s intent.
      D. Analysis of Class Gifts.
      E. Notes on Class Gifts.

Casebook pp. 351-365 + California Companion pp. 144-148 (Reformation, Death of Beneficiary Before Testator,
Estate of Russell, Antilapse Statutes, Estate of Dye, Part III)

Casebook pp. 365-379 (Ruotolo v. Tietjen, Class Gifts, Dawson v. Yucus)

§ 5-3 Changes in Property After Execution of Will

           CAL. PROB. CODE § 21133. Receipt of at-death transfers of specific gifts; recipient's rights
A recipient of an at-death transfer of a specific gift has a right to the property specifically given, to the extent the
property is owned by the transferor at the time the gift takes effect in possession or enjoyment, and all of the
following:
(a) Any balance of the purchase price (together with any security agreement) owing from a purchaser to the
     transferor at the time the gift takes effect in possession or enjoyment by reason of sale of the property.
(b) Any amount of an eminent domain award for the taking of the property unpaid at the time the gift takes effect in
     possession or enjoyment.
(c) Any proceeds unpaid at the time the gift takes effect in possession or enjoyment on fire or casualty insurance on
     or other recovery for injury to the property.
(d) Property owned by the transferor at the time the gift takes effect in possession or enjoyment and acquired as a
     result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically given
     obligation.


      CAL. PROB. CODE § 21134. Specifically given property sold or mortgaged by conservator or agent;
                    transferee's rights; eminent domain awards; application of section
(a) Except as otherwise provided in this section, if after the execution of the instrument of gift specifically given
    property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of
    attorney for an incapacitated principal, the transferee of the specific gift has the right to a general pecuniary gift
    equal to the net sale price of, or the amount of the unpaid loan on, the property.
(b) Except as otherwise provided in this section, if an eminent domain award for the taking of specifically given
    property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an
    incapacitated principal, or if the proceeds on fire or casualty insurance on, or recovery for injury to, specifically
    gifted property are paid to a conservator or to an agent acting within the authority of a durable power of attorney
    for an incapacitated principal, the recipient of the specific gift has the right to a general pecuniary gift equal to
    the eminent domain award or the insurance proceeds or recovery.
(c) For the purpose of the references in this section to a conservator, this section does not apply if, after the sale,
    mortgage, condemnation, fire, or casualty, or recovery, the conservatorship is terminated and the transferor
    survives the termination by one year.
(d) For the purpose of the references in this section to an agent acting with the authority of a durable power of
    attorney for an incapacitated principal, (1) “incapacitated principal” means a principal who is an incapacitated
    person, (2) no adjudication of incapacity before death is necessary, and (3) the acts of an agent within the
    authority of a durable power of attorney are presumed to be for an incapacitated principal.
(e) The right of the transferee of the specific gift under this section shall be reduced by any right the transferee has
    under Section 21133.

I.    Issue of Ademption by Extinction: Whether the doctrine of ademption by extinction applies to cause a
      specific devise to fail.
      A. Facts of Ademption by Extinction.
          1. Elderly testator was involved in a serious automobile accident and suffered from a degenerative
               disease of the central nervous system. Testator executed a durable power of attorney (i.e., would


                                                           51
                remain in force even if the principal became incapacitated) to her daughter, who handled testator’s
                financial affairs until her death. In order to pay for testator’s ongoing living expenses, the daughter
                began selling off testator’s assets. When she decided to sell testator’s house, testator’s second
                husband’s son objected since he was, by the terms of testator’s will, supposed to take a ½ interest in
                that property. See In re Estate of Anton (Iowa 2007).
           2. Decedent created a trust providing that 10% of stock in his company went to Lorrin Brown and 90%
                of stock to Ross Brown. Decedent became incompetent, and a conservator was appointed. The
                corporation’s board, led by Ross Brown, decided to make a sale of all its assets for $23 million. This
                was followed by a distribution of that money to its stockholders (95% to the trust). See Brown v.
                Labow (Cal. Ct. App. 2007).
      B.   The Law of Ademption by Extinction. Under the traditional doctrine of ademption by extinction, a
           specific devise fails if the item devised cannot be found in testator’s estate upon his death. Under the
           identity approach, this was absolute—if the item wasn’t found, then the devise was adeemed (failed).
           Under the newer intent approach, however, the key is the testator’s intent. If the item devised was
           involuntarily removed from testator’s estate, such as where sold by a guardian or destroyed
           contemporaneously with the testator’s death, then the ademption by extinction doctrine won’t apply. See
           In re Estate of Anton (Iowa 2007) (no ademption where property devised was sold by testator’s attorney-
           in-fact and testator didn’t have opportunity to revise her will). See also UNIF. PROBATE CODE § 2-606;
           RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 5.2(c). Note that ademption by extinction
           won’t apply if the devise was a general, demonstrative, or residuary devise.
      C.   California Law of Ademption by Extinction.
      D.   Analysis of Ademption by Extinction.
      E.   Notes on Ademption by Extinction.
           1. Stock Split. Where beneficiary is devised specific shares of stock, the devisee is entitled to
                additional shares received as a result of a stock split. See CAL. PROB. CODE § 21132. See also UNIF.
                PROBATE CODE § 2-605; RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 5.3.
           2. Satisfaction of General Pecuniary Bequests. An inter vivos gift will only constitute satisfaction of
                a general pecuniary bequest if: (1) the instrument so provides, (2) the transferor so declares
                contemporaneously with the gift, (3) the transferee so acknowledges, or (4) the property is the same.
                See CAL. PROB. CODE § 21135.
           3. Exoneration of Liens. Property is transferred with all mortgages or liens existing at the time of
                testator’s death. The beneficiary isn’t entitled to exoneration of the lien from the estate’s residue. See
                CAL. PROB. CODE § 21131.
           4. Abatement. California’s statutory abatement order is: (1) property not disposed of in the will, (2) the
                residuary gift, (3) general gifts not to relatives, (4) general gifts to relatives, (5) specific gifts not to
                relatives, and (6) specific gifts to relatives. See CAL. PROB. CODE § 21402. If there’s a contrary plan
                or purpose, abatement will follow that plan instead of the statutory one. See CAL. PROB. CODE §
                21400. Note the interplay of abatement and ademption. If there’s no ademption by extinction, then
                the beneficiary is entitled to the net sale price of the property sold by a conservator, but that specific
                gift essentially becomes a general pecuniary gift. See CAL. PROB. CODE § 21133. Thus, it’s more
                likely that some or all of the amount beneficiary is entitled to will abate under CAL. PROB. CODE §
                21402.

Casebook pp. 380-389 [substitute California statutes for UPC in working Problems p. 388-89] + California
Companion pp. 148-155 (Changes in Property, Ademption , Estate of Anton, Brown v. LaBow)




                                                            52
                      § 6 NONPROBATE TRANSFERS
Major nonprobate methods of transferring of wealth include (1) life insurance policies, (2) pension accounts, (3)
bank, brokerage, and mutual fund accounts, and (4) revocable trusts. A common theme among these nonprobate
methods is the existence of a third party who can administer the transfer.

§ 6-1 Will Substitutes and the Wills Act

                               CAL. PROB. CODE § 15200. Methods of creating trusts
Subject to other provisions of this chapter, a trust may be created by any of the following methods:
(a) A declaration by the owner of property that the owner holds the property as trustee.
(b) A transfer of property by the owner during the owner's lifetime to another person as trustee.
(c) A transfer of property by the owner, by will or by other instrument taking effect upon the death of the owner, to
    another person as trustee.
(d) An exercise of a power of appointment to another person as trustee.
(e) An enforceable promise to create a trust.


                              CAL. PROB. CODE § 15400. Presumption of revocability
Unless a trust is expressly made irrevocable by the trust instrument, the trust is revocable by the settlor. This section
applies only where the settlor is domiciled in this state when the trust is created, where the trust instrument is
executed in this state, or where the trust instrument provides that the law of this state governs the trust.


                                 CAL. PROB. CODE § 15800. Limitations on rights
Except to the extent that the trust instrument otherwise provides or where the joint action of the settlor and all
beneficiaries is required, during the time that a trust is revocable and the person holding the power to revoke the
trust is competent:
(a) The person holding the power to revoke, and not the beneficiary, has the rights afforded beneficiaries under this
     division.
(b) The duties of the trustee are owed to the person holding the power to revoke.

I.    Issue of Revocable Trusts: Whether a revocable trust requires the will formalities. Whether beneficiaries to a
      revocable trust have standing to sue during the settlor’s lifetime. Whether revocation may be effectuated by
      methods other than procedures expressed by the instrument.
      A. Facts of Revocable Trusts.
          1. Settlor purchased shares of stock in a revocable inter vivos trust of which he was the trustee and
               defendant, a longtime employee, was the named beneficiary. This was done without will formalities
               such as attestation. Upon his death, plaintiffs sued alleging that the trust declarations, being
               testamentary in character but being executed without will formalities, were invalid. See Farkas v.
               Williams (Ill. 1955).
          2. Settlor created a revocable inter vivos trust naming settlor’s siblings as the primary beneficiaries.
               Later, settlor amended the trust replacing her siblings with her deceased husband’s nephew as the
               primary beneficiary. See Linthicum v. Rudi (Nev. 2006).
          3. Husband and wife created a trust, of which each was settlor and trustee. The husband made a secret
               revocation in writing of the trust without giving notice to the wife. The trust instrument itself
               provided that revocation was to be effectuated by delivery of notice to the other trustees. See Masry
               v. Masry (Cal. Ct. App. 2008).
      B. The Law of Revocable Trusts. The legal fiction underlying revocable inter vivos trusts is that the settlor
          makes an inter vivos transfer of title to property to the trust, except that the trust is run by the settlor as
          the trustee and the settlor as the beneficiary. In order to avoid merger (and to effectuate the testamentary
          purpose of the instrument), the settlor isn’t the only beneficiary. Rather, the settlor/trustee only holds a
          life estate and someone else holds the remainder, so to speak. Keep in mind that the critical requirement


                                                          53
         for a trust is a bifurcation of legal and equitable title. If the same person holds both legal and equitable
         title (i.e., the trustee is the sole beneficiary), the doctrine of merger destroys the trust. Historically, courts
         construed trusts as not being testamentary instruments and thus escaping the requirements of the wills act.
         See Farkas v. Williams (Ill. 1955). The modern approach is to simply accept that the trust is a
         testamentary instrument, but to carve out a statutory exception to the formalities required for wills. So
         long as a trust is revocable, a beneficiary’s rights are subject to and trustee’s duties are owed to the
         settlor. See UNIF. TRUST CODE § 603; CAL. PROB. CODE § 5000. Would-be beneficiaries don’t have
         standing to sue if the settlor amends a revocable trust during the settlor’s lifetime. See Linthicum v. Rudi
         (Nev. 2006). See also RESTATEMENT (THIRD) OF TRUSTS § 74; CAL. PROB. CODE § 15800.
      C. California Law of Revocable Trusts. Trusts are presumed to be revocable by the settlor. See CAL.
         PROB. CODE § 15400. A revocable trust may be revoked either by delivering a signed writing to the
         trustee, or by compliance with the methods stated in the trust. See CAL. PROB. CODE § 15401. If the trust
         instrument provides for the procedure for revocation, that procedure isn’t the exclusive method unless the
         instrument expressly says so. See Masry v. Masry (Cal. Ct. App. 2008) (husband revoked trust by
         delivering writing to himself as trustee in accordance with section 15401 but not in accordance with the
         trust instrument which required notice to his wife). In the absence of language indicating that the
         instrument’s method of revocation is exclusive, revocation can be effectuated by the settlor delivering a
         signed writing to the trustee during the settlor’s lifetime. See CAL. PROB. CODE § 15401(a)(2).
      D. Analysis of Revocable Trusts.
      E. Notes on Revocable Trusts.

Casebook pp. 390-392 + California Companion pp. 155-159 + Casebook pp. 393-403 (Stock Splits, Satisfaction,
Exoneration, Abatement; Will Substitutes, Revocable Trusts, Farkas v. Williams)

Casebook pp. 403-407 + California Companion pp. 159-163 + Casebook pp. 410-413 [substitute CPC 5000 for
UPC § 6-101 and skip problem 1 on p. 413] (Linthicum v. Rudi, Masry v. Masry; POD Contracts, TOD Deed for
Real Property)
Note: AB 724 had not been passed by the Senate as of Feb. 3, 2010

§ 6-2 Will Substitutes and the Subsidiary Law of Wills

             CAL. PROB. CODE § 18200. Revocable trusts; creditors' rights during settlor's lifetime
If the settlor retains the power to revoke the trust in whole or in part, the trust property is subject to the claims of
creditors of the settlor to the extent of the power of revocation during the lifetime of the settlor.


            CAL. PROB. CODE § 19001. Property subject to claims of creditors; priority of payment
(a) Upon the death of a settlor, the property of the deceased settlor that was subject to the power of revocation at
    the time of the settlor's death is subject to the claims of creditors of the deceased settlor's estate and to the
    expenses of administration of the estate to the extent that the deceased settlor's estate is inadequate to satisfy
    those claims and expenses.
(b) The deceased settlor, by appropriate direction in the trust instrument, may direct the priority of sources of
    payment of debts among subtrusts or other gifts established by the trust at the deceased settlor's death.
    Notwithstanding this subdivision, no direction by the settlor shall alter the priority of payment, from whatever
    source, of the matters set forth in Section 11420 which shall be applied to the trust as it applies to a probate
    estate.


CAL. PROB. CODE § 5600. Nonprobate transfer to former spouse executed before or during marriage; failure
of transfer due to dissolution or annulment of marriage; situations that do not cause a nonprobate transfer to
                                      fail; rights of subsequent purchaser
(a) Except as provided in subdivision (b), a nonprobate transfer to the transferor's former spouse, in an instrument
    executed by the transferor before or during the marriage, fails if, at the time of the transferor's death, the former
    spouse is not the transferor's surviving spouse as defined in Section 78, as a result of the dissolution or


                                                           54
      annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and
      wife is not a dissolution for purposes of this section.
(b)   Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:
      (1) The nonprobate transfer is not subject to revocation by the transferor at the time of the transferor's death.
      (2) There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to
           the former spouse.
      (3) A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the
           time of the transferor's death.
(c)   Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer
      shall be treated as it would if the former spouse failed to survive the transferor.
(d)   Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who
      relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure
      of a nonprobate transfer under this section.
(e)   As used in this section, “nonprobate transfer” means a provision, other than a provision of a life insurance
      policy, of either of the following types:
      (1) A provision of a type described in Section 5000.
      (2) A provision in an instrument that operates on death, other than a will, conferring a power of appointment or
           naming a trustee.


