Trusts, Wills & Estates
Notes - Spring 2000
Professor Evelyn Lewis
Book: Ritchie, Alford & Effland's Estates & Trusts (Dobris & Sterk).
I. Shapira v. Union Nat'l Bank (p. 1)
A. Facts: decedent's will requires that decedents sons to marry a jewish woman with
jewish parents within 7 years in order to get their inheritance, if they fail, then the
$$ goes to the State of Israel.
B. What is the interest here? Fee simple with a springing executory interest.
C. (NOTE: we won't be studying future interests in this case).
D. Sons challenge the rule on two grounds
a) Restraint on marriage
b) Forcing marriage
2. Public Policy
a) don't want dead hand control over marriage.
II. LEWIS: The point of this case is...
A. The right to transmit vs. Right to receive
1. Here the father has the right to transmit under statute.
2. But, under statute there is no "right to receive." Only a mere expectancy.
I. Shapira (p. 1) continued...
A. Decedent grants a springing executory interest that is condition on marriage to a
jewish woman within seven years.
B. Legatee's argument is that the constraint is unconstitutional and against public
C. CONSTITUTIONAL ARGUMENT
1. Is that the states are bound by the 14th amendment to protect the right to
marriage. Legatee argues that Shelly v. Kramer requires the court to
invalidate the "restriction."
2. COURT, holds that this is different, because the Legatee is still free to
marry whoever he wants. He just won't be able to get the $$ under certain
3. And, as a backdrop to this the court says that we see that there is a
difference too, because we are enforcing the decedents' right to freedom of
D. PUBLIC POLICY ISSUE
1. Legatee also says that this is an "unreasonable restraint" on marriage.
2. Court disagrees in this instance. This is not an ABSOLUTE
RESTRAINT. IF there was an absolute restraint on marriage, then this
case might come out differently.
3. NOTE that REASONABLENESS is generally determined by the time and
circumstances of present society.
E. LEGATEE'S ARGUMENTS:
1. That the pool is too limited, that there is not enough time, etc., etc.
2. Court holds that the limitation does not leave too small of a pool, or too
short of a time.
3. GENERAL RULE: Public policy generally favors marriage. Thus devise
requiring marriage in some form is probably okay, but a devise requiring
separation or divorce will not.
II. GENERAL RULE
A. The right to RECEIVE PROPERTY is not a "right" at all, it is only a mere
III. OLD RULES
A. There was no ability to devise.
IV. TODAY - Property passes in succession by three different ways
C. Will substitutes
1. e.g. trust. A trust is given away, while living (but there is some external
2. joint tenancy (a grant of ownership to another, that on death of one, goes
automatically to the other).
V. Ford v. Ford (p. 16)
A. Kid kills mom for inheritance. Can she get the dough?
1. Slayer's statutes: prevent a person for collecting on a will if they are the
ones responsible for decedent's demise.
B. Okay, so how does the forfeiture work?
1. Common law, would use constructive trusts to prevent the killer from
benefitting from their act.
VI. § 250 - slayer statute
A. takes away benefits that would come to the killer.
B. § 250(b) says that the succession will be treated as if the killer had already died.
1. (Anti-lapse -- LEWIS says that we will understand this under § 2110
VII. ISSUE in FORD v. FORD
A. Here, the devisee claimed that she was insane at the time of the killing, and
therefore the slayer's rule should not be applied.
1. Court decides that if the killing is intentional (regardless of insanity), then
the slayer's rule applies.
B. CALIFORNIA RULE: § 250 also has a "felonious and intentional" requirement,
but the probate never defines these terms.
VIII. RATIONALE for the RULE
A. Deterrence? May not work for insane, because how would they be deterred. And,
in other cases, the devisee may have killed regardless of the legacy.
B. Punishment? This is more likely, but it may be both overly and under broad all at
A. Difference between the right to receive and the right to transmit
1. RIGHT TO TRANSMIT
a) Is a true "right" until it is changed prospectively
2. RIGHT TO RECEIVE
a) Is NOT a right. It is rather, only a "MERE EXPECTANCY"
B. RESTRAINTS on DEADHAND CONTROL
1. Constitutional grounds (such as in cases we read)
a) Where a famous photographer demands that their negatives be
burned, or that the person be buried with their priceless art
b) In these cases, the court may negate the "gift" altogether.
c) OR, if, for instance, personal notes are devised to be destroyed, the
courts may simply order the notes sealed for a number of years.
C. SLAYERS STATUTE
1. In most states causes a forfeiture of the gift.
2. QUESTION: Should we look to the intent of the testator?
II. § 250 Probate Code
A. EFFECTS the forfeiture
1. Forfeits benefits received probate, non-probate, and by trust.
2. Essentially says that if the forfeiture is effective, then we treat the killer as
if they have predeceased the decedent.
a) In these cases the gift "lapses" and goes to the next devisee or heir
B. BIG RULE: TREAT A as predeceasing.
III. UPC Rule
A. INSTEAD, treats A as DISCLAIMING the gift.
B. LEWIS: Says that the effect of these rules in CA is effectively the same
IV. § 251: Joint Tenant Slayer
A. Says that if slayer is cotenant, then they do not gain the right of full ownership.
B. BUT, we also do NOT erase the interest that the person already had.
C. SO, BOTTOM LINE is that the JOINT TENANCY is CONVERTED into a CO-
TENANCY, and the slayer is divested of right of survivorship.
V. § 252:
A. Same thing with bonds, insurance, etc. (no payment to slayer).
VI. § 253
A. Catch all provision
1. That requires forfeiture in situations of a killer that don't directly fit the
other, specific statutes.
B. EXAMPLE: Suppose granson kills grandad, who left money to dad.
1. DAD disclaims, can son take the $$? Under § 253, probably not.
2. NOW, if dad takes it, and then grants it in his will, does § 253 apply?
a) LEWIS: This is unclear. § 253 can be argued, but here, the first
transfer arguably ends the effect of the slayer's statute.
VII. § 254: Burden of proof is PREPONDERANCE of EVIDENCE
A. Thus, even if killer is not convicted criminally, the divestiture of inheritance may
still take effect.
VIII. § 258:
A. If you kill someone, you do not get the right to a wrongful death action.
IX. § 259:Elder abuse (similar, but slightly different than slayers rule)
A. Abuse of elder or dependent decedent.
1. Here, mere abuse is enough to effect the divesiture as long as there is
CLEAR AND CONVINCING EVIDENCE of the abuse, and the act are in
bad faith, reckless, etc.
2. FOUR CONDITIONS are layed out that, once again, will result in treating
the devisee as predeceasing the decedent.
X. READING for TODAY: The ROLE OF THE LAWYER
A. Hotz v. Minyard (p. 28)
1. Here, there is a will, and then a second will executed later the same day
that has different terms. The result is that REAL ESTATE that would
have gone to all heirs, but by second will, one child receives outright
ownership of the land. (thus the son gets the land, and the dealership that
is on it outright).
2. CLIENT tells attorney to keep the second will secret.
3. Then, daughter asks to see the will. Atty shows her the first (no longer
a) What SHOULD he have done? STAYED out of it.
4. Then DAD has a stroke, daughter takes care of dad, and the son runs her
dealership (into the ground), and freezes her out.
5. Daughter gets pissed, and starts complaining. Dad says shut up or your
out of the will.
6. Then, when dad dies, it all falls apart.
B. ISSUE: Did the lawyer owe a fiduciary duty to the daughter to show her the right
1. RULE: Bottom of p. 30: States nature of fiduciary duty
2. In this case, the court finds that since there was an ongoing lawyer-client
relationship, there was a fiduciary duty.
C. LEWIS: Says JUST STAY OUT of these types of conflicts.
XI. Barcelo v. Elliot (p. 34)
A. Total malpractice, leading to the beneficiary of the will not getting their devise...
I. Right to Transmit v. Right to Receive
A. Right to transmit is a property right.
B. Right to receive is a mere expectancy
II. IS the slayer statute/rule a modification of right to transmit or the right to receive?
1. It impacts the person's expectancy of receiving the property
2. AND, it impacts the right to transmit, because even with express intent,
the decedent's wishes are not followed.
B. THUS, what we have is a STATE LAW abridgement of a Constitutional property
right. BUT, this is okay, because there is a RATIONAL BASIS for the
III. Burden of Proof
A. Intentional and felonious slaying only need be shown by the preponderance of the
B. § 259: Elder abuse
1. Standard: Clear and convincing.
2. Four elements (see outline)
3. And devisee is treated as predeceasing the decedent.
IV. The LAWYERS ROLE
A. Hotz v. Minyard (auto dealership case). Court finds that the lawyer had a
fiduciary duty to the daughter because she was a previous client.
V. Barcelo v. Elliot (p. 34)
A. In this case, the will was defective and so the property went to heirs (children),
rather than the devisees (grandchildren).
1. Here the court finds (with a DISTINCT MINORITY) that there is no COA
against the drafting attorney.
B. NOTE: Some Jx will allow the third party beneficiary to bring a COA under K
VI. Taken in combination, these cases basically show that there is the potential for
MALPRACTICE liability AND for CONFLICT of INTEREST liability for a sloppy
A. PROBATE: Is a PROCESS. The entire process of proving validity of the will,
collecting all property named under a will, paying the debts, and doling the
1. Purposes of probate:
a) To provide CLEAR TITLE to property for subsequent disposal.
b) to initiate statute of limitations on CREDITORS and OTHER
CLAIMANTS to make sure that all creditors are identified.
c) To establish that THIS WILL, is the legal LAST WILL &
TESTAMENT of decedent.
2. On death, the ESTATE becomes a new "person" for tax person
3. The decedent will have to file a tax return for the year f the date.
B. PROBATE ESTATE/ASSETS
1. Cars, banks, etc., are allowed to transfer assets on the filing of an affidavit
that declares the status of the claimant as the true heir (intestate) or
2. PROBATE ASSETS: are the assets that are still owned at death, and that
pass either by will or intestacy.
C. NONPROBATE ASSETS
1. Assets that pass by WILL SUBSTITUTE
2. They DO NOT include any assets that are transferred in advance (e.g.,
joint tenancy, trust assets, etc.). These are called NON PROBATE
a) These also include the payout on life insurance policies.
b) This shows that CONTRACT RIGHTS are not included in probate
1. Is a document that complies with the state's statute that meets the state
statute for a valid will.
2. CPC defines a will as any testimentary document that includes a "codicil"
1. LEWIS: Terms are used interchangeable
2. Devisees/legatees are the persons who are named in the will.
1. When someone dies without a will, the are "INTESTATE."
2. In these cases the State's DECENT and DISTRIBUTION STATUTES, or
INTESTATE SUCCESSION statutes, control
1. Ae distributees under intestate statute.
H. PERSONAL REPRESENTATIVE
1. Executor: person named under a will as personal representative (or
appointed by the court under a valid will).
2. Administrator: under intestate statute
3. PERSONAL LIABILITY: the personal representative is personally liable
a) Finding the will, and proving it.
(1) Here, there is a presumption that a will that is duly executed
is the true will.
(2) Those that wish to challenge must come forward.
(3) Only INTERESTED PERSONS can challenge a wills
validity. Interested person are persons who WOULD
TAKE as beneficiary, or who are fiduciaries under the will.
b) Finding and collecting all the assets
(1) Includes having the assets appraised.
(a) Real property, stock value (date of death used).
(b) Note, that appraisal may require some liquidation of
assets to administer.
(c) Appraisal required by US Gov't for purposes of
estate and gift taxes. (No estate taxes are payable if
estate is valued at under $675K).
c) Manage the estate
(1) e.g., prevent the assets from deteriorating in value, keep
business running, etc.
d) Determine what debts are owed, and pay them in a timely fashion.
(1) IF there is a creditor claim procedure in the Jx, the personal
representative must do so.
e) Transfer title to the distributees
(1) Generally this is a court proceeding, where the personal
representative goes in, explains what they have done and
who gets what, and then a court issues an order to confirm
the distribution. This document is then used by the
distributees to prove clear title to the assets.
f) Oversight of appointment of guardian for children.
I. LETTERS TESTAMENTARY
1. This is the document issued by the court.
J. LETTERS of ADMINISTRATION
1. Document that names personal representative.
1. See table at p. 66. Note that this is relationships by BLOOD
2. Relationships by marriage are called AFFINITY
3. Here we will use terms like descendants, ascendants, and collaterals.
4. ASCENDANT: parent, grandparent, etc.
5. DESCENDANT: children, grandchildren, etc.
6. COLLATERALS: everybody else.
1. Express trusts that people create.
2. TRUSTOR/SETTLOR: person who puts assets into the trust...
VIII. Typical problems of personal representatives
A. Failure to collect all assets
B. Improper payment or non-payment of bills / Failure to collect outstanding debts.
C. Distrubution of assets to the wrong party or in the wrong amount.
D. Failure to provide proper care of assets.
E. GENERALLY requires some degree of negligence.
IX. WHERE DO WE GO to PROBATE THE WILL?
A. DOMOCILLIARY PROBATE: The County of the decedents domocile is the
primary place of probate.
B. ANCILLARY PROBATE: If property is owned in a separate Jx, then a separate
probate proceeding should be filed in that Jx. (this includes
I. DEFINITIONS (continued)
A. Personal Representative
1. Is issued "letters testamentary"
2. How do we determine who will be the "personal representative"?
a) IN general, the family will agree on the person. If they do not, then
the court will appoint in accordance with state statute.
1. Trustor conveys to a trustee (by a trust document or will) for the benefit of
2. The property conveyed is called the RES, CORPUS, or PRINCIPAL
3. Trustee does not OWN the res. They only hold it for purposes of adhering
to the terms of the trust.
4. The BENEFICIARY is the only person who has use and enjoyment rights
in the property.
5. The TRUSTEE is a FIDUCIARY under obligation to execute the trust.
B. TWO TYPES of TRUSTS
1. Inter-vivos or Testamentary
a) Intervivos is set up during life
b) Testamentary trust is established by will
III. Gruen v. Gruen (p. 45)
A. Dad writes letters gifting valuable painting to son, but making it clear that dad
will keep the painting 'til death. Dad dies. Now stepmom says that the gift isn't
valid if son didn't take actual posession.
B. ELEMENTS of a GIFT:
1. Donative Intent
C. Here, mom is saying that there cannot, legally, be a gift that reserves a life estate
in the donor.
1. Court says bullshit. That is fine.
D. RULE: You do not have to actually give the res away, you only need to give away
a PRESENT INTEREST in the property (even if the interest itself is a future
1. Here, where there is not actual delivery, there can be symbolic or
constructive delivery. Only works where delivery of the actual res is NOT
a) Symbolic delivery is the delivery of an item (e.g., picture, writing)
that "symbolizes" the gift.
b) Constructive delivery is the delivery of the "access system" to the
res (e.g., key to the house, combination to the safe, map to the
2. The court finds that the letters (particularly the destroyed letter) serves as
sufficient evidence that there was a gift.
a) LEWIS: Notes that in this case, if the letter had not retained a life
interest, then there might have been a delivery problem to complete
IV. Joint Interest with Right of Survivorship (p. 50)
V. Franklin v. Anna Nat'l Bank (p. 52)
A. ISSUE HERE: Is whether that a joint tenancy was intended when the decedent
added the person seeking a right of survivorship to his account.
1. Types of accounts:
a) JOINT TENANCY ACCOUNT: Equal access and enjoyment
immediately and right of survivorship.
b) AGENCY ACCOUNT: It is clear that there is no intent to give
any ownership of any of the assets at all.
c) DEATH BENEFIT ACCOUNT: Rights on death are given to
other person (but no equal enjoyment during life)
(1) NOTE: that THIS TYPE of ACCOUNT must comply with
the will on a statute.
a) If a person has not contributed any money to the account, the
courts will be reluctant to just turn over a right of survivorship.
B. COURT FINDS HERE that there was only a AGENCY ACCOUNT here.
C. Uniform Probate Code: latest amendments in UPC was to recognize to recognize
these joint account situations.
