TRANSFER OF DT’S ESTATES
1) Probate / Non-Probate Property:
a) Probate: Property that passes under the DT’s will or by intestacy [designated survivors]
b) Non-Probate: Property passing under an instrument [not a will] that became effective before death.
i) JT Property: DT’s intt. vanishes @ death, vesting in the survivor(s), who only needs to file a death cert.
ii) Life Ins.: Paid by the ins. co. to the beneficiary
iii) Ks w/ payable-on-death provisions: Pension plans often provide survivor benefits [includes IRAs].
iv) Trusts: Not quite clear.
c) Taxation: Fed’l Gov’t taxes both probate estate assets as well as non-probate prop Gross Estate is
somewhat comparable to gross income, but income is an extension of wealth whereas fed’l wealth TR
system focuses on the gross value of the assets as the leave ownership of the transferor.
2) Administration of Probate Estates: Estate = sum total of all of our assets.
a) Principal Representative: Appointed to wind-up the DT’s affairs; called an executor if will exists but an
administrator otherwise, duties include…
i) Inventory / collect assets
ii) Manage assets during admin.
iii) Receive / pay CRs and tax collector’s claims
iv) Distribute the remaining assets to those entitled
v) NOTE: Person dying testate devises real prop to devisees & bequeaths personal prop to legatees.
b) Three Functions of Probate:
i) Evidence of TR of title to the new owners by a will or decree of intestate succession.
ii) Protects CRs by requiring pmt. of debts
iii) Distributes the DT’s prop to those intended after the CRs = pd.
3) The Probate Process:
a) Pre-Probate Steps: Anatomical Gifts; Death Certificate; Funeral Arrangements.
b) Find proper court [probate, surrogate’s, etc.]
c) IPA 5-1 Establish Primary Jurisdiction: Show basis of primary jurisdiction [will, death certificate] & use the
following order for determining primary jurisdiction…
i) In the cty. where he has a known place of residence;
ii) If no known residence in State, in county in which > part of his R/E is located @ the time of death;
iii) If no residence / no R/E, in county where > part of his personal prop is located @ the time of death.
d) IPA 5-2 Ancillary jurisdiction (R/E): For the purpose of granting admin. of estates to nonresidents DTs or
estates of nonresident missing persons, the situs of tangible personal estate is where it is located.
i) Choice of Law: Real property is under the jurisdiction of the state in which the property is located; while
personal property is determined in the state of the domicile of the DT @ death.
e) Petition for Letters: Apply for an appointment to oversee the DT’s estate…
i) Testamentary: if an executor of a testate DT
ii) Administration: If an administrator of an intestate DT
(1) UPC provides for both ex parte / informal probate & notice / formal probate.
(2) Formal Probate: Jud’l determination after notice to intt parties, can be demanded by any intt. party
f) Marshall Probate Estate Assets: Locate, litigate (if necessary), preserve value, remember fid duty to heirs.
g) Notify and Pay Creditors – Barring CRs of the DT: Requires CRs to file a claim w/in a specified time period
i) Bar claims not filed w/in a relatively short period after probate proceedings are begun [DP requires that
known / reasonably ascertainable CRs receive actual notice before they’re barred based on short
periods; 1 yr. is always deemed suff.]
ii) Whether or not probate proceedings are commenced, they bar claims not filed w/in a longer period after
the DT’s death.
h) File & Pay Taxes: DT’s final tax return, estate & trust income tax returns, estate & gift tax returns. In order
for the personal rep. to be discharged by the probate CT, the rep. must show he has pd. all taxes; must
include the values of both probate estate as well as all substitutes (ins., etc.).
i) Supervising the Rep’s Actions: Jud’l supervision in some cases, others allow for no supervision unless
minors ‘r’ involved. UPC only calls for supervised actions if an intt. party demands it.
i) Distribute Estate Assets: Devises / bequests by (1) specific, (2) pecuniary, (3) demonstrative, (4) residuary.
j) Discharge of Personal Rep. & Estate Attny.
k) Contest of Wills: Normally SOL issue, will becomes final after probate becomes final.
i) Only person w/ direct $ issue can contest a will
4) Statute of Limitations:
a) Short “over-riding” Statute of Limitations: claims must be filed against estate w/in 2 years; begins to run at
time of death. All creditors are barred by the 2 year Statute of Limitations.
i) If executor gives proper notice, by statute much shorter period: “non claim period” which starts to run at
time of notice (In Illinois 6 months from date of first publication, or 3 months from the date of mailing or
delivery of notice, whichever is later.)
b) Notice by Publication: In a paper must be done once each week for three successive weeks and must be
delivered to each creditor whose name and address are known or reasonable ascertainable.
i) Where creditors not known or reasonably ascertainable, publication sufficient notice, all bets are off.
5) Other Notes:
a) Avoiding Probate: Can be done be TR’ing all prop via JT or a revocable / irrevocable trust during life, or by
executing a K providing for distribution of K assets to named beneficiaries on the owner’s death.
i) Expense, publicity, and delay … Three reasons not to consider / avoid probate if possible.
b) Universal Succession: Heirs / residuary devisees succeed to the title of all of the DT’s prop
c) Types of Admin.:
i) Summary Admin.: Available for estates under $50M, asset distribution w/in 30-45 days of death.
ii) Independent Admin.: Allows you to get all of the CRs & heirs together, allowing them to sign-off on your
d) Small Estate Admin.: Available for estates < $50M in gross value, no R/E can be included in the value of the
estate, allows the statute to take the form of an affidavit which you give to the parties holding the probate
property, attach a copy of the will. Indemnifies the transferors of probate assets.
SHARES OF SURVIVING SPOUSES / SURVIVORSHIP CLAUSES
1) UPC – Surviving Spouses:
a) UPC 2-101 Intestate Estate
i) Any part of a DT’s estate not disclosed of by will passes to the DT’s heirs as prescribed in the Code.
ii) DT by will may expressly exclude / limit the rt. of an individual / class to succeed to prop of the DT
passing by intestate succession.
b) UPC 2-102 Share of Spouse: Intestate share of a DT’s surviving spouse is…
i) Entire estate if no descendant / parent of DT is alive or all of the DT’s surviving descendants =
descendants of surviving spouse & no other descendant of the surviving spouse survives the DT.
ii) First $200M + ¾ of any balance of the estate if no descendant of the DT survives the DT, but a parent
of the DT survives the DT.
iii) First $150M + ½ of any balance of the intestate estate if all of the DT’s surviving descendants = also
descendants of the surviving spouse, & the surviving spouse has other surviving descendants.
iv) First $100M + ½ of any balance of the intestate estate if one + DT’s surviving descendants
descendants of the surviving spouse.
c) UPC 2-105 No Taker: Entire intestate estate pass to the state if no taker.
2) IPA 2-1 – Surviving Spouses: If there is a surviving spouse, half of the estate to the spouse, half to decedents
descendants per stirpes. If no surviving spouse, entire estate to decedents descendants per stirpes. If surviving
spouse, but not descendants of the decedent, entire estate to spouse.
3) Who is a Spouse?
a) UPC 2-202 Elective Share:
i) Elective-Share Amount: SS of a DT who dies has a rt. of election to take an elective-share amount equal
to the value of the elective share of the augmented estate, determined by the length of time the spouse
& DT were married to each other, in accordance w/ the following schedule…
(1) Less than 1 yr. = supplemental amt. only
(2) From 1 to 15 yrs., increases from 3% for 1 to 1.99 years up to 50% for 15 years or more (p. 54).
(3) May be a trend towards making separate prop jurisdictions = to community prop jurisdictions.
b) UPC 2-802 Effects of Divorce, Annulment, and Decree of Separation:
separation doesn’t terminate the marriage.
ii) Also includes an individual who following an invalid jdmt of divorce remarries to a 3 rd party or an
individual who was a party to a valid proceeding purporting to terminate all marital prop rts.
4) Simultaneous Death Statutes
a) ICLS 5/3-1 Uniform Simultaneous Death Act: Where no suff. evidence of the order of deaths, the
beneficiary is deemed to have predeceased the benefactor.
i) JTs: If 2 JTs die simultaneously, ½ of prop is distributed as if A or B survived.
ii) Life Ins.: When insured & beneficiary die simultaneously, insured survived the beneficiary for proceeds.
iii) NOTE: This acts was amended in 1991 to require survivorship by 120 hours.
b) UPC 2-104 Requirement that Heir Survive DT for 120 Hrs.: Need to prove by clear / convincing
evidence that an individual survived the DT by 120 hrs. or else your not a surviving heir for purposes of
homestead allowance, exempt prop, & intestate succession.
c) Janus v. Tarasewicz (IL SC 1985): Burden of sufficient evidence to prove life = positive sign of life in one
body & the absence of such in the other, TC must determine if suff. evidence of survivorship.
i) When does legal death occur? On the date the patient = medically determined to be totally brain dead
rather than the date the patient’s heart stopped functioning but in most instances can be judged as when
an irreversible cessation of circulatory & respiratory functions occurs.
5) Survivorship Clauses Ogle v. Fuiten (IL SC 1984): PLs are nephews of the DTs, argue that the will was
unconscionable & not suff; PLs feel they were meant to be the heirs of the will & were not. If either died, the
survivor would receive everything if he/she survived by 30 days and the estate will pass to the PLs if both die in
the same accident. Neither DT survives the other by 30 days; however the will doesn’t say how the estate
passes if neither of these two conditions is met.
a) DF argues that if ppl. ‘r’ allowed to bring suit against the attnys then it will lead to much litigation by anyone
Instate Succession Basic Scheme Focusing on Share of Surviving Spouse:
Share of the Estate to the Spouse: IPA 2-1(a), (c) UPA 2-102
All if… No surviving descendants of DT. No surviving descendants of DT &
no surviving parents of the DT OR
All surviving descendants are also
surviving spouse’s descendants &
no surviving descendants of the
¾ of the Estate if… No provision. Of balance after spouse takes
$200M if no surviving descendant
of DT & a surviving parent.
½ of the Estate if… Any surviving descendants of the Of balance after spouse takes
DT. $150M if any surviving descendants
who aren’t descendants of the DT.
Of balance after spouse takes
$100M if any of the DT’s
descendant’s are not also the
surviving spouse’s descendants.
Diagrams for Simultaneous / Near Simultaneous Deaths:
i) S1 dies before S2 iii) Uniform Simultaneous Death Act [No proof of order of
Rep1 Rep2 Rep1 Rep2
S1Estate S2Estate S1Estate S2Estate
ii) S2 dies before S1
SHARES OF DESCENDANTS
1) Per Stirpes ICLS 5/2-1: Strict per stirpes system, while the UPC employs a strict per capita system.
a) If surviving spouse & also a descendant of the DT, ½ each to the spouse and descendants per stirpes.
b) If no surviving spouse but a descendant of the DT, entire estate to the DT’s descendants per stirpes.
i) NOTE: Look initially @ 1st generation descendant of the DT & @ that level count # of ppl. alive or having
descendants of their own (that are surviving).
c) If there is a surviving spouse but no descendant of the DT, entire estate to the spouse.
d) If only a parent, brother, sister or descendant of a brother or sister of the DT survives; equal portions to all of
these w/ a double portion to a surviving parent if one is dead.
e) If only grandparents survive, split the estate between the grandparents (maternal / paternal) & their
descendants or give it all to one side if no one on the other side has survived.
f) If only great grandparents survive, split the estate between the great-grandparents (maternal / paternal) &
their descendants or give it all to one side if no one on the other side has survived.
g) If none of the above survive, give the entire estate in equal parts to the nearest kindred of the DT in equal
degree (computing by the rules of civil law) & w/o representation.
h) If no descendants of any kind, the R/E escheats to the county in which it is located as well as all personal
prop that is being divided w/in the state (even if held outside the State).
2) Understanding Per Stirpes:
a) After the spouse’s share is set aside, children and issue of deceased children take the remainder of the
property to the exclusion of everyone else. Sons-in-law and daughters-in-law are excluded as intestate
successors in virtually all states. Representation is used only to bring the surviving descendants of
deceased descendants up to the level where a descendant = still alive.
b) When one of several children has died before the decedent, leaving descendants, all states provide that the
child’s descendants shall represent the dead child and divide the children’s share amongst themselves.
c) Three Kinds:
i) “Classic Per Stirpes” -- Go to 1st generation directly below decedent regardless if anyone is still living at
that generation. Split into as many shares as there are living children and deceased descendants who
have left descendants.
ii) “Modern Per Stirpes” or “Per Capita with Representation” – Go to 1st generation below decedent where
there are living members, split and use Classic Per Stirpes from then on.
iii) “Per Capita at each Generation” – 1st division at generation where there is at least one living member.
Leftovers put into a pot and divided equally among those at the next lower generation.
3) UPC 2-103 Share of Heirs Other than Surviving Spouse: For intestate estate not passing to spouse or the
entire estate if no spouse, following order of passage:
a) To the DT’s descendants by representation;
b) To the DT’s parents if no surviving spouse (equally if both survive);
c) To the descendants of the DT’s parents if no surviving descendant / parent;
d) Given no surviving descendants or parents (or their descendants), to the ½ to both the DT’s paternal and
maternal grandparents (equally if both survive), or to the descendants of the DT’s grandparents or either of them
if both are deceased. Entire estate will pass to either side if no surviving grandparent.