      CAL. PROB. CODE § 5601. Joint tenancy created before or during marriage severed if former spouse not
                   decedent's surviving spouse; situations where joint tenancy is not severed
(a) Except as provided in subdivision (b), a joint tenancy between the decedent and the decedent's former spouse,
    created before or during the marriage, is severed as to the decedent's interest if, at the time of the decedent's
    death, the former spouse is not the decedent's surviving spouse as defined in Section 78, as a result of the
    dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of
    husband and wife is not a dissolution for purposes of this section.
(b) Subdivision (a) does not sever a joint tenancy in either of the following cases:
    (1) The joint tenancy is not subject to severance by the decedent at the time of the decedent's death.
    (2) There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of
         the former spouse.
(c) Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who
    relies on an apparent severance under this section or who lacks knowledge of a severance under this section.
(d) For purposes of this section, property held in “joint tenancy” includes property held as community property
    with right of survivorship, as described in Section 682.1 of the Civil Code.


CAL. PROB. CODE § 5603. Court authority to order dissolution or annulment of marriage to maintain former
                            spouse as beneficiary or preserve joint tenancy
Nothing in this part is intended to limit the court's authority to order a party to a dissolution or annulment of
marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this part, or to
preserve a joint tenancy in favor of the former spouse.


                                      CAL. PROB. CODE § 5604. Operative date
(a) This part is operative on January 1, 2002.
(b) Except as provided in subdivision (c), this part applies to an instrument making a nonprobate transfer or
    creating a joint tenancy whether executed before, on, or after the operative date of this part.
(c) Sections 5600 and 5601 do not apply, and the applicable law in effect before the operative date of this part
    applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following
    circumstances:
    (1) The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of
         this part.
    (2) The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary



                                                          55
        or joint tenant as a surviving spouse occurs before the operative date of this part.

I.    Issue of Subsidiary Law of Wills on Revocable Trusts: Whether.
      A. Facts of Subsidiary Law of Wills on Revocable Trusts.
          1. Decedent executed a will and a revocable inter vivos trust for the disposition of his property. Both
               instruments were known to be in the decedent’s possession prior to death. After his death, however,
               neither could be found. See In re Estate and Trust of Pilafas (Ariz. Ct. App. 1992).
          2. Settlor created an inter vivos trust into which he placed his capital stock. He took out a $75,000
               unsecured loan from the bank. Four months later, he died in an accident, and his estate was unable to
               pay back the full amount of the loan. The bank went after the assets settlor had placed into the trust.
               See State Street Bank and Trust Co. v. Reiser (Mass. App. Ct. 1979).
      B. The Law of Subsidiary Law of Wills on Revocable Trusts. As a general rule, the law of wills
          governing validity vis-à-vis formalities doesn’t apply to nonprobate methods of wealth transfer at death.
          Conversely, the subsidiary law of wills governing construction does apply to such nonprobate transfers.
          See RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 7.2. This isn’t always true. There are
          instances where the subsidiary law of wills won’t apply to nonprobate transfers. For example, the law
          governing will revocation doesn’t apply to revocable trusts. It’s a well-established rule that where a will
          was known to be in the testator’s possession prior to death but cannot be found among his effects after
          death, a rebuttable presumption arises that the testator destroyed the will with intent to revoke it. This
          rule, however, does not apply to revocable trusts, which can only be revoked under the procedures laid
          out by modern statutory law or the trust instrument itself. The rationale behind this different treatment is
          because the creation of a trust actually transfers property interests—legal title to the trust, and a presently-
          held vested remainder subject to divestment to the beneficiaries designated to take after settlor’s death.
          See In re Estate and Trust of Pilafas (Ariz. Ct. App. 1992). Property placed in a revocable trust is subject
          to claims by the settlor’s creditors for debts not satisfied by the settlor’s estate. See State Street Bank and
          Trust Co. v. Reiser (Mass. App. Ct. 1979). You can’t use a trust to shield yourself from creditors. See
          also RESTATEMENT (THIRD) OF TRUSTS § 25, cmt. e.; UNIF. TRUST CODE § 505(a)(3). Note that this rule
          doesn’t apply for other nonprobate methods of wealth transfer such as joint tenancy, life insurance
          policies, retirement benefits, and certain POD contracts.
      F. California Law of Subsidiary Law of Wills on Revocable Trusts. Does a subsequent will purporting to
          revoke an earlier trust effectuate such a revocation? Yes, if the trust instrument provides for revocation by
          a subsequent writing. See CAL. PROB. CODE § 15401(a)(1). If the instrument doesn’t expressly provide for
          revocation procedure, then the trust cannot be revoked by a subsequent will. Although CAL. PROB. CODE
          § 15401(a)(2) allows for revocation by a writing (and by default the options from both subsections are
          available according to Masry), the subsection requires that the writing not be a will. This subsection
          doesn’t apply at all if the trust instrument indicates that its revocation procedures are to be exclusive.
          Does the destruction of a trust instrument by a physical act with intent to revoke effectuate such a
          revocation? Property placed in a revocable trust is subject to claims by the settlor’s creditors for
          unsatisfied debts, both before and after the settlor’s death. See CAL. PROB. CODE §§ 18200 and 19001.
          This rule doesn’t apply for joint tenancy, life insurance policies, and retirement benefits.
      C. Analysis of Subsidiary Law of Wills on Revocable Trusts.
      D. Notes on Subsidiary Law of Wills on Revocable Trusts.
II.   Issue of Subsidiary Law of Wills on Life Insurance: Whether.
      A. Facts of Subsidiary Law of Wills on Life Insurance.
          1. Testator purchased a whole life insurance policy naming his first wife as the beneficiary. After they
               divorced, testator remarried, and had a son with his second wife. He created a holographic will
               naming the second wife and their son as the beneficiaries of all his assets including the life insurance
               policy. The question was whether he could change the life insurance policy beneficiary by will since
               the policy terms required written notice to the company to change beneficiaries. See Cook v.
               Equitable Life Assurance Society (Ind. Ct. App. 1981)
      B. The Law of Subsidiary Law of Wills on Life Insurance. Unless otherwise provided by the insurance
          policy, a testator cannot change life insurance policy beneficiaries by a subsequently executed will. The
          only way to change beneficiaries is to follow procedures specified by the policy terms. This is to
          discourage life insurance companies from withholding payment out of concern that paying to the wrong




                                                           56
           beneficiary would create liability. See Cook v. Equitable Life Assurance Society (Ind. Ct. App. 1981)
           (holographic will purporting to change life insurance policy beneficiaries not effective).
       C. California Law of Subsidiary Law of Wills on Life Insurance. Divorce does not automatically revoke
           a life insurance policy in favor of the ex-spouse as beneficiary. See CAL. PROB. CODE §§ 5600(a);
           5600(e). Note that while there’s a general rule that divorce will revoke most forms of nonprobate transfer
           in favor of the ex-spouse, there’s an express exception for life insurance. See CAL. PROB. CODE § 5600(e).
       D. Analysis of Subsidiary Law of Wills on Life Insurance.
       E. Notes on Subsidiary Law of Wills on Life Insurance.
III.   Issue of Subsidiary Law of Wills on Pension and Retirement Accounts: Whether.
       A. Facts of Subsidiary Law of Wills on Pension and Retirement Accounts.
           1. Decedent named his wife as the beneficiary for his life insurance policy and pension plan. They were
                divorced, and decedent subsequently died intestate. Decedent’s intestate heirs, children from a
                previous marriage, sued to recover the life insurance proceeds and pension plan benefits from the ex-
                wife. Specifically, they pointed to a state statute effecting a revocation of nonprobate transfers by
                operation of law upon divorce. The issue before the Court was whether ERISA pre-empted this
                statute. The Court held that it did. See Egelhoff v. Egelhoff (2001).
       B. The Law of Subsidiary Law of Wills on Pension and Retirement Accounts. Federal Employment
           Retirement Income Security Act (ERISA) law pre-empts state statutes to the extent that they affect
           ERISA retirement plans. The reasoning behind this rule is to effectuate the objective of ERISA to have a
           uniform system for retirement plan administration. See Egelhoff v. Egelhoff (2001) (state statute for
           revocation of nonprobate transfers by operation of law upon divorce pre-empted).
       C. California Law of Subsidiary Law of Wills on Pension and Retirement Accounts.
       D. Analysis of Subsidiary Law of Wills on Pension and Retirement Accounts.
       E. Notes on Subsidiary Law of Wills on Pension and Retirement Accounts.

                                    CAL. PROB. CODE § 5301. Lifetime ownership
(a) An account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by
    each to the sums on deposit, unless there is clear and convincing evidence of a different intent.
(b) In the case of a P.O.D. account, the P.O.D. payee has no rights to the sums on deposit during the lifetime of any
    party, unless there is clear and convincing evidence of a different intent.
(c) In the case of a Totten trust account, the beneficiary has no rights to the sums on deposit during the lifetime of
    any party, unless there is clear and convincing evidence of a different intent. If there is an irrevocable trust, the
    account belongs beneficially to the beneficiary.

IV.    Issue of Subsidiary Law of Wills on Multi-Party Bank and Brokerage Accounts: Whether.
       A. Facts of Subsidiary Law of Wills on Multi-Party Bank and Brokerage Accounts.
           1. Man was having an extramarital affair with his mistress, and he added her as a joint tenant with right
                of survivorship to his Merrill Lynch CMA account. After he suffered a heart attack, the mistress
                wrote a $280,000 check from that account to her own account. See Varela v. Bernachea (Fla. Dist.
                Ct. App. 2005).
           2. Parties were about to get married. They added each other as joint tenants with rights of survivorships
                to their bank accounts. When the fiancée discovered her fiancé’s previously undisclosed homosexual
                liaisons, she was shocked. The fiancée withdrew several hundred thousand dollars from their
                account, and the question was whether this was conversion. See Lee v. Yang (Cal. Ct. App. 2003).
       B. The Law of Subsidiary Law of Wills on Multi-Party Bank and Brokerage Accounts. There are three
           possibilities when the holder of a bank account adds a second person as a joint tenant with rights of
           survivorship. It may be that the holder intends for the joint tenancy (1) to be just that, (2) to be a disguised
           POD account, or (3) to be an agency or convenience account. When one person adds a second person as a
           joint tenant with rights of survivorship, the rebuttable presumption arises that this was a gift of those
           funds. This presumption may be rebutted by clear and convincing evidence. Note that even if the
           presumption isn’t rebutted doesn’t necessarily mean that the joint tenant is entitled to the entirety of the
           joint account. In Florida, for example, the court held that the joint tenant was entitled to only half of the
           balance. See Varela v. Bernachea (Fla. Dist. Ct. App. 2005). See also UNIF. PROBATE CODE §§ 6-211(b).




                                                            57
      C. California Law of Subsidiary Law of Wills on Multi-Party Bank and Brokerage Accounts.
         Ostensibly, an account belongs proportionally to the net contributions by each person unless there is clear
         and convincing evidence to the contrary. However, this rule is arguably eaten up by the exception.
         Specifically, a joint tenancy meets the clear and convincing evidence of a different intent for CAL. PROB.
         CODE § 5301(a). Thus, under California law, the right to withdraw funds from a joint account is generally
         not limited by ownership of that account. See Lee v. Yang (Cal. Ct. App. 2003).
      D. Analysis of Subsidiary Law of Wills on Multi-Party Bank and Brokerage Accounts.
      E. Notes on Subsidiary Law of Wills on Multi-Party Bank and Brokerage Accounts.

Casebook pp. 413-426 + California Companion pp. 163-165 (Applying Subsidiary Law of Wills to Nonprobate
Transfers, Creditors, Estate and Trust of Pilafas, State Street Bank v. Reiser; Revocation by Divorce, Life Insurance,
Cook v. Equitable Life Assurance. Society, Pensions)

Casebook pp. 426-435 + California Companion pp. 165-174 (Egelhoff v. Egelhoff, Multiple Party Accounts, Varela
v. Bernachea, Lee v. Chang)

§ 6-3 Pour-Over Wills and Revocable Trusts in Modern Estate Planning

                            CAL. PROB. CODE § 6300. Testamentary additions to trusts
A devise, the validity of which is determinable by the law of this state, may be made by a will to the trustee of a trust
established or to be established by the testator or by the testator and some other person or by some other person
(including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership
of the insurance contracts) if the trust is identified in the testator's will and its terms are set forth in a written
instrument (other than a will) executed before or concurrently with the execution of the testator's will or in the valid
last will of a person who has predeceased the testator (regardless of the existence, size, or character of the trust
property). The devise is not invalid because the trust is amendable or revocable, or both, or because the trust was
amended after the execution of the will or after the death of the testator. Unless the testator's will provides
otherwise, the property so devised (1) is not deemed to be held under a testamentary trust of the testator but becomes
a part of the trust to which it is given and (2) shall be administered and disposed of in accordance with the
provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made
before or after the death of the testator (regardless of whether made before or after the execution of the testator's
will). Unless otherwise provided in the will, a revocation or termination of the trust before the death of the testator
causes the devise to lapse.