VI. Joint Accounts and P.O.D. accounts (p. 57)
A. California has a design now that allows a person to claissify the account as a Joint
Tenancy, Agency Account, or P.O.D. (Payable On Death) Account.
1. There is a wide host of P.O.D. accounts.
2. This creates another type of nonprobate transfer. A P.O.D. account is not
a testamentary transfer subject to the probate process.
VII. § 5000 CPC
A. Says that Staute of Wills does not have to be complied with in creating a P.O.D.
VIII. T.O.D. accounts (p. 57)
A. Applies to property that is not "paid out," e.g., stocks, bonds, etc.
B. Allows for a transfer on death designation that is nontestamentary, and avoids
I. Probate v. Nonprobate Assets
A. Non-probate assets transfer during life.
1. The transfer can include a right of future ownership
a) e.g., joint tenancy checking account with right of survivorship is
(probably) a probate asset. It may not, because there may be
questions (if not made explicit) whether decedent intended to grant
a right of survivorship.
b) OR, a pension plan, where the decedent-employee names the
spouse as a beneficiary. This would be non-probate, because its a
c) OR, life insurance (also a POD).
B. Probate assets transfer on DEATH
1. Personal property, real property, bonds, etc.
a) Note, that TOD designations can be used for stocks and bonds to
designate such assets nonprobate.
II. Probating Assets
A. Probating a house leased to decedent probably doesn't need to be probated (just
change the name on the lease)
B. GOVERNMENT BOND: does not have to probated if there is TOD, but without
TOD designation, this will probably need to be probated.
III. Intestate Succession
A. Intestate succession occurs where there is no will. It is controlled by state statute.
1. Occurs where there is NO WILL
2. or, where there is an INVALID WILL or INVALID PROVISIONS in will
3. or, where there is property NOT COVERED by a valid will.
IV. Intestacy Statutes ONLY determine where PROBATE ASSETS go.
V. CPC § 100
A. Says that on death, 1/2 of community propery goes to spouse. THE REST is
subject to probate proceedings.
1. EXCEPT property not obtained through "joint efforts" of the marriage.
2. e.g., property owned before marriage, gifts or inheritance to one of the
persons (this is NOT community property).
B. FOR EXAMPLE: if the couple owns $3,000 in the bank, then on death of
husband, wife OWNS $1,500 of it outright. The other half goes to decedents
VI. CPC § 101
A. Says the same thing about "quasi-community property."
1. QUASI-COMMUNITY property is property that WOULD HAVE BEEN
community property if it was acquired in a community property state. (see
CPC § 66)
VII. SO, at death:
A. Decedent owns ALL of their individually owned property, and 1/2 of community
property and quasi-community property.
B. NOTE here that the half retained by the surviving spouse, is neither "probate" or
"nonprobate" because it is PROPERTY of the survivor. Period.
VIII. CPC § 6401(a)
A. In intestate sucession, give the surviving spouse 1/2 of the decedents estate in
community property (i.e., 1/2 of the 1/2 that the decedent retained after dividing
ownership under §§ 100 - 01.
I. Separate Property v. Community Property
A. Separate Property:
1. Aquired prior to marriage
2. Aquired after marriage by gift or inheritance
B. Community Property:
1. Everything else
II. Decedent, A, in separate property state, married to B. A separately owns property.
A. In the separate property state, that asset belongs to A, and A has the power devise
the entire property.
B. IF A and B are CO-OWNERS (not Joint Tenancy) in indivisible property, then the
law recognizes that each of them owns the right to use the whole thing.
1. On A's death, A's estate gets one-half of the property, and B retains the
2. But, if they own it as joint tenants, then B takes the whole under right of
survivorship (not through anything having to do with statutes of wills or
C. COMMUNITY PROPERTY (CPC § 100):
1. IS divided like CO-OWNED property.
2. § 101 does the same for "quasi-community property."
a) Quasi-community property is defined at § 66.
b) Essentially, this is property that WOULD HAVE BEEN
community property if it had been acquired in a community
III. § 6401 - Where does it go, and who gets it?
A. Under section 6401(a)-(b), the OTHER HALF of the community property or the
quasi-community property (UNDER 100 and 101) goes to the survivor (thus, they
get the WHOLE).
B. § 6401(c)
1. 6401(c)(1) If there is a surviving spouse, and no living children, parents or
siblings, etc. Then surviving spouse takes it all.
2. 6402(c)(2): surviving spouse gets 1/2 if there is only one child, or
3. 6402(c)(3): Gives surviving spouse 1/3 of the separate property if there are
two or more children.
IV. UPC v. CA
A. UPC allows a "negative will" where all that is done is to write a specific
individual out of the will. This can't be done in CA.
B. UPC allows spouse to take ALL, if all that the couple has is children in common.
(unlike CA which only allows the spouse to take 1/2 or 1/3)
C. UPC 2-102 also has provisions that recognize the effects of children by multiple
V. PROBLEMS, p. 71
A. Problem 1, part 1 (spouse and sister survive)
1. Under UPC 2-102(1), spouse takes it all.
2. Under CPC 6401 spouse takes half (b/c there is issue of a parent
B. Problem 1, part 2 (spouse, parent and sister survive)
1. Under UPC 2-102(2) spouse takes $200K plus 3/4 of the rest.
2. Under CPC 6401 spouse takes half.
C. Problem 2, part 1 (spouse and one common child survive)
1. UPC 2-102(1)(ii) spouse takes all.
2. CPC 6401(c)(2)(A) spouse takes half.
D. Problem 2, part 2 (spouse, decedent's son, and common child survive)
1. UPC 2-102(4) spouse gets 100K plus 1/2 remainder.
2. CPC 6401(c)(3)(A) spouse gets 1/3.
E. Problem 2, part 3 (spouse, spouse's son and common child survive)
1. UPC 2-102(3) spouse gets $150K plus 1/2
2. CPC 6401(c)(2)(A) spouse gets 1/2.
F. Problem 2, part 4 (spouse, spouse's child, decedent's child, and common child
1. This is the same as part 2's answer, b/c decedent has two surviving
children (check this, it was a fast answer).
I. § 6401
A. Surviving spouse gets 100% of all community property and quasi-community
B. Surviving spouse gets 100% of all separate property, if no descendants or parents
or their issue.
C. Surviving spouse get 50% of property if there is
1. One descending bloodline, or
2. A surviving parent or their issue
D. Surviving spouse gets 1/3 if
1. Two or more descending bloodlines
E. NONE: if will AFFIRMATIVELY grants all property to another (CA RULE), or
IF WILL NEGATIVELY ELIMINATES the spouse (UPC rule).
F. OR if spouse is already DEAD.
1. NOTE: That separate issue of the spouse DO NOT take in succession if
the SPOUSE is already dead.
II. Estate of Goick (p. 72)
A. Wife and husband do not have final divorce decree when hubby dies. Mother,
brother and sister challenge wife's appointment as PR.
1. RULE: Divorce is not final without final decree of divorce
2. RULE: No standing to sue on distribution of estate unless stands to
3. RULE: Mere verbal statement that one is no longer married does not estop
assertion of status as spouse.
III. CPC § 78 defines who is NOT a surviving spouse.
A. Broadens the rule from Goick slightly
1. Includes person who enters later marriage, even if decree is not final.
2. Includes person who's property rights have been terminated anyway.
3. 4 categories listed (study them).
IV. P. 78, n. 5
A. Policy question: should "domestic partners" be recognized?
V. DONE with SPOUSES, NOW, where do the rest of the assets go?
VI. § 6402 (refer to table of consangquinity, p. 66)
A. Issue of decedent takes first priority.
B. If no surviving issue, to parent or parents equally
C. If no issue or parents, to the issue of the parents
D. If none of these, then to grandparents or their issue.
E. IF none of these, to the issue of a predeceased spouse
F. IF none of these, then to "next of kin" in equal degree
G. If none of these, then to the parents of a predeceased spouse or their issue.
H. AND, if none of these, then to the state
VII. CAVEAT: § 6402.5
A. Predeceased spouse and 15-year limit on REAL property and 5-year limit on
1. IF there is no surviving spouse, or descendants, then the property that
belonged to a predeceased spouse descends to the predeceased spouse's
VIII. UPC views:
A. Here, it drops at the GP level (and splits evenly between the descendants of
maternal and paternal GP's if either is dead.
A. CA and UPC both go PARENTELLICALLY and then when CA says "next of
kin" convert to a DEGREE of CONSANGUINITY analysis.
I. LAST TIME
A. WE discussed the share of the surviving spouse
1. 100% of community and quasi-community property
2. 50% of separate property.
B. Remainder of separate property going to spouse may be 100%, 50% or 1/3
depending on the remaining bloodlines and survival of parents of the decedent.
C. IN CA
1. Decree of divorce OR
2. Order that finally divides marital property
3. Is sufficient to prevent surviving "spouse" from taking as a surviving
spouse under CA's intestate statute.
D. People that are not direct DESCENDANTS or ANCESTORS (parents, gp's, etc)
are called COLLATERALS
II. Order of TAKING (parentelic descent).
A. Issue of decedent
1. IF property was received from predeceaces spouse (15 year real property /
5 year personal property) § 1502.5 "carves out" this property.
B. Parents, or their issue
C. Grandparents or their issue
D. Next of kin. (degree of relationship)
E. DEGREES of RELATIONSHIP SYSTEM (determining the "distance")
1. See the table of consanguinity.
III. GRANDPARENTS aod UPC / CPC comparison
A. IN CPC, issue of grandparents at same degree all take equally.
B. In UPC, estate is evenly divided between paternal and maternal GP lines, and
THEN in each line the issue of first surviving degree split that share.
IV. THREE MAJOR SYSTEM TO DETERMINE HOW DIFFERING DEGREES
A. p. 79-82: per stirpes distribution.
B. STRICT PER STIRPES:
1. The generation of children (whether surviving or not) is the basis for
division. Then, we distribute that to the survivor 1/4, or we split the 1/4
share at the first surviving level of that issue.
2. Living taker cuts off all issue below them.
C. MODERN PER STIRPES (CA RULE):
1. Per capita w/ reprensentation. (§ 240)
2. Here, you go to the nearest level WITH SURVIVING MEMBERS. Then
determine the total number of persons represented at this level. This is the
number of shares.
D. UPC RULE: Per capita at each generation
1. Go to first level with a living taker, and make that division. The survivor
takes that share.
a) Then for the share(s) left to dead persons at that generation, it is all
combined again, and distributed to the next level evenly, and so on
and so forth.
b) BUT, ELIMINATE issue of the person who DOES TAKE when
computing the division for that generational level.
V. Division between issue of different degree:
A. See §§ 6402, and 240.
VI. See handout discussion family trees.
VII. SITUATION 1:
A. Strict per stirpes:
1. Estate is divided into quarters (even though all children are dead).
2. It descends down each LIVING blood line to be taken equually.
B. Modern per stirpes:
1. Since there are no survivors, we go to first generation with survivors.
Here, we have 8 at the second level, so 1/8ths are the original shares.
1. WE have 2/8ths left over at grandchildren. We combine these two eights
and then divide them among the survivors of the deceased grandchildren
equally (1/8) each.
VIII. SITUATION 2:
A. Here, the trick is that there is only TWO bloodlines living under A, even though A
had three children.
B. STRICT PER STIRPES:
1. B, C, D all take 1/4
2. F is ELIMINATED. And so E and G each get 1/2 of A's 1/4.
3. THEN, M gets 1/8 total, and N & O take 1/16 each.
C. MODERN PER STIRPES:
1. Since there are surviving children, the result is the SAME.
D. UPC system
1. Under this system, we have the same initial division, but then with A's
share things turn out differently than Modern per stirpes, because MNO
will all get 1/12 now (1/3 of A's 1/4).
I. More on what happens when more than one person qualifies to take under intestate
A. § 6402: says that if persons are of equal degree, then they take equal shares, BUT
if of unequal degree it shall be allocated in accordance with § 240
B. § 240 tells us that we have a MODERN PER STIRPES (or percapita with
II. We also covered strict per stirpes AND per capita at each generation.
III. CA references all of these at one point or another:
A. IF a STATUTE (e.g., intestacy) says how to distribute, then it goes under § 240.
B. BUT, if the WILL says to my ISSUE, then § 245 says to use modern per stirpes
(same as § 240).
C. BUT, if will says to my issue PER STIRPES, then we will proceed under § 246
using a strict per stirpes distribution.
D. AND, if the will says "per capita" or "equally by right of representation" WHAT
DOES this mean? IF it cannot be determined, then § 245 is used as a default
(modern per stirpes).
E. IF the will references § 247 or if it say "per capita at each generation" then the rule
of § 247 applies.
IV. Situation 3, p. 82.
A. STRICT per STIRPES:
1. D gets 1/4 (as one of four children)
2. The other quarters each descend through the bloodlines.
B. MODERN per STIRPES:
1. Works out the same because one of decedent's children is still alive.
C. Per CAPITA at each GENERATION.
1. See § 247 CPC, or 2-106
a) D gets 1/4. Then, the 3/4 remaining is combined.
b) That 3/4 is divided among the remaining bloodlines at the next
V. Situation 4, p. 82.
A. STRICT PER STIRPES
1. Here, there are no living members of the first generation. THIS DOESN'T
matter, BUT, what is important is that ONE OF THE BLOODLINES is
GONE. So, now we divide into 1/3's. and then work our way down the
B. MODERN PER STIRPES.
1. Here, we have to drop to the grandchildren's line. There are only six
surviving bloodlines, so it gets divided into 1/6's.
C. PER CAPITA at each GENERATION.
1. Works the same in this case as modern per stirpes.
VI. NOW, what happens when there are NO DESCENDANTS?
A. In all the previous examples, the decedent has descendants, and so we are
operating completely under 6402(a).
B. Now we will deal with the situation of no descendants but collaterals.
VII. CPC goes to level of great-grandparents and then says by degree of relationship.
VIII. UPC says escheat after great-grandparents.
IX. EXAMPLE, top of p. 84.Here since parents are dead, we go to issue of the parents.
A. STRICT PER STIRPES:
1. We divide into THIRDS (looking at the brothers and sisters).
B. MODERN PER STIRPES woud be THE SAME
C. UPC: Per Capita at Each Generation:
1. D gets 1/3, then, remaining 2/3 is combined and divided between the five
surviving members of the remaining bloodlines.
X. HANDOUT PROBLEM (dated 2/2/00)
A. Under CA rule, B, C & D would each get 1/3.
B. UNDER UPC, though, we would split 1/2 to each SIDE of grandparents as shares,
and then do a distribution of each 1/2 to descending lines from each of these
II. See handout from 2/2/00
A. Under UPC:
1. Where we have to go to grandparents parentellic line, we SPLIT the estate
between the maternal and paternal lines as a "per stirpes" type division,
and then we divide those 1/2 shares to each side.
B. Under CA rule:
1. Each gets 1/3 under modern per stirpes, because we go to the nearest
parentellic blood line, and then drop to the first level with survivors, and
make the division there.
C. Massecheusetts kicks in the degree of relationship standard after the first
parentellic line. Then, if there are survivors in the same degree but from different
parentellic lines, then we use a PARENTELLIC TIEBREAKER to give the estate
to the most.
III. CA § 6402(f)
A. This essentially provides that we go on the degree of relationship with parentellic
tiebreaker after the great grandparents.
IV. In re Estate of Martineau (p. 84)
A. Souter interprets statute to mean what it says.
V. Problem 1, p. 89.
A. Under problem 1, under both the UPC and the CPC, J takes all as the only
survivor of the first parentellic line.
VI. Problem 2, p. 90.
A. Here if J dies then under UPC: we split estate between the grandparents, and then
distribute down. So P gets 1/2, N, O & L each get 1/6th.
B. Under CA rule: NO SPLIT between maternal and grandparent level. Just use
MODERN PER STIRPES:
1. P gets 1/3 (as one of three nearest generation with surviving bloodlines).
VII. HALF-BROTHERS and SISTERS
A. Here the question is WHO ARE "ISSUE"? who gets into the group.
B. § 6406 recognizes half-bloods as full takers with full bloods (make no
VIII. ADOPTED CHILDREN
A. Estate of Donneley (p. 93)
1. Here, the argument is that the adoption severs the relationship with the
2. Thus, we have a daughter whose relationship to her grandparents
THROUGH her deceased father is cut off.