(1) NOTE: This limits inheritance by intestate succession only to grandparents & their descendants.
4) Per Capita UPC 2-106[Representation]:
a) DT’s Descendant’s: If under 2-103(1), the estate or part thereof is divided into as many equal shares as
i) Surviving descendants in generation nearest to the DT which contains any surviving descendants &
ii) Deceased descendants in the same generation who left surviving descendants.
b) Descendants of Parents / Grandparents: If under 2-103(3) or (4), a DT’s estate is divided into equal parts
c) Surviving descendants in the generation nearest the deceased parents / grandparents that contains one +
d) Deceased descendants in the same generation who left surviving descendants.
e) NOTE: Initial division is made @ the level where descendants = still alive, but the shares of deceased
persons on that level are treated as one pot & are dropped down / divided equally among the
representatives on the next generational level.
e) Look to the descendants and find the first living head’s level, keep going until you find a descendant who is
alive and then start counting up the initial number of shares, with the shares equal to the number of living
and dead heads on that level.
SHARES OF ANCESTORS & COLLATERALS
1) UPC 2-107 Kindred of Half Blood: Relatives of half blood inherit the same share they would inherit if they
were of the whole blood.
2) When do They Collect / Who Are They? Normally occurs if no spouse / parent, the DT’s heirs will be more
remote ancestors / kindred.
a) Collateral Kindred: All persons who ‘r’ related by blood to the DT but who aren’t descendants / ancestors.
i) 1st Time Collaterals: Descendants of the DT’s parents, other than the DT’s issue.
ii) 2nd Time Collaterals: Descendants of the DT’s grandparents, other than the DT’s parents & their issue.
3) Per Capita – UPC 2-106(c): If DT survived by spouse / descendant / parent, intestate prop passes to bros. /
sisters & their descendants. Descendants of any deceased bros. / sisters take by representation in the same
manner as the DT’s descendants.
4) IPA 5/§2-1(a) to (b) – When intestate = survivied by DT, the DT’s ancestors & collaterals do not take.
a) In Illinois, if there is a spouse and no descendant’s the spouse takes all. If there is no surviving spouse or
descendant, but there is a parent, brother, sister, or descendant of the brother or sister of the decedent, the
entire estate goes to these people as according to statute.
b) If there are no first-line collaterals, the states differ as to who is next in the line of succession.
i) Parentelic – the intestate estate passes to grandparent’s and their descendants (aunts, uncles, first
cousins). If none, to great-grandparents and their descendants (great uncles, great aunts, first cousins
once removed). And so on if none (which is all but impossible really).
ii) Degree of Relationship – The intestate estate passes to the closest of kin, counting degrees of kinship.
To ascertain degree of relationship of the DT to the claimant you count the steps up from the DT to the
nearest common ancestor of the DT and the claimant, and then you count the steps down to the
claimant from the common ancestor. The total # of steps in the degree of relationship. (Chart pg. 86)
iii) Illinois – Illinois goes Parentelic until 3rd parantella (descendants of great grandparents); if none found
here, switch to the next of kin system. Never stops – property only escheats if can’t find any person
related to the decedent.
iv) Degree of kinship is not representational – the group in closest degree as a class will take per capita.
5) Negative Disinheritance: Disinheritance possible by a declaration in a will that “X won’t receive any of my
property,” but must be made through a devise of all property to other persons. UPC 2-101(b): Authorizes a
negative will, barred heir = treated as if he disclaimed his intestate share.
1) Sample Exam Question #1:
a) IPA (per stirpes): D= ½; F=¼; G=1/8; H=1/8.
b) UPC (per capita): D=1/3; F=1/3; G=1/6; H=1/6.
2) Sample Question #2: [See Handout]
D E F
TRS TO & THROUGH “CHILDREN”; ADVANCEMENTS
1) UPC 1-201(5) Child: Includes as an individual entitled to take as a child under this Code by intestate
succession from the parent whose relationship is involved & excludes a person who = foster child, grandchild, or
any more remote descendant.
a) NOTE: When it is to the child’s advantage to be treated as in being from the time of conception rather than
from the time of birth, the child will be so treated if born alive.
b) Period of Gestation: CT’s have rebuttable principle that is 280 days (10 lunar months) from the date of birth;
burden on child to prove otherwise; Uniform Parentage Act says 300 days.
2) UPC 1-201(9) Descendant: Means all of his descendants of all generations, w/ the relationship of parent /
child @ each generation being determined by the definition of child / parent contained in the code.
a) UPC 2-109:
i) If individual dies intestate, prop the DT gave during the DT’s lifetime to an individual, who, @ time of
DT’s death, is an heir is treated as an advancement against the heir’s share only if…
(1) DT / heir declared / acknowledged in writing the gift = an advance; or
(2) DT’s / heir in writing otherwise indicated / acknowledged that the gift is to be taken into account in
determining the estate.
ii) Prop advanced under (a) above is valued @ time the heir came into possession / enjoyment or as of the
time of the DT’s death, whichever first occurs.
iii) If the recipient of the prop fails to survive the DT, the prop is not taken into account in computing the
division / distribution of DT’s intestate estate, unless the DT’s writing provides otherwise.
b) ICLS 2-5: Lifetime gift to child will not be treated as an advancement against future inheritance unless so
expressed in writing by the decedent at the time of the gift OR unless so acknowledged at any time in writing
by the person to whom the gift was made. (This timing language was McCord’s. In the IPA, it makes no
mention of when the DT or the donee must acknowledge in order for the gift to be treated as an
advancement.) Reversed common law presumption that gift during life was advancement.
i) Example: If gift is treated as an advancement, the donee must allow its value to be brought in to
hotchpot if the donee wants to share in the decedent’s estate. Assume decedent leaves no spouse, 3
kids, and an estate worth $50,000. A received an advancement of $10,000. To calculate shares in the
estate, the $10,000 gift is added to the $50,000, total = $60,000. $60,000 is divided by 3. A has already
received $10,000 of her share; thus she received only $10,000 from the estate. Siblings take a $20,000
share. If A had been given property worth $34,000 as an advancement, A would not have to give back a
portion of this amount. A will stay out of hotchpot, and decedent’s $50,000 will be equally divided
between the 2 other kids.
c) TR of Expectancy: Under eyes of law, no one has any heirs, but only has heir apparent, a mere expectancy
in the estate. As a result, this expectancy in the estate can’t be TR’ed @ law since it is not a legal intt.
4) Posthumous Children: Child conceived before the death of the decedent is considered as a child of the
decedent and shares with the other children
a) UPC 2-113 Individuals Related to DT Through 2 Lines: If related as such, the individual only = entitled
to a single share based on the relationship that would entitle the individual to a larger share.
b) ICLS 2-3: A child born after the decedent’s death shall receive the same share of an estate as if the child
had been born in the decedent’s lifetime.
c) CTs have established a rebuttable presumption that a child born within 280-300 days of the decedent’s
death is the decedent’s child for inheritance purposes.
a) ICLS 2-2: Intestate real / personal estate of resident DT who was illegitimate @ the time of death & the
intestate R/E in this State, after all just claims are paid, descends & distributed per 5/2-1 above.
i) Illegitimate Defined: Heir of his mother & of any maternal ancestor & of any person from whom his
mother might inherited, if living; and the descendants of an illegitimate person shall represent such
person & take by descent any estate which the parent would’ve taken.
ii) Acknowledgement by Paternity: If acknowledged during lifetime or after death the DT is judged to be the
father of the illegitimate, then that person is heir of his father / paternal ancestor.
(1) Proof: Clear & convincing evidence [via a CT of competent jurisdiction].
b) UPC: Normally allowed to inherit from the mother but may be excluded from inheriting from the father.
i) Uniform Parentage Act: Relationship extends to all children regardless of the marital status of parents…
Father’s status is proved vis-a-vi…
(1) Father receiving the child in his home & openly holds out the child as his natural kid or
(2) Father acknowledges his paternity in a writing filed w/ CT / admin. agency.
ii) NOTE: Action to est. parent-child relationship must be brought w/in 3 yrs. of child reaching majority.
6) Adopted Child:
a) UPC 2-114: For purposes of intestate succession by / through / from a person, an individual is considered a
child of his natural parents regardless of their marital status; though such relationship may be est. under the
applicable state law / Uniform Parentage Act. Child is only a child of the adopting parents, but adoption of a
child by the spouse of either natural parent has no effect on…
i) Relationship between the child & natural parent or
ii) Rt. of the child / descendant of the child to inherit from / through the other natural parent.
iii) NOTE: In a stepparent adoption, the children can inherit from their natural relatives but the natural
relatives can’t inherit from them.
b) ICLS 5/2-4:
i) NOT Stepchild adoption: Complete substitution. Adopted child has full inheritance rights from adopted
parents and their kin. Adopted parents and their kin have full inheritance rights from the adopted child.
Adopted child has no inheritance rights through biological parents. Biological parents have no
inheritance rights through adopted child.
ii) Stepchild adoption: Stepchild has inheritance rights through adopted parent and their kin and both
biological parents and their kin. Adopted stepchild has more inheritance rights than a natural child.
However, the biological parent no longer living with the child (and his or her kin) can not inherit from the
c) Neglectful Parents: Inheritance from / through a child by either natural parent or his kindred is precluded
unless that natural parent has openly treated the child as his and not refused to support the child.
d) Hall v. Vallandingham (MD SC 1988): A Mother w/ four child is remarried following death of her original
husband, new husband adopts all four children. Following death of their biological father’s brother (their
uncle) who dies intestate, children bring suit that they should be entitled to their father’s share of the estate.
i) CT notes that the rt. to inherit / receive prop vis-a-vi devise / descent = a privilege granted by the state &
not a natural right.
ii) Because an adopted child has no rt. to inherit from the natural parent’s intestate estate, it follows
that the same child may not inherit through the natural child by way of representation.
e) Equitable Adoption: If a child is taken into the home & raised as two parents child w/o formal adoption, the
child may still be able to inherit from these parents under equitable adoption.
i) Oral K to adopt the child, between the quasi-adopted parents & the natural parents, is implied and
specifically enforced in equity.
ii) NOTE: While child can adopt from the foster parents, the foster parents / relatives can’t adopt from him.
(1) Implied contract of adoption
(2) Personal right of child in estate of parents. No right in estate of parent’s kin. One way street: parent
cannot inherit from child by saying he is the equitably adopting parent if child predeceases him.
(3) Must prove equitable adoption, in order for a stepchild to inherit from a stepparent when the
stepparent has not adopted the stepchild.
(4) See dissent in O’Neal v. Wilkes
7) Managing a Minor’s Property: What to do when prop is TR’ed to a minor who lacks legal capacity to manage.
a) Guardian of the Person: CT will appoint such if both parents die & no guardian is est. in their will.
i) NOTE: Guardian of the child auth. to deal w/ the child’s prop
b) Guardianship: Appointed by the CT; includes a number of diff. functions…
i) Can’t investments w/o a CT order, though has duty of preserving specific prop until the minor has
reached age 18 (@ which pt. he delivers the prop);
ii) Can use only income from the prop to support the ward but can’t take out loans against the prop to
support the ward w/o CT approval.
c) Conservatorship: Similar to guardianship but includes the conservator being named “title as trustee” giving
him more flexibility / ctrl over the property.
d) Custodianship: Created through will quite simply through use of Uniform TRs / Gifts to Minors Act; given
prop to hold for the benefit of a minor.
i) Gives custodian flexibility to spend much or all of the prop for the child’s benefit & to give the remainder
to the child @ age 21.
ii) While under the supervision of the std. of fiduciary duty, the custodian is not under CT supervision [use
this only for smaller gifts].
iii) Trusteeship: Created through will; will be discussed later.
MISCONDUCT / KILLING THE DT AS A BAR TO SUCCESSION
1) UPC 2-803 Effect of Homicide on Intestate Succession:
a) Definitions: [Omitted]
b) Forfeiture of Statutory Benefits: Occurs if individual feloniously / intentionally kills the DT w/ respect to the
DT’s estate, including an intestate homeshare, an elective share, an omitted spouse’s / child’s share, etc. If
the DT died intestate, the DT’s intestate estate passes as if the killer disclaimed his intestate share.
c) Determining a Felonious / Intentional Killing: After all rt. to appeal has been exhausted, a jdmt of conviction
est. the crim’l accountability for the killing of DT conclusively est. the convicted individual as the DT’s killer.
i) No Conviction: CT upon petition of intt. person must determine [preponderance std.] the individual would
be found criminally accountable for the killing of the DT.
d) Revocation of Benefits Under Governing Instrument: Felonious / intentional killing of the DT…
i) Revokes any revocable prop given by the DT to the killer in a governing instrument & creation of any
pwrs. of appointment to the killer / nominations as trustee / personal rep.
ii) Severs any JT’s between the killer & the DT.
e) Effect of Revocation: Either as if the killer disclaimed all provisions revoked by this section or if the killer was
to become a representative, as if the killer predeceased the DT.
f) Wrongful Acquisition of Property Standard: Killer can’t profit from his / her wrong.