I.    Issue of Pour-Over Wills: Whether.
      A. Facts of Pour-Over Wills.
          1. Decedent had a revocable trust, pour-over will, a life insurance policy, and a retirement plan. The
               trust was the named beneficiary of both the life insurance policy and the retirement plan. The
               principal beneficiary of the revocable trust was her husband. After they were divorced, decedent
               changed her life insurance policy beneficiary to someone else, but left everything else intact. See
               Clymer v. Mayo (Mass. 1985).
      B. The Law of Pour-Over Wills. A pour-over will is a will that transfers all probate property owned at
          death to a trust. Under the uniform code, the only requirement is that the trust must exist prior to the
          testator’s death. It doesn’t matter if the trust becomes funded after due execution of the will. See UNIF.
          PROBATE CODE § 2-511. This is kind of funny because it seems at odds with the incorporation by
          reference doctrine, which requires that the extrinsic document being incorporated exist at the time of due
          execution of the will. Ordinarily, a trust must be funded before it comes into existence. If the trust isn’t
          funded until after due execution of a pour-over will, how can that will incorporate the trust that arguably
          arises only when the pour-over will is actually probated? In Clymer v. Mayo (Mass. 1985), the Court held
          that the bequest to a revocable inter vivos trust was valid despite the fact that it was unfunded because the
          trust did have a res—namely, the right to receive. As an alternative basis for holding that the trust was
          valid, the court applied the Uniform Testamentary Additions to Trusts Act, which allows for a pour-over




                                                          58
         will into an unfunded trust as long as the trust instrument was executed before or concurrently with the
         will.
      C. California Law of Pour-Over Wills. Unlike the uniform code, California requires that that the trust
         instrument be executed before or concurrently with the execution of the will. See CAL. PROB. CODE §
         6300. California differs from the uniform code because California requires that the trust exist prior to the
         execution of the pour-over will. See CAL. PROB. CODE § 6300. Under both the California provision and
         the uniform code, however, an amendment to the trust instrument after due execution of the will is
         permissible even though this seems to be at odds with the incorporation by reference doctrine upon which
         the pour-over will is (arguably) based.
      D. Analysis of Pour-Over Wills.
      E. Notes on Pour-Over Wills.

                                              CAL. CIV. CODE § 683.2



II.   Issue of Joint Tenancies: Whether.
      A. Facts of Joint Tenancies.
          1. Husband and wife owned a home as joint tenants, but their marriage was falling apart. When the wife
               found out that she was dying from cancer, she executed a deed purporting to transfer her one-half
               undivided interest in the property to a trust set up to provide for her daughter from a former marriage.
               See Dorn v. Solomon (Cal. Ct. App. 1997).
      B. The Law of Joint Tenancies. A joint tenant can unilaterally sever a joint tenancy by executing and
          delivering a deed to a third party or just executing a deed transferring the interest to himself. See CAL.
          CIV. CODE § 683.2(a). However, such a deed must be recorded no later than 7 days after the severing joint
          tenant’s death. See CAL. CIV. CODE § 683.2(c)(2). If the deed is recorded too late, then the deed does not
          validly sever the joint tenancy. See Dorn v. Solomon (Cal. Ct. App. 1997).
      C. Analysis of Joint Tenancies.
      D. Notes on Joint Tenancies.

Casebook pp. 436-448 + California Companion pp. 174-178 (Pour-Over Wills & Revocable Trusts, Compare CPC
§ 5000 with UPC § 2-511; Joint Tenancies, Dorn v. Solomon)




                                                         59
           § 7 RESTRICTIONS ON THE POWER OF
                      DISPOSITION
§ 7-1 Rights of Descendents Omitted from the Will

           ♦ CAL. PROB. CODE § 21620. Child born or adopted after execution of will; share in estate
Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of
decedent born or adopted after the execution of all of the decedent's testamentary instruments, the omitted child shall
receive a share in the decedent's estate equal in value to that which the child would have received if the decedent had
died without having executed any testamentary instrument.


                     ♦ CAL. PROB. CODE § 21621. Child not to receive share; circumstances
A child shall not receive a share of the estate under Section 21620 if any of the following is established:
(a) The decedent's failure to provide for the child in the decedent's testamentary instruments was intentional and
    that intention appears from the testamentary instruments.
(b) The decedent had one or more children and devised or otherwise directed the disposition of substantially all the
    estate to the other parent of the omitted child.
(c) The decedent provided for the child by transfer outside of the estate passing by the decedent's testamentary
    instruments and the intention that the transfer be in lieu of a provision in said instruments is show by statements
    of the decedent or from the amount of the transfer or by other evidence.


     ♦ CAL. PROB. CODE § 21622. Decedent's erroneous belief or lack of knowledge; child's share of estate
If, at the time of the execution of all of decedent's testamentary instruments effective at the time of decedent's death,
the decedent failed to provide for a living child solely because the decedent believed the child to be dead or was
unaware of the birth of the child, the child shall receive a share in the estate equal in value to that which the child
would have received if the decedent had died without having executed any testamentary instruments.


        ♦ CAL. PROB. CODE § 21623. Manner of satisfying share of omitted child; intention of decedent
(a) Except as provided in subdivision (b), in satisfying a share provided by this chapter:
    (1) The share will first be taken from the decedent's estate not disposed of by will or trust, if any.
    (2) If that is not sufficient, so much as may be necessary to satisfy the share shall be taken from all
         beneficiaries of decedent's testamentary instruments in proportion to the value they may respectively
         receive. The proportion of each beneficiary's share that may be taken pursuant to this subdivision shall be
         determined based on values as of the date of the decedent's death.
(b) If the obvious intention of the decedent in relation to some specific gift or devise or other provision of a
    testamentary instrument would be defeated by the application of subdivision (a), the specific devise or gift or
    provision of a testamentary instrument may be exempted from the apportionment under subdivision (a), and a
    different apportionment, consistent with the intention of the decedent, may be adopted.

I.    Issue of Omitted Descendents: Whether.
      A. Facts of Omitted Descendents.
          1. Testator and his first wife had a daughter. After divorcing his first wife, testator had two sons with
               his de facto second wife. In testator’s will, he left his estate entirely to his two sons, cutting out his
               daughter entirely. The daughter sued arguing that Australia’s omitted child statute entitled her to
               some of testator’s estate. See Lambeff v. Famers Co-operative Executors & Trustees Ltd. (Austl.
               1991).




                                                          60
           2.   Testator created a will his estate to his wife, omitting his two then-living children. Testator and his
                wife then had a third child. Later, testator and his wife divorced. The third child petitioned to take his
                share of testator’s estate under the omitted child statute. See Gray v. Gray (Ala. 2006).
      B.   The Law of Intentionally Omitted Descendents. Not so much in the United States, but some countries
           have laws providing that intentionally omitted children may be entitled to some of the testator’s estate. In
           Australia, for example, the law is such that the court has discretionary power to order a distribution for an
           omitted child. All states in the United States with the exception of Louisiana allow parents to disinherit
           their children. Louisiana’s forced share for children isn’t absolute—a parent may disinherit children for
           just cause. Part of the policy behind a right of disinheritance is to encourage children to care for their
           elderly parents if for no other reason than to avoid disinheritance.
      C.   California Law of Unintentionally Omitted Descendents. If a child is born or adopted after due
           execution of a will, then a presumption arises that testator’s not revising the will to include the omitted
           child was a mistake. If this presumption is not rebutted, then the omitted child is entitled to take his
           intestate share. See ♦ CAL. PROB. CODE § 21620. This presumption may be rebutted in three ways. First,
           the presumption is rebutted if it appears from the face of instrument that the omission was intentional. See
           ♦ CAL. PROB. CODE § 21621(a). Second, the presumption is rebutted if the testator had children other than
           the after-born child and omitted those children as well by transferring to the surviving parent. See ♦ CAL.
           PROB. CODE § 21621(b). Third, the presumption is rebutted if the child is provided for through a
           nonprobate transfer. See ♦ CAL. PROB. CODE § 21621(c). If the presumption isn’t rebutted and the after-
           born child is entitled to his intestate share, then that share comes first from property not disposed of by
           the will, but more likely from the beneficiaries of the will in pro rata shares. See ♦ CAL. PROB. CODE §
           21623. Note that this is NOT the same as abatement. (Under abatement, property first comes from the
           residue, then from general gifts, then specific gifts, etc. See CAL. PROB. CODE § 21402.) Republication by
           codicil doesn’t necessarily change the date of due execution for purposes of deciding the whether the
           omitted child provision applies. Instead, the testator’s intent controls, and may be proven by extrinsic
           evidence.
      D.   The Law of Unintentionally Omitted Descendents. Under the Alabama omitted child statute, an
           omitted child born after execution of a will is entitled to his intestate share unless one of the exceptions
           apply. One exception is if the testator had children at the time of execution but nonetheless made the
           omitted child’s other parent the beneficiary. See ALA. CODE § 43-8-91(a)(2). In Gray v. Gray (Ala. 2006),
           Alabama confronted the problem that the devised-to-the-other-parent exception is premised on the notion
           that the other parent would provide for the omitted child upon that parent’s death, and that this premise
           was invalid because the revocation by operation of law upon divorce rule was in effect. Thus, the other
           parent wouldn’t take under the will, and would therefore be unable to pass on property to the omitted
           child at her death. Even though this meant the omitted child wouldn’t take ever, the court declined to
           construe the provision broadly. If the testator executed a codicil but fails to make provisions for an
           omitted after-born child in the codicil, then the doctrine of republication means the child will be treated as
           though born after due execution of the will (the date of execution of the codicil controls), and would thus
           not be entitled to take under the omitted child provision. See Estate of Azcunce (Fla. Dist. Ct. App. 1991).
      E.   Analysis of Omitted Descendents.
      F.   Notes on Omitted Descendents.

Casebook pp. 519-539 + California Companion pp. 189-191 +
CPC §§6560-6580 (on ERES) (Omitted Descendants, Lambeth v. Farmers Cooperative Executors & Trustees, Ltd.,
Gray v. Gray, Anna Nicole Smith, Kidwell v. Rhew)

§ 7-2 Rights of Surviving Spouse
Under a community property system, . Under the common law system, the breadwinner’s wages are her separate
property. In such a system, the homemaker is provided for upon death by the elective share—the homemaker can
elect against the breadwinner’s will and instead take a statutorily defined share of the decedent’s estate. There are
two competing rationales for the elective share: the partnership and the support theories, which should point to
different entitlements. Note that in California, earnings from separate property is separate property.

                              ♦ CAL. PROB. CODE § 141. Rights which may be waived



                                                           61
(a) The right of a surviving spouse to any of the following may be waived in whole or in part by a waiver under this
    chapter:
    (1) Property that would pass from the decedent by intestate succession.
    (2) Property that would pass from the decedent by testamentary disposition in a will executed before the
          waiver.
    (3) A probate homestead.
    (4) The right to have exempt property set aside.
    (5) Family allowance.
    (6) The right to have an estate set aside under Chapter 6 (commencing with Section 6600) of Part 3 of
          Division 6.
    (7) The right to elect to take community or quasi-community property against the decedent's will.
    (8) The right to take the statutory share of an omitted spouse.
    (9) The right to be appointed as the personal representative of the decedent's estate.
    (10) An interest in property that is the subject of a nonprobate transfer on death under Part 1 (commencing with
          Section 5000) of Division 5.
(b) Nothing in this chapter affects or limits the waiver or manner of waiver of rights other than those referred to in
    subdivision (a), including, but not limited to, the right to property that would pass from the decedent to the
    surviving spouse by nonprobate transfer upon the death of the decedent, such as the survivorship interest under
    a joint tenancy, a Totten trust account, or a pay-on-death account.


                  ♦ CAL. PROB. CODE § 142. Requirement of writing; enforceability; defenses
(a) A waiver under this chapter shall be in writing and shall be signed by the surviving spouse.
(b) Subject to subdivision (c), a waiver under this chapter is enforceable only if it satisfies the requirements of
    subdivision (a) and is enforceable under either Section 143 or Section 144.
(c) Enforcement of the waiver against the surviving spouse is subject to the same defenses as enforcement of a
    contract, except that:
    (1) Lack of consideration is not a defense to enforcement of the waiver.
    (2) A minor intending to marry may make a waiver under this chapter as if married, but the waiver becomes
        effective only upon the marriage.


                                     ♦ CAL. PROB. CODE § 143. Enforceability
(a) Subject to Section 142, a waiver is enforceable under this section unless the surviving spouse proves either of
    the following:
    (1) A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided to
         the surviving spouse prior to the signing of the waiver unless the surviving spouse waived such a fair and
         reasonable disclosure after advice by independent legal counsel.
    (2) The surviving spouse was not represented by independent legal counsel at the time of signing of the waiver.
(b) Subdivision (b) of Section 721 of the Family Code does not apply if the waiver is enforceable under this
    section.


                     ♦ CAL. PROB. CODE § 144. Enforceability under certain circumstances
(a) Except as provided in subdivision (b), subject to Section 142, a waiver is enforceable under this section if the
    court determines either of the following:
    (1) The waiver at the time of signing made a fair and reasonable disposition of the rights of the surviving
          spouse.
    (2) The surviving spouse had, or reasonably should have had, an adequate knowledge of the property and
          financial obligations of the decedent and the decedent did not violate the [fiduciary] duty imposed by
          subdivision (b) of Section 721 of the Family Code.
(b) If, after considering all relevant facts and circumstances, the court finds that enforcement of the waiver pursuant
    to subdivision (a) would be unconscionable under the circumstances existing at the time enforcement is sought,
    the court may refuse to enforce the waiver, enforce the remainder of the waiver without the unconscionable



                                                         62
    provisions, or limit the application of the unconscionable provisions to avoid an unconscionable result.
(c) Except as provided in paragraph (2) of subdivision (a), subdivision (b) of Section 721 of the Family Code does
    not apply if the waiver is enforceable under this section.


♦ CAL. PROB. CODE § 147. Waiver, agreement or property settlement; validity; validity or effect of premarital
             property agreement; right to dispose of community or quasi-community property
                                                           ...
(c) Nothing in this chapter affects the validity or effect of any premarital property agreement, whether made prior
    to, on, or after January 1, 1985, insofar as the premarital property agreement affects the rights listed in
    subdivision (a) of Section 141, and the validity and effect of such premarital property agreement shall be
    determined by the law otherwise applicable to the premarital property agreement. Nothing in this subdivision
    limits the enforceability under this chapter of a waiver made under this chapter by a person intending to marry
    that is otherwise enforceable under this chapter.
                                                           ...