B. EXISTING RULE: had a POLICY PROBLEM because it only considered
"traditional" outside adoptions, and failed to take into consideration step-parent
I. We did not have class last week.
A. READ CHAPTER 11 (end of life decisions).
B. BE SURE to GET and WATCH VIDEO.
II. Last Class
A. We completed review of CA's intestate system
1. Parentellic system through second line collaterals with a ______ with a
parentellic tie breaker.
2. DIVIDING among groups: per capita by generation (modern per stirpes).
B. AT end of class, we moved into the question of WHO IS ISSUE
1. Here, we are looking at WHO QUALIFIES?
III. Family Law Code determines who are the "children" of any particular person.
IV. How do we treat half-bloods?
A. Half-bloods are treated the same as full bloods.
V. Adoption situations.
A. Donnely: Where a child is adopted the Donnely case held that there is a complete
severance from estates on biological father's side. Even if the child remains with
VI. GENERAL RULE on ADOPTIONS
A. Inheritance is FROM and THROUGH the adoption.
1. Child inherits from and through the adoptive parents.
2. Parents inherit from and through the adopted child.
B. Adoption SEVERS the relationship between the child and the natural parents.
1. Child cannot inherit from natural parents.
2. Natural parents do not inherit from child.
VII. In CALIFORNIA
A. § 6450 sets up the two way embrace
1. This sets up the rule of EMBRACE
B. § 6451 sets up the two way severance
VIII. § 6451(a) tries to allow for the Donnely type of situation.
A. § 6451(a)(1): NO SEVERANCE, if the natural parent and adopted child lived
together, or the natural parents lived together at the time of conception and then
died before the birth, AND,
B. § 6451(a)(2): The adoption is by the spouse of a natural parent, OR, if the
adpotion occurs after the death of a natural parent.
IX. § 6451(b) effects a ONE WAY SEVERANCE
A. Basically the child can adopt from and though the living natural parent, and the
family of the deceased natural parent.
B. BUT, the family of the deceased natural parent are cut off from inheriting from or
through the adopted child.
X. UPC: does not deal with the "after the death" situation...
XI. § 6413
A. A person who is related to the decedent through two lines of relationship is
entitled to only a single share based on the relationship which would entitle the
person to the larger share.
1. Here, where we have marriages, and re-marriages that create multiple lines
of relations. The statute just says that you take through the ONE
BLOODLINE that gives you the highest share.
XII. GENERAL RULE in all states except one (CA)...
A. Step family relationships give no right to intestate sucession, UNLESS
1. The person cannot legally consent to adoption or get consent from natural
XIII. § 6454
A. Stepchild can inherit from stepparent if:
1. Relationship began while stepchild was of minority and relationship
continued until one person died, AND
2. There is CLEAR and CONVINCING EVIDENCE that "but for" a legal
barrier the step parent would have adopted.
B. NOTE: That this creates a TWO WAY embrace, and, thus the step parent can
inherit through the step child.
XIV. NOW what if the person reaches majority, and the step parent still doesn't adopt,
even though there is no more legal barrier.
A. Top of p. 99. This is a bit unsettled. The precedential rule is that there is not an
inheritance right BUT the weight of the authority is leaning toward allowing the
step child to inherit.
XV. Estate of Brittin (p. 99)
A. Facts: kid is 3 years old. Mom marries and has another child. Kid at age 46 is
adopted AFTER DEATH of natural mother. Adopted Kid had five children of his
B. When step-father dies, the NATURAL kid of the mother and step father says that
Adopted Kids children should get anything. (thus she gets it all).
C. THEORIES of CASE:
1. She says first that since adoption was at age 46 this is not an adoption of a
a) REJECTED. Court notes that meaning of "child" for intestacy is a
question of relationship, NOT one of age.
2. Then she says that if the adoptees children were born before the adoption,
then they shouldn't be included as takers of the deceased adopted kid's
a) REJECTED. Timing of birth of issue does not affect distribution
to issue under intestacy statutes.
XVI. WHY have a late adoption?
A. In this case, it would be a way to make sure that the adopted child and his issue
are included in ALL intestate sucession of the entire family.
B. ALSO, this type of adoption can help to prevent the family from later contesting a
C. CA RULES on ADOPTIONS:
1. Person must be younger than you.
2. AND, the person cannot be your spouse.
XVII. NOTE that for same sex couples, adult adoptions can create a right to succession in
A. i.e., one partner "adopts" the other rather than marrying them, thus creating rights
of succession, not only to each other, but through each other's families.
II. WHO ARE ISSUE?
A. Whole bloods and half-bloods treated the same.
B. Adopted children ALWAYS TREATED as ISSUE of adoptive parents.
1. BUT, only treated as issue of natural parents under conditions outlined
under the statute.
2. If it is a step-parent adoption then both the natural parents and the adoptive
parents and the child inherit from and through each other.
C. Recent issue: What about "reunified" natural parents and adopted out children?
Should statutes be modified to allow for intestate succession here?
D. ADULT ADOPTIONS: in same sex relationships, the older may adopt the
younger in order to provide for intestate succession.
III. INHERITANCE BY STEP CHILDREN
A. CA allows inheritance by step children where there is a LEGAL BARRIER to
formal adoption, AND where there was an established reltionship between the
step parent and step child.
IV. EQUITABLE ADOPTION
A. Occurs where a caretaker takes a child in, agrees with parents to adopt, but formal
process not completed. Where the caretaker holds the child out as their own.
B. Typically arise in step-family situations.
C. § 6455: Nothing in this chapter affects or limits application of the judicial
doctrine of equitable adoption for the benefit of the child or the child's issue.
D. THUS, common law rules may allow for intestate succession even beyond the
statutes. IF all other avenues are not available, look to see if equitable adoption
might be applied.
V. see HATTIE O'NEIL case (excerpted at p. 104)
A. Here a child was handed over to a family at age 4, and is raised as the child of the
1. In this case, the court found that there was no "agreement" because the
mother had died, and the aunt that gave the child away did not have
a) DISSENT in this case takes notice of the REALITY of poor
families, and finds that equitable adoption should not be based
strictly on contract rules.
VI. FOSTER CARE situations
A. Typically the facts are "bent" around these situations to find that the CHILD has
the right to inherit from and through the step-parents. BUT, the step-parents are
NOT allowed to inherit from and through the child.
VII. NONMARITAL CHILDREN
A. Term used today for "illegitimate children."
B. RULES today:
1. Child is always considered "issue of" the biological mother.
2. Child is considered "issue of" the biological father, only if the father holds
the child out or otherwise acknowledges the child, or if paternity is
C. PRESUMPTION: If man and wife are married, and wife has child, the husband is
PRESUMED to be the natural father, unless proceedings are brought to prove
VIII. Wingate (p. 107)
A. couple has a child. Child is raised as child of the couple. Then, about four days
before death of family friend, mother tells daughter that 3p is actual father.
During her life, the 3p had paid or braces and dresses, etc. Daughter orders DNA
tests to prove paternity. 3p privately achnowledges child, but refuses to do so
B. Issue in this case is whether statute of limitations applies.
1. Parentage act has a five year SoL that has expired.
2. BUT, intestacy statutes allow proof of survivorship within a reasonable
time after death.
3. COURT HOLDS: that the SoL on parentage statute will not be applied to
a) RATIONALE: the statutes treat two different things. The
parentage statute addresses issues of child support during life, etc.
b) The Probate code deals with distributions on death.
IX. Uniform Parentage Act § 6 (p. 117)
A. Under this act, she could not "rebut" the presumption that the HUSBAND of her
mother is her father.
B. BUT, there would still be time under the intestate statute.
X. CA parentage rules just say that there is a "reasonable time."
XI. WHAT HAPPENS ONCE YOU PROVE PATERNITY?
A. The child gets to inherit from the parent.
B. BUT, can the parent inherit from the child?
1. In CA there are conditions:
a) The parent or a relative of the parent must have acknowledged the
b) The parent or a relative of the parent must have contributed to the
childs support and/or care.
XII. § 6453 defines "NATURAL PARENT"
A. Court order during lifetime of parent declaring paternity
B. Clear and convincing evidence that parent held out child as their own during life.
C. OR, it was impossible for the parent to hold themselves out and there is clear and
convincing evidence of parentage.
XIII. Parentage act provides for severence of natural father SPERM DONORS, but only
under 4 conditions
A. Done by licensed physician,
B. with consent of husband
C. ... (find rest)...
I. Problems p. 122
II. Nonmarital children
A. Take from the mother, and from father when parentage is established under
California's Parentage Act, or under § 6453(3), where it is impossible for father to
hold child out as his own and there is C&C evidence that this was the father.
III. Problem 1, p. 122.
A. Here, Z is the birthmother, even though W is the egg donor. So, the child will
take from Z (not W). Child will only inherit through X if X acknowleges.
1. Note that CA's artificial insemination statute doesn't apply.
B. If child dies, estate would go through or to Z most likely.
IV. Problem 2, p. 122.
A. Here it would appear that child would inheret from birthmother, but not from the
sperm donor or the lesbian partner.
B. If Ursula adopts, now the kid can inherit through her and vice versa, BUT, under
CA statute this may result in a SEVERANCE from the BIRTHMOTHER(!)
(because this is not a spouse of a natural parent adopting).
V. Kane (p. 123)
A. In this case, two adult children are pissed that the second wife is getting most of
the assets and sue.
B. QUESTION here is whether SPERM is property?
1. Court finds that this is "quasi-property" sufficient to give it Jx over the
VI. Problem (p. 125)
A. Problem 1, p. 125
1. Here there is difficulty because there is a problem with the fact that no
child is in existence at the time of the decedent's death.
B. Problem 2, p. 125
1. Who gets to decide when the sperm should be destroyed?
2. No answer.
VII. SIMULTANEOUS DEATH:
A. Quesiton here is who DIED FIRST? Because this will effect whose estate
receives the benefit of the first decedent's estate.
VIII. Estate of Villwock
A. Here there is a problem bc H is determined to have died before W, H's daughter
by a previous marriage is cut out of the intestate succession.
IX. Simultaneous death can be declared only where there is NO EVIDENCE of who
X. BUT, once a trial court makes a finding of the timing of death by a T. Curt, this
drives the whole enchilada.
XI. § 6403 (for intestate succession)
A. A person who fails to survive the decedent by 120 hours is determined to have
PREDECEASED the decedent for purposes of intestacy.
B. If there is not C&C evidence of survival by 120 hours, then the death will be
assumed to have been within the 120 hours.
C. This rule doesn't apply if the result would be escheat.
D. THIS RULE ONLY APPLIES to INTESTACY
XII. § 220 & 221 provide for rules if there is a will (says that spouse os treated s
A. No 120 hour limit.
B. Just C&C evidence of survival required to establish survivorship.
XIII. § 103, 222, 223 all say that community property / joint property is split 1/2 to each
estate if simultaneous death declared by either § 6403 (intestacy) or § 220.
I. SIMULTANOUS DEATH
A. § 220 et. Seq. Set fort rules.
B. § 220 says that there must be CLEAR and CONVINCING evidence of
C. § 221 says that the chapter does not apply to § 103 (thus if order of death cannot
be established, then community property is SPLIT between the estates).
D. §? says that wills can adjust survivorship statutes' requirements.
F. §6403 is the intestate scheme. It requires 120 of survivorship by clear and
H. §223 deals with joint tenants
I. § 224 addresses insureds and assumes that the insured suvived.
J. (review these)
II. DISCLAIMERS (or RENUNCIATIONS)
A. This is the ability to say I DON'T WANT IT.
B. this "relates back" to the date of the gift.
C. Rules here are the same for wills and intestacy
III. UPC and CA STATUTES (for the most part) mirror the FEDERAL TAX
STATUTES as to when a disclaimer can be made.
IV. Why would somebody disclaim?
V. Estate of Baird:
A. Son disclaims his interest in his mother's estate so that he will be too poor to pay
judgment in assault against his wife.
B. Here, son has children by a previous marriage. By doing this, he is essentially
preserving the estate to go to his previous children rather than to the current wife
that he beat up.
C. COURT HOLDS: That one cannot "disclaim" an interest that one does not have.
D. NOTE on BANKRUPTCY PROCEEDINGS: The persons assets include
whatever they have, PLUS whatever they receive within 180 days. In this case,
mom died too soon.
A. Avoiding CREDITORS CLAIMS is a VALID REASON for disclaiming estates.
B. However, there was a question whether the court would have allowed this
disclaimer, because, in a sense, it would be allowing a bad actor to "benefit" by
VII. DISCLAIMERS, are treated as PREDECEASING the decedent.
A. BUT, at § 282(b), we see that the person is STILL TREATED as being alive for
purposes of establishing division of the estate (thus avoiding the ability to
manipulate shares under modern per stirpes distributon.
VIII. REASONS for DISCLAIMING
C. Eligibility for Public Assistance
1. The last two here, there are often statutes that limit ability to disclaim.
IX. Disclaimer can be a strategy used post-mortem to redistribute estate assets in order
to avoid problems.
A. Under intestate statutes there is nine months after death to disclaim.
X. MAIN POINTS TO UNDERSTAND
A. There is a disclaimer right
B. It must be in writing
C. IT can disclaim any existing property rights
D. Disclaimor is treated as predeceasing
1. But, SHARES are treated as if person is surviving (to prevent
manipulation of per stirpes distributions).
E. Right to disclaim can be waived.
XI. Note p. 141-42
A. This captures the explanation of fn. 3 in the Baird case.
B. You CAN HAVE the DISCLAIMER of an expectancy ENFORCED if there is
VALUABLE CONSIDERATION GIVEN for it.
C. NOTE, there is an inconsistency here because we won't treat a mere disclaimer of
a future inheritance as valid, but we will if there is consideration.
A. Suppose that parents have given significant assets to children, should these be
treated as "advances" on distribution of the estate?
B. § 6409:
1. There must be a WRITING, either by decedent or the heir, acknowledging
that this is an advanement on the estate instead of a separate transfer of
2. VALUE of the transfer is determined at the time of the transfer of the
C. MECHANICS of ADVANCEMENTS:
1. Add the advancement into the total estate and then calculate distributions.
2. If the advancement EXCEEDS the share, then the amount is backed out,
and the receivor of the advancement is not included in the distribution of
I. Disclaimers and Advancement
1. Useful for tax planning
2. If the disclaimer meets federal tax standards then the state will take it. (9
months after the creation of the interest, or -- if it is a future interest -- 9
months after it becomes indefeasibly vested).
a) Thus a straight remainder must be disclaimed within 9 months of
b) BUT, a contingent remainder only need be disclaimed within 9
months of the occurrence of the contingency.
3. CA RULE: still allows disclaimer within a "reasonable time." Thus 9
month rule can be extended (but not that this will not help with federal tax
4. NO DIRECTING the allocation of disclaimed property.,
a) IF disclaimer is of a contract right (e.g., pod designation) the
contract -- if it states -- controls who is the next in line.
b) For other situations, intestacy governs.
5. Disclaimer relates back to the time of creation.
a) Thus no EARLY DISCLAIMER can be made UNLESS...
(1) The disclaimer is exchanged for valuable consideration.
1. If an heir gets property during life it is NOT counted against their intestate
share of the estate UNLESS
a) § 6409 - the property was given under the express WRITTEN
condition or acknowledgment that it was, in fact, and advancement
on the inheritance.
2. § 6409(d) if the recipient of the advance fails to survive, then the advance
is ERASED, even if it is written.
II. Problem p. 144
A. G (dead) with surviving spouse and kids under prior marriage, advances 50K to A,
10K to B (both with writings), and nothing to C. Net estate on death is $190K.
a) FIRST we do hypothetical calculation to add everyobidy back in:
$190K + $10K + $50K = $250K.
(1) Spouse gets $100K plus 1/2 remainder = $175K
(2) Kids each get 1/3 of remaining $25K.