2) ICLS 5/2-6 Person Causing Death: Person who intentionally / unjustifiably causes death of another shall
not receive prop, benefit, or other intt. by reason of death. Property / benefit / other instrument shall pass as if
the killer died before the DT, provided that w/ respect to the JT prop shan’t be diminished by the application of
a) Who’s Covered? Heir, legatee, beneficiary, JT, survivor, appointee, or any other capacity.
b) What’s Covered? Prop, any benefit, or other intt. passes pursuant to title registration, testamentary / non-
testamentary instrument, intestacy, renunciation, or any other circumstance.
c) What’s Intentional / Unjustifiable? Conviction of 1st / 2nd degree murder = conclusive; must wait for a crim’l
proceeding to reach a jdmt or w/in one year of death if no charges ‘r’ brought.
d) Holders of Property: Holder of any prop subj to this section shall not be liable for distributing / releasing said
prop to the person causing the death if such occurs prior to a determination & any such holder of prop who
believes an heir might be the killer must fully cooperate w/ law enforcement.
3) Homicide -- In re Estate of Mahoney (VT SC 1966): DT’s spouse = convicted of manslaughter of the DT; TC
rules the entire estate should go to the DT’s surviving parents in equal parts, DT’s spouse argues that she
should get the entire estate. VT doesn’t have any law involved the DT & his killer.
a) CT notes three possible ways to handle the intestate estate when no intestate homicide statute…
i) Legal title passes to slayer & may be retained by him in spite of his crime.
ii) Nothing passes to the slayer based on idea that no one should be permitted to profit by his own fraud or
take advantage / profit of his own wrong / crime.
iii) Legal title passes to the slayer but equity holds him to be a constructive trustee for the heirs / next of kin
of the DT.
b) CT considers constructive trust, noting that it is not intended as an additional crim’l penalty but to prevent
him from profiting from his crime. However, CT notes that a distinction needs to be made when involving a
case of voluntary or involuntary manslaughter, ruling that the former results in a constructive trust.
DISCLAIMER AS A BAR TO SUCCESSION
1) UPC 2-801 Disclaimer of Prop. Intts.:
a) Rt. to Disclaim Intt. in Prop.: Person / representative [e.g. conservator, guardian, agent] w/ intt. in prop. may
disclaim it in whole / part by delivering / filing a written disclaimer. Exists notwithstanding…
i) Any limitations on the intt. of the disclaimant [e.g. spendthrift provision]
ii) Any limitation contained in the governing instrument.
b) Time of Disclaimer:
i) Testamentary Instrument / Intestate: > 9 months after the death of the deceased owner / donee
(1) Future Intt.: > 9 months after event determining that taker is fully ascertained & intt. = indefeasibly
(2) Where to File? Probate CT of the cty. in which the proceedings have commenced.
ii) Nontestamentary / Contract: Same as above.
(1) Lack of Knowledge: If the person entitled to disclaim lacks knowledge of the intt., the disclaimer must
be filed w/in 9 months of his gaining knowledge.
(2) Effective Date: Date on which the maker no longer has pwr to revoke or TR to himself / another.
iii) Survivorship: JT or tenant by entirety can disclaim if the JT was created by act of a deceased, the
survivor didn’t join in creating the JT, and hasn’t accepted a benefit under it.
iv) NOTE: Must record any disclaim of R/E or intt. in such with the cty. Recorder of Deeds.
c) Form of Disclaimer: Must (i) describe the prop. / intt.; (ii) declare the disclaimer; & (iii) signed by disclaimant.
d) Effect of Disclaimer:
i) Testamentary Instrument / Intestate: Devolves as if the disclaimant had predeceased the DT; but if by
law or under will the descendants of disclaimant would normally share in the disclaimed intt., the intt. can
still pass to these other descendants of the disclaimant.
ii) Nontestamentary / Contract: Devolves as if the disclaimant had predeceased the effective date of the
instrument; same deal as above if the descendants of the disclaimant would normally be 2nd in line.
iii) Disclaimer / written waiver of the rt. to disclaim is binding upon the disclaimant or other person waiving &
all persons claiming through or under either of them.
e) Bars to Disclaim:
i) Assignment, conveyance, encumbrance, pledge, or TR of the prop. / intt. or a K;
ii) Written waiver of the rt. to disclaim;
iii) Acceptance of the prop. / intt. / benefit under it; or
iv) Sale of the prop. / intt. under jud’l sale made before the disclaimer is made.
2) ICLS 5/2-7(a) & (d): Disclaimer - unconditional unqualified refusal to accept property by delivering or filing a
a) Person who disclaims is deemed to have predeceased the descendant with the exception of joint tenancy.
b) If can take it all, disclaim the survivorship right to the other ½, or disclaim the whole piece of property.
c) Person who disclaims never actually owns the property - disclaimer avoids gift tax
d) Can disclaim property you receive both testate and intestate
3) Disclaiming Property / Intts.: Why Disclaim? Old Common Law v. New Statutes…
a) Old Common Law: If an heir renounced his inheritance under CL, it was treated as though the heir had rec’d
his share & then made a taxable gift to the persons who took by reason of the renunciation. If a devisee
disclaimed a testamentary gift, there were no gift tax consequences.
b) New Statutes: Disclaimant = treated as having predeceased the DT, DT’s prop. doesn’t pass to the
disclaimant & the disclaimant makes no TR of it.
i) Use as Postmortem Estate Planning: Disclaimer can be used to pass prop. on to one’s child w/o an
estate tax being levied upon the original heir’s death. The original heir’s CRs can’t reach her share in her
sister’s estate under UPC §2-801(d)(1).
ii) IRS Code §2518: Prevents ‘u’ from avoiding gift tax liability unless your disclaimer = qualified; to qualify
the disclaim must be made w/in 9 months after intt. is created or donee reaches 21, whatever is later.
c) Welder Case: Donee has two children, owner was predeceased by her child B, but not by her child A.
Donee dies, A disclaims. Per stirpes, ½ of estate goes to C (child of B), ½ goes to the 4 descendants of A.
However, in TX, the CT applied per capita, so the first level of division would be made @ the level of the
grandchildren. As a result, the estate would be divided into fifths, meaning C only receives 1/5 of the estate,
instead of ½ of the estate. CT finds against the A’s children, awarding the estate per stirpes.
MENTAL CAPACITY AS A BAR TO SUCCESSION
1) UPC 2-501 / ICLS 5/4-1 Defining Mental Capacity: 18 or more yrs. of age who is of sound mind
2) Ground for Contesting a Will:
a) Will not properly executed / revoked.
b) DT does not have the mental capacity to make a will.
c) Fraud / undue influence. ludicrous
3) Requirements for Mental Capacity:
a) Person must have the ability to know…
i) Nature / extent of the DT’s property;
ii) Persons who are the natural objects of the DT’s bounty;
iii) Disposition the DT is making; &
iv) How elements relate so as to form an orderly plan for the disposition of the DT’s prop.
b) NOTE: CTs normally needed more evidence than a few isolated occasions / eccentricities, or even that the
person has been declared incompetent & placed under a conservator. Instead, to make a will requires less
capacity than the pwr to make a K or gift but greater capacity than req’d for marriage.
c) In re Strittmater (NJ AC 1947): Why must the person have mental capacity to leave a will?
i) Will should only be given effect if it represents the testator’s true desires.
ii) Mentally incompetent man / woman a person by definition.
iii) Need mental capacity to protect the DT’s family.
v) Assures a sane person that the her desires while sane will be carried out even though the person
becomes insane later & makes another will.
vi) Protect society @ large from irrational acts / exploitation by cunning persons of senile / incompetents
4) Insane Delusion: Person may have suff. mental capacity to execute a will but may be suffering from an insane
delusion so as to cause a particular provision / the entire will to fail for lack of capacity.
a) Defined: Insane delusion = one which the testator adheres against all evidence & reason to the contrary.
i) Majority: Delusion can be insane even if there is some factual basis for it if a rat’l person in the testator’s
situation couldn’t have drawn the conclusion reached by testator.
ii) Minority: If there is any factual basis, the delusion insane.
b) In re Honigman (NY AC 1960): Widow argues that husband, who cut her out of the will upon his death, was
insanely delusion regarding her status; specifically that she was not faithful to him before his death.
i) CT applies the reasonable basis test to the fact pattern, seeking to determine if there was any
reasonable basis for the husband to think the wife = unfaithful. Burden of proof is a difficult one to carry,
but where an objectant has gone forward w/ evidence reflecting the operation of the testator’s mind, the
proponent must provide a basis for the alleged delusion.
ii) CT notes that the dispository provisions can lead to a will being bad if they were or might have been
caused or affected by delusion.
5) Difference between Delusion & Mistake: Delusion = not susceptible to correction by presenting the testator w/
evidence indicating the falsity of belief; while a mistake is susceptible to correction if the testator is told the truth.
1) Defining Undue Influence: Undue influence must include coercion, only when the will of the person who
becomes a testator is coerced into doing that which she doesn’t desire to do.
a) Three Part Test: Burden of proof is normally on the PL, PL must prove…
i) Mental Capacity of Testator: Testator was susceptible to undue influence,
ii) Motive / Opportunity: Influencer had disposition / opportunity to exercise undue influence, &
iii) Causation: Disposition is a the result of the influence.
b) Proving Undue Influence: Evidence = rarely direct, normally circumstantial & based w/ anecdotal evidence.
i) Lipper v. Weslow (TX AC 1963): PLs charge undue influence in the will of the testator, DFs argue that
the will itself demonstrates why the PLs didn’t receive any $ & that there is no undue influence. TC
found for the PL, noting circumstantial evidence including that the DF actually wrote the will 22 days
before the testator’s death & that there was contrary evidence that the PL’s were attentive. CT applies
test that undue influence = ctrl exercised over the testator to overcome her free agency / will & to
substitute the will of another so as to cause the testator to do what she otherwise wouldn’t if not
for the influence. CT reverses the decision, finding insufficient evidence for undue influence.
(1) CT notes other direct evidence of conversations w/ the testator, most of which involved the testator
saying she wasn’t going to leave the PLs anything. CT finds this evidence to be persuasive,
coupled w/ the demonstration that she was of sound mind / strong will.
c) Shifting of the Burden Confidential Relationship: Person = position of superiority; by 1 party over another.
i) Std.: Proponent of will must prove a lack of undue influence of evidence that the will be rebutted, normal
std. is preponderance of the evidence; evidence must be clear & convincing if the atty is the influencer.
(1) IL std. is flexible, if the presumption is great, the burden of proof will depend upon the presumption.
ii) Burden shifts if…
(1) Person in a confidential relationship [person holding power of atty creates a fid. duty & falls w/in
this exception; also may include Dr.–patient, atty–client, etc.]
(2) Receives bulk of testator’s property
(3) From a testator of weakened intellect.
(4) Person must be present & an influence in the testamentary acts.
2) No Contest Clauses: Provide that a beneficiary who contests the will shall take nothing / token amount,
designed to discourage will contests.
a) What is considered a contest? Particular kinds of litigation contests, specifically suits to construe wills,
attacks on only certain portions of the will (may be considered a suit for construction), & requests by
beneficiaries for a declaratory jdmt. as to whether a particular activity will violate a no-contest clause.
b) Enforcement? Majority of CTs will enforce unless a PC for the contest, but some won’t enforce if the PL
alleges forgery, subsequent revocation, or if the suit is regarding a clause benefiting the will’s drafter /
i) Many CTs won’t enforce the no contest clause if they feel the contestant was trying to discover in GF the
true wishes of the testator.
3) Bequests to Attnys: CT may find a presumption of undue influence when atty / drafter receives a legacy,
except when the atty = related to the testator. Probably against the MRPC 1.8.
a) In re Will of Moses (MISS SC 1969): PL charges DF had undue influence, DF was PL’s lover but didn’t draft
will & also lacked knowledge that the testatrix had even drafted said will. TC found for the PL, SC affirms.
i) CT notes that the DF had a continuing fiduciary relationship w/ the testatrix before & upon her death. As
a result, the DF would normally not be allowed to receive any legacy from the testatrix. However, DF
argues that the presumption of undue influence = overcome by independent advise & counsel.
ii) CT notes that the independent attny never gave the testatrix any advice / counsel, instead all he did was
write down her wishes.
4) Sexual Relations: May cast a suspicion of deceit & caution the CT to examine the evidence carefully.
a) In re Kaufmanns’s Will (NY AD 1965):Testator was a gay man who left all of his estate to his longtime gay
lover & friend. PL (testator’s brother) sues to have the will set-aside for undue influence; CT agrees with
Robert, finding that the DF had an “unnatural, insidious influence operating on a weak-willed, trusting,
inexperienced testator.” Most CTs will probably rule on a similar case based upon the facts of the
case, won’t normally consider sexual morality but will allow the juries to hear evidence about the
1) Defined: Occurs where the testator is deceived by a misrepresentation & does that which the testator would not
have done had the misrepresentation not been made.
a) NOTE: Need the intent to deceive & the purpose of influencing the testamentary disposition.