I.    Issue of Waiver: Whether a purported waiver by a surviving spouse of spousal rights is valid.
      A. Facts of Waiver.
          1. Before getting married, decedent and his wife signed a prenuptial agreement in order to provide for
               their separate children from previous marriages. The decedent’s listed substantially all of his assets,
               and noted the value of most of those assets. He did not, however, note the value of his stocks, which
               were of considerable value. After decedent’s death, his widow sued for declaratory judgment as to
               the invalidity of the prenuptial agreement on the basis that he had failed to provide full and fair
               disclosure due to his omission of the value of his stocks. See Reece v. Elliott (Tenn. Ct. App. 2006).
          2. This was a late in life marriage between the husband and wife, both of whom had children from prior
               marriages. Both believed that the wife would probably predecease the wife since she had lung cancer.
               The happy couple executed prenuptial agreements purporting to waive all their rights and interests in
               each other’s properties. The problem was that the wife never had independent counsel. The
               husband’s attorney informed her that he wasn’t her attorney and even offered to get her independent
               counsel at the husband’s expense. (She declined.) When the husband died first, the wife sued for an
               elective share of the decedent’s estate under CAL. PROB. CODE § 21610(c). As for the prenuptial
               agreement, she argued that it was unenforceable because of CAL. FAM. CODE § 1615. Specifically,
               she didn’t have independent counsel, seven days’ notice, and a separate written explanation. See
               Estate of Will (Cal. Ct. App. 2009).
      B. The Law of Waiver. A prenuptial agreement by which spouses waive their rights to get an elective share
          will be upheld so long as the agreement is not unconscionable and was entered into voluntarily and
          knowledgeably. The failure to disclose the value of one asset will not defeat the agreement so long as,
          there was, on a whole, full and fair disclosure of the nature, extent, and value of each party’s holdings. In
          particular, representation by independent counsel is a significant factor for finding that the agreement was
          entered into voluntarily and knowledgeably. See Reece v. Elliot (Tenn. Ct. App. 2006) (prenuptial
          agreement upheld even though husband had failed to disclose the value of stocks he owned).
      C. California Law of Waiver. A premarital agreement isn’t enforceable if it was not executed voluntarily.
          An agreement isn’t executed voluntarily unless the spouse had (1) independent counsel or expressly
          waived independent counsel in a separate writing, (2) seven days’ notice, and (3) a written explanation in
          the spouse’s language (unless the spouse had independent counsel). See CAL. FAM. CODE § 1615. For a
          waiver of spousal inheritance rights to be valid, it only needs to comply with the requirements specific in
          the California probate code. Specifically, the waiver must be in writing and signed, see CAL. PROB. CODE
          § 142(a), and either of the following: (1) the waiver made a fair and reasonable disposition of the
          surviving spouse’s rights, or (2) the surviving spouse already had an adequate knowledge of the
          decedent’s property and the decedent didn’t violate any fiduciary duty to the surviving spouse. So long as
          these requirements are satisfied, the waiver need not. See Estate of Will (Cal. Ct. App. 2009).
      D. Analysis of Waiver.
      E. Notes on Waiver.




                                                         63
Casebook pp. 469-479, 480-483, 502-507 + California Companion p. 179 (Rights of Surviving Spouses & Domestic
Partners; Waiver, Reece v. Elliott)

Casebook pp. 507-508 + California Companion pp. 179-186 (Estate of Will)

§ 7-3 Migrating Couples and Multistate Property Holdings

                                CAL. PROB. CODE § 66. Quasi-community property
“Quasi-community property” means the following property, other than community property as defined in Section
28:
(a) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter
    acquired by a decedent while domiciled elsewhere that would have been the community property of the
    decedent and the surviving spouse if the decedent had been domiciled in this state at the time of its acquisition.
(b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter
    acquired in exchange for real or personal property, wherever situated, that would have been the community
    property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the
    property so exchanged was acquired.


                               ♦ CAL. PROB. CODE § 101. Quasi-community property
(a) Upon the death of a married person domiciled in this state, one-half of the decedent's quasi-community property
    belongs to the surviving spouse and the other half belongs to the decedent.
(b) Notwithstanding subdivision (a), a husband and wife may agree in writing to divide their quasi-community
    property on the basis of a non pro rata division of the aggregate value of the quasi-community property, or on
    the basis of a division of each individual item or asset of quasi-community property, or partly on each basis.
    Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a
    non pro rata division of quasi-community property.


      ♦ CAL. PROB. CODE § 102. Transfer of quasi-community property; restoration of decedent's estate;
                                              requirements
(a) The decedent's surviving spouse may require the transferee of property in which the surviving spouse had an
    expectancy under Section 101 at the time of the transfer to restore to the decedent's estate one-half of the
    property if the transferee retains the property or, if not, one-half of its proceeds or, if none, one-half of its value
    at the time of transfer, if all of the following requirements are satisfied:
    (1) The decedent died domiciled in this state.
    (2) The decedent made a transfer of the property to a person other than the surviving spouse without receiving
         in exchange a consideration of substantial value and without the written consent or joinder of the surviving
         spouse.
    (3) The transfer is any of the following types:
         (A) A transfer under which the decedent retained at the time of death the possession or enjoyment of, or
              the right to income from, the property.
         (B) A transfer to the extent that the decedent retained at the time of death a power, either alone or in
              conjunction with any other person, to revoke or to consume, invade, or dispose of the principal for the
              decedent's own benefit.
         (C) A transfer whereby property is held at the time of the decedent's death by the decedent and another
              with right of survivorship.
(b) Nothing in this section requires a transferee to restore to the decedent's estate any life insurance, accident
    insurance, joint annuity, or pension payable to a person other than the surviving spouse.
(c) All property restored to the decedent's estate under this section belongs to the surviving spouse pursuant to
    Section 101 as though the transfer had not been made.




                                                           64
§ 7-4 Omitted Spouse Statutes

                                          ♦ CAL. PROB. CODE § 21610.




                                          ♦ CAL. PROB. CODE § 21611.



I.   Issue of Omitted Spouse: Whether.
     A. Facts of Omitted Spouse.
         1. Decedent and his wife were married and then divorced. Decedent drafted a will and trust providing
              for his separate son, but not for his ex-wife. Despite his divorce, decedent and his ex-wife maintained
              friendly relations. Decedent became sick, and his ex-wife moved in to care for him. Decedent
              executed an amendment to his trust giving his ex-wife a life estate in his condominium. The decedent
              and his ex-wife got remarried shortly before his death. After his death, the wife petitioned for her
              statutory share as an omitted spouse. Decedent’s separate son argued that the amendment rebutted
              the presumption that failure to provide for the wife by will was a mistake. See In re Estate of Prestie
              (Nev. 2006).
     B. The Law of Omitted Spouse.
     C. California Law of Omitted Spouse. An omitted spouse is not entitled to take a statutory share in
         contravention of a premarital will if the decedent provided for the omitted spouse by means outside of the
         estate. See ♦ CAL. PROB. CODE § 21611(b).
     D. Analysis of Omitted Spouse.
     E. Notes on Omitted Spouse.

Casebook pp. 509-519 + California Companion pp. 186-189 (Community and Quasi-Community Property;
Omitted Spouse, Estate of Prestie)




                                                        65
                                               § 8 TRUSTS
§ 8-1 Intent to Create a Trust

                                 CAL. PROB. CODE § 15201. Intention to create trust
A trust is created only if the settlor properly manifests an intention to create a trust.

I.    Issue of Trust Intent: Whether.
      A. Facts of Trust Intent.
          1. Grandmother’s will provided: “… residue shall be maintained for the benefit of said grandchildren
               and shall not be sold until the youngest of said grandchildren has reached twenty-one years of age.”
               (emphasis added). There was no other language indicating the creation of a trust or appointment of a
               trustee. See Lux v. Lux (R.I. 1972).
          2. Daughter’s paternal grandmother purchased a $1,000 savings bond and one of the daughter’s father’s
               clients gave $500. These amounts were deposited in a bank account that the daughter argues was a
               trust, with her father as the trustee and herself as the beneficiary. See Jimenez v. Lee (Ore. 1976).
          3. See Colton v. Colton (1888).
      B. The Law of Trust Intent. There are no particular words required to create a testamentary trust. So long
          as the language of the will indicates that there should be a bifurcation of legal and equitable title, a trust is
          established even if the will fails to specify a trustee or use the words “trust” or “trustee.” See Lux v. Lux
          (R.I. 1972). Thus, the critical inquiry is whether the settlor intended to create a trust, even if the settlor
          never used those words (or never even understood what a trust was). This intent is determined by looking
          at all the circumstances. One factor of particular significance is whether the trustee evinced a belief that
          there was a trust. See Jimenez v. Lee (Ore. 1976) (defendant, a lawyer, referred to amounts paid as being
          held in trust).
      C. California Law of Trust Intent.
      D. Analysis of Trust Intent.
      E. Notes on Trust Intent.

Casebook pp. 541-563+ California Companion pp. 193-194 (Introduction to Trusts, Jimenez v. Lee)

§ 8-2 Necessity of Trust Property and Beneficiaries
I.    Issue of the Delivery Requirement: Whether.
      A. Facts of the Delivery Requirement.
          1. The issue before the court was who owned the decedent’s library of many rare books and
               manuscripts. There had been a luncheon at plaintiff university, at which the decedent announced she
               had made a gift of the library to the plaintiff. She catalogued many of the books and delivered them
               to a warehouse, but no consignee was named. At the time of her death, these books were still in the
               decedent’s name. See The Hebrew Univ. Ass’n v. Nye (Conn. 1961) (Nye I); The Hebrew Univ.
               Ass’n v. Nye (Conn. 1966) (Nye II).
      B. The Law of the Delivery Requirement. In order to make an inter vivos gift, there must be actual,
          constructive, or symbolic delivery by the donor. By contrast, a declaration of trust does not require
          delivery. Courts are reticent to hold there was a declaration of trust when there was no evidence
          indicating intent by the settlor to constitute himself as trustee. “A gift which is imperfect for lack of
          delivery will not be turned into a declaration of trust for no better reason that that it is imperfect for lack
          of a delivery.” Nye I. However, a document such as an informal memorandum listing items to be given
          may be sufficient to establish an inter vivos gift under the doctrine of constructive delivery. See Nye II.
          This doctrine generally arises where it would be impracticable to require actual delivery. Constructive
          delivery is established where the donor gives the means of effectuating delivery. This, coupled with
          donative intent, will establish the inter vivos gift even in the absence of actual delivery. Cf.
          RESTATEMENT (THIRD) OF TRUSTS § 16. Symbolic delivery is established where the donor delivers




                                                            66
           something symbolic of the object given. Arguably, Nye II should have been decided on the basis of
           symbolic rather than constructive delivery.
       C. California Law of the Delivery Requirement.
       D. Analysis of the Delivery Requirement.
       E. Notes on the Delivery Requirement.
II.    Issue of the Trust Property Requirement: Whether.
       A. Facts of the Trust Property Requirement.
           1. Decedent wrote a letter stating his present intent to “send you $200.00 in cash the first week of each
                month for the next five years, provided I live that long . . .” In the margin, he wrote “I have stricken
                out the words ‘provided I live that long” and hereby and herewith bind my estate to make the
                $200.00 monthly payments provided for . . .” The issue before the court was whether the decedent
                had create a trust prior to his death. See Upthank v. Rippstein (Tex. 1964).
           2. The taxpayer purported to make a declaration of trust of all his expected profits from stocktrading
                during the upcoming year for the benefit of his familymembers. See Brainard v. Commissioner (7th
                Cir. 1937).
           3. The decedent wrote a letter purporting to give 5% of future profits from his contracts for the
                production of “My Fair Lady.” See Speelman v. Pascal (N.Y. 1961).
       B. The Law of the Trust Property Requirement. In order for a trust to be valid, there must be some res or
           trust property. Trust property need not be a fee simple interest—valid property interests include
           contingent remainders, leasehold interests, choses in actions, etc. In order for a property interest to qualify
           as trust property, it must exist and be owned by the settlor at the time the trust is purportedly created. See
           Brainard v. Commissioner (7th Cir. 1937). For there to be a trust, the settlor must indicate with sufficient
           certainty what the trust property is—courts are reticent hold that the entirety of the settlor’s estate is the
           trust property in the absence of clear evidence of such intent by the settlor. See Upthank v. Rippstein
           (Tex. 1964). In order to qualify as trust property, the property interest must exist and be owned by the
           settlor at the time the trust is purportedly created. See Brainard v. Commissioner (7th Cir. 1937). If a
           gratuitous promise to make a future gift is predicated on a presently-existing contract right, then that
           promise is an expectancy sufficient to qualify as trust property. See Speelman v. Pascal (N.Y. 1961).
       C. California Law of the Trust Property Requirement.
       D. Analysis of the Trust Property Requirement.
       E. Notes on the Trust Property Requirement.
III.   Issue of the Trust Beneficiaries Requirement: Whether.
       A. Facts of the Trust Beneficiaries Requirement.
           1. Testator’s will purported to create a testamentary trust by which some property would be distributed
                “to such of my friends as they, my trustees, shall select.” The issue before the court was whether this
                bequest must fail for lack of certainty. See Clark v. Campbell (N.H. 1926).
           2. Testator’s will purported to establish a testamentary trust for the care of his pet. See In re Searight’s
                Estate (Ohio Ct. App. 1950).
       B. The Law of the Trust Beneficiaries Requirement. Private trusts require one or more ascertainable
           beneficiaries. See UNIF. TRUST CODE § 402(a)(3); RESTATEMENT (THIRD) OF TRUSTS § 44. In the absence
           of presently ascertainable beneficiaries, a class of ascertainable beneficiaries will suffice provided the
           class is capable of delineation. A transfer “to such of my friends as they, my trustees, shall select” is too
           broad to qualify. See Clark v. Campbell (N.H. 1926). As a general rule, if there is no ascertainable
           beneficiary with legal standing to sue the trustee for a breach of fiduciary duty, the private trust fails. The
           exception to this rule is an honorary trust. If there is a definite purpose that is not capricious or illegal, the
           court may uphold the trust as an honorary trust even though there is no ascertainable beneficiary with
           legal standing. The court will not compel the trustee to act in accordance with the terms of the trust, but if
           the trustee voluntarily does so, the trust will be upheld. If the trustee fails to do so, the property cannot
           retain the property—a resulting trust arises for the residual beneficiaries. See In re Searight’s Estate (Ohio
           Ct. App. 1950) (honorary trust for care of testator’s dog). No such silliness is necessary for charitable
           trusts, which have charitable purposes rather than ascertainable beneficiaries. The government will sue
           for any breaches of fiduciary duty committed by the trustee because it has a vested interest in the
           promotion and protection of charitable trusts.
       C. California Law of Trust Beneficiaries Requirement. California is fairly liberal when it comes to the
           trust beneficiary requirement. So long as the class is sufficiently described that it can be determined that
           some person is within the class, the trust is valid. See CAL. PROB. CODE § 15205. California also has a


                                                             67
         statute specifically for the care of pets. This is not an honorary trust, and may be enforced by a number of
         interested parties, including a person so designated, a person appointed by the court, or any person
         interested in the welfare of the animal, or a nonprofit charitable organization. See CAL. PROB. CODE §
         15212. Note, however, that noncharitable purpose trusts are limited to 21 years. See CAL. PROB. CODE §
         15212.
      D. Analysis of the Trust Beneficiaries Requirement.
      E. Notes on the Trust Beneficiaries Requirement.