(3) BUT, A does not take here. So we have to go back and do
b) SECOND, back out A and do it all over....
(1) $190K + $10K = $200K
(2) Spouse gets $150K, and B & C split the remaining $50K
(a) BUT, since B ALREADY GOT $10K, B only gets
$15K and C gets $25K
2. CA RULES:
a) Spouse gets 1/3 kids get 2/3.
(1) Here all kids inherit off of first calcuation.
(2) $250K estate. Wife gets 1/3 (~83K) and remainder ($167K
split equally between 3 kids), or apporximately $55K each)
(3) OF COURSE each A & B must deduct their advancement:
so A gets $5K, B gets $45K and C gets $55K.
III. PROTECTION of the FAMILY
A. Here we are talking about statutes that OVERRIDE wills.
B. For policy reasons we PROHIBIT testators from excluding certain people from
IV. RULES on COTENANCY
A. In common law states: The spouse with title in community property in their own
name can sell out from under the other.
1. BUT, on divorce, the property ownership is split.
2. So, the problem here is that if the title spouse "disinherits" the non-title
spouse in their will, the non-title spouse gets NOTHING.
B. In community property state: even during marriage, the spouse with title must get
consent of the non-title spouse.
V. To answer these problems we have ELECTIVE SHARE RIGHTS that protect non-
A. Generally these rights are the same as the amount that that the spouse would
receive as if the decedent had dies intestate.
B. SO, what is the value of having a will anyway if you don't like your spouse?
Well, at least the decedent can decide WHICH assets the spouse will receive (as
long as the value of those assets is equal to their ELECTIVE SHARE RIGHT).
VI. SCOPE of ELECTIVE SHARE RIGHTS
A. An early problem with these rights was that the decedent would simply transfer
away property during life in the form of revocable trusts.
VII. Sullivan v. Burkin
A. Decedent creates a intervivos trust, and leaves the residue of his estate to be
poured into the trust.
B. The WIFE, seeks to have the property ALREADY in the trust declared part of the
probate estate for purposes of the ELECTIVE SHARE STATUTE
C. The court declines to apply its new rule in this case, but declares that in the future,
REVOCABLE TRUSTS established by the DECEDENT will be included in
calculating the ELECTIVE SHARE.
D. Some states had looked to the "reasons" for the transfer to decide if the trust is
fraudulent or in bad faith.
E. TODAY, courts tend to refuse this subjective analysis, and just apply a bright line
rule in the case of revocable trusts established by the decedent.
VIII. FACTORS typically considered in determining if there was fraud on p. 154
A. Was there valuable consideration for the transfer
B. What is the size fot the transfer as compared tot he estate.
C. What was the timing.
D. What was the relationship like.
E. Where did the property come from.
F. Was any real power transferred.
G. Was the wife adequately provided for in the will.
IX. UPC has a very intricate design that provides for these transfers.
A. Review 156-166
B. In determining the amount, we use the partnership theory, and we...
C. Add in any transfers to others, any shared assets, and any amounts that spouse had
the residual probate estate.
D. Then we have a calculation by years of marriage to find the amount of the elective
E. THEN after calculation is made, then we look to see what spouse has already
received. (their exisitng property, and their during life transfers).
X. WAIVER of ELECTIVE SHARE RIGHTS
A. ESR can be waived
B. It is a personal right. It cannot be elected by a representative, it cannot be
assigned to another, spouse must be alive to take.
I. LAST CLASS
A. Protections provided to surviving spouse and family
B. Homestead allowance, family allowance, etc.
C. "Pretermitted Spouse" - means "unintentionally left out of the will."
1. Generally the spouse gets a share that is equal to what the spouse would
have gotten, had decedent died intestate.
2. CA statute CAPS this at 1/2 of the estate, AND, INCLUDES any
REVOCABLE trusts given during life
a) Thus, certain transfers during life are brought into the calculation
in addition to the probate assets.
D. § 26112 - to satisfy the spouses share, assets should be take from the estate first,
BUT, then other parties' shares of the ESTATE can also be used to satisfy the
spouse's share. (but not non-probate assets, such as life-insurance proceeds).
E. UPC - says that we ONLY take from other probate assets.
II. P. 179, problem (a clarification)
A. Lewis is assuming that the TOTAL Estate was $10,446,000.00
B. (I missed this, go back & review).
III. WHY DOES CA PROVIDE FOR A QUASI-COMMUNITY PROPERTY RIGHT
A. To protect the spouse.
B. Provides that if a couple acquires property that would be community property IF it
had been acquired in California, then it will be treated as "quasi-community
1. The distinction, is that there is NO RIGHT to the non-owner spouse of half
ownership during life. Quasi-community property only exists ON
C. This is a way to give rights to spouses, because they will not have ELECTIVE
SHARE RIGHTS in this state (this is how spouses are protected in non-
community property states).
D. NOTE: IF you aquire community property in any state ITS NATURE DOES
NOT CHANGE. Thus, even if the couple moves to a non-community property
state, the property REMAINS community property.
1. Difference b/t joint tenancy and community property:
a) Joint tenant can, at will, effect a severance to become tenants in
b) With community property, the
IV. PROTECTING CHILDREN
A. Estate of Glomset (p. 181)
1. Wills of husband and wife leave all assets to one another, unless
simultaneous death, in which case it goes to the son.
2. Problem here is that the daughter is left out of the will.
3. Folks die, daughter comes in claiming pretermitted child status.
B. STATUTE: provides that unless it appears INTENTIONAL that the child was left
out, then there is a rebuttable presumption that the omission was unintentional.
1. COURT RULES: that in this situation, extrinsic evidence will not be
allowed to rebut the presumption of lack of intent.
2. Thus, the court uses a very formalistic approach to constructing the will.
3. SO here, the DAUGHTER gets to inherit what she would have received
under the intestate statute. AND, in a BIZARRE twist of fate, since the
son was specifically mentioned in the will, and was only to received on
death of both parents. Since the condition did not occur, then the son is
OUT ALTOGETHER, even under intestacy. THE DAUHTER GETS IT
C. CA RULE: Only allows the presumption if born or adopted AFTER the creation
of the will instrument.
D. CA would still require that the intention to disinherit must appear from the face of
the instrument in order to prevent the pretermitted statute from applying.
E. see §§ 21620 et. Seq.
F. 21621 also provides an exception that if there is a surving spouse or ex-spouse
that was bequeatedh substatially all of the estate then the omitted child will not
G. 21621 also allows OTHER TRANSFERS (such as trusts) to state that the other
transfer is in lieu of inheritance.
V. Problem 1, p. 187.
A. Here the question is whether C is pretermitted?
1. Here there is a "substantial" amount of the estate going to the wife, but is it
"substantially all" for purposes of the statute? This is unclear. Here there
is an arguemnt for both sides.
VI. IN this case, because we have a spouse and multiple children, spouse gets 1/3,
children would get 1/3, and C would get a equal share of the 1/3.
VII. Under UPC, we just go to the kids generation and REDISTRIBUTE the amount
allocated to that generation.
VIII. § 21623 is an "abatement" provision.
A. It tells us how we will reduce other shares in order to satisfy the pretermitted
II. PRETERMITTED CHILD
A. CA RULE
1. IN CA a pretermitted child is a child who is ADOPTED or BORN after a
revocable trust or testamentary instrument is created.
a) IF born before, then the child will not be treated as unintentionally
2. The child, if pretermitted, would take what they normally would take
a) AND, in doing so, we may have to look at what other people
would have taken, but, that is irrelevant as to those persons.
3. Once it is determined what the pretermitted child gets, then a calculation is
made as to how that compares to the entire estate. Then each of the other
persons' shares are reduced by that percentage (this is called
B. EXCEPTIONS to being an OMITTED CHILD
1. You will not inherit if
a) SUBSTANTIALLY ALL of the assets are given to the other
parent. Arguments arise here as to what is "substantially all" of the
b) OR, if there is EVIDENCE that the child has been taken care of by
c) OR, if the ommission is SPECIFICALLY STATED in the will.
C. UPC provides essentially the same design for exceptions, EXCEPT, that the UPC
provides that if living children are left nothing, the ommitted child can only share
in the portion that went to other children.
1. Note that this is a little more refined than CA's statute, because it prevents
accidental disproportionate shares.
A. FORMALITIES REQUIRED to form a will
1. The ritual makes sure that the testator realizes that this is not a joke.
a) Intent is essential.
b) Satisfies evidentiary function of proof at the time decedent has
died, that we are executing the LAST will and testament of what
the person wanted.
2. Chanelling function
a) By providing specific forms and mechanisms, we make sure that
wills are standardized so that they can be properly interpreted.
3. Protection funcitons
a) This way we make sure the decedent is not under undue influence,
etc. in forming the will.
IV. Types of Wills in CA
A. Attested/Formal Will
B. Holographic Will
C. Statutory Will
V. CA RULES: WHAT IS REQUIRED for a valid ATTESTED or FORMAL WILL
A. § 6100 - must be 18, or must have conservator to make will
B. § 6101 - must be competent, etc
C. NOW assuming that person is competent, what must be done (§ 6110)
1. Will must be WRITTEN. § 6110(a)
a) (any recognizeable writing will do).
2. Must be signed by Testator or Testator's proxy (signed in T's name) per T's
instructions AND in T's presence. § 6110(b) OR by a court appointed
a) T's signature may be ANY mark that T intends as their signature.
3. Must be signed by two witnesses
a) Both witnesses SIMULTANEOSLY must either
(1) Be present for the actual signing of the will OR
(a) Presence for the will means that they SHOULD
witness the actual signing of the will.
(2) Be present when the testator acknowledges the signature,
b) AND, the witnesses MUST understand that this is the testators
4. NOTE that the statute doesn't say WHEN the witnesses must sign. Courts
have decided that the witnesses must sign in a REASONABLE TIME
VI. Other "standard" things to do (not required by statues).
A. Should it be dated? YES
B. Should we have a notary present? YES
C. Should the pages be stapled together? YES
D. Should the pages be numbered? YES
E. Should the will DECLARE that it is a will? YES
F. Should the will REVOKE all prior wills? YES
G. Should each page be INITIALED by the testator and witnesses? YES
H. Should the will be signed in COLORED INK? YES
VII. SELF PROVING AFFIDAVIT
A. This document states, as sworn testimony, that the activities of witnessing and
signing the will were, in fact done.
VIII. SAMPLE WILL (appears at p. 352)
A. At p. 355
I. ATTESTED WILL (formal will)
A. Must satisfy § 6110
1. Writing (that is readable)
2. Signed by T or T's proxy in the presence of T at T's direction
3. Signature can be anything intended to be a signature
4. Must be witnessed by two witnesses who are simultaneously present at
either one of two times
a) When the will is signed by T
b) When T acknowleges that the will is theirs
B. Bottom line:
1. There must be two, disinterested parties that can testify that the will was
adopted without undue influence.
II. Things that SHOULD be done
A. Date the document
B. Be sure T read the will
C. Be sure document is competently drafted
D. Staple it
E. Select witness for impartiality
F. Focus attention on ceremony
G. Make sure executed by statutory requirements
H. Execute the will in a way that will be upheld by all Jx's not just the one you are in.
1. CA has a rule allowing that will is valid if execution complied with laws at
the place where will is executed. (see § 6113).
III. Morris v. West (p. 196)
A. Witnesses did not sign in the presence of the testator, and so the court found that
the will was not valid.
B. Executor argued that the witnesses were "consciouly present" Court said NO GO,
this is not what the statute says.
1. More Jx's are accepting this explanation, because we wan to effect the
IV. Execution Ceremony and SAFEKEEPING
A. Safekeeping is important to keep access to the will, and that this is THE WILL.
B. You can, of course, have multiple originals of a will also. This way the lawyer
and the client can each keep an original.
C. Copies can also be kept by the testator.
A. Purging Statutes
1. In the past, if a witness was also a beneficiary under the will, the will was
2. In other Jx's the witness would loose any interest in the will.
B. CA RULE § 6112
1. Says that any person who is competent can be a witness.
2. AND, just because a will is signed by an interested witness does not make
3. BUT, the will MUST still be signed by at least two DISINTERESTED
4. AND, where an interested witness signs, there is a rebuttable presumption
that the witness used undue influence. Thus the interested witness will
loose their devise unless they can show that there is no undue influence.
a) If this is not rebutted, then the bequest under the will is lost, but
you get what you would have gotten if the will had not been
b) Thus if no previous will, intestacy statute controls, of there was a
prior will (not signed by interested witness), then that will controls
the interested witnesses' share.
VI. Supernuerary witnesses
A. If an interested witness signs a will, but there are still two disinterested signatures,
then the interested witness share is okay.
VII. Problem 1, p. 204
A. Here there are two interested witnesses at the time of signing. Thus, the later
disclaimer by one is probably not enough.
VIII. Problem 2, p. 204
A. Here in part (a) the neice is screwed.
IX. WHAT HAPPENS WHEN THE FORMALITIES ARE FLUBBED?
A. In re Ranney
1. Here, there is no witness signature in the attestation clause. But, two
witnesses do sign the self-proving affidavit.
2. LOWER COURT decides that this will effectively satisfies the statute.
3. REVIEWING COURT says, no, this doesn't follow the statute, and so it is
not valid per the statutes.
4. BUT, it is valid under the Doctrine of Substantial Compliance.
B. UPC (see p. 215)
1. Would allow any document to be established by a showing of intent that
this be the will.
X. HOLOGRAPHIC WILLS
A. CA § 6111
1. Allows holographic wills, AND says that material provision of document
only need be substantially in T's writing.
a) And if there is a FORM WILL, then as long as the BLANKS are
filled in by T's handwriting, this will be enough.
I. LAST TIME:
A. Holographic Wills: § 6111
1. The dipository provision and the testamentary intent must be set forth in
the decedent's handwriting.
a) CA RULE: All MATERIAL PROVISION of the document must
be in decedent's handwriting.
b) Statement of testamentary intent in CA can be made by a form will
(but not typed).
2. Some states require the entire document be in decedent's handwriting.
B. § 6111 and dating of the will and CAPACITY
1. If a holographic will is undated, there may be problems determining
whether the holographic will supersedes other wills.
a) Statute creates a (rebuttable) presumption that the
HOLOGRAPHIC will is superseded.
2. IF the testator lacked capacity at any time during the period when the
holographic will was executed, then there is a presumption that the will is
invalid UNLESS it can be shown that the testator had capacity to form the
will at the time it was written.
a) NOTE, that this flips the burden of proof with formal will, where
there is a PRESUMPTION of capacity, and it is up to challenger to
II. Testamentary intent and EXTRINSIC EVIDENCE
A. Historically, courts had not allowing evidence beyond the four corners of a formal
B. BUT, with HOLOGRAPHIC WILLS § 6111.5 allows the admission of extrinsic
evidence to show that the document CONSTITUTES a holographic will.
1. Example, context may be used:
a) Where was the will found? How was it executed? Etc.
III. Statutory Will
A. § 6200 has provisions
B. Actual form will is at § 6240
C. NOTE: NO TRUSTS can be formed under the statutory will.
1. There used to be trust provisions, but those provisions were removed.
IV. REQUIREMENTS for a STATUTORY WILL are DIFFERENT than FORMAL
A. § 6221: Testator completes blanks and signs, and witnesses MUST be present at
the signing, and the witness must sign in testators presence (no
B. § 6221: No signing by proxy allowed.
C. § 6209: Provides for modern per stirpes distribution.
D. Statutory will requires survivorship by 120 hours.
V. CONDITIONAL WILLS
A. Any will may be conditional, and § 6105 recognizes the validity of such wills.
B. A conditional will is a will that provides that it will become operative on the
occurrence of a certain condition.
VI. Integration / Incorporation by Reference
A. To say that we have a will doesn't really tell us what the components of the will
1. What pages constitute the will, what events should be considered.
VII. DOCTRINE of INTEGRATION
A. External Integration: deals with what pages constitute the will
1. Generally not a problem where pages are stapled, but may be if not.
B. Internal Integration: deals with determining whether part of the document is
actually part of the will.