2) Result of Fraud: Provision procured by fraud is invalid, remaining portion stands unless fraud goes to the entire
will or portions invalidated by fraud = inseparable from the rest of the will.
a) CT Action: Where CT can’t do justice by refusing probate, will may be probated & a CT w/ equity pwrs can
impose a constructive trust on perpetrator, compelling such to surrender the prop. acquired by such.
3) Elements of Fraud:
b) Scienter [knowledge of the falsity on the part of the perpetrator (person making the false stmt intending to
deceive & for the purpose of influencing conduct)]; and
c) Reliance / Causation Aspect [A fraudulently procured inheritance = invalid only if the testator wouldn’t have
left the inheritance had the testator known the true facts].
4) Fraud in the Substance: Misrepresent to the testator the substance of the document.
5) Fraud in the Inducement: Person misrepresents facts, causing testator to… (1)execute a will to include
provisions in the DF’s favor, (2) to refrain from revoking a will, or (3) not to execute a will. Only fraud if the
influencer knows of her fraud & uses it to influence the testator will it be deemed fraud.
a) Estate of Carson (CA SC 1920): Testator writes will to the DF following a fake wedding. Was the devise the
fruit of the fraud? CT rules it’s a jury ‘?’, that the jury must determine whether enough time had
passed such that the devise was based on the relationship or instead based on the fake marriage.
6) Fraud in the Execution: Person misrepresents the character / contents of the instrument signed by the testator
which doesn’t in fact carry out the testator’s intent.
a) Latham v. Father Divine (NY AC 1949): Testator gives her entire estate to Father Divine, testator’s cousins
cry foul… CT establishes a cause of action for fraud based on the constructive trust stuff above,
allowing for such whenever necessary to satisfy the demands of justice!
i) NOTE: If the CT finds for a constructive trust, the CT would in effect be distributing prop. according to a
completely unexecuted will, a will that the testator might never have signed or might later revoke.
b) Pope v. Garrett (TX SC 1948): In finding fraud, CT rules against innocent heirs, finding that such = unjustly
enriched if permitted to keep fraudulently gained prop, since but for the wrongful acts they’d receive nothing.
c) Constructive Trust: May be imposed where no fraud is involved if the CT thinks unjust enrichment would
result if the person retained the property.
7) Tortious Interference w/ Expectancy: Intentional interference w/ an expected inheritance / gift as a valid cause of
action, must prove that such involved conduct tortuous in itself, like fraud, duress, or undue influence.
a) NOTE: Not a will contest, seek to recover tort damages from a 3rd party; has a longer SOL beginning
when the PL discover / should’ve discovered the fraud.
b) Similar to the contest of will, although the PL can receive $ damages (including some punitive damages in
some states) under tort action as opposed to no $ damages via a will contest (other than throwing out the
will). However, differences in final money given are normally fairly close.
c) Nemeth v. Banhalmi (IL AC 1984):Can’t base challenge on testator’s mental capacity.
d) Exhaustion of Remedies: May be req’d to exhaust probate remedies prior to bring the tort claim.
i) IL Rule: If admin. proceeding are started, then person who would become the PL in the tort action must
appear & fight it out in the probate CT [needs to be brought as fraud, undue influence, etc.]. However,
the aggrieved party doesn’t have to start the probate proceedings.
e) Res Judicata: Does a final decision in the contest of wills bar a later tort case? Normally if the PL in the tort
case loses in the probate CT, then he is barred from the tort claim. IL goes further, saying if there were
probate proceedings & the PL in the tort action didn’t contest the decision of the probate CT, then this is
also res judicata.
EXECUTION OF WILLS
1) UPC 2-502(a) / ICLS 5/4-3 Execution: [Similar to the statute of frauds] Also called the statute of wills…
a) Except as provided in subsection (b) and Subsections 2-503, 2-506, and 2-513, a will must be:
i) In writing;
ii) Signed by testator or in such name by some individual in testator’s presence & by testator’s direction; &
iii) Signed by 2+ individuals, each of whom signed w/in reasonable time after he witnessed either…
(1) Signing of will as described in ii) above
(2) Testator’s acknowledgement of signature or acknowledgement of will.
iv) NOTE: ICLS calls for writing & signature by testator / some person in presence & 2+ credible witnesses.
2) Exectuion: The formalities effectively require the will to be in a type of form which is easily recognizable by
those called upon to implement the will…easily recognizable as being a will.
a) Requirements of Due Execution: CT should generally favor giving effect to an intentional exercise of pwr.
i) Need to determine that testator deliberately intended to effectuate a TR.
ii) Requirements of TR may increase the reliability of the proof presented to the CT.
iii) Safeguard the testator, @ the time of the execution of the will, against undue influence of other forms of
imposition [safe harbor, providing the testator w/ assurance that his wishes will be carried out]
b) In re Groffman (Eng. 1968): Will is signed by the testator, seems to be OK. However, both witnesses signed
the will after the deceased had already signed & that the witnesses both signed the will outside of the
presence of the other, but in the same building. Question is whether he acknowledged is signature in the
presence of both witnesses. CT rules that there must be a completed acknowledgement in the
presence of both attesting witnesses @ the same time…can’t be one continuous TR even if both
witnesses are nearby.
i) CT notes that the signature must be on the doc @ the time of acknowledgement & that the witness must
have seen such @ that time. No suff. acknowledgement unless the witnesses either saw or might have
seen the signature.
c) In re Conway: Case where employee signs a document which ends up being a will, but is not aware @ the
time that she is signing a will [believes she is simply attesting the signature of a document]. While the
document was signed in the presence of both witnesses by the testator, the witnesses were unaware that it
was a will. CT rules that the witnesses needn’t know that the document was a will, must simply
witness the signature.
d) Thorn case: Need to have sufficient evidence that the testator directed another individual to sign the will for
him/her when he/she is incapacitated.
e) Attny. Liability: If the supervising attny to the will messes up, he can be liable for faulty execution (might be a
privity barrier) or for malpractice.
f) Presence of the Testator Line of Sight / Conscious Presence Test: Witnesses must sign in the presence
of the testator, satisfied if the testator is capable of seeing the witnesses in the act of signing. Alternate is
that the testator comprehends that the witness is in the act of signing.
i) Standard for Conscious Presence Test: Could’ve seen the witness sign or could’ve seen the testator
make the motion of signing.
ii) Telephonic Presence: Not good enough…
iii) NOTE: UPC dispenses with the requirement that the witnesses sign in the testator’s presence.
iv) Signature: Doesn’t have to be a complete signature, need only be some type of designation.
g) Signature: Any mark intended as signature = signature. Assisted signatures = ok provided that testator
requests the assistance. “Do you want me to help you?” “Yes.” Asking is ok also.
i) IPA 4-3(a): Assistance ok. Name in opening sentence has been held to be a valid signature as long as
testator intended name in opening sentence to be his signature, not whether he intended instrument to
be his will.
h) Delayed attestation: Witnesses must sign w/in reasonable time but before death of the testator.
i) Attestation clause: statement that the will was executed with the proper formalities.
i) signing an attestation serves an evidentiary function, identification function. Wills will still be admitted
w/o such. Good practice to include. Attestation clauses raise presumption of due execution.
3) Proper Witnesses:
a) UPC 2-505 Who May Witness:
i) Individual who generally competent to be a witness may act as a witness.
ii) The signing of a will by an intt. witness doesn’t invalidate the will or any provision of it.
(1) NOTE: This doesn’t tend to decrease the amt. of litigation arguing for fraud / undue influence.
b) ICLS 4/4-6 Beneficiary / CR as Witness: Such can’t serve as a witness unless 2 other qualified witnesses
also sign; if not, then the will is void as to that beneficiary. No age qualification. Anyone who is capable of
testifying as a witness. Not relevant if witnesses later become incompetent. Only must be competent at the
time of the signing.
c) Estate of Parsons (CA AC 1980): Does a witness to a will become disinterested by filing a disclaimer of her
intt. after the testatrix’s death? CT holds a disclaimer = ineffective for this purpose.
i) CA statute holds that must be 2+ other & disinterested subscribing witnesses to the will. PLs argues
that the disclaimer doesn’t make the witness = disinterested, the DFs say that no fraud or undue
influence has occurred here & that the PLs were intentionally omitted & that the disclaiming DF only
gave up a token gift. DFs also note language which makes the disclaimer relate back to the date of the
ii) Purpose of the witnesses’ signing the will must be effectuated prior to probate; probate code in this case
looks purely to the time of execution / attestation of the will. Although the relation back argument may
appear valid, since the will was null & void from its inception (since 2 of the 3 witnesses = interested),
then she never actually had an intt. to disclaim.
iii) NOTE: This would not hold in a UPC district, since it clearly allows for such witnesses.
d) Who is a Proper Witness? Must be a credible witness, any person generally competent to be a witness;
some states may require certain age or that they must be competent to testify to matters of fact before a CT.
e) Interested Witnesses: Persons who ‘r’ beneficiaries under the will.
i) Two issues if there is an interested witness…
(1) What is the effect of the admission of the will to probate?
(2) What is the effect on the interested witnesses?
ii) UPC: Will admitted to probate, no effect on the legacy witness … heir will receive his normal return.
iii) Majority Approach -- Purging: Purge the witness only of the benefit the witness receives that exceeds
the benefit the witness would’ve rec’d if the will hadn’t been executed (e.g. the extra benefit).
(1) Bequest to the interested witness is void, as if the witness predeceased the testator. Could still pass
(2) Partial Purging:
f) Conflict of Laws – Wills: Lawyer should seek to draw & execute a will which satisfies the formal
requirements in all states. Lawyer should follow the steps outlined on TX225-226.
i) When is it Valid? At least three relevant jurisdictions, if it is properly executed in one of these
jurisdictions then it is valid. Jurisdictions include place of execution, testator’s domicile, or current place
ii) NOTE: Only execute one copy of the will, since you will often have multiple copies of the will. However,
you should never keep the will in your possession, but try to get the testator to place the will in a neutral
place for safekeeping.
iii) Personal Prop.: Law of DT’s domicile @ death determines validity of will regarding personal property.
iv) R/E: Law of the state where the R/E is located determines validity of will regarding R/E property.
4) UPC 2-503 Writing Intended as Will:
a) Rule: Although not executed per UPC 2-502, document or writing = treated as if it had been executed w/
that section if the proponent can est. by clear / convincing evidence that the DT intended the document…
i) To be the DT’s will
ii) Partial / complete revocation of the will
iii) An addition to or an alteration of the will
iv) A partial / complete revival of his formerly reworked will or of a formerly revoked portion of the will.
b) Comment Reasoning: Allows probate CT to excuse a harmless error in complying w/ formal requirement
for executing / revoking a will. For example section can be used if…
i) Testator forgets 2 witness requirement, this section can be used to maintain that this error = harmless to
the purpose of the formality or
ii) Testator doesn’t understand that to alter the will he has to execute the will again.
5) Curative Doctrines:
a) In re Pavlinko’s Estate (PA SC 1959): Husband & wife mistakenly sign the other’s will, PL (wife’s brother)
argues that her will should still be valid. CT finds no exception, mentioning that if the legislature made
adjustments for every case which involves a possible miscarriage of jdmt then the S_of_W would be
i) NOTE: Not all CTs will hold this way, some might be willing to find for the PLs if the there is no chance
b) False Demonstratio Non Nocet: Used by CTs to allow for the execution of mistakenly signed wills, meaning
a mere false description doesn’t make the instrument inoperative.
STATUTORY, CONDITIONAL, SELF-PROVING AFFIDAVITS AND HOLOGRAPHIC WILLS
1) Statutory Wills: On the other hand, an attested will is one expressly per the statute of wills. A writing entirely in
the handwriting of the testator but which complies w/ the statute of wills is not considered a holographic will but
an attested will.
a) Form Wills
must be formally attested.
b) Documentary Wills: “I direct my property be disposed of in accordance to the Uniform Will Act.” Establishes
that you clearly want your legacy to be dispensed with according to state intestacy, but still requires formal
2) Video Wills: Difficulty in determining when such are actually wills and not just video messages…for example,
some might argue that the video is simply a plea for attendance / presence of the heir.
3) UPC 2-504 Self Proving Affidavits:
a) Combined Attestation Clause & Self-Proving Affidavit: Testator & witnesses only have to sign once.
b) Self-Proving Affidavit Only: Allows for one to be fixed to the will & signed / attested, must be signed by the
testator & witnesses only after the testator has signed the will & the witnesses have signed attestation
c) NOTE: UPC 3-406 provides that if a will = self-proved, compliance w/ signature requirements for execution
is conclusively presumed; in non-UPC jurisdictions it may only give a rebuttable presumption of due
d) In re Will of Ranney (NJ SC 1991): Should a will which includes the signatures of 2 witnesses on the self-
proving affidavit but not on the will itself be admitted to probate. TC rules that the affidavit formed a part of
SC disagrees, but rules that the will
may be admitted to probate if it substantially complies w/ the requirements of probate.
i) Difference between attestation clauses (providing prima facie evidence that the testator voluntarily
signed the will in the presence of the witnesses) & self-proving affidavits (further effect of permitting
probate w/o requiring the appearance of witnesses). Attestation expresses present intent of persons to
act as witnesses, while affidavit shows that the will has already been attested. CT says no legislative
intent to substitute an affidavit for the attestation clause.
ii) CT enforces substantial compliance doctrine, similar to UPC 2-503. CT rules that proponents
must prove by a clear / convincing evidence that will substantially complies w/ statutory
requirements. In this case, clear / convincing evidence that their intent to sign the will should be
adduced to est. substantial compliance w/ the statute.
