WILLS & TRUSTS OUTLINE
D. Kelly Weisberg Professor of Law
INTRODUCTION Chapter 1
INTRODUCTION
HISTORICAL BACKGROUND
Personal Course Description
TERMINOLOGY
Real Property Personal Property Chancery: Third System of Courts Consequences of Three-Tier Court System Other Points About Terminology
UNIFORM PROBATE CODE (UPC) SOCIAL POLICY CONCERNS
WILLIAM THE CONQUEROR
WILLIAM THE CONQUEROR
Invasion of England, 1066
King Edward of England (called "The Confessor" because of his construction of Westminster Abbey) died on January 5, 1066, after a reign of 23 years, without heirs and thereby igniting a three-way rivalry for the crown. The leading claimant was Harold Godwinson, the second most powerful man in England, an advisor to Edward, and Edward’s brother-in-law. The dying Edward supposedly said "Into Harold's hands I commit my Kingdom." With this endorsement, the Witan (the council of royal advisors) unanimously selected Harold as King. His coronation took place the same day as Edward's burial. With the placing of the crown on his head, Harold's troubles began. Across the English Channel, William, Duke of Normandy, also laid claim to the English throne. William justified his claim through his blood relationship with Edward (they were distant cousins) and by stating that some years earlier, Edward had designated him as his successor. William asserted that the message in which Edward anointed him as the next King of England had been carried to him in 1064 by none other than Harold himself. According to William, Harold had sworn on the relics of a martyred saint that he would support William's right to the throne. Thus, when Harold donned the Crown, he not only defied the wishes of Edward but had violated a sacred oath. William immediately prepared to invade England and destroy the upstart Harold. Harold's violation of his sacred oath enabled William to secure the support of the Pope who promptly excommunicated Harold, consigning him and his supporters to an eternity in Hell.
WILLIAM THE CONQUEROR
WILLIAM THE CONQUEROR
INTESTATE SUCCESSION Chapter 2
INTRODUCTION
SHARE OF THE SURVIVING SPOUSE
Intestacy Survey Terminology
SHARE OF DOMESTIC PARTNERS SHARE OF ISSUE
Statute of Distribution (Common Law) UPC California
REPRESENTATION: Maud v. Catherwood
Statute of Distribution (Common Law) UPC California
S. Clinton and Azalea Hastings
Clara
Marshall Flora C h a
Charles F.D. Lillie
Robert Paul
Ella
Louise Jennie Charles Maud
Azalea
Hoyt Seranus Ethel
Harry
Elizabeth
J Joseph J
Jan
INTESTATE SUCCESSION Chapter 2 (cont’d)
SHARE OF ASCENDANTS & COLLATERAL RELATIVES
Civil law Common law Parentelic Problems
INTESTATE SUCCESSION Chapter 2 (cont’d)
SPECIAL PROBLEMS OF STATUS
Posthumous Heirs Aliens Half-bloods Simultaneous Death Adoption
INTESTATE SUCCESSION Chapter 2 (cont’d)
ADOPTION
By, From, Through Stepparent Adoption Equitable Adoption Adult Adoption
Estate of Ford
NONMARITAL CHILDREN DISQUALIFICATION FOR MISCONDUCT
INTESTATE SUCCESSION Chapter 2 (cont’d)
PRIOR TRANSACTIONS OF THE DECEDENT
Advancements
Definition Intention To Whom It Applies Hotchpot Effect on Share of Surviving Spouse Effect on Share of Donee’s Issue Valuation
Releases and Assignments