C. The DOCTRINE of INTEGRATIONS says that for something to be part of the
will, it MUST BE
1. Actually present at the time the will is executed, AND
2. There must be INTENT by the testator that this is part of the will.
VIII. PRESUMPTION of INTEGRATION
A. Generally it is presumed that things will be integrated.
IX. INCORPORATION BY REFERENCE
A. The challenge here is making sure that documents referred to are not fraudulent.
B. RULE § 6130: The pages of a document in existence that is to be incorporated by
1. Be adequately described, AND
2. And be attached to the will
X. Republication by Codicil
A. A codicil (§ 6226) is a document intended to MODIFY or ADD TO an existing
B. Under the definition of will, codicils and "any testamentary instrument" are
C. Therefore, execution of a CODICIL requires all of the same formalities as the
D. CODICIL MUST state a reference to the SPECIFIC will that it amends or
E. The significance or REPUBLICATION by CODICIL is that it REESTABLISHES
the original will on the DATE of the CODICIL.
F. NOTE that codicils ONLY ATTACH the a PARTICULAR WILL.
XI. § 6131 - DOCTRINE of INDEPENDENT SIGNIFICANCE
A. Here, a required act or disposition of property must have INDEPENDENT
SIGNIFICANCE from what the taker gets.
1. For example, if a will says, to my oldest surviving sister, courts will allow
it, because people don't time their death just to affect the outcome of a
B. DISTINCTION: this is different than a condition:
1. CONDITIONS identify specific property and people that will take.
2. INDEPENDENT SIGNIFICANCE identifys WHAT property will be
taken or WHO the taker will be.
XII. Estate of Norton, p. 227
A. Here there is an invalid will, because the first six pages were not in his writing.
Then we have a VALID CODICIL to the "will." So the question is when the
codicil is executed, does this validate the will IF the "invalid" six pages are
inadeqately incorporated by reference.
B. HERE, the court says the mere fact that items are stapled together is not enough.
The codicil MUST state the document to be incorporated, even if they are
A. Determining the pages that comprise the will.
II. Incorporation by Reference
A. Unattested documents may be incorporated by reference IF they are in existence at
the time of the will AND there is enough information to identify the specific
document being incorporated.
A. A valid formal will or holographic will is "Restated" as of the date of a codicil.
B. Not useable to "bring to life" unattested material (this requires incorporation by
C. In CA you can "revive" a prior revoked will by codicil.
D. A codicil itself can incorporate by reference.
E. So, for example, a republication by codicil can be used to cure a defective clause
in a previous will, and incorporate by reference documents that were not in
existence at the time of the earlier will, as long as the document is in existence at
the time of the codicil.
IV. Acts of Independent Significance
A. As long as there is an independent reason motivating a particular action (rather
than the will itself). The reference may be included in the will in order to say what
property will be taken under the will, or who will take.
V. Clark v Greenhalge (p. 233)
A. Issue here is whether codicil properly reference 1979 notebook entries in order to
incorporate the notations into the prior 1977 will.
B. Decedent had left a painting in her will to a friend. But, earlier, in a notebook,
Decedent makes a list of property.
C. Will says that property per a memorandum "known to" executor should be
distributed to her wishes.
D. Then, in 1976 (still prior to the will) memorandum was changed to add some
bequests and delete some. But, neither lists deals with a painting that is at issue in
E. Then in 1979, a memorandum was written giving painting to .
F. Two codicils are executed in 1980 and 1988.
G. When decedent dies, Greenhalge who is executor (and a beneficiary) wants to
keep the painting and refuses to recognize 1979 memo.
1. G's arguments are:
a) The will says "memo known to G"
(1) This is not a "memo" it is a notebook.
(2) The statement in the notebook was not "known to G."
b) The memo was not "in existence" at the time of the will.
H. Court holds:
1. The codicil REPUBLISHES the will in 1980 and so the memo's contents
will be "updated" to that date.
2. The "memo" includes the notebook.
3. THUS, the bequest to the neighbor is valid, G loses.
VI. Problem 1, p. 241.
A. Will says that all cash and securities in my brokerage account at Merril Lynch to
1. CA § 6111 -- we are dealing with a qeustion of INDEPENDENT
a) RULE: as long as there is AN independent reason for the account,
(i.e., investment) this is okay.
VII. Problem 2, p. 241
A. Will says all cash and securities in drawer in kitchen
1. This is more questionable.
VIII. Problem 3, p. 241
A. All stocks and bonds in my safe deposit box to the person named on the envelope.
1. Probably not okay.
IX. Problem 4. $1,000 to each person employed by my company at time of death
A. Probably okay, because these employees are hired for reasons separate from
disposition of estate.
X. Problem 5. A contingent provision leaving to Brothers LAST will if that will
contains a charitable trust.
XI. Clymer v. Mayo (p. 242)
A. Each spouse executes will creating trust with other spouse as beneficiary.
B. Wife divorces husband, and then has to go around changing the beneficiaries.
C. This is a pour-over where all non-probate assets go into a trust that is then split
between H and neices.
D. The problem in this case is that we have a REVOCABLE TRUST not a will, and
so the question is whether it will go to H.
E. UNFUNDED, REVOCABLE, INTERVIVOS TRUST
1. Note that if this was an IRREVOCABLE trust, she could use incorporation
by reference to include the trust (because it would have definitely existed).
2. OR if the trust had been FUNDED (e.g., with $1,000) then we have an
ACT of INDEPENDENT SIGNIFICANCE, because any shift in the
beneficiaries during life has IMMEDIATE INDEPENDENT
3. HERE, the COURT says they will ALLOW the UNFUNDED,
REVOCABLE TRUST to act as a part of the will.
XII. STATUTE: Allows pour over trust: §6300
A. Uniform testamentary trust account
1. Allows a trust to be created at time of death.
2. Devise is not invalid if the trust is amended or revoked AFTER the will.
3. AND, it doesn't matter whether the trust is funded or unfunded.
B. This provision, by statute, covers a "loophole" in our Independent Significance
and Incorporation by Reference doctrines.
XIII. Doctrines filling in gaps as to what happens between execution of will and death of
C. ADEMPTION by EXTINCTION
XIV. CA § 21117, classification of gifts
A. Specific Gift
1. A particular item to a particular person.
B. General Gift
1. A transfer of general gifts.
C. Demonstrative Gift
E. Residual Gift
I. Last time:
A. We looked at doctrines that allow outside references to be brought in.
B. Clymer v. Mayo, wasnt covered by any of the doctrines.
1. Because the trust was REVOCABLE and UNFUNDED there was a
a) No incorporation by reference, because trust was not in existence at
time of will.
b) No independent significance, because the trust was unfunded.
2. So, instead, the court looked at § 6300 which, as a matter of STATUTE
validates pour-over intervivos trusts, whether OR NOT the trust is
revocable or unfunded.
II. Gap Doctrines
A. Doctrines that help decide how to distribute assets when circumstances have
changed from time of will to time of death.
A. In approaching this doctrine, we must understand the CHARACTERIZATON of
IV. § 21117
1. Includes general pecuniary and annuities.
V. Abatement looks at the differences between these types of gifts
A. Abatement tries to match up what should happen when there are not enough assets
to satisfy debts of decedent AND all of the bequests in the will.
VI. In re Estate of Potter (p. 264)
A. Will provides that daugther gets the house, and that the son will get the VALUE
equal to the value of the house from the other assets. Then the residual amount is
to be split between son & daughter.
B. T. Court holds that mother wanted to treat the children equally, and so orders sale
of the residence, and the proceeds of everything to be evenly split.
C. App COURT reverses, and explains the RULE:
D. ABATEMENT RULE: Specific gift must be filled, and then general gifts are
filled to the extent possible from what is left.
VII. § 21402
A. Shares of the beneficiaries of an estate abate in the following order:
1. Residuary gifts
2. General gifts to persons other than relatives
3. General gifts to relatives
4. Specific gifts
B. Demonstrative gifts are considered specific with regard to the specific item they
are tied to, but are considered as general if the sale of the specific item is not
enough to satisfy the bequest.
C. BOTTOM LINE
1. Specific gifts are the last thing to be abated.
VIII. Chaning order of abatement
A. Testator can effect a different order of abatement in the will itself (thus overriding
IX. Question 1, p. 249
A. The gift of the house is a specific devise
B. The gift of the cash equivalent is a general gift
C. and the gift of the "remainder" is a residuary interest.
1. In the first part, Helen gets house, Edwin gets $100K cash from the cash
and securities, and Gertrude gets nothing.
2. In the second part, Helen gets house, Edwin gets $200k, and Gertrude gets
X. Question 4, p. 250.
A. 4a -- is probably a specific gift. BUT, the issue here is whether there was any
PARTICULAR PROPERTY being identified, because we don't know what real
property the person will own on death.
B. 4b -- this could be a specific gift, because it says "now due."
C. 4c and 4d, the difference is that
1. 4c is ten shares generally, and so, the argument is that this is a general
bequest, requiring $$ to be purchased for the beneficiary.
2. 4d says "my" which indicates a specific gift of specific stock.
D. LEWIS: what if the stock is in a closely-held corporation? In this case, almost
certainly a specific gift, because such stocks are not for sale on the open market.
These shares are unique.
XI. Creditor Claims (p. 250)
A. Creditor claims generally take precedence over the beneficiaries of the estate.
B. ABATEMENT BY CLASS. Where the assets are not enough to satisfy creditors
and all bequests, the "hit" is spread equally across all persons in the same class.
XII. Demonstrative Devises (p. 251)
A. Will says: $300 from sale of stamp collection to C1, $100 to C2, $100 to C2, and
$100 to C3.
1. BUT, now estate only has $200 cash and the stamp collection is only
a) Here, the first $100 on sale of stamp collection is treated as a
specific gift to C1.
b) Then, the remaining $200 claim is treated as a general claim, along
with the other two claimants and abatement is pro rated.
XIII. Problem 1 (p. 252)
A. 1 is a specific gift
B. 2 is a general gift
C. 3 is a demonstrative gift
D. and 4 is a residual gift.
E. Now if the Estate is worth speed boat $10K and the Exlporer is $10K and the rest
o the estate is $55K what happnens?
1. First back out all specific gifts, and figure out what total general gifts have
a) $30K each to 3 kids, and $20K on explorer to Fran (the amount left
after sale of the car): = $110K
b) But, there is only $55K in general assets, and so each kid takes
their specific gifts, PLUS their pro-rated share (50%) of the
A. Where there is indebtedness that affects property, the right to take property
includes the right to have the remainder of the indebtedness paid from the residual
amount of the estate.
B. HOWEVER, increasingly, this COMMON LAW RULE is being changed by
statute to a rule of NONEXHONERATION.
1. Thus, the property is not paid, and the legatee assumes responsibility of
XV. § 21131
A. A specific gift is passed subject to any mortgage or indebtedness, REGARDLESS
of a general directive to pay the remainder of indebtedness.
1. CLARIFICATION: The taker is not LIABLE for the continued payments
(thus any default goes against the estate).
XVI. APPORTIONMENT of TAXES
A. General rule: taxes are paid by everybody ratably (?)
B. Lewis kind of blew this one off.
A. McGee v. McGee (p. 255)
1. Here son cashes out money on deposit in bank, and uses $$ to buy bonds.
2. Here the kids argue that they get the $$ from the bonds because the
bequest is specific, and trumps a general bequest to the friend of $20K.
B. § 21132 -- Ademption issues with stocks and securities
1. Says that L will get any stocks or securities that are obtained through
mergers, splits, or reinvestment plans.
C. § 21133 (BASIC EXEMPTIONS from ADEMPTION)
1. Provides some exception for things that are sold as specific gifts.
a) Example: D bequests house to L, then sells house on payments. L
can take payments still owing on death.
D. UPC --
1. Includes any REPLACEMENT PROPERTY
a) Thus if a house is named by address, and then D buys a new house,
the new house is covered.
2. Also, allows any amount left of a payment made, UNLESS there is a
shoing that there was an intent to adeem.
XVIII. Satisfaction (§ 21135)
A. If a person is given specific property in a will, and that property is then transferred
before death, the bequest is satisfied.
B. Basically the same as an ADVANCEMENT
1. We want to see a writing in the will.
I. LAST TIME
A. GAP RULES
1. Creditor Claims: IN GENERAL -- all creditor claims must be satisfied
from the estate before ANYTHING is distributed to ANYBODY.
2. ABATEMENT (§ 21401) says that decedent's estate is liable for
decedent's debts to the extent of the estate.
B. § 21131 (EXHONERATION)
1. No exhoneration is the STATUTORY RULE
2. BUT, if the WILL SPECIFICALLY SAYS that decedent wants the
mortgage paid from the estate, then this will override the statute.
3. A "general statement" in the will is a statement saying that all debts should
be paid is not enough under § 21131 to require payment of the mortgage.
4. BUT, how do we treat this specific request? Is it general or is it specific?
Statutes provide that this specific provision will be deemed a specific gift
as long as it is not just a general gift of equivalent amount of money.
C. ADEMPTION BY EXTINCTION (§ 21133)
1. Where there is a gift of something that is UNIQUE.
2. Once this UNIQUE item is gone, there is no more gift in the will
3. BUT, the statute provides for some exceptions to ademption
a) Stock splits
b) purchase agreement
4. See also § 21138
a) IF after execution of the will the transfer alters but does not
completely dissapear, the beneificary has the right to the remaining
b) For instance, 100 shares of stock bequeathed, only 50 shares left at
death. All 50 shares go to legatee.
II. Rule at p. 253 (McGee).
III. Problem 6, p. 261
A. 6a -- in this case if Peoples Bank had closed, then we probably do not have
ademption. (6c is similar).
B. 6c -- here beneficiary can argue that there is a "change in form" from the bank
account balance into CD shares. And thus, the CD should be viewed as the
IV. REMEMBER: IF one can aruge that there is a GENERAL or DEMONTRATIVE,
then there is no issue with ADEMPTION.
V. ISSUES of WILL CONSTRUCTION
A. If will says "the ford I now own" this will often be viewed as a specific gift (once
sold, no gift). But, if decedent now owns a new ford, maybe the legatee can say
"change in form"(?).
a) SATISFACTION § 21135
b) Compare to advancements (§ 6409).
c) Advancement asks whether something given during life should be
counted against the bequests to an indivuidual.
a) ANSWER: Yes, but only if there is a writing stating that this is an
a) Also requires a writing by testator, OR AN
ACKNOWLEGELEMT BY RECIPIENT that some gift has
already been satisified during life.
a) LAPSE / ANTI-LAPSE
b) § 21109 -
c) IF a beneficiary dies before the testator or fails to survive for a time
specified in the will, beneficiary does not take. There must be
CLEAR AND CONVINCING EVIDENCE of survivorship (but,
no 120 hour rule)
a) EXCEPTION: UNLESS there is an express provision in the will
that says predeceasing beneficary takes.
a) § 21111
b) Says that if a transfer (other than residuary gift or the transfer of a
future interest) fails for any reason, the failed transfer becomes part
of the residue of the estate.
c) BUT, if a residuary bequest or a future interest fails, AND, the
interest is split between one or more persons, the surviving
shareholders then receive the failed portion of the transfer.
VIII. HANDOUT (Lapse /Antilapse Analysis)
A. We reviewed the entries here.
IX. BE CLEAR that § 2111 says that if a transfer fails "FOR ANY REASON", but §
21109 ONLY applies where the BENEFICIARY DIES FIRST (not "for any
A. Why do bequests "fail"
3. Void for Public Policy
4. Death of Beneficiary
X. § 2110 (EXCEPTION TO 2111)
A. ANTI LAPSE statute
B. Under certain circumstances provides that certain bequests will not lapse even if
they fail. Instead they will go to the beneficiary's heirs.
C. CA RULE (21110(a)):
1. If Transferee is DEAD at time of will
2. OR if the person is TREATED as DEAD (e.g., disclaims)
3. OR fails to survive transferror,
a) THE HEIRS of the transferee shall take under intestate sucession.