Casebook pp. 563-576, 578-582 (Hebrew University Ass’n v. Nye, Unthank v. Rippstein, Brainard v. Comm’r,
Speelman v. Pascal, Clark v. Campbell)

§ 8-3 Necessity of a Written Instrument
I.    Issue of The Written Instrument Requirement: Whether.
      A. Facts of The Written Instrument Requirement.
          1. Decedent delivered $400,000 of cash to his friends instructing them to hold onto it until his death,
               and then to give it to one of his two sisters. Decedent explained that his other sister was well off and
               didn’t need the money. The issue before the court was whether this oral declaration was sufficient to
               establish a trust. See In re Estate of Fournier (Maine 2006).
          2. Testator’s will devised the residue to trustee to distribute in the manner that testator had expressed to
               him. See Oliffe v. Wells (Mass. 1881).
          3. See Curdy v. Berton (Cal. 1889).
          4. See Cabral v. Soares (Cal. Ct. App. 2007).
      B. The Law of The Written Instrument Requirement. No written instrument is required for the creation
          of a trust generally. However, an instrument is required for the creation of a testamentary trust under the
          wills act, and an instrument is required for the conveyance of land under the statute of frauds. A secret
          trust exists where O’s will devises property to A after A orally promised to hold that devise in trust for B.
          It’s a secret trust because no evidence of a trust exists on the face of the will. In contrast, a semi-secret
          trust exists where O’s will devises property to A “in trust” but the will doesn’t say who A is supposed to
          hold the property in trust for. Traditionally, secret trusts were valid and extrinsic evidence would be
          admitted to ascertain the identity of the secret beneficiaries. Courts would then impose a constructive
          trust on A in favor of B in order to effectuate the settlor’s intent and to prevent A from being unjustly
          enriched. On the other hand, semi-secret trusts were traditionally invalid, and the devise simply fails. The
          modern approach is to throw out the secret/semi-secret distinction and instead impose a constructive trust
          in favor of B in both situations. See RESTATEMENT (THIRD) OF TRUSTS, § 18, cmt. c. California follows
          this approach.
      C. California Law of the Written Instrument Requirement. There is no writing requirement for the
          creation of a trust. See CAL. PROB. CODE § 15206. But an oral trust may only be proved by clear and
          convincing evidence and cannot be established solely on the settlor’s declaration. See CAL. PROB. CODE
          § 15207. However, the statute of frauds requires a writing for a conveyance of land. In California, both
          secret and semi-secret trusts will result in the court creating a constructive trust in favor of the intended
          beneficiary. See Curdy v. Berton (Cal. 1889).
      D. Analysis of The Written Instrument Requirement.
      E. Notes on The Written Instrument Requirement.

Casebook pp. 582-596 + California Companion pp. 195-202 (Searight’s Estate, Estate of Fournier, Olliffe v. Wells,
Curdy v. Berton, Cabral v. Soares)

§ 8-4 Rights of Beneficiaries to Distributions
I.    Issue of Beneficiaries’ Rights to Distribution.
      A. Facts of Beneficiaries’ Rights to Distribution.
          1. Testator’s will created a testamentary trust, stating that “It is my desire that my husband . . . be
               provided with reasonable maintenance, comfort and support after my death . . . my trustee shall, if
               they deem it necessary or desirable from time to time, in their sole and uncontrolled discretion, pay



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               over to him . . . amounts of the principal thereof as they shall deem advisable for his comfortable
               support and maintenance.” After testator’s death, however, the trustee never inquired into the
               beneficiary’s needs. Once, the beneficiary wrote the trustee requesting funds, and the trustee made a
               small distribution from principal but only after requiring the beneficiary to explain his need. The
               beneficiary’s standard of living gradually until he was forced into a transaction with the testator’s
               daughter. Specifically, the beneficiary would continue living on the property through a life estate, but
               the daughter would take over all the expenses associated with the house, including mortgage
               payment, in exchange for getting a remainder interest in the property. After the beneficiary’s death,
               the beneficiary’s second wife sued alleging that the trustee had breached his fiduciary duties in
               failing to inquire into the beneficiary’s standard of living. Without that breach, the beneficiary
               would’ve have been forced to convey away the remainder interest in the property, and therefore, the
               beneficiary’s estate should be entitled to damages. See Marsman v. Nasca (Mass. App. Ct. 1991)
     B.   The Law of Beneficiaries’ Rights to Distribution. In a support trust, the beneficiaries have a right to
          distributions to maintain the standard of living normal for them at the time of the creation of the trust. The
          trustee therefore has a duty of inquiry into the beneficiaries’ living standard. However, a trustee is not
          necessarily liable for damages arising from a breach of this duty if the instrument creating the trust had an
          exculpatory clause. See Marsman v. Nasca (Mass. App. Ct. 1991) (breach of fiduciary duty where trustee
          failed to inquire into beneficiaries’ living standard and beneficiary was forced to convey away a
          remainder interest in his house because of financial difficulties).
     C.   California Law of Beneficiaries’ Rights to Distribution. By default, a trustee in California is required
          to exercise his discretion “reasonably”. See CAL. PROB. CODE § 16080. Language indicating that the
          trustee has “absolute,” “sole,” or “uncontrolled” discretion in administering the trust isn’t construed
          literally. The trustee must still act in accordance with fiduciary principles—the trustee may not act in bad
          faith or disregard the purpose of the trust. See CAL. PROB. CODE § 16081. Exculpatory clauses in
          California will not be effective with respect to bad faith, intentional or reckless breach of duty, or gross
          negligence. An exculpatory clause can be effective with respect to ordinary negligence. See CAL. PROB.
          CODE § 16461.
     D.   Analysis of Beneficiaries’ Rights to Distribution.
     E.   Notes on Beneficiaries’ Rights to Distribution.
          1. Types of Discretionary Trusts. There are several types of discretionary trusts. Under a spray trust,
               the trustee must distribute all the income, but has discretion in choosing which beneficiaries get
               what. Under a sprinkle trust, the trustee isn’t required to distribute all the income, and may instead
               add the income to principal. Under a support trust, the trustee is required to make distributions to
               keep the beneficiaries living at the standard to which they’ve become accustomed.
          2. First Dollars or Last Dollars. One common issue that arises in support trusts is whether the
               distributions are supposed to be first dollars or last dollars. Under the last dollars approach, the
               trustee looks at all the beneficiary’s current sources of support. The trustee then makes a distribution
               of sufficient amount to ensure that the beneficiary can continue living at the standard to which he has
               become accustomed. Under the first dollars approach, the trustee ignores the beneficiary’s current
               sources of support. The trustee makes a distribution of sufficient amount that would by itself get the
               beneficiary to the standard to which he has become accustomed, and any amounts the beneficiary
               gets from other sources is just gravy. The best choice is to have the language of the instrument
               creating the trust simply state which approach. (E.g., “after having considered the various available
               sources of support for him, my trustees shall . . .”).

Casebook pp. 597-614 + California Companion pp. 203-206 (Rights to Distributions, Marsman v. Nasca; Rights of
Beneficiary’s Creditors, Laycock v. Hammer)

§ 8-5 Rights of the Beneficiary’s Creditors
I.   Issue of Discretionary Trusts: Whether the creditors of either the settlor or the beneficiary can reach the
     assets of a discretionary trust.
     A. Facts of Discretionary Trusts.
         1. Decedent purchased a life insurance policy on himself assigned all of his interest in the policy to an
               in irrevocable life insurance trust. Shortly before his death, an adverse judgment of $4.65 million was



                                                         69
                 entered against the decedent. The plaintiff sought to satisfy that judgment from the proceeds of the
                 life insurance policy. See Laycock v. Hammer (Cal. Ct. App. 2006).
       B. The Law of Discretionary Trusts. In a pure discretionary trust (where the beneficiaries don’t have the
            right to compel distribution from the trustee), the beneficiaries’ creditors similarly can’t compel
            distribution. However, the creditor can obtain an order that if the trustee chooses to make a distribution,
            that distribution must first go to the creditor to satisfy the debt before any amount is paid to the
            beneficiary. See Hamilton v. Drogo (N.Y. 1926). Traditionally, in a support trust (where the beneficiaries
            do have a right to compel distribution from the trustee), some but not all of the beneficiaries’ creditors
            have a right to compel distribution. Modern law has collapsed the distinction between discretionary trusts
            and support trusts, thus obviating the need for difficult line drawing in hybrid discretionary support trusts.
       C. California Law of Discretionary Trusts. As a general rule, if a settlor created a revocable trust, then the
            settlor’s creditors have a claim over the trust assets so long as the settlor continues to hold the power to
            revoke. See CAL. PROB. CODE § 18200. (Effectively, the creditors can compel the settlor to revoke the
            trust, take back the trust property, and use it to satisfy the debt.) However, if a settlor assigns all interest
            to an irrevocable trust of which the settlor is not a beneficiary, then the settlor’s creditors have no claim
            over the trust assets. After the creation of an irrevocable trust, the settlor’s conduct cannot alter the nature
            of the trust to a revocable one. See Laycock v. Hammer (Cal. Ct. App. 2006).
       D. Analysis of Discretionary Trusts.
       E. Notes on Discretionary Trusts.
II.    Issue of Spendthrift Trusts: Whether the creditors of the beneficiary can reach the assets of a spendthrift
       trust.
       A. Facts of Spendthrift Trusts.
            1. An adverse judgment was entered against defendant for the amount of $551,286.25 for sexually
                 assaulting the plaintiff’s child, videotaping the act, and broadcasting it over the internet. The plaintiff
                 to sought to recover from the trust defendant’s grandmother created. The problem was that the trust
                 included a spendthrift clause prohibiting payment in satisfaction of any debt. See Scheffel v. Krueger
                 (N.H. 2001).
            2. The trust beneficiary was married twice and divorced twice. Both divorce decrees required that the
                 beneficiary make child support payments, and the second divorce decree required also that the
                 beneficiary make alimony payments. See Shelley v. Shelley (Or. 1960).
       B. The Law of Spendthrift Trusts. As a general rule, where the legislature has enacted statutes governing
            spendthrift trusts, courts will defer when it comes to carving out exceptions where a trust spendthrift
            provision will not be effective. See, e.g., Scheffel v. Krueger (N.H. 2001) (court declined to create
            spendthrift trust exception for tort victims). Where legislatures haven’t enacted such statutes, courts will
            take public policy into account in creating exceptions. See, e.g., Shelley v. Shelley (Or. 1960) (exception
            for child support and alimony payments). One possible delineating principle is whether the persons going
            after the trust property are voluntary creditors, such as a bank that loaned money to the beneficiary, and
            involuntary creditors, such as tort claimants or child support payments. But what about alimony? Finally,
            note that ERISA qualified pension plans will be effective at shielding income streams from creditors.
       C. California Law of Spendthrift Trusts. As a general rule, a spendthrift provision will be upheld to
            prevent creditors of the trust beneficiary from getting the trust property. See CAL. PROB. CODE § 15300.
            The California statutes provide that a court may compel a trustee to pay amounts in order to satisfy debts
            for child and spousal support notwithstanding a spendthrift provision if the court determines this is
            equitable and reasonable under the circumstances. See CAL. PROB. CODE § 15305. There is a parrallel
            provision for a restitution judgment for a felony. See CAL. PROB. CODE § 15305.5.
       D. Analysis of Spendthrift Trusts.
       E. Notes on Spendthrift Trusts.
III.   Issue of Self-Settled Asset Protection Trusts: Whether a settlor can effectively shield his own assets by
       placing them in a self-settled asset protection trust.
       A. The Law of Self-Settled Asset Protection Trusts. In most states, a settlor cannot shield assets from
            creditors by placing them in trust for the settlor’s own benefit. See UNIF. TRUST CODE § 505. Some states,
            hoping to attract trust business, have reversed the traditional rule. The deliberate creation of an asset
            protection trust in order to hinder, delay, or defraud creditors is probably fraudulent, and may even result
            in criminal liability for the lawyer when done in connection with bankruptcy!
       B. California Law of Self-Settled Asset Protection Trusts. If the beneficiary can compel the trustee to pay
            him, then a court may order the trustee to satisfy the beneficiaries’ liability. See CAL. PROB. CODE §


                                                            70
        15306(a)(1). If the government provides welfare for a trust beneficiary’s spouse or minor child, then the
        beneficiary may be liable for the amounts disbursed. See CAL. PROB. CODE § 15306(a)(3).
     C. a public support If a trust beneficiary
     D. Analysis of Self-Settled Asset Protection Trusts.
     E. Notes on Self-Settled Asset Protection Trusts.