4) UPC 2-506 Validity of Wills: Allows for a valid will to be executed if it meets the formalities in…
a) State where the testator was domiciled @ death.
b) State where the will was executed.
c) State where the testator was domiciled when the will was executed.
5) Holographic Wills: Wills entirely in the handwriting of the testator, a technical term for a certain kind of will. If
entirely in the handwriting of the will, the will doesn’t need to be attested…holds in ½ of all jurisdictions.
a) UPC 2-502(b): Holographic will = OK if signature & material portions of doc. ‘r’ in testator’s handwriting.
b) UPC 2-502(c): Intent that the document constitute the testator’s will can be est. by extrinsic evidence,
including portions of the documents that ‘r’ not in the testator’s handwriting.
i) Fill in the Blanks Will: Not considered to be as holographic will, however in UPC jurisdictions non-
handwritten portions can be read to provide context to the handwritten portions.
c) ICLS: Illinois does not recognize HW’s
d) Requirements: Most require that it be… <Dated [in some cases]>
i) Entirely in the handwriting of the testator
ii) Signed by testator [anywhere on the will, but if not signed @ the end there might be doubt about whether
the DT intended his name to be a signature]
e) Problems: Often unclear as to whether the document was meant to be a will or simply a draft of a possible
will; is this a will or some other type of document?
f) In re Johnson (AZ AC 1981): If the will is partially handwritten (e.g. a form will), UPC requires that the
handwritten portion express a testamentary intent, could be a valid will only if the printed portion could be
eliminated & the handwritten portion could evidence the testator’s will.
i) Std.: If the printed words = essential to the testamentary disposition, then the will can’t enter probate.
6) Conditional Wills: Expressly provides that it shall be operative only if some condition, stated in the will, is
satisfied. (Example: “This will shall be effective, only in the event my wife survives me) Testamentary intent only
exists if the condition occurs. If it does not, the will fails due to a lack of testamentary intent. If condition
ambiguous, it will be dropped.
REVOCATION OF WILLS: BY WRITING, PHYSICAL ACT, & INCONSISTENCY
1) Two Types of Revocation: If not properly revoked, the will is admitted to probate.
a) Subsequent writing executed w/ testamentary formalities
b) Physical act such a destroying, obliterating, or burning the will.
2) Oral Revocation: To prevent fraud, an oral declaration w/o anything more is inoperative in all states.
3) UPC 2-507:
a) UPC 2-507(a): Will is revoked…
i) By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
ii) By performing a revocatory act on the will, if testator performed the act w/ the intent & for the purpose of
revoking the will or part of if another individual performed the act in testator’s conscious presence & by
the testator’s direction.
(1) Includes burning, tearing, canceling, obliterating, or destroying the will or any part. Needn’t actually
touch any words on the will.
b) UPC 2-507(b) – Intent of the Testator: If the will doesn’t expressly revoke, the new will revokes the old will if
the testator intended the subsequent will to replace rather than supplement the previous will.
c) UPC 2-507(c) – Replacement Wills: Replacement presumed if the new will makes a complete disposition of
the testator’s estate. Must be rebutted by clear & convincing evidence, otherwise the new will rules.
d) UPC 2-507(d) – Supplement Wills: If no complete disposition, will is meant to supplement. Must be rebutted
by clear & convincing evidence, otherwise the new will only revokes the previous will to the extent the new
will is inconsistent w/ the previous will. Each is fully operative to the extent they aren’t inconsistent.
4) ICLS 5/4-7: Three ways to revoke a prior will…
a) Executing a subsequent will which revokes prior wills
b) Executing a subsequent will which is inconsistent with prior will
i) If the subsequent will does not make a complete disposition of the testators estate, it is not presumed to
revoke the prior will, but is viewed as a codicil.
c) Performing revocatory act on the will i.e. burning, tearing, canceling, obliterating, destroying
i) Fundamental requirements of revocation by physical act
(1) must be a physical act for the statute. IPA 4-7 shows ways to revoke in Illinois
(2) performance of a physical act must be by the testator or at the testator’s request and in the presence
of the testator
(3) intent of testator – accidental destruction does not count
ii) Partial Revocation by physical act
(1) same requirements as above
(2) may, in some cases, destroy part of will, without destruction of entire document.
(3) Some states do not permit the Partial Revocation by physical act.
(4) May not revoke a will by tearing up a copy of it, you have to destroy the original.
iii) NOTE: An oral declaration that a will is revoked, without more, is inoperative in all states. If duly
executed will not revoked in manner proscribed by statute, will admitted to probate.
5) Destroyed / Lost Wills: If will is lost, or destroyed w/o testator consent, or destroyed w/ testator consent but not
in compliance w/ statute, it can be admitted if its contents ‘r’ proved. In the absence of a statute, a will that is
lost, or is destroyed without the consent of the testator, or is destroyed with the consent of the testator but not in
compliance with the revocation statute can be admitted into probate if its contents are proved.
a) Exception: Some states only allow for probate of lost / destroyed will if it was in existence @ testator’s death
or if it was fraudulently destroyed.
b) Harrison v. Bird (AL SC 1993) -- Can’t Find the Will: If evidence est. that testator had possession prior to her
death, but the will isn’t found amongst her stuff, a presumption arises that she destroyed the will.
i) Rebuttable Presumption: burden of rebutting is on the proponent of the will. Court held evidence not
sufficient to rebut, duplicate will not admitted.
c) Thompson v. Royal (VA SC 1934) – Revoked Will Which Isn’t Actually Destroyed: If will = revoked in
presence of multiple witnesses, but kept as a keepsake or for further memo for another will (also includes a
clear stmt that is revoked), writing to revoke will must either (1)physically affect the written portion of the will
or (2) be accompanied by physical defacement of will. Even though one has a clear intent to revoke,
courts are reluctant to effectuate when the requirements of the revocation statute are not met.
6) Codicil: An amendment to a prior will executed with the formalities of a will. It proposes changes, amendments,
and revocation of the will . Revocation of a codicil has no effect on provisions of the original will. The revocation
of the underlying document also has the effect of revoking all amendments and codicils to the underlying
REVIVAL; DEPENDENT RELATIVE REVOCATION; REVOCATION BY OPERATION OF LAW
1) Revival of a Past Will:
a) Rule: Normal case is T executes will #1, then executes will #2 which revokes will #1 by express clause or by
inconsistency. Later T revokes will #2. Is will #1 revived?
i) Minority Rule: Eng. common-law view that will #1 is not revoked unless will #2 remains in effect until the
testator’s death. Since a will doesn’t operate until the testator’s death, will #2 is not legally effective
during the testator’s life & will #1 never revoked.
ii) Majority Rule: Will #2 legally revokes will #1 @ time will #2 is executed. Two subsequent views…
(1) Upon revocation of will #2, will #1 is revived if the testator so intends [see Estate of Alburn]. Look to
the surrounding circumstances of #2’s revocation or from contemporaneous / subsequent oral
declarations that will #1 is to take effect.
(2) Revoked will can’t be revived unless reexecuted w/ testamentary formalities or republished by being
referred to in a later duly executed testamentary writing.
b) UPC 2-509: Part (a) says #2 that wholly revoked #1 is itself revoked by physical act, the presumption is that
the previous will remains revoked. Part (b) says if #2 is partly revoked by #1 the presumption is that the #1
i) (a)If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under
§ 2-507(a)(2), the previous will remains revoked unless it is revived. Revival occurs if it is evident from
the circumstances of the revocation of the new will or from the testator’s contemporary or subsequent
declarations that the testator intended the previous will to take effect as executed.
ii) (b) If a subsequent will that partly revoked a previous will is later revoked under R509(a)(2), a revoked
part of the previous will is revived unless it is evident from the circumstances of the revocation of the
new will or from the testator’s contemporary or subsequent declarations that the testator did not intend
the revoked part to take effect as executed.
iii) (c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another,
later, will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived.
The previous will or its revoked part is revived to the extent it appears from the terms of the later will that
the testator intended the previous will to take effect.
c) IPA 4-7(c): A will which is totally revoked in any manner is not revived other than by it’s reexecution or by an
instrument declaring the revival and signed and attested in an appropriate manner. If a will is partially
revoked by an instrument, which is itself revoked, the revoked part of the will is revived and takes effect as if
there had been no revocation.
i) A valid codicil to a previously revoked will has the effect of reinstating that will, IL is a non-revival state!
d) Estate of Alburn (WI SC 1963): Testator writes 2 wills, destroys the 2nd will possibly believing that by doing
so she would revive the 1st will which had been revoked by the revocation clause of the 2nd will. Three
different PLs, one wants the 1st will, one wants the 2nd will, third wants the estate to pass to intestacy.
i) Allows for DRR doctrine when a testator revokes a later will under the mistaken belief that by doing so
he is reinstating a prior will; DRR used to render the revocation ineffective.
ii) Std.: Only allowed when the testator clearly desires to reinstate the former will…if the intent is absolute
destruction, then DRR doesn’t apply.
2) Dependent Relative Revocation: If testator purports to revoke his will upon a mistaken assumption of law /
fact, the revocation is ineffective if the testator wouldn’t have revoked his will had he known the truth.
a) Elements: For DRR to apply, four elements must be established
i) Ineffective new disposition: Show that the testator, at the time of revocation, intended to make a new
testamentary disposition which for some reason was ineffective. The doctrine will not apply if the new
disposition is valid, or if no such disposition accompanies the revocation.
ii) Act of revocation: Valid revocation on which the doctrine may act.
iii) Mistake of law: The testator’s intent to revoke must have been premised or conditioned on a mistaken
belief as to the validity of another disposition. [E.g. testator mistakenly believes a new will to have been
validly executed, or mistakenly believes that the revocations of a later will revived an earlier one]
iv) Probable intent of testator: The invalidation of the revocation must be consistent with the testator’s
probable intent. The doctrine should be applied only when the court concludes that the testator would
have preferred a distribution under the “revoked” will over an intestate distribution.
b) Std.: If CT finds the testator wouldn’t have destroyed his will had he knew the new will = ineffective, the CT
will cancel the revocation & probate the destroyed will. Applied to carry out the testator’s presumed intent.
i) Carter v. 1st United Methodist Church of Albany (GA SC 1980): Testator has will drawn up & crosses out
certain sections, but leaves a written document w/ changes that can’t stand up as a will (unsigned &
undated). Proponent of the will argues for the application of dependent relative revocation. CT notes
since the two instruments were found together, burden is shifted to the opponent of the will to
prove, that the testator desired intestacy to the old will being used.
(1) TC assumes that the will was marked up by the testator (based on it being w/ the handwritten
document) & assumed the document was to be her new will.
(2) Std.: If it is clear the cancellation & the making of the new will were parts of 1 scheme, & the
revocation of the old will was so related to the making of the new as to be dependent upon it, then if
the new will be not made, of if made is invalid, the old will, though canceled, should be given effect, if
its contents be ascertained in any legal way.
(3) If evidence that testator intended to make or actually made new will [inoperative], may throw light on
‘?’ of intention to revoke old one, but it can never revive a will once completely revoked.
(4) Revocation by a subsequent instrument involves harsher std. than physical act revocation.
c) Exceptions to DRR:
i) Where there is an alt. plan of disposition (normally another will duly or defectively executed) that fails or
ii) Where the mistake is recited in the terms of the revoking instrument.
3) Revocation by Operation of Law – Change in Family Circumstances:
a) Divorce: Minority rule says a divorce revokes any provision in the DT’s will for the divorced spouse; majority
says those provisions ‘r’ revoked only if accompanied by a property settlement. This doesn’t apply to ins.
policies, pension plans, or other non-probate TRs.
b) Marriage: If testator executes his will & later marries, maj. Rule gives the spouse her intestate share, unless
the omission was intentional or the spouse provided for in the will or by a will substitute w/ the intent that the
TR be in lieu of a testamentary provision. Revokes the will to the extent of the spouse’s intestate share.
c) Later Children: Pretermitted child statutes often give a child born after execution of the parent’s will & not
provided in the will a share in the parent’s estate.
i) What if the person thinks the child is dead, or does not believe the child is his? CTs will apply DRR
(1) There is a will #2 revoking will #1
(2) There is evidence of mistake on the face of will #1
(3) The will #1 shows how the testator would probably leave stuff to the child.
COMPONENTS OF A WILL
1) Integration of Wills: All papers present @ the time of execution, intended to be part of the wil, ‘r’ integrated into
the will. Need to show sufficient connection of language carrying over from pg. to pg. to show internal
coherence of provisions. Overcome by insuring a complete fastening of pgs. & having testator initial each pg.