4. BUT, 21110(c) says that this only applies if the beneficiary is related by
consanguinity to the transferror.
5. § 21110(b) makes it clear that if the testator specifies a specific time that
beneficiary must survive OR that beneficiary must survive probate period,
anti-lapse will not apply.
XI. Estate of Rehwinkel
A. Residue of estate is given to several neices and nephews "to those who are living
at the time of my death."
1. Court says that there is a presumption that favors operation of the anti-
lapse statute. And concludes, eventually, that the statement in the will
makes it CLEAR that antilapse should not apply (thus, dead beneficiaries
heirs take nothing).
XII. Estate of Ulrickson
A. Residue of estate is left to brother and sister, with provision that all will go to
survivor if one dies. BOTH die before the decedent.
B. COURT SAYS this will be treated under anti-lapse because there is no contrary
XIII. CLASS GIFTS
A. IF you have a class gift (to my children) and a one member of the class dies before
decedent AT COMMON LAW there is an "inherent" lapse which expands or
B. § 21110(a) says that ANTI-LAPSE will APPLY to the class EXCEPT for
members of the class who died BEFORE EXECUTION OF THE INSTRUMENT.
XIV. QUESTION THAT ARISES
A. What constitutes a CLASS?
1. IF people are not itemized, when tend to view these as class gifts (to my
children, to my neighbors, to my firends, etc.)
a) Here if there is a class with specified list of persons, we should
probably view this as individual gifts...
I. LAST TIME -- LAPSE/ANTILAPSE
A. § 21111
1. If gift fails FOR ANY REASON, we have THREE ALTERNATIVES
a) FIRST, is there an alternative disposition in the will? If so, it goes
to the alternate taker.
b) SECOND, does anti-lapse apply (§ 2110), if anti-lapes does apply,
the gift does not fail, it goes to the ISSUE of the named transferee
c) THIRD, IF anti-lapse does apply, but there are no issue of the
transferee, then the bequest lapses.
B. When does ANTI-LAPSE APPLY?
1. FIRST: ASK, is there a contrary intent expressed in the will to the
application of anti-lapse (express provision? Alternative taker? Words of
a) A contrary intent will be found if there is an express provision of
survivirship expressing a time of survival or a date certain.
b) BUT, a general expression of survivorship does not erase antilapse.
2. SECOND: Is there a STATUTORY OVERRIDE
a) we will discuss this in the future.
3. THIRD: Are the ANTI-LAPSE CONDITIONS SATISFIED
a) Transferee must be KINDRED to the decedent or KINDRED to a
spouse or former spouse.
b) DID TRANSFEREE DIE (or treated as dead) beforei the
instrument was executed (invalid).
C. IF THERE IS A SPECIFIC or GENERAL BEQUEST that lapses it goes to
D. IF THE RESIDUE LAPSES, it goes to intestacy.
E. CALIFORNIA RULE: Anti-lapse applies to class gifts.
II. NOW, WHEN IS THERE A STATUTORY OVERRIDE to ANTI-LAPSE? In other
words, when is decedent treated as predeceasing allowing application of 21110?
A. REASONS for FAILURE OF
1. Void for Public Policy (does not trigger anti-lapse, thus gift lapses to
residue or intestacy).
2. Fraud or Indue Influence (6104) (does not trigger anti-lapse).
3. Impermissible devisee (no anti-lapse) (6102)
4. Certain Drafters (21353) (no anti-lapse) (here, the person is treated as pre-
deceasing, but with no spouse or issue).
5. Interested Witness (6112) (no anti-lapse)
6. Failure to Survive (21109) (anti-lapse does apply)
7. Slayer rule (250) (anti-lapse does not apply). Even though transferee is
treated as predeceasing, BUT, the anti-lapse provision (§ 21110) is
8. Disclaimer (282) (anti-lapse does apply)
9. Divorce spouse take away (6122) (no anti-lapse)
1. Only with failure to survive and disclaimer does antilapse apply.
A. "To neighbor, my ring" Neighbor dies. Where does it go?
1. To residuary. This is a specific gift, and neighbor is not kindred.
B. "To husband, $10K." Husband dies. Where does it go?
1. This is a general gift but it still goes to residuary, because antilapse does
NOT cover the spouse themself.
C. "To husband's sister, the chair" she dies.
1. she is "kindred of spouse" and so antilapse applies.
D. "To my brother, $30K"
1. Antilapse applies.
E. Residue to my nieces and nephews. All nephews die.
1. Under CA rules, antilapse applies to allow the kindred of the nephews to
take the dead nephews shares.
A. We have a WILL with WORDS. And then, we have extrinsic evidence.
B. HOW DO WE GIVE MEANING TO THE WORDS IN A WILL?
V. § 21120 -- preference is to be given to giving effect to all words. AND, preference in
resolving ambiguities is toward avoiding intestacy.
VI. § 21122 -- words are to be given their ordinary meaning unless expressly defined
otherwise. Technical words are to be given their technical meaning UNLESS it
appears from the context that testator did not understand the meaning.
VII. § 6111,5 -- allows the use of extrinsic evidence to establish that a document is a will
OR to define ambiguous terms.
VIII. Midland Bank (p. 284)
A. Testator establishes will with two trusts. One of the trusts is to go to brother, and
if brother dies, then to "children." Brother dies. There are two children, but one
has died leaving grandchildren.
B. The COURT uses a strict construction of plain meaning. The will says children
and so the surviving child takes all. (nothing to grandkids).
IX. Estate of Carroll (p. 292)
A. Issue: here there are 20 nieces and nephews, 8 of which are by blood and 12 are by
1. COURT here restricts the meaning of the words "nieces and nephews"
means only those that are blood related.
B. RULE: When a court determines that the meaning is clear, no extrinsic evidence
C. LEWIS: Suggests that under § 6111.5 California courts would probably find that
the circusmtances indicate some ambiguity, and thus allow the extrinsic evidence
to show that it goes to all neices and nephews, both sanguine and by affinity.
X. TWO TYPES OF AMBIGUITY -- PATENT and LATENT
A. PATENT AMBIGUITY arises on the FACE OF THE WILL
1. e.g., $10K to "John." Well, John who? This is ambiuous on its face.
B. LATENT AMBIGUITY -- there can be two types
1. Where two or more persons or things fit the description in the will. Here,
we need to know which one.
2. Where no person or thing fit the description, but two or more persons or
things fit it imperfectly.
C. COURTS USED TO HAVE DIFFERING RULES FOR THESE TYPES OF
1. NOW, we just allow extrinsic for each type.
XI. READ the WILL to give effect to all terms and avoid intestacy
XII. GIVE normal words their normal meaning, give technical words their technical
meaning (unless there is a reason to think from context that ther is ambiguity).
XIII. Construe the WILL for consistency as a whole.
XIV. ALLOW EXTRINSIC evidence, but only where there is AMBIGUITY.
XV. COURTS will use the ERASER END of a pencil to fix ambiguities, BUT the courts
will not write in additional provisions.
XVI. IF, using all of the above tools the ambiguity cannot be cured, then the gift fails, and
lapse/antilapse rules apply.
I. LAST CLASS
B. Overall Construction rules
1. Avoide intestecy
2. Give effect to every workd
3. Use p;lain meannng or techincal meaning unlesss there is reason to have
tdoubt that such meaning was intended
a) CA RULE: with technical rules, CA wants some indication that
testotr wrote will and has knowledge of technical meaning.
4. Give will construction with meaning that gives will consistency as whole.
C. OF THIS DOESN"T WORK
1. Extrinsic evidence may be admitted.
a) GENERAL RULE: Extrinsic evidence can be used to clairify
meaning of workds ONLY IF the words are ambiguous in the first
place. NO EXTRINSIC EVIDENCE allowed if meanng is clear.
(1) PATENT AMBIGUITY: it is clear from face of document
that there is an abiguity.
(a) Historically, patent ambiguities failed. But now,
extrinsic evidence is allowed to clare them up.
(2) LATENT AMBIGUITY: ambiguity only appears after there
is an attempt at disposition. The document itself seems
(a) TWO or more people or objects
(i) Fit description perfectly.
(ii) Fit discription imperfectly.
(b) Historically, courts allowed extrinsic evidence to
clear up the ambiguity (and they still do).
(c) CA RULE: Both patent and latent ambiguities can
be cleared up by extrinsic evidence.
D. THE LAST case we dealt with (Gibbs case)
1. Will refers to a Robert J Krause at a certain address. But the court allows
extrinsic proof of a relationship to show that the testator meant somebody
else. EVEN THOUGH the language was CLEAR and DID PERFECTLY
FIT a person. Thus, the court is really stretching here, because by plain
meaning rule it should have not done this.
2. RULE: Where courts can use an "eraser" to change the will to meet facts.
a) Thus, they justify what they did by erasing a middle initial and the
3. BUT courts WILL NOT write extra words into the will in order to fix a
A. MISTAKES in EXECUTION
1. Mistake as to the document that was being signed.
a) Always curable, because it goes to tetamentary intent.
b) Testator MUST intend to be making a will, and thus extrinsic
evidence will ALWAYS BE ADMISSIBLE to show that person
did not know what they were signing.
2. Mistake as to provision that was "unknown" in the will
a) Court will only cure by using eraser.
b) Thus if there is a MISSING provision, courts will RARELY cure
3. Mistake as to the MOTIVATIONS for the provisions of the will
a) e.g., thinking that person is dead when they are not, or stating in
the will that since daughter graduated from Law School she is
reinstated into the will.
b) GENERALLY WILL NOT BE CURED UNLESS the mistake is
CLEAR from the face of the document AND it can be determined
where they would send the property. (no extrinsic evidence unless
the face of the document states the motivations).
III. In the Knupp case (p. 312), a residuary clause was missing.
A. Court refuses to write one in. And so the property escheats (no intestate heirs).
A. WE have taled about how to make a will, and how to interpret it and fill in gaps.
B. TODAY, we go into determining whether a will has been revoked.
V. TWO TYPES of REVOCATION
A. INTENTIONAL REVOCATION
B. REVOCATION by OPERATION OF LAW
VI. TWO ELEMENTS of INENTIONAL REVOCATION
A. Present intent
B. Revocatory action (§ 6120)
1. A complying writing
a) § 6120 covers the writings
(1) A new will
2. A complying physical act (§ 6120(b))
a) Burning, tearing, obliterating, destroying etc.
(1) Can be by the testator.
(2) OR, by another in the testator's presence and at testator's
VII. INCONSISTENCY BETWEEN WILLS
A. Where a subsequent will is ENTIRELY INCONSISTENT with a prior will, it
impliedly revokes the entire prior will.
B. What happens if there is only PARTIAL INCONSISTENCY? E.g., if only one
bequest changes, the second will ONLY changes the partially inconsistent part
(the rest of the earlier document remains in effect).
1. BASICALLY what we have here is a WILL (document #1) with a codicil
2. GENERALLY a good lawyer will expressly specify which portion(s) of
the prior will are being revoked.
VIII. CODICILS and PARTIAL REVOCATION
A. CODICILS can REVOKE or SUPPLEMENT a will.
B. Sometime we have difficulty in telling when a codicil is INCONSISTENT or
1. Example, see problem 327. Here will #1 says "to C $1000", and then will
#2 says "to C $2000." Does C get $1000? Or $2000?
IX. REVOKING BY PHYSICAL ACT
A. Mere ORAL declaration of invalidity of will in another's presence is not enough.
B. THE will MUST be marked, burned, torn, etc.
X. PARTIAL REVOCATION by COMPLYING ACTION
A. Some Jx's will not allow partial revocation by physical act.
1. Physical actions are inherently ambiguous. (was will torn on prupose? Or
by accident? Was burning intentional? Or by accident?
B. CA DOES allow partial revocation by physical act.
XI. EXAMPLES of INVALID REVOCATIONS
A. Absence of INTENT to REVOKE
B. Failure for ACTIONS to COMPLY WITH STATEMENT
1. Action must obliterate
2. Action by other must be
a) AT the TESTATORS DIRECTION, and
b) IN THE PRESENSE of testator.
C. Failure for the MODIFYING WRITING to COMPLY with the rules creating a
will (signed, witnessed, etc.)
D. Attempted partial revocation in a Jx that does not allow partial revocation.
1. HYPO: Suppose, attested, typed will stating "to B ring." Then, later,
decedent has crossed out "ring" and written the word "painting." What
does B get?
a) In CA we have a vaild revocation by crossing out.
b) However, there will be difficulty in substituting in the painting.
(1) Not a valid codicil (not signed or witnessed)
(2) Not a valid holograph, because
(a) No signature
(b) No date
(c) No statement of testamentary intent by the testator.
A. MUST HAVE
2. REVOCATORY ACTION
II. PARTIAL REVOCATION
A. Can occur by physical act.
III. PHYSICAL ACTS are INHERENTLY AMBIGUOUS
A. This is because it is unclear whether proper intent was present.
B. Is the new document an entire override, or just an amendment to prior will.
C. And if only an amendment is is REPLACING other provisions? Or
AUGMENTING other provisions?
IV. SOMETIMES WORDS CAN BE AMBIGUOUS.
V. SO, the best way to have a revocation is to use a WRITING THAT COMPLIES
with THE WILLS ACT, and THAT CLEARLY STATES THE PROVISIONS
THAT ARE BEING CHAGNED.
A. BOTTOM LINE, it is best to just REWRITE the whole will.,
a) IF there are issues of mental ca[pacity, a codicil may be better so
that the prior will will stand.
VI. DEFINITION of WILL (§ 88)
A. A will INCLUDES a codicil and ANY TESTAMENTARY INSTRUMENT that
appoints and executor, or amends or revokes a prior will.
B. BUT, it has to meet the requirements of a valid will.
VII. UPC, allows a NEGATIVE WILL,
A. By a testamentary instrument decedent can say who WONT take under intestacy,
and that is all.
B. CA does not have this will.
VIII. ASSISTING RULES for AMBIGOUS REVOCATIONS
A. The "LOST WILL" presumption
1. IF you cannot locate a will or a duplicate original, and it was in the
testator's posession, we will assume that it has been revoked.
2. CA § 6124: presumes that will was destroyed (REVOKED) if it was last
in testator's posession and cannot be found (and decedent was competent).
a) This is a rebuttable presumption.
B. The "DUPLICATE ORIGINAL WILL" rule
1. A duplicate original will is revoked if ONE of the duplicate orginals is
properly revoked by the testator.
a) So, if atty keeps duplicate original, if testator properly revokes their
copy, the other copy is also revoked.
2. BUT, performing a revocatory act on a COPY (not a duplicate original) of
a will DOES NOT revoke.
C. COMMON LAW RULE: Revocation of will revokes all codicils thereto.
1. Thus if an underlying will is destroyed or revoked, so are subsequent
2. BUT, one must be sure that the later documents were in fact codicils, not
D. COMMON LAW RULE: Revocation of codicil IS NOT revocation of the
IX. § 6123
A. Provides that if there are two wills, and decedent revokes will #2, the first will is
NOT VALID unless it is EVIDENT from the CIRCUMSTANCES or from
CONTEMPORARY STATEMENTS that the testator intended to "revive" the
1. Under this rule, even if the subsequent document is a codicil that revokes
only a part of will 1, that part remains revoked in part UNLESS it is
evident from the CIRCUMSTANCES or CONTEMPORARY
STATEMENTS indicate intent to revive
B. LEWIS: points out that the revocatory act on a codicil itself is more likely to be
interpreted as reinstatement.
C. WHERE a second will is revoked by a later will, a PRIOR WILL (e.g., will #1)
can ONLY BE REVIVED by an express statement in the later will.
D. BOTTOM LINE: Circumstances or CONTEMPORARY STATEMENTS can
ONLY REVIVE if later will is revoked by PHYSICAL ACTION.
X. METHODS of REVALIDATING REVOKED WILLS
A. REVALIDATING by REVIVAL
1. (involves a prior revocatory act).
1. (old, revoked will, is re-executed).
C. RE-PUBLICATION by CODICIL
1. (old, revoked will is "republished" by a valid codicil).