Casebook pp. 614-624 + California Companion pp. 206-213 (Scheffel v. Krueger, Shelley v. Shelley)

§ 8-6 Modification and Termination of Trusts
I.   Issue of Modification and Termination of Trusts: Whether.
     A. Facts of Modification and Termination of Trusts.
         1. Decedent’s testamentary trust named two beneficiaries. Upon the death of the last beneficiary, the
              principal of the trust was to be distributed to the beneficiaries’ surviving issue. The problem was that
              one of the beneficiary’s children was mentally retarded and was entitled to public assistance. If that
              child received the trust principal, then all the amounts disbursed would be taken for public assistance
              programs. See In re Trust of Stuchell (Or. Ct. App. 1990).
         2. Conservatee was a developmentally disabled adult. When his mother died, he became entitled to a
              $65,000 inheritance. His conservator petitioned for the creation of a special needs trust with the
              conservatee as beneficiary. Specifically, the conservator argued that if the conservatee received the
              inheritance outright, he’d lose supplemental security income and medi-cal benefits, the amounts
              received would quickly be spent in his care, and those amounts couldn’t be used for special needs,
              such as various types of therapy. See Conservatorship of Kane (Cal. Ct. App. 2006).
         3. Grandparents’ trust is supposed to terminate when all trust beneficiaries (their two grandchildren)
              reached the age of 35, at which point the principal was to be distributed to the beneficiaries.
              Although one of the beneficiaries was a practicing lawyer, the other was mentally incompetent and
              unable to manage her affairs. The trustee petitioned the court to create a special needs trust for the
              schizophrenic beneficiary. Specifically, he argued that an outright distribution would result in the
              state ending up with all the money. See In re Riddell (Wash. Ct. App. 2007).
         4. The trust was created to be used to provide an education for settlor’s nephew’s children. Once the
              purpose of the trust had been accomplished, the trust income and, in the trustee’s discretion, part of
              the trust principal was to be distributed to the beneficiaries so that they may live in the style and
              manner to which they have become accustomed. See In re Estate of Brown (Vt. 1987)
         5. Two sisters contracted to share equally any inheritance they received from their mother regardless of
              any unequal disposition. When the mother left the bulk of her inheritance to one of the sisters in a
              spendthrift trust, the other sister sued for enforcement of the contract. See DeMille v. Ramsey (Cal.
              Ct. App. 1989).
     B. The Law of Modification and Termination of Trusts. When there are changed circumstances, a court
         may authorize an equitable deviation from the terms of the trust. However, just because the deviation
         would be more advantageous to the trust beneficiaries isn’t enough to justify the equitable deviation. See
         In re Trust of Stuchell (Or. Ct. App. 1990). There are two requirements: (1) the existence of changed
         circumstances unanticipated by the settlor, and (2) deviation from the trust terms would further the trust
         purpose. See RESTATEMENT (THIRD) OF TRUSTS § 66. Under older law, the second requirement was that
         continued performance would impair fulfillment of the trust purpose. See RESTATEMENT (SECOND) OF
         TRUSTS § 167. A trust cannot be terminated early by the beneficiaries if termination would be contrary to
         a material purpose of the settlor. See RESTATEMENT (SECOND) OF TRUSTS § 337. See, e.g., In re Estate of
         Brown (Vt. 1987) (“We believe that the settlor’s intention to assure a life-long income to [beneficiaries]
         would be defeated if termination of the trust were allowed.”).
     C. California Law of Modification and Termination of Trusts. The probate court may authorize
         modification or termination of a trust (both administrative and dispositive provisions) if due to
         circumstances unanticipated by the settlor, continuation of the trust would defeat the purposes of the trust.
         See CAL. PROB. CODE § 15409. The probate court may grant a conservator’s petition for establishing a
         special needs trust with the conservatee’s inheritance under CAL. PROB. Code § 2580. See
         Conservatorship of Kane (Cal. Ct. App. 2006). Specifically, § 2580 authorizes the court to make “an
         order for the purpose of (1) benefitting the conservatee or the estate; (2) minimizing current or
         prospective taxes; or (3) providing gifts to persons or charities which would be likely beneficiaries of


                                                        71
         gifts from the conservatee . . .” Id. The gift-giving purpose is particularly appropriate if the conservatee
         had been in the regular habit of gift-giving, particularly to avoid the federal gift tax. Even where there are
         no changed circumstances, modification or termination on petition of all beneficiaries is permitted if the
         reasons for doing so outweighs any conflicting material purpose of the settlor. Moreover, the existence of
         a spendthrift provision by itself establishes a material purpose. See CAL. PROB. CODE § 15403. The
         purpose of a trust with a spendthrift is not necessarily frustrated by a contract to share beneficiary’s
         interest. In DeMille v. Ramsey (Cal. Ct. App. 1989), two sisters, M and C, had a crazy mother. They
         entered into a written contract by which they agreed to share equally any inheritance received from their
         mother regardless of how her mother wanted it distributed. C expressed concern to her mother that C’s
         estranged husband’s creditors would come after her inheritance. Accordingly, mother changed her
         testamentary plan to leaving C’s share in a trust with a spendthrift provision, shielding it from creditors’
         claims. Mother died, leaving everything to C’s trust and nothing to M. M sued for enforcement of the
         sisters’ contract. (That was predictable.) C argued that the spendthrift provisions were effective against
         enforcement of their contract. The court disagreed. Specifically, the court looked at the reasons behind
         the spendthrift provision (shielding C’s assets from C’s estranged husband’s creditors), and determined
         that despite the boilerplate language, the trust wasn’t really a spendthrift trust. Thus, M could enforce her
         contractual right over the sister’s disbursements.
      D. Analysis of Modification and Termination of Trusts.
      E. Notes on Modification and Termination of Trusts.

Casebook pp. 624-627, 636, beginning with n. 3, – p. 644 + California Companion pp. 209-210, 228-231 (Self-
settled Asset Protection Trusts, Trusts for the State-Supported; Modification & Termination, In re Trust of Stuchell,
Conservatorship of Kane)

Casebook pp. 644-658 + California Companion pp. 232-239 (In re Riddell; Claflin Doctrine & Material Purpose,
In re Brown, DeMille v. Ramsey)

§ 8-7 Trustee Removal
A trustee may be removed by a court for a serious breach of trust or other cause. As a general rule, however, mere
disagreement over trust administration between the trustee and beneficiaries isn’t by itself sufficient to generate
cause.




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 § 9 TRUST ADMINISTRATION: THE FIDUCIARY
               OBLIGATION
§ 9-1 The Duty of Loyalty
I.   Issue of the Duty of Loyalty: Whether.
     A. Facts of the Duty of Loyalty.
         1. The estate executors sold the testator’s farm to the wife of one of the executors. The beneficiary, to
               whom the proceeds of the sale went, sued. She argued, among other things, that the executors could
               not purchase property sold by the estate nor could their spouses. See Hartman v. Hartle (N.J. Ch.
               1923).
         2. During her life, the testator leased property to the trustee. Upon her death, the testator devised
               property to trustee to hold in trust for testator’s three children. The testator’s death took place two
               weeks before the testator and trustee would’ve had to renew their leasing agreement. The trustee
               renewed the lease for himself. See In re Gleeson’s Will (Ill. App. Ct. 1955).
         3. When testator died, the bulk of his estate consisted of 798 extremely valuable paintings. The three
               executors disposed of all the paintings within 3 weeks after receiving their letters testamentary for
               extremely low prices. Two of the executors had a conflict of interest in the transaction. The third was
               aware of their conflict of interests but nonetheless acceded to the sale. See In re Rothko (N.Y. 1977).
     B. The Law of the Duty of Loyalty. A trustee cannot purchase from himself at his own sale, and his spouse
         is subject to the same disability. See Hartman v. Hartle (N.J. Ch. 1923). The duty of loyalty prohibits a
         trustee from conflict of interest transactions. For example, where the trustee owns certain property as
         trustee, he cannot lease that property to himself as tenant, unless authorized by a court. See In re
         Gleeson’s Wills (Ill. App. Ct. 1955). This is true even if the trustee was acting reasonably and in good
         faith. See In re Rothko (N.Y. 1977). See also RESTATEMENT (THIRD) OF TRUSTS § 78. Under the trust
         pursuit rule, if the trustee sells property in violation of the duty of loyalty, then the beneficiaries are
         entitled to the amounts received in exchange for the property. If there are multiple persons in the same
         position, e.g., executors of testator’s estate, then an executor who is aware of his coexecutor’s breach of
         trust but nonetheless accedes to them is legally accountable. This is true even if the acceding executor
         was acting on advice of counsel. See Rothko. If a trustee is authorized to sell property but does so for too
         little value, then that trustee is liable only for the difference between market price and the actual selling
         price. The trustee is not liable for the amount the property appreciated after the sale. If, however, a trustee
         isn’t authorized to sell property but does so anyway, then the trustee is liable for both the difference at the
         time of sale and any subsequent appreciation in value. This is the case where a trustee sells property in
         breach of the fiduciary duty of loyalty. See Rothko. Stated differently, damages for a breach of the duty of
         care are calculated based on the date of the sale (plus interest) while damages for a breach of the duty of
         loyalty are calculated based on judgment day. A mala fide purchaser who knows the fiduciaries are acting
         in breach of their duty of loyalty may be liable for appreciation damages same as those fiduciaries.
     C. California Law on the Duty of Loyalty. The grant of power to a trustee doesn’t by itself mean that the
         trustee isn’t subject to fiduciary duties. See CAL. PROB. CODE § 16202.
     D. Analysis of the Duty of Loyalty.
     E. Notes on the Duty of Loyalty.
         1. Statutory Exceptions. States have carved out exceptions where a conflict of interest doesn’t
               necessarily create a breach of the duty of loyalty. For example, professional trustees may be entitled
               to transact with itself despite the conflict of interest.
         2. Standing. Professor French found the issue of standing particularly fascinating in the Rothko case.
               After all, the testator had devised the residue of his estate to a charity. How then did the testator’s
               daughter have standing to sue for a breach of duty during estate administration? The answers lies in a
               state law elected share statute. This statute was implicated where a testator made gave more than half
               of his estate to charity. The testator’s child could set aside and take an elective share of the portion
               that exceeded half of the testator’s estate. The testator’s daughter, having been left nothing under the
               will, had nothing to lose. Once she instituted the proceedings against the executors, her brother (more
               specifically, his guardian), and the state attorney general joined in. The attorney general had standing
               because the residual devise was to a charity. Note that if the will had only devised half of the estate


                                                         73
               to charity, then the testator’s daughter wouldn’t have had standing to sue. From the looks of it, it’s
               doubtful whether the other two parties would have instituted the proceeding on their own. The
               elective share statute giving the daughter standing was later repealed by the state legislature.

Casebook pp. 659-660, 665 beginning with n. 3, - p. 688 + California Companion pp. 240-245 (Trustee Removal,
Trust Administration: The Fiduciary Obligation, Trustees’ Powers, Duty of Loyalty, Hartman v. Hartle, In re
Rothko)

§ 9-2 The Duty of Care: The Prudent Investor Rule
The duty of prudence requires (among other things) that the trustee insure property, keep good records, and
investigate the needs of the beneficiaries.

I.    Issue of the Prudent Investor Rule: Whether a trustee has breached his fiduciary duty of care by failing to
      invest trust property prudently or by failing to diversify.
      A. Facts of the Prudent Investor Rule.
          1. Testator’s will established a trust composed largely of Kodak stock. When the market price of Kodak
                stock tanked, the trust beneficiaries sued the trustee, alleging a breach of fiduciary duties. See In re
                Estate of Janes (N.Y. 1997).
          2. See Wood v. U.S. Bank, N.A. (Ohio Ct. App. 2005).
      B. The Law of the Prudent Investor Rule. A trustee breaches his fiduciary duty of care if he fails to invest
          trust assets as a prudent investor would. The inquiry is holistic, and should take into account the risk and
          reward objectives reasonably suited for the trust. Thus, some risky or even speculative investments may
          be proper if part of an overall investment strategy. A proper investment strategy for a young working
          adult might be too risky for a retiree living off the trust. Finally, if the trustee has special skills or
          experience (or so represents), then he must use those skills or experience. See UNIF. PRUDENT INVESTOR
          ACT § 2. The trustee also has a duty to diversify investments. See UNIF. PRUDENT INVESTOR ACT § 3.
          Even if the trust instrument allows the trustee to retain assets, the trustee’s duty to diversify remains. In
          order to eliminate or alter the duty to diversify, the instrument must include language clearly to that
          effect. See Wood v. U.S. Bank, N.A. (Ohio Ct. App. 2005). The only two ways for a trustee to avoid the
          duty to diversify are if (1) the trust instrument specifically abrogates the duty to diversify or specifically
          requires (and not merely authorizes) the trustee to retain undiversified assets, and (2) there are special
          circumstances, such as property of special meaning to the family.
      C. California Law of the Prudent Investor Rule.
      D. Analysis of the Prudent Investor Rule.
      E. Notes on the Prudent Investor Rule.
          1. Social Investing. “No form of so-called ‘social investing’ is consistent with the duty of loyalty if the
                investment activity entails sacrificing the interests of trust beneficiaries . . .” UNIF. PRUDENT
                INVESTORS ACT § 5. A trustee can safely pursue social investing if all beneficiaries give informed
                consent.
II.   Issue of Delegation: Whether a trustee may properly delegate trust duties.
      A. The Law of Delegation. Traditionally, a trustee was not permitted to delegate. However, under modern
          law, a trustee may delegate investment and management functions so long as he exercises reasonable care
          in selecting the agent, establishing the terms of delegation, and in reviewing the agent’s compliance. See
          UNIF. PRUDENT INVESTORS ACT § 9. In a directed trust, the trust instrument provides that the trustee must
          follow the direction of a third party. The Restatement takes the position that a trustee has a duty to follow
          such instructions unless contrary to the terms of the trust or the trustee has reason to believe following the
          third party instructions would violate the trustee’s fiduciary duties. See RESTATEMENT (THIRD) OF TRUSTS
          § 75.
      B. California Law of Delegation. California follows the Uniform Prudent Investors Act regarding the law
          of delegation. See CAL. PROB. CODE §§ 16320-16370.
      C. Analysis of Delegation.
      D. Notes on Delegation.