2) Republication by Codicil: Will is treated as reexecuted (“republished”) as of the date of codicil. Not necessary
that the will be present when the codicil is executed.
a) ICLS 4-7(c): A republishing of a 1st will by codicil will have the effect of revoking a second will by implication
b) Example: T revokes will #1 by will #2 & then executes a codicil to will #1. Will #1 is republished & will #2 is
revoked by revocation. [see also p. 287] Even if one will w/ multiple codicils, a few of which ‘r’ invalid, so
longs as the last codicil is valid, the other codicils and the original will ‘r’ valid.
c) Application: Not applied automatically but only where updating the will carries out the testator’s intent.
d) Difference between Republication & Inc. by Reference: Republication applies only to a prior validly executed
will while incorporation applies to incorporate a will instruments that have never validly been executed.
e) No Inc. by Reference Jurisdiction: Utilize republication to give effect to wills that ‘r’ invalid for reasons other
than faulty execution; e.g. use codicil to republish will invalid due to incapacitation / undue influence.
i) Exception: Can’t be used to republish an instrument never duly executed w/ the req’d formalities.
3) Incorporation by Reference:
a) UPC 2-510 – Three requirements:
i) Document referred to must be in existence at time will which refers to it is executed.
ii) Must manifest an intent to use external document as a part of the overall testamentary plan.
iii) Writing must be described sufficiently in will to permit its (the document’s) identification.
b) Clark v. Greenhalge (MA SC 1991): Where specific, written bequests of personal prop. contained in a
notebook maintained by the testatrix incorporated by reference into the terms of the will? Testatrix
demonstrated oral intent to leave a picture to Ms. Clark, executor decided not to give picture to Ms. Clark
because he liked the painting. Notebook said it goes to Ms. Clark, executor says this doesn’t have weight
although he utilizes the notebook to give himself property. TC ruled against the executor, finding that the
notebook existed @ the time of the two codicils & should be incorporated by will. SC agrees.
i) Std.: Must be in existence @ the time of the execution of the will & must be identified by clear &
satisfactory proof as the paper referred to therein.
(1) The incorporated document need not be clearly marked as a memo so long as it is consistent w/the
will of the testator, provided it is consistent w/ the rules of law.
(2) Here, evidence supports the conclusion that testatrix intended that the bequests in her notebook be
accorded the same pwr & effect as those contained in the 1972 memo.
c) UPC 2-513 – Separate Writing Identifying Device of Certain Types of Tangible Personal Property: Whether
or not the provisions relating to holographic wills apply, a will may refer to a written stmt or list to dispose of
items of tangible personal prop. not otherwise specifically disposed of by the will, other than $.
i) To be admissible as evidence of the intended disposition, the writing must be signed by the testator &
must describe the items / devisees w/ reasonable certainty.
ii) To be admissible, it may be…
(1) Referred to as one to be in existence @ the time of the testator death
(2) Prepared before / after the execution of the will
(3) Altered by the testator after preparation
(4) Writing that has no significance apart from its effect on the dispositions made by the will.
d) Simon v. Grayson (CA SC 1940): Will said that a letter dated X would resolve the distribution of funds upon
the testator’s death. Later the testator executed a codicil, but the letter ended up being dated Y. Since the
letter was in existence prior to the codicil being executed, the CT allowed for the letter to stand, even though
there was a discrepancy in the dates.
e) Johnson v. Johnson (OK SC 1954): Typewritten holographic will (no signature for the typewritten part) w/o
witnesses is signed by the testator @ the bottom & dated.
i) No question that the will was written and intended by the testator to be a will, but whether the 2 nd part is
a codicil or a part of the original will. If it is a codicil then the will can stand, if not, then it is invalid.
ii) Codicil: A supplement to, an addition to or qualification of, an existing will, made by the testator to alter,
enlarge, or restrict the provisions of the will, to explain or republish it, or to revoke it, and it must be
testamentary in character.
(1) Codicil validly executed operates as a republication of the will no matter what defects may have
existed in the execution of the earlier document…instruments ‘r’ incorporated as one & proper
execution of the codicil extends also to the will.
iii) Valid Holographic Codicil? When it is written , dated, & signed by the testator.
(1) Codicil republishes a previous will as modified by the codicil as of the date of the codicil. What about
a holographic codicil? CT allows it, holding that a valid codicil incorporated the prior will be
reference & republished & validated the prior will as of the date of the codicil.
4) Acts of Independent Significance: Permits extrinsic evidence to identify the will beneficiaries or prop passing
under the will. If the beneficiary or prop designation ‘r’ identified by acts or events that have a liftetime motive &
significance apart from their effect on the will, the gift will be upheld.
a) Std.: The critical issue in any question involving AIS is whether the extrinsic fact or event in question has a
legal significance apart from and independent of it’s impact on the will. The act or event must be one which
ordinarily has some nontestamentary utility or function.
b) UPC 2-512 – Events of Independent Significance: A will may dispose of prop by reference to act & events
that have significance apart from their effect upon the dispositions made by the will, whether they occur
before / after the execution of the will or before / after the testator’s death. The execution or revocation of
another’s will is such an event.
i) NOTE: This is true even though phrasing of the will leaves it in the testator’s power to alter the
beneficiaries or the property by a nontestamentary act (firing employees after clause in will giving each
employee $100 at time of death. Event of employment has independent significance apart from its effect
on the disposition in will).
ADMISSION OF EXTRINSIC EVIDENCE; LAPSE; AND CLASS GIFTS
1) Extrinsic Evidence: Plain meaning in will can’t be disturbed by intro of extrinsic evidence that another meaning
a) Admission as to Mistake – Mahoney v. Grainger (MA SC 1933): Testator writes a will leaving all her stuff to
her heirs, believing that this also included her first cousins (obviously does not). Cousins try to introduce
evidence that she told her atty she wanted to leave stuff to these cousins. CT rules this evidence can’t be
introduced, even if the will wasn’t in conformity to the instructions given to the atty doesn’t allow the
CT to reform or alter it or remold its amendments.
b) Personal Usage Exception: If the extrinsic evidence shows that the testator referred to a person in a special
manner, the evidence is admissible to show that the testator meant someone other than the person w/ the
legal name of the legatee.
c) Types of Mistakes:
i) Fact: CT will not accept Extrinsic Evidence
ii) Description of Beneficiary: CT won’t generally accept Extrinsic Evidence (Note 2, pg 416)
(1) To wrong beneficiary entirely (to Joe when intended Bob)
(2) To mistaken named beneficiary (to Joe INC not Joe)
iii) Omission (I devise X to __________. ): Bequest void, extrinsic evidence not admitted.
(1) Omission is fatal as a general rule – however, see Wilson Pg 427. Where court, using will could
figure out where residuary of estate was to go even if will did not say so. However, EE not really
used because only looked at will.
iv) Intent / Capacity: extrinsic evidence allowed to be entered, whereas where issue is mistake, not allowed
(Fleming v. Morrison).
i) Latent: Ambiguity that susceptible to more than one meaning when applied to discrete set of facts.
(1) CTs allow EE to discover (ex: “I give my car to my nephew X” and he has two nephews named X).
(2) If extrinsic evidence does not solve ambiguity, gift fails & prop passes under will’s residuary or by
ii) Patent: Ambiguity that appears on the face of the will.
(1) EE not allowed; problem visible on it’s face, problem doesn’t need EE to begin w/to find the
ambiguity. There is no “Foot in Door.”
(2) Example “I give $50,00" what does person get? $50.00, $5000.00, $50,000.00? Devise fails
because of Patent ambiguity.
(3) falso demonstratio not nocet: false description will not be fatal. ( I give to Joe Smith living at 712
Main when Joe Smith really lives at 800 Main – not fatal as long as satisfactorily describes Joe
Smith). Lots of examples at [TX 234]
e) NOTE: Extrinsic evidence may be admitted to identify devissee or legatee named, or property described in a
will, also to make clear the doubtful meaning of the language used in a will, it is never admissible, however
clearly it may indicate the testator’s intention, for the purpose of showing an intention not expressed in the
will itself, nor for the purpose of proving a devise of bequest not contained in the will. It is a “settled
principle, that the construction of a will must be derived from the words of it, and not from extrinsic averment.
2) Death of Beneficiary Before Death of Testator: If devisee doesn’t survive testator, the devise lapses (fails).
All gifts made by will ‘r’ subj. to a requirement that the devisee survive the testator unless otherwise specified.
a) @ Common Law:
i) Specific / Gen’l Devise: If such lapses, the devise falls into residue. T leaves X to A and $Z to B w/ C as
a residuary. A & B predecease T, C gets A & $Z.
ii) Residuary Devise: If devise of the entire residual lapses, the heirs of the testator take by intestacy. If a
share of the residue lapses (e.g. 1 of 2 residuary devises predeceases T), the lapsed share passes by
intestacy to the testator’s heirs rather than the remaining residuary devisees.
iii) Class Gift: IF a devise is to a class of persons, & one dies before T, the surviving members divide the
iv) Void Devise: Where a devise is dead @ the time the will is executed, the devise is void.
b) Antilapse Statutes: Allows for a substitute to be named for the predeceased devisee. Substitute other
beneficiaries for the dead beneficiary if certain requirements are met.
i) Typical Statute: If a devisee is of a specified relationship to the testator & is survived by issue, who
survive the testator, the issue ‘r’ substituted for the predeceased devisee, applies only if the devisee
bears the particular relationship to the testator under the statute.
ii) In re Estate of Ulrikson (MINN SC 1980): Residual is given to a brother & sister, both of whom
predecease the T. The brother leaves issue, who would receive this estate via an antilapse statute,
which the TC and the AC agreed to.
(1) SC interprets Minn. law to prefer testacy to intestacy; PLs argue that the words “and in the event that
either one of them shall predecease me, then to the other surviving brother or sister” as a
survivorship clause. CT feels that T simply failed to contemplate that both her siblings would
(2) 2nd argument is that T by giving equal gifts to all of her nieces & nephews demonstrated an intention
to do this in the future.
iii) Words of Survivorship: Since it is a default rule, in many cases it is necessary to determine whether the
language of the will indicates that the testator had a contrary intention. Given T leaves a will that says to
X if her survives me & devises the residual to W. S dies before T, w/ issue Z and W still is alive. Does
the language if X survives me evidence an intention that X’s issue not be substituted for X.
(1) Majority Rule: An express requirement for survivorship sates an intent that the antilapse statute not
c) IPA 4/11 (Illinois Anti-Lapse statute)
i) Descendants of devisee take per stirpes if devisee a descendant of testator; if not descendant, IPA
does not apply and devise goes to residuary.
ii) Class gifts, under IPA 4/11 common law rule as to class gifts except where class is descendants of
testator – then (A) applies.
iii) Does away with the no residue of a residue rule, treats residuary bequests as class gifts.
d) UPC §2-603 – Antilapse; Deceased Devise; Class Gifts:
i) (a) – Definitions:
(1) Alternative Devise: Expressly created by will that can take effect instead of another devise on the
happening of 1 + events, including survival / failure to survive of the testator, whether an event is
expressed in condition-precedent, condition-subsequent, or any other form.
(2) Class Member: An individual who fails to survive the T but who would’ve taken under a devise had
he survived the T.
(3) Devisee: (i) Class member if the devise = class gift; (ii) individual / class member who was deceased
@ the time the T executed his will as well as such who was then living but failed to survive T; & (iii)
an appointee under a pwr of appointment by T’s will.
ii) (b) – Substitute Gift: If a devisee fails to survive T & is grandparent, a descendant of such, or a stepchild
of either the T or the donor of a power of appointment exercised by T’s will, the following apply:
(1) If the devise isn’t a class gift & the deceased devisee leaves surviving descendants. They take by
representation the prop. to which the devisee would’ve been entitled to had the devisee survived T.
(2) If the devisee is a class gift (other than a devise to issue, descendants, heirs of the body, heirs, next
of kin, relatives, or family), a substitute gift is created in the surviving descendants of any deceased
devisee. Prop. which devisees would’ve been entitled had all of them survived the T passes to
surviving devisees & surviving descendant. Each surviving devisee takes the share which he’d
normally be entitled to, while the substituted descendants take by representation the share to which
the deceased devisee would’ve been entitled.
(3) Words of survivorship are not in the absence of additional evidence sufficient indication of an intent
to the contrary of the antilapse provision. Based on the idea that the words of survivorship ‘r’ in the
will merely because T’s lawyer used a will form w/ such.
(4) Unless the language created a pwr of appointment that expressly excludes the substitution of
descendants of an appointee for the appointee, a surviving descendant of a deceased appointee can
e) UPC §2-604 – Failure of Testamentary Provision:
i) (a) Except as under R603, a devise other than a residual, that fails for any reason becomes a part of the
ii) (b) If the residue is devised by 2+ persons, the share of the residuary devisee that fails for any reason
passes to the other residuary devisee, or to other residuary devisees in proportion to the intt. of each in
the remaining part of the residue.