2. NOTE that in this case, the codicil is actually attached to the prior, invalid
D. DEPENDENT RELEVANT REVOCATION
1. Occurs where the revocation is considered to be CONDITIONAL
2. This is a common law doctrine of presumed intent.
3. The facts show that testator WOULD NOT have revoked, IF testator had
known that the new plan wasn't going to work, AND the circumstances
show that testator would NOT have revoked the prior will if they had
known the subsequent plan would not work.
XI. REQUIREMENTS for DRR
A. VALID PRIOR WILL
B. VALID REVOCATION of WILL #1
C. EVIDENCE of an ALTERNATE PLAN of DISPOSITION
1. May be a second will
2. May be another document
D. FAILED PLAN, OR a SELF-EVIDENT MISTAKE OF FACT
XII. EXAMPLE 1 (mistake of fact):
A. Will #1 says "to Sue - blackacre." Then testator burns will #1 revoking it
(properly). Then, testator adopts will #2 saying "to Joe - Blacacker because Sue is
dead." BUT, in fact, Sue is not dead.
1. Here, we have a showing of a self evident mistake of fact (the beleif that
Sue is dead) that tends to indicate that the testator would have wanted
Blackacre to go to Sue.
XIII. EXAMPLE 2 (failed plan):
A. Will #1 says "all to S, my spouse, in fee." Then, testator decides that they would
rather have it all go to spouse in trust and then to kids. So testator tears up will #1
and enacts new will saying "all to S in trust, then to kids." But, the second
document fails the EXECUTION requirement (not properly witnessed). Thus will
#2 is not a valid attested will or holograph. But, here we do have intent that
testator wanted S to get something. HERE, we DO NOT establish the trust (no
valid will), but since will #1 looks close, we can revalidate it.
XIV. EXAMPLE 3:
A. Will #1 says $500 to X. Then, testator lines out the $500 bequest, and types in
$1000. Here we have a valid will #1, a valid physical act revoking the $500 gift.
BUT, since the $1000 is typed and there are no testamentary words of intent, we
do NOT have a valid codicil. But, this invalid "codicil" does show testamentary
intent. Here it seems clear that testator wanted to continue to benefit X, and so we
will at least let X take the $500 under DRR.
B. BUT, suppose under this example that rather than typing in $1000, the testator
types in $50. Here the $50 gift is not valid. And, now we have a problem as to
whether there is any discernable intent that testator would have wanted the $500
gift to be reinstated. This is a difficult one to all, the court probably would allow
the amount to lapse unless other facts tend to show that the testator would have
preferred the full gift of $500 rather than having X get nothing.
C. NOW, suppose that the second amount was $250. This one really straddles the
fence. Once again, the courts will look at other facts for guidance as to what the
testator's intent would have been.
D. AND, remember that IF the testator makes a clear statement of testamentary intent
and signed and dated, then we enter the realm of HOLOGRAPHS and so it would
be valid regardless of DRR.
I. ASSISTING RULES
A. § 6124 - lost will provision
B. Duplicate will rule
1. revocatory action on one revokes the other
2. But revocatory act on a codicil does not
C. Revoking a will revokes all codicils
1. But, revoking a codicil does not revoke a will
2. BUT, it may still result in the revoked parts of the original will still being
revoked unless intent to revive is shown.
II. Methods for REVALIDATION of a revoked will
B. Republication by codicil
1. This requires a prior VALID will
2. IT will NOT bring to life something that was not valid as a will
1. By revoking a later will, a prior valid will can be revived, BUT ONLY if
intent is shown by circumstances or in the writing (CA RULE -- review
statute). In a non-CA jx, (where the strict rule is NO REVIVAL BY
REVOCATION), courts would apply DRR.
a) NOTE, that in these cases, there is a slightly different twist. If
there is a VALID WILL #1, and then decedent executes WILL #2,
and THEN, decedent invalidates the second will in such a "no
revival" jx with the intent of reviving will #1, the result is a
reinstatement of WILL #2 (because we are undoing the last
1. A common law doctrine that UNDOES a revocatory act because its clear
to the court that the revocatory act was CONDITIONAL on some other
plan being effective, or upon some particluar fact that is UNTRUE. BUT,
this only applies where there is some evidence that the testator would
prefer the old will to take effect, rather than allow everthing to lapse into
2. NOTE, that the revocation of the prior will needs to be RELATED TO the
attempt to implement a new plan. (there cannot be a long time lapse
between revocation of will 1 and the later, invalid document.)
A. First Interstate v. Hammer (p. 317)
1. Bank is testamentary trustee of a life estate for the daughter of income plus
$5,000 per year from the corpus.
2. In this case, the will cannot be found.
3. The daughter (who will take all if there is no will at all), goes to court to
plead that if the will cannot be found, then is should be presumed invalid.
4. BUT, the court says that this presumption will be conditioned on access to
the place where the will is deposited. In this case, there is testimony that
the daughter had co-equal access to the will.
B. RULE: The rebuttable presumption of the "lost will" doctrine only applies where
the testator has SOLE ACCESS to the place where the will is stored.
C. (in this case there was also other evidence that even up to time of T's death, he
intended the trust disposition.)
IV. Question 4, p. 320
A. Deals with the question of what would have happened if the will had been marked
up, rather than dissapeared altogether in First Interstate case.
1. Basically we have the same type of ambiguities, and the revocatory acts
are inherently ambiguous and probably would not be upheld.
V. Wolfe's Will (p. 323)
A. Mr. W makes Will #1 giving realty to Lily. Then a few weeks later, new will says
"all my effects to my brothers & sisters" witnessed by Harrises. Will #1 witnessed
by relatives of Lily.
1. Brothers and sisters come in and say the new will revoked the prior will.
Luftmans come in and say that both will remain valid, because "realty" is
2. COURT HOLDS that a new trial will have to be awarded as to what Mr.
Wolfe meant by "realty" and "effects" mean.
VI. EXAMPLE of WELL DONE CODICIL )p. 326)
VII. Problems on p. 322
A. Problem 1
1. IN CA, the cross out of article 2 will cause the $10,000 to Larry to lapse
into the residue.
2. In a NO PARTIAL REVOCATION Jx, the cross out is invalid and Larry
will STILL TAKE his $10K.
B. IF THERE IS A WRITING ON THE WILL stating "This Gift is Void" An
attorney could say that this gift was void due to CANCELLATION.
I. REVOCATION and REVALIDATION of REVOKED WILLS
A. REVOCATION by OPERATION of law (p. 327)
1. Revocation by reson of dissolution of marriage
2. § 6122 - revokes dispositions and appointments of former spouse after
a) Can only be preserved by
(1) Enacting new will to preserve the otherwise void
(2) Re-marrying the former spouse.
b) This statute DOES NOT revoke bequests or appointments of
RELATIVES of a former spouse.
3. § 6122(d) - provides that a formal order of dissolution be entered before
this provision takes place.
4. § 6122(e) makes clear that there is a difference between REVOCATION
a) In the case of dissolution, the provisions regarding the former
spouse are REVOKED.
b) BUT, other situations may cause an ABATEMENT of a share
under certain circumstances.
B. CA STATUTE only revokes WILL PROVISIONS
1. The UPC also revokes NON-PROBATE TRANSFERS, such as life
insurance, TOD's, POD's, etc.
2. CA rule under § 6122 does not go this far. It ONLY affects will
II. Carter Case (p. 332)
A. Decedents paper found in reading room folded together. Unsigned unwitnessed
will is present, plus a valid will with diagonal marks through the property
1. ISSUE: Does revocation apply, where will is found in this condition (like
2. COURT: looks at DRR. Says that even if she revoked the prior will, the
fact that the papers are folded together indicates that the revocation was
only effective on the assumption that the new will would be valid. Here,
since the wills were found together this was evidence that the revocation
and the execution of a new will were enough to show that there was a
single scheme here.
3. Court finds that this is enough to REBUT THE STATUTORY
PRESUMPTION that the will was revoked.
III. WILL CONTRACTS / LIMITS ON POWER TO REVOKE (p. 337)
A. Contracts related to wills: e.g., person promises caretaker to provide for caretaker
in will. And, perhaps even goes so far as to execute a new will. Then, later,
decedent decides to change their mind. Can they?
B. Such promises are subject to the rules of contract.
C. Thus the most recent will -- even if inconsistent with the promise -- is probated.
And, then the promisee simply brings a contract action against the estate like any
D. NOTE: for this to work, the contract must be legally enforceable.
1. § 150 gives the requirements for a will contract.
a) Material provisions of the will must state the specific terms of the
b) Express reference to the will stating that there is a contract, and
sufficient extrinsic evidence, or
c) A separate writing that evidences the existence of the contract.
2. BOTTOM LINE: In CA, pretty much any will contract will have to be in
writing (oral not enforceable).
IV. What are the legal effects of a will contract?
A. What if both parties are still alive?
1. No right for beneficiary to sue, even if testator changes will, because there
is no breach yet (will could still be changed to comply with contract).
V. What happens when testator dies without fulfilling contract?
A. A CONSTRUCTIVE TRUST will be placed on the ESTATE'S ASSETS until the
contract is sorted out.
VI. JOINT WILL Contract Situation
A. EXAMPLE (JOINT WILL): A & B have one will that both have signed and
witnessed. Will says that when one dies, the will is probated, and then when the
second dies, the same will is probated again. IF one of the parties revokes their
participation in the will, the question arises as to whether the JOINT NATURE of
the will make the will a CONTRACT.
B. EXAMPLE (RECIPROCAL WILL): A & B have separate wills but the wills are
"mirror images" except that they name each other as primary beneficiaries.
C. EXAMPLE (MUTUAL WILLS): Means that a court has found that either a Joint
will or a Reciprocal will to form a CONTRACT. (Thus, this is the legal effect of
contractual nature of will -- regardless of whether it is a joint will or a reciprocal
VII. CA RULE § 150(b)
A. The mere fact that there are reciprocal wills or a joint will does NOT give rise to
an understanding that a contract was intended.
B. Thus there still must be (written) proof that a contract was intended.
VIII. CONTRACTS to AGREE NOT TO REVOKE A WILL
A. A general no-no.
B. The cases generally find that such promises are unenforceable.
C. EXAMPLE: suppose A&B have a joint will, leaving to each other then to kids.
A dies. B then remarries and executes a new will leaving to others. Can kids
bring a K action?
1. No, unless the WRITING REQUIREMENTS can be satisfied under § 150.
IX. CASE p. 337
A. Here there is a similar fact pattern as the above example. Both dissent an the
majority agree that there is an contract in the writing. BUT the question is what
PORTION of the estate is bound by the K? Is it only the estate as of the time of
the first party's death? Or is it the whole estate on the death of the secon?
1. Majority says it is all of the estate.
2. Minority would limit it to amount of estate at time of first person's death.
A. Joint will case. Wife dies. Ten years later, husband remarries. Then husband dies
one year later. Joint will says "give it to the kids" from the first marriage.
B. ISSUE: Does the ELECTIVE SHARE RIGHT trump a contract provision?
1. (note that there was an earlier litigation that determined that there was a
contractual obliation, and that husbnd did not breach it).
C. HOLDING: Elective share right TRUMPS the kids contract rights.
D. UPC RULE: Uses a "graded" scale depending on the length of the new marriage
(thus taking time for share to build).
E. EFFECT in CA: Note that if new marriage is only for one will, there will likely
be very little community property. Thus the elective share will be quite small.
I. § 6100 to make will
A. Must be 18
B. OF sound mind.
II. § 6100.5
A. Lays out the requirements for competency. (three components - review them).
B. Basically says must be able to understand testamentary nature of dcument.
III. LEVEL OF COMPETENCY REQUIRED
A. You do not need the level of competency to execute a will that you need to
execute a valid contract.
B. Competency is a "fluid" concept. May be competent one minute, and not
competent the next.
IV. Barnes case (p. 357)
A. Here decedent leaves everything to charity and $5 to kids. Kids challenge the will
B. FACTS show that the is diagnosed with manic/depressive psychosis, and that
believed he was the Messiah, and had been called by god to run for president.
Third parties say that he flashed women, and that he expressed anger on a regular
C. COURT HOLDS that he is MENTALLY INCOMPETENT. But, was he. It
appears that he fully knew what he was doing and where he was sending the
money. (see p. 363). Lists only three things that need to be known.
1. NATURE & EXTENT of PROPERTY
2. IDENTITY of TRADITIONAL HEIRS
3. NATURE of DOCUMENT AS A TESTAMENTARY INSTRUMENT.
V. ISSUES of INCOMPETENCY is heard by JUDGE, not a JURY in California.
VI. Stripmeyer (note 3, p. 365)
A. Decedent leaves all of her property to Women's Party, because she HATES MEN.
Court (1947) declares her insane.
VII. Note, bottom of 366
A. Reminds that there can be lucid intervals.
B. Capacity only need exist in a monent at time.
VIII. WHO CAN CONTEST WILL?
A. Burden of proof is on CONSTESTANT to show there is a lack of competency.
AND, this party MUST HAVE STANDING to object. MUST BE AN
1. § 48 says interest person is a person having a property right against the
estate that might be affected by the proceeding.
a) So, for instance, creditors of ESTATE may not be "interested"
(because validity of will does not affect claim)
b) BUT an creditor of an HEIR my have standing.
c) AND, fiduciaries of interested persons.
B. Person who brings forth will is PRESUMED to have correct will (as long a s
formalities were met).
IX. LEGAL STANDARD of PROOF
A. p. 367. It doesn't matter how debilitated or eccentrict the person is, if the THREE
ELEMENTS are met, then person is COMPETENT.
X. In re Hargrove's will (p. 370)
A. FACTS: testator's will excludes two children from prior marriage, believing they
were not his. Children challenge will saying he was under insane delusion.
JURY at trial agrees. Appellate court REVERSES.
1. RATIONALE: The question is whether there is any RATIONAL BELIEF
for the disinheritance. Here there was no evidence of peculiarities other
than the claim that these kids were not his. HE claims that the kids are the
children of his former lawyer (who married his wife one day after divorce).
On the facts, this is questionable.
XI. OKAY, how does INSANE DELUSION differ from MISTAKE OF FACT
A. In order to cure for mistake of FACT, the mistake must be clear on the face of the
B. BUT, in order to cure INSANE DELUSION, extrinsic evidence is allowed to
show the "mistake."
C. A MISTAKE OF FACT can be disproved by a demonstration of evidence to the
D. AN INSANE DELUSION is where a person CLINGS TO A BELIEF despite all
evidence to the contrary.
1. An INSANE DELUSION results where no RATIONAL PERSON could
have reached the conclusion that the testator reached.
XII. § 6100.5(a)(2)
A. INSANE DELUSION
1. TWO ELEMENTS must be shown:
a) DELUSION: That person was under influence of insane delusion
when disposition was made, AND
b) CAUSATION: That there was no other reason for making the
disposition that was made. (THIS is the DIFFICULT ELEMENT.
How does one PROVE a NEGATIVE -- that no other reason
existed for the disinheritance?
I. SUBSTANTIVE COMPONENTS of WILL VALIDITY
A. 18 years of age
B. Of "sound mind"
1. Understands nature of testamentary act
2. Understands and recollects nature and situation of property
3. Understands relations to heirs
II. Standard for mental competency is LOW
A. Lower than standards for other types of competency.
III. DELUSION or HALLUCINATION
A. Rule says that challenger must show that "BUT FOR the delusion the particular
disposition would not have been made."
1. Very difficult standard to show.
B. IN PRACTICE: If it can be shown that only one CLAUSE of the will was the
result of insane delusion, then that clause can be struck without invalidating the
IV. Gonzales (p. 375)
A. Party cut out of will sues lawyer because lawyer "should have known" that the
testator was not mentally competent.
1. lawyer was retained by third party to do the will, lawyer talked to testator
and found out that she wanted to disinherit the heirs and instead prepare a
will giving all to the third party that contacted the lawyer.
B. HOLDING: Even though lawyers can be held liable under third part beneificiary
analysis in a number of settings, INCLUDING INVALID WILLS, the rule will
not apply here BECAUSE the burden on the atty is TOO HIGH.