Casebook pp. 693-721 (Duty of Prudence, Prudent Investor Rule, Estate of Janes, Wood v. U.S. Bank)



                                                          74
§ 9-3 Impartiality and the Principal and Income Problem
I.    Issue of the Duty of Impartiality: Whether.
      A. Facts of the Duty of Impartiality.
          1. Decedent’s widow was the trust’s income beneficiary for life while the decedent’s son (who was not
               the widow’s son, but rather a son from a prior marriage) was the trust’s remainder beneficiary. See
               Howard v. Howard (Or. Ct. App. 2007).
          2. See In re Matter of Heller (N.Y. 2007).
      B. The Law of the Duty of Impartiality. A trustee must strike an appropriate balance between both income
          and remainder beneficiaries, giving due regard to their respective interests. See UNIF. TRUST CODE § 803;
          RESTATEMENT (THIRD) OF TRUSTS § 79. Despite the name, it’s not really a duty of impartiality since
          giving due regard means that the trustee may be required to favor certain beneficiaries over the others.
          See Howard v. Howard (Or. Ct. App. 2007). In order to mitigate the potential for conflict between income
          and remainder beneficiaries, many states, including California, have adopted the Uniform Principal and
          Income Act. Under this provision, a trustee has the power to reallocate between inome and principal if the
          trustee concludes that the total return would otherwise lead to unfair results. See UNIF. PRINCIPAL &
          INCOME ACT § 104. Another option is the unitrust by which a certain percentage of the value of the trust
          principal must be paid to the income beneficiary each year. This frees the trustee to adopt any mix of
          grown and return investments without worrying about violating the trustee’s duty of impartiality. The
          trustee can adopt unitrust treatment even if the trustee is a remainder beneficiary. See In re Matter of
          Heller (N.Y. 2007).
      C. California Law of the Duty of Impartiality. California has adopted the Uniform Principal and Income
          Act. See CAL. PROB. CODE §§ 16320-16370. A trustee in California can convert a trust into a unitrust if
          (1) unitrust treatment isn’t prohibited by the trust instrument, and (2) such treatment is approved by the
          court.
      D. Analysis of the Duty of Impartiality.
      E. Notes on the Duty of Impartiality.

Casebook pp. 721-738 + California Companion pp. 246-247 (Delegation; Duty of Impartiality, Howard v. Howard,
In re Matter of Heller; Subrules)

§ 9-4 Subrules Relating to the Trust Property
1.   The trustee has a duty to collect and protect trust property without unnecessary delay. See CAL. PROB. CODE §
     16006.
2.   The trustee has a duty to earmark trust property (to designate it as trust property). See CAL. PROB. CODE §
     16009.
3.   The trustee has a duty not to co-mingle trust funds with the trustee’s own funds. See CAL. PROB. CODE § 16009.
4.   The trustee has a duty to keep the beneficiaries reasonably informed. See CAL. PROB. CODE § 16060.

I.    Issue of Duty to Inform: Whether.
      A. Facts of Duty to Inform.
          1. Decedents established an inter vivos trust in which they accumulated their wealth during life. The
                trust instrument provided that upon death, the trustees were to establish three separate trusts (using
                one trust instrument) for the benefit of each of the decedents’ children. One of the children sued for
                details about the trust administration—specifically about the total assets of the decedents. The
                trustees refused on the basis that they had a fiduciary duty of confidentiality—by segregating the
                trusts in the manner, the decedent intended that the beneficiaries be kept in the dark about the trust
                assets. See Fletcher v. Fletcher (Va. 1997).
      B. The Law of Duty to Inform. The trustee has a duty to inform the beneficiaries about the trust and to
          respond to the beneficiary regarding the trust. See UNIF. TRUST CODE § 813. A beneficiary is entitled to
          all information reasonably necessary to enforce his rights under the trust, or to prevent or redress a breach
          of trust. See RESTATEMENT (SECOND) OF TRUSTS § 173, cmt. c. When a settlor provides that trust
          property is to be divided into three separate trusts upon his death, the beneficiary of one such trust is
          entitled to the information about the original trust. See Fletcher v. Fletcher (Va. 1997).



                                                         75
      C. California Law of Duty to Inform. The trustee has a duty to inform the beneficiaries about the trust. See
          CAL. PROB. CODE § 16060. The trustee also has a duty to respond to the beneficiaries’ request for
          information. See CAL. PROB. CODE § 16061. The trustee also has a duty to respond to the request of the
          deceased settlor’s heirs. See CAL. PROB. CODE § 16061.5(b).
      D. Analysis of Duty to Inform.
      E. Notes on Duty to Inform.
          1. Alternatives. How could the settlor in Fletcher have set up the trust in order to ensure
                confidentiality? There are at least two options. First, the settlor could’ve just set up three separate
                trusts using three separate trust instruments. Note, however, that the trusts couldn’t have cross-
                remainders to the other children. Second, it may be possible for the beneficiary to be kept in the dark
                so long as there’s a trust protector with standing to sue on behalf of the beneficiary.
II.   Issue of Duty to Account: Whether.
      A. Facts of Duty to Account.
          1. The trust instrument expressly provided that the trust income was to go to no one other than his wife,
                and that upon his wife’s death or remarriage, the income was to go to the remainder beneficiary.
                When the wife remarried, she failed to mention to this to the trustee, so the trustee kept mailing
                checks. See Nat’l Acad. of Sciences v. Cambridge Trust Co. (Mass. 1976).
          2. See Esslinger v. Cummins (Cal. Ct. App. 2006).
          3. See Estate of Ivey (Cal. Ct. App. 1994).
      B. The Law of Duty to Account. As a general rule, a trustee can avoid liability if he gives an accounting to
          the beneficiary, and the beneficiary doesn’t make a timely objection. This rule is intended to encourage
          trustees to make periodic accountings. However, this rule doesn’t apply if there’s constructive or
          technical fraud. This type of fraud arises where the trustee takes no efforts to ascertain whether a fact is
          true (e.g., whether the income beneficiary for life is still alive), but represents to the beneficiary in an
          accounting that the fact is true. The trustee won’t be able to avoid liability by hiding behind the
          accounting. See Nat’l Acad. of Sciences v. Cambridge Trust Co. (Mass. 1976) (widow’s remarrying,
          which should cut her off from the trust, was not discernable from the most scrupulous examination of the
          accounts by remainder beneficiary).
      C. California Duty to Account. A trustee has a duty to give an accounting at least annually to each
          beneficiary “to whom income or principal is required or authorized in the trustee’s discretion to be
          currently distributed.” CAL. PROB. CODE § 16062(a). A trustee also has a duty to give an accounting upon
          a change of trustee and a termination of the trust. Id. Note, however, that a remainder beneficiary isn’t
          entitled to an accounting under this provision because the remainder beneficiary isn’t entitled to a current
          distribution. Even though a remainder beneficiary isn’t entitled to an accounting under § 16062, he may
          still be entitled to an accounting through CAL. PROB. CODE § 17200(b)(7), which provides that a
          beneficiary may petition the court for an order compelling the trustee to provide an accounting to the
          beneficiary if the trustee has failed to respond after the beneficiary makes a request. See Esslinger v.
          Cummins (Cal. Ct. App. 2006).
      D. Analysis of Duty to Account.
      E. Notes on Duty to Account.

Casebook pp. 738-750 + California Companion pp. 247-256 (Duty to Inform & Account, Fletcher v. Fletcher,
Esslinger v. Cummins, Estate of Ivey, Nat’l Academy of Sciences v. Cambridge Trust Co.)




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                   § 10 POWERS OF APPOINTMENT
§ 10-1 Creation and Exercise of Powers of Appointment
A power of appointment is the power to decide how to distribute trust property. The settlor of a trust will often give
someone a power of appointment. This is so that this person can decide how trust property should be distributed in
light of unforeseen circumstances arising after the settlor’s death. For example, O can devise property to trustee in
trust to A for life, and on A’s death to distribute the principal to whoever A shall appoint by will. If A doesn’t
exercise this power, then at A’s death the trustee shall distribute the principal to A’s heirs under the state’s intestate
succession laws. In this example, O is the donor, and A is the donee. A’s heirs are the takers in default, but whoever
A appoints by will is the object or permissible appointee.

Note that these powers of appointment aren’t the same thing as the fiduciary powers given to trustees. The donee is
free to exercise the power in any manner permitted by the instrument—the donee isn’t restricted by fiduciary duties.

It’s important to distinguish between general and special powers. A general power is a power that the donee can
exercise in favor of himself (or in favor of his estate, his creditor, or his estate’s creditors). Conversely, a special
power is a power of appointment that the donee can’t exercise in favor of himself. Generally, people think of general
powers as broader than special powers, but this isn’t necessarily true. The donor could give the donee a power that
may only be appointed to the donee’s creditors—it’s a general power, but a rather limited one.

How do powers of appointment work in terms of property law/future interests? When the donor gives the
donee a power of appointment, the donee receives a property interest—a life estate. The donor also gives a property
interest to the takers in default—a vested remainder subject to divestment. If the takers in default aren’t specified,
the donor’s heirs or residual beneficiaries under a will are the takers in default ...by default. Yeah.

I.    Issue of Relation-Back Doctrine: Where the donor has created a general power of appointment in the donee,
      whether the creditors of a donee can compel the donee to exercise that power in the creditors’ favor.
      A. Facts of Relation-Back Doctrine.
          1. The donor established a trust and gave her son, the donee, a general power of appointment. The
               donee’s ex-wife obtained a divorce judgment against the donee in the amount of $15,000. The ex-
               wife sought satisfaction of the debt from the trust. The trustees petitioned the court to figure out if the
               ex-wife could compel the donee to exercise the special power of appointment in her favor. See Irwin
               Union Bank & Trust Co. v. Long (Ind. Ct. App. 1974).
      B. The Law of Relation-Back Doctrine. Under the relation-back doctrine, the power of appointment is
          vested in the donor and not in the donee. Generally, this means that when the settlor gives one beneficiary
          the power of appointment, and the beneficiary exercises that power in favor of the beneficiary’s daughter,
          it’s as if the settlor gives the property directly to the daughter. (Note that the donor of a power of
          appointment isn’t necessarily the settlor of the trust, and the donee of a power isn’t necessarily a
          beneficiary of the trust.) Thus, the transfer can skip the beneficiary’s probate estate. The relation-back
          doctrine still applies to special powers of appointment (where the donee can’t exercise the power in favor
          of himself), but no longer consistently applies to general powers of appointment (where the donee can
          exercise power in favor of himself). The rule for special powers makes sense: If the donee can’t gain from
          the power of appointment by exercising it in favor of himself, then why should the donee’s creditors be
          able to force the donee to exercise the power in their favor? In Irwin Union Bank & Trust Co. v. Long
          (Ind. Ct. App. 1974), the court held that the donee had no control over the trust property until he exercises
          his general power of appointment. Unless and until he does so, the donee’s creditor’s don’t have the right
          to the trust property. This was the traditional rule. A number of states have reversed this rule by statute.
          These statutes provide that where the donor created a general power of appointment in the donee but the
          donee hasn’t exercised that power, the donee’s creditors nonetheless have a right to trust property. They
          can essentially compel the donee to exercise the power in their favor. See RESTATEMENT (THIRD) OF
          PROP.: DONATIVE TRANSFERS § 22.3; UNIF. TRUST CODE § 505(b)(1); and RESTATEMENT (THIRD) OF
          TRUSTS § 56, cmt. B.
      C. California Law of Relation-Back Doctrine. In California, creditors can’t reach trust property subject
          only to a special power of appointment. See CAL. PROB. CODE § 681. This makes sense: if the donee can’t


                                                           77
          exercise the power in favor of himself, then why should the donee’s creditors be able to compel the
          exercise in favor of the creditors. However, creditors can reach trust property subject to a general power
          of appointment, provided the donee himself could exercise the power. See CAL. PROB. CODE § 682.
          However, there’s an exhaustion requirement. The creditors must first exhaust the rest of the donee’s
          assets.
      D. Analysis of Relation-Back Doctrine.
      E. Notes on Relation-Back Doctrine.
II.   Issue of Exercise of a Power of Appointment: Whether it’s possible for a donee to exercise a power of
      appointment through the residuary clause of the donee’s will. Stated differently, if the donee’s will doesn’t
      specifically mention a testamentary power of appointment, does the will’s residuary clause mean that the
      donee exercised the power in favor of the residuary beneficiary?
      A. Facts of Exercise of a Power of Appointment.
          1. See Beals v. State Street Bank & Trust Co. (Mass. 1975).
      B. The Law of Exercise of a Power of Appointment. In Beals v. State Street Bank & Trust Co. (Mass.
          1975), the court held that the residuary clause is presumed to have exercised a general power of
          appointment. The court distinguished the treatment of a general power from the treatment of a special
          power. Specifically, the court reasoned that laypersons would probably not distinguish between a general
          power of appointment and outright ownership so neither should the court. See Beals. Thus, if the donee
          failed to specifically exercise a general testamentary power of appointment in the dispositive portions of
          the donee’s will, we presume the donee exercised that power in favor of the residuary beneficiary through
          the residuary clause. However, if the donee failed to specifically exercise a special testamentary power of
          appointment, we will not indulge that presumption. Instead, the property goes to the takers in default of
          appointment as specified by the donor.
          1. Choice of Law. “[T]he law of the donee’s domicile governs whether the donee has effectively
               exercised a power of appointment.” RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 19.1.
      C. California Law of Exercise of a Power of Appointment. As a general rule, if the instrument creating a
          power of appointment has specific requirements for the exercise of that power, then the power must be
          exercised in compliance with those requirements. See CAL. PROB. CODE § 630. However, courts may
          excuse compliance from the formal requirements if two requirements are satisfied. First, the appointment
          must approximate the manner prescribed. Second, the failure must not defeat the accomplishment of a
          significant purpose. See CAL. PROB. CODE § 631. Consider where the donor gave a testamentary power of
          appointment to the donee. Allowing the donee to exercise that power through an inter vivos instrument
          would arguably violate the second requirement. You give someone a testamentary power to ensure that
          others are nice to them until death and to encourage more deliberation. These could well be a significant
          purpose of the donor. If the creating instrument requires a specific reference, then the instrument
          purporting the exercise the power must specifically reference the power. See CAL. PROB. CODE § 632.
          Note that generally (where there is no specific reference requirement), a blanket exercise of powers is
          effective.
      D. Analysis of Exercise of a Power of Appointment.
      E. Notes on Exercise of a Power of Appointment.
          1. Lapse. If an appointee dies before the donee dies, then the issue of the appointee are substituted for
               the appointees. See CAL. PROB. CODE § 673.
          2. Appointment in Further Trust. As a general rule, the donee of a special power can appoint in
               further trust and create a new power. This makes sense because the donee could’ve simply appointed
               the power to himself, and then established a new trust or power in a new instrument. Why then
               require multiple instruments to exercise the power and to establish a new trust or power?
          3. Exclusive Power. Under a non-exclusive power, the donee must appoint some property to each
               object of the power. Whether a power is exclusive or non-exclusive is controlled by the language, but
               if the language is ambiguous, courts presume the appointment is exclusive. This makes sense. For
               example, has the non-exclusiveness requirement been satisfied if the donee appoints $1 to three of
               the four beneficiaries and $100,000 to the fourth beneficiary? (Probably not.) What if the donee
               appoints $1,000 to three of the four beneficiaries and $100,000 to the fourth beneficiary? (Who
               knows?) California requires that the donor specify the maximum or minimum share or amount for
               non-exclusivity. See CAL. PROB. CODE § 652.
          4. Fraud on a Special Power. An appointment made for the purpose of circumventing the special
               power limitation is void. Thus, where the donee appoints to an object only after the object makes a


                                                        78
               binding contract to transfer part of the amount received back to the donee, the appointment is void.
               See RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 19.16.
          5.   Ineffective Exercise of a Power. Under the doctrine of allocation, courts will construe a blended
               disposition in a manner to effectuates the donee’s intent. Under the rule against perpetuities, it’s
               entirely possible for the disposition of a power and the disposition of the donee’s personal property to
               have different perpetuities periods. This is because the time at which the perpetuities period starts
               running is different. Courts will take that into account when allocating the blended disposition in a
               manner to effectuate the donee’s intent. Under the doctrine of capture, courts will not let trust
               property pass to the takers in default if the donee has manifested an intent to exercise a general power
               but that manifestation was ineffective. The legal fiction here is that the donee also created an implied
               alternative appointment to the donee’s own estate. California has adopted the capture doctrine. See
               CAL. PROB. CODE § 672(b).