Definition Effect on Releasor’s/Assignor’s Heirs
FAMILY PROTECTION AND RESTRICTIONS ON TESTATION Chapter 3
ALLOWANCES, HOMESTEADS AND EXEMPTIONS
Family Support Allowance Homestead Exemption Laws Personal Property Exemptions
ADDITIONAL COMMON LAW AND STATUTORY RIGHTS OF THE SURVIVING SPOUSE
Dower Curtesy Statutory Forced Share Community Property
FAMILY PROTECTION AND RESTRICTIONS ON TESTATION Chapter 3 (cont’d)
ATTEMPTS TO DEFEAT SURVIVING SPOUSE’S RIGHTS
Election by the Surviving Spouse UPC Augmented Estate Concept Effect of Surviving Spouse’s Election on Estate Plan
PROTECTING RIGHTS OF OMITTED FAMILY MEMBERS (PRETERMITTED HEIRS)
Pretermitted Issue
Pretermitted Spouse
Definition Types of Statutes Extrinsic Evidence To Whom applies Limitation (Dispose of All of Estate)
CHARITABLE RESTRICTIONS
EXECUTION OF WILLS Chapter 4
FUNCTIONS OF FORMALITIES FORMAL REQUIREMENTS
History Writing Signature Publication versus Acknowledgment Attestation Testamentary Intent Attestation Clause
SAFEKEEPING OF WILLSl
EXECUTION OF WILLS Chapter 4 (cont’d)
SIGNATURE
Definition End Requirement Effect of Material After Signature
PUBLICATION VERSUS ACKNOWLEDGMENT ATTESTATION
Presence Requirement (Cunningham case) Interested versus Competent Witnesses Self-proved Wills
TESTAMENTARY INTENT
Defined Conditional Wills Letter Cases
ATTESTATION CLAUSE SAFEKEEPING OF WILL
EXECUTION OF WILLS Chapter 4 (cont’d)
HOLOGRAPHIC WILLS
Requirements Problem of Non-Holographic Material
Letterhead & Will Forms Theories to Validate Such a Will Surplusage Intent to Incorporate UPC
ORAL WILLS
Nuncupative Wills Soldiers’ and Sailors’ Wills
WILL DOCTRINES Chapter 5
INTEGRATION
REVOCATION BY CODICIL
Requirements
Codicil: definition Effect: Will Speaks Again as of Date of Codicil Application Dependent on Testator’s Intention Problems
INCORPORATION BY REFERENCE
Defined Requirements Distinguished from Republication Holographic versus Non-holographic Material Liberal trend
WILL DOCTRINES Chapter 5 (cont’d)
FACTS OR ACTS OF INDEPENDENT SIGNIFICANCE
Defined Requirements Distinguished from Incorporation by Reference Use Liberal trend (UPC)
WILL DOCTRINES Chapter 5 (cont’d)
EXTRINSIC EVIDENCE
Definition Rules
Plain Meaning Rule Patent versus Latent Ambiguity Rule Oral Declarations State of Mind Miscellaneous: Repugnancy, Read Will as a Whole, Avoid Intestacy
Interpretation versus Construction
WLIL DOCTRINES Chapter 5 (cont’d)
MISTAKE
Mistake in Execution Mistake in Omission Mistake in Misdescription
Property Persons
Mistake in the Inducement
WILL REVOCATION Chapter 6 (cont’d)
REVOCATION BY PHYSICAL ACT REVOCATION BY SUBSEQUENT INSTRUMENT REVOCATION BY OPERATION OF LAW RE-ESTABLISHING REVOKED WILLS
WILL REVOCATION Chapter 6
REVOCATION BY PHYSICAL ACT
A. Statutory Requirements Regarding Sufficiency B. C. D. E. F. Requirement of Concurrent Intent Partial Revocation Proxy Revocation Common Law Presumption of Revocation Lost/Destroyed Wills
WILL REVOCATION Chapter 6 (cont’d)
REVOCATION BY SUBSEQUENT INSTRUMENT
Majority rule: sufficient to simply revoke Can be by will or codicil if executed with formalities Unexpressed intent of revocation – what do we do when we don’t know what testator intended?