3) Class Gifts: Under common law, such is treated differently from a gift to individuals. If a class member
predeceased the testator, the surviving members of the class divide the total gift, including the deceased
a) What is a Class? Whether T was group minded, if he uses a class label in describing the beneficiaries (e.g.
to my nephews & nieces). Beneficiaries named individually but naturally forming a class may be deemed as
a class if the CT decides upon extrinsic evidence that the testator would want the survivors to divide the
i) Majority rule is if name persons directly and provide fraction each is to take, no class gift found.
ii) Unless names given comprehensive of the class. For example, “To my children, A,B &C, ABC must be
all the children. You may define a class as you want, however, need to do so expressly where it is a
b) Application of Antilapse Statutes to Class Gifts: Most states apply such to antilapse statutes, CTs reason
that the statutes ‘r’ designed to carry out the avg. T’s intent.
c) ICLS 4-11: Under the common of lapse, a class gift is treated differently from a gift to individuals. If a class
member predeceases the testator and no contingency is included in the will, the surviving members of the
class divide the total gift, including the deceased members share. Except where the deceased class
member is a descendant of the testator where then the descendants of deceased member take per stirpes
the share the deceased class member would have taken.
RESTRICTIONS ON THE POWER OF DISPOSITION: PROTECTION OF THE FAMILY
1) Surviving Spouses – Two Systems of Marital Property Ownership:
a) Separate Property: Husband & wife own separately all prop. each acquires.
i) Elective Share: No sharing of earnings, wage earning spouse owns all prop. acquired during marriage…
most states give a surviving, non-earning spouse an elective / forced share in the estate of the deceased
spouse (not necessarily ltd. to a share of prop. acquired through earnings).
ii) Reasoning for Elective Share: Surviving spouse contributed to the DT’s acquisition of wealth & deserves
to have a portion of it. Gives the spouse the option of taking under the will or renouncing the will &
taking a fractional share of the DT’s estate.
(1) If a wife survives her husband but dies prior to renouncing the will, her heirs & devisees only receive
what the husband has voluntarily left to the wife.
iii) What qualifies under Elective Share?
(1) Common Law: Elective share only goes to the probate estate & health ins. doesn’t qualify.
(2) Delaware: All property includible in the DT’s gross estate under fed’l estate tax.
(3) UPC §2-203 through 2-207: Entitled to % of total value of the DT’s augmented estate, including…
(a) Value of DT’s net probate estate (§2-204 )
(b) Nonprobate TRs to others than the surviving spouse (§2-205)
(c) Value of DT’s nonprobate TRs to the surviving spouse (§2-206)
(d) Surviving spouse’s prop & value of nonprobate TRs to others as would’ve been included in her
augmented estate has she been the DT.
iv) Who contributes to Elective Share? Spouse must disclaim the prop. devised to her by will, first must
credit the elective share the amount passing to the surviving spouse by intestacy or by will if given to her
b) Community Property: Husband & wife own all acquisitions from earnings after marriage in equal undivided
shares. Each spouse = owner of an undivided ½ intt. in the community prop.
i) Upon Death: Community dissolves, deceased spouse owns & has testamentary pwr over his ½ of
c) Tax Break: Congress created an estate tax marital deduction of 100% of the value of his estate for prop. left
to his surviving wife, requiring only that the donor spouse give his surviving spouse support for life to avoid
2) Spouses Omitted from Premarital Will: “A property owner has an absolute right to dispose of his or her
property during his or her lifetime in any manner he or she sees fit. The owner may convey his or her personal
property even thought the transfer may be for the sole purpose of minimizing or defeating the statutory marital
interest of the surviving spouse. The conveyance is not subject to defeasance by the surviving spouse, unless
the transfer lacks the essential element of present donative intent and is, therefore, colorable or illusory and
tantamount to a fraud on the surviving spouse’s marital rights. Because a surviving spouse only has an interest
in property which becomes part of the decedent’s estate, a valid inter vivos conveyance of a property interest
would not become a part of the decedent’s estate.”
a) Estate of Shannon (CA AC 1990): T dies w/o naming his new wife in a will prepared 12 yrs. prior to his
marriage and 2 more years prior to his death (14 yrs total). T’s will includes a clause stating he doesn’t wish
to give anything to any other living person. CT notes strong presumption of revocation of will as to omitted
spouse based on public policy… proponents of the will must prove that it should stand, showing that the T
intentionally cut the wife out & desired to provide for her in another way. Even a stmt intentionally omitting
heirs doesn’t apply to omitted spouses, especially if they fail to indicate the T contemplated the possibility of
future marriage or if he mentions that he wants to exclude a particular wife the omitted spouse.
3) Issue Omitted from Will: Children omitted from will
a) General Rule: In all states, (except LA), a child or other descendant has no statutory protection against
disinheritance by parent. Kids may be disinherited by giving stuff to other folks. One cannot prevent kids
from taking in intestacy.
i) It’s better, when planning on disinheriting a child, not to say “I disinherit A because he was a “druggie.”
A will come forward and say, no this isn’t true. Best to just say I have three kids, AB&C, I’ve chosen not
to leave anything to C and then to devise everything to other people.
b) ICLS 4-10 – Effect of child born after will: “Unless provision is made in the will for a child of the Testator
born after the will is executed or unless it appears by the will that it was the intention of the T to disinherit the
child, the child is entitled to receive the portion of the estate to which he would be entitled if the T died
intestate and all legacies shall abate proportionately.” – Just like forced share to spouse.
i) Good to say, any reference to “to my children” in will refers to my three kids plus any born in the future.
TRUSTS: CREATION, TYPES, AND CHARACTERISTICS
1) Introduction: A trust creates special interests in property. Settle or transfers property to trustee for the use and
benefit of beneficiaries
a) Parties to a Trust: One person can wear more than one hat.
i) Settlor: person who creates the trust.
ii) Trustee: manages trust and trust property. Trustee must preserve the property, make it productive, and,
where required, pay the income to the beneficiary.
(1) Trustee may be the settlor or a third party, or the trustee may be a beneficiary.
(2) If settlor intends to create a trust but fails to name a trustee, a court will appoint one. A trust
will not fail for the lack of a trustee.
(3) Law does not impose the office of trustee upon a person. Once a person accepts, he can be
released from liability only with consent of the beneficiaries or by a court order.
iii) Beneficiaries: have personal claim against the trustee for breach of trust. Claim has no higher
priority than claim of other creditors of the trustee.
b) Principal Characteristic: trustee & beneficiary both hold title; trustee = legal / beneficiary = equitable
i) Type of duty transferred to trustee (active, passive)
ii) Trust purposes (private and charatable trusts)
iii) Manner of creation
(1) express trust – real trust
(2) resulting trust – attempt to create trust fails
(3) constructive trust – not “trust” really, court says will hold property in “constructive trust” to prevent
unjust enrichment. 2 & 3 are procedural devises, attempts to create valid trusts, only obligation of
trustee is to return property to settlor’s estate.
iv) Time and Manner of creation – inter vivos – during life; testamentary trust – created by will
(1) Power/Interest settlor retains – revocable v irrevocable. Maybe he retains an interest “pay me
income during my life” maybe retains power to alter.
(2) Rules of gift apply with respect to trusts (intent, delivery). If made after death, need a valid will
d) Other Factors:
i) Neither trustee nor beneficiary owns the property to the exclusion of the other. Trustee owns the legal
interest, the beneficiary owns the equitable interest.
ii) Trust can be created during life (inter vivos). Or it may be created by will (testamentary trust).
iii) If the trust is real property, the Statute of Frauds requires a written instrument. A declaration of trust of
personal property requires neither delivery nor a deed of gift.
2) Duties and Powers of Trustee:
a) Administrative Powers: Power to invest etc. Generally defined in statute. State have been expanding scope
of powers however, well drawn trust instrument should expressly grant powers.
b) Distributive Powers: not governed really by statute. This is the essence of the trust instrument.
i) Trustee may be any person capable of holding and managing property
3) Beneficiaries: may be any person capable of holding property.
4) Four Principal Requirements for a Trust:
a) Intent to create
5) Intent to Create:
a) Jimenez v. Lee: D was given property from his father to be put to use for P’s (D’s daughter) educational
purposes. Father says when he cashed the bonds and placed the money is the savings account in the
name of P and D, the title merged and the trust was destroyed. Court says trust still created and valid as it
is enough if the transfer of the property is made with the intent to vest the beneficial ownership in a 3d
person, this is clearly what happened. Trustee may only use funds for purposes put forth by the trust
instrument, in this case, education. D’s argument that it was spent on her health etc. doesn’t cut it as that’s
not what trust designed for. Trustee may not do anything to repudiate trust – cannot convert it to a
custodianship. No statute of limitations with regards to beneficiaries ability to enforce trustee’s breach of
b) Aspects of Intent:
i) Precatory Language: Words of hope, expectation, wish are words of precatory language and no good as
opposed to words of command. For trust need language which is clearly imposing a duty.
(1) Equitable Charge: if a testator devises property to a person, subject to the payment of a certain sum
of money to another, the testator creates an equitable charge, not a trust.
6) Necessity of Trust Property: No owner if no property
a) Defined: Property is broad notion, amount is not critical can be present or future interest, and could be
contingent interest. All that is necessary is something the law recognizes as property.
i) For example, the right to collect life insurance proceeds upon death of settlor is sufficient property
interest to create trust.
b) Unthank v. Rippstein: Decedent sent P a letter saying he would send P $200/monthly for the next five years
provided he lived that long. Later struck that part out provided I live that long part and said he was going to
bind his estate to make the payments provided for. Court says no trust created. There was no transfer of
property here; PL says the court should hold his entire estate in trust to pay out the $200/Month. Whatever
left over can pass under his will.
i) The promise to make gift: failed for no delivery
ii) Attempt to bind estate by K: failed since no consideration. All we have here is a gratuitous promise.
c) Other Types of Trusts:
i) Resulting Trust: Arises by operation of law in one of two situations
(1) Where an express trust fails or makes an incomplete disposition, or
(2) Where one person pays the purchase price for property and causes title to the property to be taken
in the name of another person who is not a natural object of the bounty of the purchaser.
d) Constructive Trust: CT; flexible remedy imposed in a variety of situations to prevent unjust enrichment.
When property has been acquired in such circumstances that holder of legal title may not in good
conscience retain beneficial interest, equity converts him into a trustee. Need to find…
i) A confidential or fiduciary relationship
ii) A promise, express or implied,
iii) A transfer of property in reliance on the promise
iv) Unjust enrichment f the transferee.
i) Brainard v. Commissioner: Declared in trust the future trading of stock. Did he create a trust? No. No
evidence of property in existence. He has no property in future profits. Therefore, no trust at the time he
made declaration. Maybe trust the next year when he made profits and then transferred the profits.
(1) Courts have uniformly held that an expectancy cannot be the subject matter of a trust and that an
attempted creation, being merely a promise to transfer property in the future, is invalid unless
supported by consideration.
ii) Spelman v. Pascal: Pascal made writing that said a % of profits from stage production to Spelman.
Pascal owned the right to produce the play. He already owned the property which was to produce the
profits. The property was a contractual right to develop the production based on an existing work.
Therefore, court held proper trust because there was property transferred. As opposed to Brainard who
didn’t own the stock when he attempted to create the trust.
7) Necessity of Trust Beneficiaries:
a) General Rule: Beneficiary must be named or identified for there to be a valid trust
i) Identification: Can be identified by admissible extrinsic evidence. Adequate beneficiary if he can be
identified before the running of the Rule against Perpetuities.
b) Result of Failure to Name Beneficiaries: Failure of the trust or the failure of the interest.
c) Class Gifts: Class must be reasonably identifiable either at time created or time trust begins.
i) Natural classes generally ok:
(1) “To my children” - divide into as many shares as children (probably to dead children too)
(2) “To my family” - pretty vague, but most courts interpret as nuclear family
(3) “my relatives” - close relatives? Don’t know. Some courts have said not good.
(4) “my friends” - does not cut it.
(a) Clark v. Campbell: To A for life, remainder to my friends. The word “friends” unlike “relations”
has no accepted statutory or other controlling limitations and has no precise sense at all. Upon
termination of A’s interest, trust fails. Trust holds property on resulting trust to return the property
to the settlor or to the settlor’s estate.
ii) If the arrangement is treated as intent to create a trust, no problem to have trustee disburse money
according to the need of individuals of a class as long as class is definite and trustee will select from that
trust. Valid Discretionary Trust.
(1) Power of appointment v. fiduciary power of selection
(a) fiduciary power of selection - person holds only legal title - power to select imposes fiduciary duty
and they must make choice.
(b) power of appointment - holder of power normally has title to property beyond legal title - an
equitable interest. Power may or may not be exercised - not mandatory. Should also name
default takers under clause. If none and chosen not to exercise power - resulting or constructive
iii) In re Searight’s Estate: Settlor gave dog to F and directed executor to put sum of $1000 in bank to be
used by him to pay F at the rate of 0.75 per day to take care of dog as long as it shall live. Was
testamentary bequest for the care of dog valid?
(1) defined situation as “honorary trust” - essentially made up and not legally valid.