Casebook pp. 803-821 + California Companion pp. 257-261 (Powers of Appointment, Rights of Creditors, Irwin
Bank & Trust Co. v. Long, Exercise of Power, Beals v. State Street Bank & Trust Co., Lapse)

§ 10-2 Release and Failure to Exercise a Power of Appointment
I.    Issue of Release: Whether.
      A. Facts of Release.
          1. As part of their divorce settlement, the donee promised his second wife to exercise the power of
               appointment in favor of their children. The donee breached this contract, and instead left a will
               exercising the power of appointment in favor of his third wife. See Seidel v. Werner (N.Y. Sup. Ct.
               1975).
      B. The Law of Release. The donee of a testamentary power of appointment cannot enter into a binding
          contract to exercise that power in a certain manner. By making the power of appointment testamentary,
          the donor intended that the donee have the most time to consider how to exercise that power. To allow the
          donee to contract away the right to change his mind would frustrate the donor’s intent. However, the
          donee can release the power of appointment. If the donee releases the power, then the donee cannot later
          exercise it. There’s no effective release of power if the donee merely contracts to exercise the power in a
          certain manner in the future. See Seidel v. Werner (N.Y. Sup. Ct. 1975).
      C. California Law of Release. If the power of appointment isn’t presently exercisable, then the donee can’t
          enter into an enforceable contract to exercise that power in a certain manner in the future. On the other
          hand, if the power of appointment is presently exercisable, then a promise by the donee would be
          enforceable. See CAL. PROB. CODE § 660. This makes sense. After all, the donee could’ve just exercised
          the power in the manner promised. Generally, the donee can release a discretionary power of
          appointment. See CAL. PROB. CODE § 661.
      D. Analysis of Release.
      E. Notes on Release.
II.   Issue of Failure to Exercise: Whether.
      A. Facts of Failure to Exercise.
          1. No clue. See Loring v. Marshall (Mass. 1985).
      B. The Law of Failure to Exercise. If the donee dies without exercising his power of appointment, the
          property goes to the takers-in-default. If there are no takers-in-default, then the property goes back to the
          donor’s estate or heirs. For a special power of appointment, if the donee fails to exercise the power and
          there’s no gift-in-default clause, then the appointed property may pass to the objects of the power in equal
          shares. This is assuming, of course, that the objects are a sufficiently defined and limited class. See
          Loring v. Marshall (Mass. 1985).
      C. California Law of Failure to Exercise. If the donee fails to make an effective exercise of the general
          power of appointment, then the property passes to the takers-in-default. If there are no takers-in-default,
          then the property goes back to the donor, his estate, or his heirs. See CAL. PROB. CODE § 672(a). The
          doctrine of capture applies in California for general powers of appointment. See CAL. PROB. CODE §
          672(b).
      D. Analysis of Failure to Exercise.
      E. Notes on Failure to Exercise.
          1. The Rule Against Perpetuities.


                                                         79
Casebook pp. 822-836, 921-923 + California Companion pp. 262-265 + CPC §§ 21206-21207 pp. 271-272
California Companion (Exercise of Special Powers, Ineffective Exercise, Application of RAP to Powers of
Appointment; Release, Seidel v. Werner; Failure to Exercise a Power, Loring v. Marshall)




                                                      80
   § 11 FUTURE INTERESTS, CLASS GIFTS, AND
        THE RULE AGAINST PERPETUITIES
§ 11-1 A Review of Property Law

                                       Example 1. O to A for life, then to B.
       Interest retained by O                 Interest transferred to A               Interest Transferred to B
                                                                                 Indefeasibly Vested Remainder
                                                     Life Estate
                                                                                 Absolutely Vested Remainder
What interest does O retain and why? O retains nothing. Sooner or later, A is going to die, at which point possession
will go to B. There are no conditions precedent to B taking possession. There’s nothing B needs to have happen
(other than A dying) before B becomes entitled to possession. But wait—what if B dies before A? It’s not a problem
because there’s B’s property interest isn’t conditioned on B surviving A. Thus, if B dies before A, then B’s interest
passes to B’s heirs or devisees.

                    Example 2. O to A for life, then to B if B has graduated from law school.
      Interest transferred to O               Interest transferred to A               Interest Transferred to B
                                                     Life Estate                       Contingent Remainder
What interest does O retain and why? O retains a reversion. The problem here is that B could die without having
ever graduated from law school. (Something that I’m concerned about!) If B dies without having ever graduated
from law school, where does the property go when A dies? Back to the grantor, O, who holds an implied reversion.

       Example 3. O to A for life, then to B. But if B hasn’t graduated from law school, then back to O.
      Interest transferred to O               Interest transferred to A               Interest Transferred to B
                                                                                 Vested Remainder Subject to
                                                                                  Divestment
                                                                                 Vested Remainder Subject to
             Reversion                               Life Estate                  Defeasance
                                                                                 Vested Remainder Subject to Open
                                                                                 Vested Remainder Subject to
                                                                                  Divestiture
Wait, isn’t this the exact same thing as Example 2? Yes and no. The distinction here is between a condition
precedent and a condition subsequent. In Example 2, O transfers a property interest with a condition precedent—
unless A

Not under the property law of future interests. The distinction here is between a condition precedent and a condition
subsequent.


Part One: Construing Trust Instruments

Part Two: The Rule Against Perpetuities

§ 11-1 Construction of Trust Instruments




                                                        81
I.     Issue of Requiring Survival at Time of Possession: Whether.
       A. Facts of Requiring Survival at Time of Possession.
           1. Settlor created a revocable inter vivos trust. The income was payable to the settlor for life, and then
                to the settlor’s wife for life. Upon the death of both of them, the trust property was to be divided in
                equal shares among their three children, John, Peter, and Dencie. The settlor’s wife predeceased the
                settlor, and the settlor’s son John predeceased the settlor, leaving three children—the settlor’s
                grandchildren, Deborah, Christopher, and Paul. The grandchildren wanted their father’s share of the
                trust. See First Nat’l Bank of Bar Harbor v. Anthony (Me. 1989).
           2. See Clobberie’s Case ([Eng.] 1677).
       B. The Law of Requiring Survival at Time of Possession. Traditionally, where there’s a vested remainder
           subject to divestment, the divestment condition is construed narrowly so as to avoid divestment. See First
           Nat’l Bank of Bar Harbor v. Anthony (Me. 1989). There’s a constructional preference in favor of vested
           remainders subject to divestment. Yes,
       C. Analysis of Requiring Survival at Time of Possession.
       D. Notes on Requiring Survival at Time of Possession.
II.    Issue of Gifts to Classes: Whether.
       A. Facts of Gifts to Classes.
           1. See Dewire v. Haveles (Mass. 1989).
       B. The Law of Gifts to Classes.
       C. Analysis of Gifts to Classes.
       D. Notes on Gifts to Classes.
III.   Issue of Gifts to Heirs: Whether.
       A. Facts of Gifts to Heirs.
           1. See Estate of Woodworth (Cal. Ct. App. 1993).
       B. The Law of Gifts to Heirs.
       C. Analysis of Gifts to Heirs.
       D. Notes on Gifts to Heirs.

Casebook pp. 845-847, 850-867 + California Companion pp. 267 (Construction of Trust Instruments, Transferability
& Survival Requirements, Clobberie’s Case, Antilapse Rules, Class Gifts, Dewire v. Haveles)

§ 11-2 The Rule Against Perpetuities
Casebook pp. 867-883, 917-921 + California Companion pp. 267-269 (Estate of Woodworth, Lux v. Lux;
Application of RAP to Class Gifts)




                                                          82
                                  § 12 OTHER TOPICS
§ 12-1 Planning for Incapacity: Durable Powers of Attorney
I.    Issue of Durable Powers of Attorney: Whether.
      A. Facts of Durable Powers of Attorney.
          1. Principal executed two durable powers of attorney, appointing his wife and his daughter as attorneys-
               in-fact. The attorneys-in-fact, acting as such, established an inter vivos trust, naming themselves as
               trustees. The wife then transferred all property to herself and her daughters as trustees. Although the
               principal was competent when the durable powers of attorney were executed, he became incompetent
               before the wife’s transfer of property. See In re Estate of Kurrelmeyer (Vt. 2006).
      B. The Law of Durable Powers of Attorney.
      C. Analysis of Durable Powers of Attorney.
      D. Notes on Durable Powers of Attorney.

Casebook pp. 897-902, 905-910, 448-456 + California Companion pp. 271-274, 178 (Rule Against Perpetuities,
Modern Reforms & Abolition; Planning for Incapacity, Durable Power of Attorney, In re Kurrelmeyer)

§ 12-2 Healthcare Directives and Disposition of the Body



§ 12-3 Charitable Trusts
I.    Issue of Charitable Purpose: Whether the trust has a charitable purpose such that it qualifies as a charitable
      trust.
      A. Facts of Charitable Purpose.
           1. See Shenandoah Valley Nat’l Bank v. Taylor (Va. 1951).
      B. The Law of Charitable Purpose. There are a number of benefits for a trust to be classified as charitable.
           For example, charitable trusts have favorable tax advantages, are enforced by the attorney general, and
           aren’t subject to the rule against perpetuities. For a trust to be charitable, it must have a charitable
           purpose, such as (1) the relief of poverty, (2) the advancement of education, (3) the advancement of
           religion, (4) the promotion of health, (5) governmental or municipal purposes, and (6) other purposes the
           accomplishment of which is beneficial to the community. See Shenandoah Valley Nat’l Bank v. Taylor
           (Va. 1951). In Taylor, a trust directed to give money to children of an elementary school twice a year
           didn’t qualify as a charitable trust for lack of a charitable purpose. It didn’t qualify as the advancement of
           education because the money was just given to the students without any qualifying conditions—the
           children presumably used the money to buy candy and comics. It didn’t qualify as relief of poverty
           because the money was given to all the children—not just the poor ones. Unlike ordinary trusts,
           charitable trusts don’t require ascertainable beneficiaries, and the existence of clearly ascertainable
           beneficiaries cut against the existence of a charitable purpose.
      C. Analysis of Charitable Purpose.
      D. Notes on Charitable Purpose.
           1. Don’t use the words benevolent or philanthropic. Just don’t do it.
II.   Issue of Cy Pres: Whether.
      A. Facts of Cy Pres.
           1. See In re Neher (N.Y. 1939).
           2. See The Buck Trust.
           3. See The Barnes Foundation.
      B. The Law of Cy Pres. If the settlor had general charitable intent in establishing a charitable trust, and
           continued execution of the trust would be impossible, impracticable, illegal, or wasteful, then courts may
           reform a charitable trust under the doctrine of cy pres to fulfill the settlor’s intent.
      C. Analysis of Cy Pres.
      D. Notes on Cy Pres.



                                                          83
           1.   Administrative Deviation. Cy pres should be distinguished by administrative deviation. Cy pres is a
                change in the trust’s ends while an administrative deviation is a change in the trust’s means of
                accomplishing those ends. The difference, though, isn’t always clear. A typical example of
                administrative deviation would be a trust provision to invest solely in bonds, which made much more
                sense in periods of high inflation in the 1970s, but doesn’t make investment sense anymore.
                California statute of administrative deviation allows for changing the dispositive provisions of a
                charitable trust. See CAL. PROB. CODE § 15409. This provision doesn’t displace cy pres—rather, it
                runs along parallel with the California’s caselaw on cy pres.
           2. Discriminatory Trusts.
III.   Issue of Standing: Whether the person suing for breach of the trustee’s fiduciary duty has standing.
       A. Facts of Standing.
           1. See Smithers v. St. Luke’s-Roosevelt Hospital Center (N.Y. App. Div. 2001).
       B. The Law of Standing. The attorney general, co-trustees, and persons with special interest in the
           enforcement of a charitable trust have standing to sue for a breach of fiduciary duty. See RESTATEMENT
           (SECOND) OF TRUSTS, § 391. In addition, the settlor may retain standing to sue for a breach of fiduciary
           duty by the trustees even without expressly so providing in the trust instrument. See Smithers v. St.
           Luke’s-Roosevelt Hosp. Ctr. (N.Y. App. Div. 2001).
       C. California Law of Standing. California recognizes settlor standing for the enforcement of a charitable
           trust. See L.B. Research & Educ. Found. v. UCLA Found. (Cal. Ct. App. 2005).
       D. Analysis of Standing.
       E. Notes on Standing.

Casebook pp. 457-459, 463-465, 751-765 (Health Care Directives, Disposition of the Body; Charitable Trusts,
Shenandoah Valley Nat’l Bank v. Taylor; Cy Pres, In re Neher)

Casebook pp. 765-787 (The Buck Trust, The Barnes Foundation; Charitable Trust Supervision, Smithers v. St.
Luke’s–Roosevelt Hospital Center)

Casebook pp. 788-802 (Hershey School Trust, Bishop Estate)




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