WILL REVOCATION Chapter 6 (cont’d)
REVOCATION BY OPERATION OF LAW
Divorce
Traditional View (does not revoke will) Modern View (modern statutes do revoke will) Modern View (will is revoked as to spouse) Exception: wills in contemplation of marriage
Subsequent marriage
WILL REVOCATION Chapter 6 (cont’d)
RE-ESTABLISHING REVOKED WILLS
Revival
Revocation of Revoking Codicil Automatic Revival Anti-Revival Mistake Doctrine Effect: validates will, disregards revocation Limitation: some courts apply DRR only if there’s new, ineffective disposition or if revocation of Will #2 was by physical act Admissibility of extrinsic evidence Criticism: mechanical application
Dependent Relevant Revocation (DRR)
WILL CONTRACTS (Chapter 7)
TYPES OF WILL CONTRACTS EXISTENCE OF A CONTRACT DEFENSES REVOCABILITY REMEDIES FOR BREACH GENERALLY REMEDIES FOR WRONGFUL REVOCATION EFFECT OF WILL CONTRACT ON SHARE OF SURVIVING SPOUSE
WILL SUBSTITUTES Chapter 8
LIFE INSURANCE JOINT TENANCY AND JOINT OWNERSHIP CONTRACT RIGHTS MULTIPLE PARTY ACCOUNTS GIFTS & GIFTS CAUSA MORTIS DEEDS
INTRODUCTION TO TRUSTS
INTRODUCTION
History Definition Parties Purposes
CLASSIFICATION
Inter vivos v. Testamentary Written v. Oral Express v. Operation of law Active v. Passive Trust v. Other Relationship
INTENTION
Chapter 9: Elements of a Trust
Intention Trustee Beneficiary Specific trust property Valid trust purpose
Chapter 12: CREATION OF TRUSTS
Trusts Created by Will: Secret & SemiSecret trusts Inter vivos trusts
Methods of trust creation Statute of Frauds Parol Evidence Rule Oral trusts for the settlor Oral trusts for third parties
Formalities: writing requirement
Chapter 12: Creation of trusts
Introduction
Advantages Common Problems (Osborn, Roberts) Savings Bank Trusts Life Insurance Trusts Pour-over Trusts
Types of Revocable Trusts
Policies Restricting Testation: Surviving Spouse’s Rights and Creditors’ Rights
Chapter 13: Nature of Beneficiary’s Interests
Enforceability of Beneficiary’s Interest Transferability of Beneficiary’s Interest Amenability of Beneficiary’s Interest to Creditors
Chapter 14: Modification & Termination of Trusts
Settlor’s Power to Modify or Terminate Trustee’s Power to Modify or Terminate Beneficiary’s Power to Modify or Terminate Judicial Power to Modify or Terminate
Chapter 15: Charitable Trusts
Introduction History Nature of Charitable Trusts Charitable Purposes Modification of Charitable Trusts Supervision and Enforcement of Charitable Trusts
Chapter 16: Fiduciary Administration
Function of Administration Probate and Contest of Wills Opening Administration
Appointing a Personal Representative Tasks of the Personal Representative
Estate & Trust Proceedings: Payment of Creditors’ Claims
Chapter 16 (cont’d): FIDUCIARY ADMINISTRATION
Tasks of the Personal Representative
Inventory and Collect the Decedent’s Assets Management of the Assets During Administration Receive and Pay Creditors’ Claims Distribute the Remaining Assets to Heirs or Beneficiaries
Chapter 17: The Fiduciary Office
Qualification, Selection, Appointment & Removal of Fiduciaries Rights to Compensation & Indemnification General Fiduciary Standard Fiduciary Duties
Duty Duty Duty Duty
of Loyalty to Provide Information & Render Accounts to Identify & Segregate to Delegate
Classification Distributive Problems
Chapter 11: Construction Problems in Estate & Trust Proceedings
Ademption Satisfaction Abatement Miscellaneous
Class Gifts Survival Requirements: Lapse