(2) However, F accepted the gift and indicated her willingness to care for the dog. Therefore, bequest
(3) bequest not invalid under rule of perpetuities because the $1000 would have been expended in
three years which is much less than the maximum period allowed.
8) Necessity of a Written Instrument: Inter vivos trust can be created orally in personal property. There must be
completed delivery to trustee. If settlor is going to be trustee, mere declaration is technically sufficient.
a) Trust must be in writing and signed to transfer or create a trust in real property (land). So, actually 2
writings required - written transfer and written deed. However, technically 1 document will suffice.
b) What if you have written deed, but oral trust? Property is properly transferred but the trust is oral. 2
approaches and 3 possible results:
(1) Approach 1: Deed is absolute on face, so no trust. Trustee owns property. Statute of frauds
prevents us from hearing any evidence of oral trust.
(2) Approach 2: To prevent unjust enrichment of trustee, it will hear extrinsic evidence of oral trust and if
they believe there was intent to create trust they will. Typically used where court satisfied by some
preliminary evidence (maybe confidential relationship - parent / child, attorney for settlor)
(1) Result 1: impose constructive trust on trustee.
(2) Result 2: constructive trust in favor of settlor or his estate rather than beneficiaries.
(3) Result 3: impose constructive trust on grantee in favor of intended beneficiaries of trust. This 3rd
result comes pretty close to enforcing oral trust.
c) Lots of written deeds / oral trusts occur where settlor is not entirely innocent. e.g. trying to avoid CRs. Like
article in L.A. Times: to avoid creditors, dad transfers property orally to son, then son refuses to give back.
i) Pappas case: transfer before divorce. Court says we’re not going to enforce: settlor you’ve perpetrated
a fraud on the court. Settlor you are not getting property because you only transferred to perpetrate
fraud before divorce.
ii) Hiebel case: transfer to avoid probate. Mom thinks she’s going to die and transfers property back. She
sues. Holding: son’s behavior consistent with his story that he intended to give it back. Court imposed
constructive trust. Here, nothing wrong with mom trying to avoid probate.
(1) Where lack of innocence of settlor, court may not im ply constructive trust because of settlor’s nasty
9) Testamentary Trusts: In all cases, writing is necessary for testamentary trust. After all, it’s a trust created by a
will and a will must be in writing. A writing is necessary. The will is the transfer document and the trust
document so only needs to be one writing.
a) Olliffe v. Wells: Introduces approach with regard to secret trust. What if will purports to transfer property to
someone but nothing in will regarding trustee but arrangement between settlor and beneficiary was that
beneficiary would hold property on trust. Here written transfer and oral trust. Testator devises residuary
estate to Rev. Wells to give away as he thinks best. Bequest was not an absolute grant in fee. It was a
bequest for trustee to distribute property in manner settlor asked trustee to distribute orally. Court listened to
evidence showing yes they talked.
i) Court held that this is a void semi-secret trust because trust void, no trust. Trustee can’t hold property
because property on face of will only gave property to trustee as a fiduciary and since he can’t e a
fiduciary, the trust fails. Since this was a bequest of the residue, it passed by intestacy.
b) Secret Trust v. Semi-Secret Trust:
i) Secret Trust: will leaves property outright to A. Would-be beneficiaries argue there was a side
agreement between settlor and A for A to hold property for b’s. With secret trust, extrinsic evidence
admitted that this wasn’t an absolute bequest. Having admitted extrinsic evidence that trust was
intended , court will go forward and admit extrinsic evidence to show who intended beneficiaries were.
Then, court may impose constructive trust for benefit of beneficiaries.
ii) Semi-Secret Trust: on the face of the will, it is clear that beneficiary was not to hold the property in
fee, but rather was to hold it as a fiduciary for others. So in Wells, trust void because no clear terms.
Semi-secret trust automatically fails.
10) Discretionary Trusts: Under discretionary trust, trustee may distribute income or may withhold. Frequently
referred to as a sprinkling trust: idea that trustee has discretion to sprinkle income. Most common types of trusts
are discretionary trusts. Usually established for kids as a class and have discretion of how to distribute corpus.
a) Standards governing discretion of trustee:
i) Trustee has sole and unbridled discretion - no such thing.
ii) Trustee always obligated to standards of (1) reasonableness & (2) impartiality
b) Trust should specify standards governing discretion
i) Ascertainable standards: standards tied to some objectively determinable event. e.g. support, health,
welfare, education, maintenance
ii) Unascertainable standards: e.g. happiness, comfort
c) When might trustee be liable to either the beneficiary or the remaindermen for distribution of assets or a lack
i) Duty to Pay –Old Colony Trust Company v. Rodd: Language in the trust calls for distribution of the
income of the trust and any of the principal “as may be necessary in the trustee judgment for the
comfortable support.” Respondent claims trustee should have been more free in distributing the
principal of the trust; she claims he has been to stingy with the trust. The amount of trust was huge and
only $15,000 total had been paid out of the trust out of 400,000.
(1) Court points out while preserving the trust is important, the remainder’s interests should not be
greater than that of the beneficiary. Purpose is for the beneficiary and trustee needs to dig a little
deeper and give beneficiary more.
(2) There is no such thing as a trustee’s “sole” discretion, it needs to be reasonable and court’s will
examine objectively. CT examines instrument as a whole to find intent of settlor – in this case, intent
was shown to be for benefit of beneficiary, not remaindermen.
(1) Examine history of the exercise of discretion – court won’t look at simply one payment or distribution
to make the determination of what is reasonable, but rather will focus on history over period of time
(2) Court generally allows P’s atty’s fees out of the trust in these kinds of cases, the thought being this is
an action to vindicate rights of trust, court’s view is that this is beneficial to the trust.
(3) Even where P’s lose their argument, court’s may still award atty’s fees of P, just so long as claim
being brought by the P’s is meritorious.
iii) Duty to Monitor – Marsman v. Nasca: Trust beneficiary’s income limited, went to trustee to ask for a little
financial help as trust allowed discretionary disbursements of principal as needed for comfort. Trustee
never undertakes on his own to find out the beneficiaries needs; beneficiary has hard time paying his
own taxes, surely this kind of situation is one the settlor had in mind where more should be paid out for
his comfort. Hard to be comfortable without a damn house. Trustee breached his duty to disburse for
comfort of beneficiary. There is a duty on the trustee to inquire into beneficiary’s needs when trust
instrument calls for discretionary trust. Trustee liable to the estate of the beneficiary for this amount
which should have been paid to him.
iv) Supported Trusts: When you have a support trust (standards like health etc justifying payment of the
principal) does trustee have duty to consider needs and sources of other income?
(1) Where trust provides expressly – of course
(2) absent direction in trust instrument, conflict
11) Modification & Termination of Trusts: If the settlor and beneficiaries all consent, a trust may be modified or
terminated. If however, the settlor is dead (which is usually the case) or does not consent the question arises
whether the beneficiaries can modify or terminate the trust if they all agree.
a) Modern US rule – very conservative – trust established for particular purpose, while beneficiaries own,
purposes of settlor still important.
b) Courts will not modify unless:
i) All beneficiaries are in being, attained majority, and competent to consent
ii) All beneficiaries consent to modification
iii) Court persuaded modification will serve purposes of settlor – dead hand from the grave controls still.
Purposes of settlor taken from the trust instrument, not extrinsic evidence.
c) In re Trust of Stuchell: Where modification only for benefit of beneficiaries and only reason can come up with
to modify is it’ll help them, courts won’t allow modification. Essentially PL’s were asking the court to create a
whole new trust which it declined to do as it was only seeking to help the beneficiaries.
i) The court will not permit or direct the trustee to deviate from the terms of the trust merely because such
deviation would be more advantageous to the beneficiaries than a compliance with such direction.
d) Hamerstrom v. Commerce Bank of Kansas City: The remainder interests of unborn children, who have not
been specifically named or provided for in trust, should not be considered when seeking to modify the trust.
However, named (as a group) and unascertained beneficiaries may be considered. However, courts will
also use notion of virtual representation where another member of a class of potentially unascertained
beneficiaries may represent entire class interests and be considered.
e) Modification of Investment Power of Trustee: Trustee to diversify investments. Problem arises when settlor
does not wish a certain asset to be sold and reinvested.
i) In re Pulitzer: Settlor doesn’t want stock of failing newspaper to be sold; CT has power to authorize sale
in circumstances where trust estate in jeopardy. If they didn’t sell, bankruptcy of the estate possible
(1) where fund substantially depleted
(2) no indication investment won’t turn around
(3) where in jeopardy
f) Termination of a Trust: No problem when settlor alive
i) Modern US / Caughlin Rule: Trust cannot be terminated prior to time set for termination, even though all
beneficiaries consent, if termination would be contrary to a “material” purpose of the settlor.
(1) Note different standard from modification – modification as long as principal purpose would still be
achieved, it can be done.
(2) never terminate a spend thrift trust
(3) never terminate a discretionary trust
(4) never terminate a support trust
(5) or if beneficiary is not to receive until certain age, can’t be terminated before then.
g) Changing Trustee: A trustee will not be removed except for a breach of fiduciary duties or other misconduct
or otherwise provided for in instrument.
i) If income way less than should be, may be able to if one year time probably not enough time, need four
or five years to make determination.
1) General Rule: Trust where person who established the trust has the power to revoke the trust.
a) Most flexible of all will substitutes
b) Trust is created during the settlor’s life (inter vivos)
c) May be revoked in the manner established by the trust language.
i) may also amend if you have the power to revoke. However, cannot revoke if you only reserve the power
d) All trusts become irrevocable when the settlor dies.
e) Trust is irrevocable unless the trust specifically provides that the trust can be revoked.
i) Law of CA, OK, TX: All trusts can be revoked unless the trust otherwise provides.
2) Sufficiency of Property:
a) Size –Gurnett v. Mutual Life Insurance: Right of trustee to collect insurance upon the death of the settlor was
sufficient that there was a transfer of property no matter how tenuous or small creating a valid trust.
i) Unfunded revocable trusts are valid. No property transferred during life except that trustee is designated
as the beneficiary of life insurance contract. Would also apply to employee benefits.
b) Contingency – Farkas v. Williams: Interest of beneficiary may be contingent /future. However it is enough of
a property interest to create a trust. Even where settlor/trustee has virtually same power of disposition as
had prior to the creation of a trust, the formal imposition of fiduciary duties is what creates a valid trust.
3) Pour Over Wills: will pours over non-probate and probate assets into the trust and executed according to the
terms of the trust. The pour-over by will of probate assets into an inter vivos trust is a useful device where
someone wants to establish an inter vivos trust of some of his assets and wants to merge after his death his
testamentary estate, insurance proceeds, and other assets into a single receptacle subject to unified
administration. Pour over wills valid in Illinois under IPA 4-4.Revocation –In re Estate and Trust of Pilafas:
When the settlor reserves a power to revoke trust in a particular manner or under particular circumstances, he
can revoke it only in that manner or under those circumstances. Different from wills in that will is presumed to
be revoked when it cannot be found. Trust can only be revoked in stated manner.
4) Revocable trusts and CRs:
a) Majority / IL Rule: Creditors cannot reach property transferred into a trust unless they can show transfer was
made with the intent to defraud creditors.
b) Why Provide for the CRs?:
i) Otherwise years and years of litigation may result if lots of liquid assets in a revocable trust
ii) End up spending as much in attorney’s feeds and court costs as you would have if provided that debt be
5) Divorce and Revocable Trusts: Most states have statutes that say divorce will affect a revocation of a bequest
through a will. Otherwise law of wills does not affect law of trusts unless there is a statute dictating such.
a) In Illinois (760 ILCS 35/1): Judicial termination of marriage has effect of revoking provisions pertaining to the
spouse which are revocable by the settlor. Former spouse treated as predeceasing settlor. POD contracts
do not have same provision. POD contracts remain in tact after a divorce unless amended.
6) Why Revocable Trusts?: Use of revocable trusts as opposed to other will substitutes:
a) Establish long term dispositive scheme.
b) Contingencies can be taken into account. Can have trustee manage / make distribution according to need.
c) Easy amendments.
d) Best to use other will substitutes in context of revocable trust. (Beneficiary for POD contracts the trustee of
i) Trust compared with legal life estate: better off with trust. For reasons see p.572-575.
7) Problems w/ Trust: especially a self declaration of a trust
a) Settlors may have trouble with the formalities of the trust such as fiduciary duty towards 3d party, keeping
personal property and trust property separate – if unable to differentiate property, treated as settlor revoking
trust. even though trust valid in first instance, may become invalid or revoked.
b) Once a trust becomes irrevokable, becomes a taxable entity.
8) Testamentary Trust: Trust management following death; If will fails in these situations, trust fails.
a) Trust created as part of will; bequest in the nature of “I bequeath X to XYZ bank in trust to be established.
b) Will creates trust, delivers property. Article of will is trust instrument.
c) More risk here than with an inter-vivos trust. Court delays etc. because trust property part of will fight.
Trustee can’t distribute until all possible will contests are through.
9) Receptacle Trust: Put all stuff in trust through will, have separate trust instrument which bequeaths stuff.