1. What is atty supposed to do to determine "competency"?
2. All atty can do is rely on their own observations. There is no duty to
inquire into mental exams, talk to doctors, etc.
a) Thus, an atty who ACUTALLY notices competency issues should
address them. But, there is no need to initiate independent inquiry.
C. Also, in cases of mental incompetency, the beneificiaries have another remedy
anyway: ATTACK THE WILL (not the atty).
1. If the person was incompetent, the will is invalid anyway, and so atty
liability is not required.
D. POLICY ISSUE: atty knew that there was a chance of a will contest, because
testator had put atty on notice.
1. ARTICLE handed out in class provides some strategies to make will more
likely to survive the attack.
E. ALSO, facts of this case are difficult because there may have been UNDUE
INFLUENCE by the new beneficiary over the testator.
V. UNDUE INFLUENCE
A. § 6104
1. Exceution or revocation of a will or part of will is ineffective if procured
d) or Undue influence
B. Here the issue is not COMPETENCE, but "undue influence."
VI. WHAT IS "UNDUE INFLUENCE"?
A. Undue influence exists where there is no more "FREEDOM TO CHOOSE."
1. e.g., holding gun to head, threatening to physically injure, etc.
VII. WHAT ELEMENTS do COURTS LOOK AT
A. CONFIDENTIAL RELATIONSHIPS + SUSPICIOUS CIRCUMSTANCES
1. Confidential Relationship may be AUTOMATIC or DEFACTO
a) AUTOMATIC: A-C, physician-patient, priest penitant, etc.
b) De FACTO: Where facts show that any relationship has an
element of confidence by testator in another.
2. Here, there is an assumed element of trust in the agent.
3. Suspicious Circumstances: means any "UNDUE BENEFIT" under the
4. HERE there is a PRESUMPTION of undue influence if elements are met.
a) Example is the Interested Witness statute, that creates a
presumption (that can be rebutted) that gift is invalid.
b) BREAKING the PRESUMPTION: Where there is independent
legal advice, the presumption is broken. But the advice must be
B. NO CONFIDENTIAL RELATIONSHIP +
a) elderly, ill, infirm, etc.
b) Where the beneficiary holds some sort of power over the testator
(e.g., caregiver, etc.).
a) there must be an actual opportunity to exercise the influence
a) The idea that somehow the beneficiary actually had some
participation in procuring the will.
(1) (This is like the Gonsales case, because the beneificiary
contacted the lawyer).
4. UNDUE BENEFIT
a) e.g., a person who would not have normally been a beneificary
5. All of this is a very FACT SENSITIVE inquiry that looks to see what the
specific circumstances were.
VIII. Haynes v. First Nat'l Bank (p. ?)
A. Grandchildren contest will for undue influence. Testator leaves stock to wife.
Grandsons moved away and were estranged from grandmother after their mother
died. Grandmother moves in with other daughter.
B. Live in daughter and her husband call Grandma's attorney and have him come
over. Grandma says that she is under pressure. Atty drags feet in preparing the
will. So the daughter has her own lawyer prepare the will. Finally there is a new
will adopted leaving only $10K to each of the estranged grandchilren.
C. HERE, the court finds that there is as CONFIDENTIAL RELATIONSHIP
between the DAUGHTER and the GRANDMA (de facto, in this case, due to the
care giving role the daughter played).
D. PRACTICE POINT: As soon as the DAUGHTER's ATTY saw what was going
on, he should have told the daughter that the grandmother would need to get
INDEPENDENT LEGAL ADVICE.
IX. Will of Moses (p. 394)
A. Here, decedent leaves all to her attorney/lover, cutting out her relatives.
B. FACTS: Here the lawyer that did the will was not the lover, but it was a person
who was working out of the same office.
1. COURT DECIDES to INVALIDATE
a) Finds a lot of "SUSCEPTIBILITY"
(1) Alcoholism, breast cancer, she was 15 years older than him.
2. LEWIS: Says that this case seems a bit SEXIST.
X. UNDUE INFLUENCE
A. like mental incompetence is VERY FUZZY, and SUCEPTIBLE to the
STANDARDS of the TIME.
B. LEWIS: Often we see undue influence cases brought today in same sex
relationship cases where the family is cut out of the will in favor of the same sex
C. THE COURT DRAWS on its OWN PREJUDICES
XI. § 21350 - Presumptions of invalidity
A. Will provision is invalid if it gives to
1. Person who drafted the will
2. Anybody related to the drafter
3. Any employee, partner or shareholder of the drafter's firm
4. Any person with fiduciary relationship, including conservator or trustee
(attorney, physician, etc.), or their relatives or employees
5. A caregiver
XII. § 21351 - EXCEPTIONS to § 21350
A. Above does not apply if:
1. Person is
a) RELATED, or a COHABITANT, of the testator.
b) or INDEPENDENT ATTY REVIEW certificate is prepared.
I. LAST CLASS - GROUNDS for INVALIDATING A WILL or REVOCATION on
the basis of UNDUE INFLUENCE
II. WAYS of establishing UNDUE INFLUENCE
A. Presumption of Undue Influence where
1. Confidential Relationship + "suspicious circumstances"
a) Confidential relationship may be ACTUAL or DE FACTO
2. Presumption may be broken by showing that there was independent legal
B. In ABSENCE of Confidential Relationship the court must find the following four
things to establish Undue Influence.
1. Susceptibility of testator
2. Opportunity to influence
3. Participation in obtaining the will
4. Unnatural or Undue Benefit
C. Courts may also consider
1. How the plan has changed from previous plans, etc.
III. TODAY - FRAUD
A. In re Roblin's Estate (p.
1. FACTS: father did not like son. Wife, who predeceases father, leaves son
greater amount of money to son than daughter via joint accounts. When
daughter informs father of this fact, the Father goes out and changes the
will to leave son $1 and everything else to the daughter.
2. SON claims FRAUD, because daughter had told father that "mom left
everything to Charles." Is this enough for a claim of Fraud.
IV. ELEMENTS of CLAIM of FRAUD
A. False statement made
B. Known to be false by the maker of the statement
C. That is material
D. With Intent to deceive the testator
E. That did cause the testator to change their will
V. Back to Roblin's Estate:
A. This case was about whether this was really a FALSE statement. The mother had
left the daugther some intervivos gifts, BUT the court says that this is irrelevant,
because the statement was about what was left at DEATH of the mother.
1. In this case the daughter was left NETTING $69 in the will.
2. The court finds that this statement was not enough (even though an
exageration) to rise to the level of a FALSE STATEMENT.
B. Also, the court has a real problem with the INTENT TO DECEIVE element.
1. Courts INTERPRET this to meant that the person INTENDED TO
DECEIVE THE PERSON with the INTENT to CAUSE a change to the
C. So, in this case, the bottom line was that because of the de minimis nature of the
"falsity" of the daughter's statement, this does not rise to the level of FRAUD.
D. LEWIS: Fraud, on its literal elements, is very difficult to establish, due to the
INTENT and the CAUSATION standards.
1. How do we know what the INTENT of the maker of the statement was?
2. And, how do we know what actually CAUSED the testator to change their
VI. Problem 2, p. 407
A. Even with INTENT to deceive, the above case would have come out the same
B. Under 2(a) there is a difficulty here for CHARLES to prove that the statement
actually CAUSED the father to disinherit CHARLES.
C. Under 2(b) we are getting closer to the causation fact, and 2(c) gets even closer.
VII. Note 4, p. 408
A. The solution to a FRAUD claim being upheld is to IMPOSE A COSNTRUCTIVE
VIII. IF you INVALIDATE A WILL based on undue influence, etc., it goes to
IX. BUT, if a person claims that testator was PREVENTED from revoking a will or
changing the will (when they wanted to), then the person who can prove that and
can prove the fact that they were the INTENDED BENEFICIARY of what WOULD
HAVE BEEN the new will, can have a CONSTRUCTIVE TRUST imposed on the
A. This essentially requires the person receiving under the old will to turn over the
assets to the would-be heir.
X. Latham v. Father Divine (note 4, p 408-09)
A. Here the priest allegedly killed the testator to get the money. There was no actual
proof. Cousins (would-be heirs) sought a constructive trust. (no resolution given).
XI. NO CONTEST CLAUSES
A. How can a will be contructed to try to prevent a challenge to a will.
B. Typically "bait the trap."
1. Include a statement saying that the person recieves (sum of $$) UNLESS
they challenge the will, in which case they receive NOTHING.
2. NOTE that this strategy requires some calculation as to what will be a
sufficient "carrot" to prevent the affected party from challenging the will.
C. ALSO, use AUDIO TAPES if there are any questions about competency.
1. However, this can be dicey because there may be statements on the tape
that can show undue influence.
D. CLIENT LETTERS
1. Should be in CLIENTS OWN HANDWRITING in order to show that this
is REALLY the testator.
2. But, again this can be dangerous if the letter is innacurate, and allow a
XII. CA STATUTE on NO CONTEST CLAUSE (§ 21300-03)
A. § 21300 defines no contest clause
B. § 21301 says that such clauses are enforceable, EXCEPT as otherwise provided
and are STRICTLY CONSTRUED
C. § 21306 - exceptions
1. Not enforceable to the extent that the beneficiary, with probable cause,
brings the following claims
b) Invalid instrument (revoked will, etc.)
c) Invalid gift (gift to drafter, etc.)
d) petition to remove a trustee
D. § 21307
1. Allows contest against drafter, EVEN IF they are EXCEPTED from the
drafter's provisions (e.g., the drafter is a relative).
2. OR if the person gave instructions to the drafter,...
3. Person who acted as a witness to the instrument (interested witness).
XIII. Also, NO CONTEST claims do not have any effect against PRETERMITTED
HEIRS or RULE AGAINST PERPETUITIES
A. Thus if the contest is based on CONSTRUCTION of a will (rather than the
substantive provisions of the will) then the "trigger" for disinheritance found in
the no contest provision will not be activated.
XIV. There are THREE OPTIONS for a challenger with a NO CONTEST OPTION
A. Don't challenge and take specified amount.
B. Challenge, lose, and take nothing
C. Challenge, win, and take under first will
XV. LIVING (ANTE-MORTEM) PROBATE
A. Still doesn't tend to help, because it can still raise all the same issues as a post
XVI. Gay and Lesbian Testators
A. Will of Kauffmann (p. 418)
1. Two men living together. Decedent leaves a will and letter saying that he
wants all to go to his lover. Brother of decedent brings a undue influence
2. Letter implies that they are lovers, BUT the named heir denies it.
3. The lover was in control of finances, and hired attorneys to deal with
4. THIS CASE SHOWS how IMPORTANT the facts are in UNDUE
INFLUENCE types of cases.
I. PRINCIPLE GROUNDS for CONTESTING WILL
A. Improper Procedure, OR
5. Undue Influence
a) Statutory presumptions
(1) Interested witness
II. Pay attention to elements required to show delusion, undue influence and fraud.
A. DELUSION: But for test
B. UNDUE INFLUENCE: has causation, but may be waived if confidential
C. FRAUD: also has causation, but the statement must be made with intent to
deceive, actually decieve and be material.
III. PREVENTING CHALLENGES
A. Carefully choose witnesses so that they have high credibility
B. Perhaps videotape process
C. Perhaps have the testator write in their own words why they are varying from the
D. Use independent counsel to break presumption of undue influence, fraud.
E. Use no-contest clause
1. Give something, UNLESS the heir contests, in which case nothing.
F. When doing these things are done make sure:
1. That the testator does not say extraneous things that can be used against
2. Make sure that testator does not RANT or act crazy.
A. Many of the rules we have learned all sememster apply to trusts
1. For example, invalidating the trust for incompetency, undue influence, etc.
V. WHAT is a TRUST?
A. An INTERVIVIOS TRUST is given during life, and avoids probate
B. A TESTAMENTARY TRUST is only set up on death and is probated
VI. TRUSTEE v. EXECUTOR
A. Executory has duties and oversees estate only until final distribution.
B. Trustee manages a trust for the duration of the trust.
VII. SO how does this work?
A. For instance, if you set money aside, then the life estate usually gets the INCOME
from the property, and the residuary legatee receives the entire amount on the
death of the life estate holder.
A. Holds the legal title in the trust assets
B. MUST manage the assets in a fiduciary role for the beneficiary.
A. Only owns the interest that they have under the trust.
B. Thus if A has a life estate in a house in trust, A can sell their life estate, BUT they
CANNOT sell the house itself.
X. INTERVIVOS TRUSTS
A. During life are very useful for shifting income.
B. If the settlor knows that they have enough income, the trustor can put assets into
intervivos trust in order to shift income.
XI. AVOIDING ESTATE TAXES is RARELY a use of INTERVIVOS TRUSTS
A. If a revocable trust is established, this will be included in the estate at death, and
so no taxation is avoided.
XII. WHAT IS A "TRUST"
A. It is the "intentional transfer of an identifiable res, by a settlor to a trustee for the
benefit of an identifiable beneficiary for a valid trust purpose."
XIII. So the elements of a PRIVATE EXPRESS TRUST are
A. INTENT (makes it EXPRESS)
F. IDENTIFIABLE BENEFICIARY (makes it PRIVATE)
G. VALID PURPOSE
XIV. A CHARITABLE TRUST is slightly different
A. NO IDENTIFIABLE BENEFICIARY
B. MUST be for a valid CHARITABLE purpose
XV. EXPRESS TRUST
A. IS one where the INTENT is to create a trust
B. AS OPPOSED to a trust that exists by operation of law (such as a
XVI. Trusts are defined/described by when they are CREATED
A. INTERVIVOS TRUST
1. Establishe DURING LIFE of the settlor
B. TESTAMENTARY TRUST
1. Established or created by will
2. ONLY comes into existence on death of testator
3. TRUST DOESN'T EXIST until death
XVII. INTERVIVOS TRUST
1. allows settlor to take title back or to amend the trust
2. BECOMES IRREVOCABLE on death of the settlor
1. The res is irrevocably committed to the trust and its purposes.
XVIII. TRUSTS are also DEFINED by their own terms
A. Support trust
B. Grantee trust
XIX. WHO CAN BE A TRUSTOR or SETTLOR?
A. Anybody who has legal capacity to HOLD TITLE
B. Once Settlor has established the trust, the Settlor ONLY has such rights in the res
as are reserved at the time of creating the trust.
XX. Can a settlor establish themself as the trustee of a trust?
A. Sure, but the EQUITABLE TITLE is in the beneficiary.
XXI. Can a person be settlor, trustee and beneficiary?
A. YES, AS LONG AS the person is not the SOLE trustee and beneficiary.
B. IF the trustee and the beneficiary are one and the same, the INTERESTS MERGE
into fee ownership.
C. AS LONG AS there is not IDENTITY between the trustee and beneficiary, then it
will be okay, because there will be somebody who has an interest to protect.
XXII. WHO MUST A TRUSTEE BE?
A. Anybody can be a trustee that has capacity to take and hold property.
B. SOME JURISDICTIONS do not allow UNINCORPORATE ASSOCIATIONS to
C. BUT, CORPORATIONS can be trustees (e.g., banks)
D. GENERALLY the TRUSTEE WILL HAVE SPECIFIED DUTIES
1. In some cases duties are minimal (such as distribution at a time certain).
E. IF a trustee has NO DUTIES, this is called a PASSIVE TRUST and is not valid.
XXIII. A TRUSTEE is a FIDUCIARY
A. DUTY of CARE
1. You must care for the property as a reasonable person would take care of
B. DUTY of LOYALTY
1. You must deal with the property in the best interest of the beneficiary.
2. No dealing with self interest
3. Must obey the trust terms
4. No DELEGATION of authority over the trust (UNLESS the trust
instrument says that authority can be delegated).
5. IF multiple trustees, the trustees must monitor each other to prevent
6. Duty to SEGREGATE the assets
7. Duty to PROTECT the asset (e.g., in law suits, etc.)
8. Duty to ACCOUNT to the BENEFICIARY for the assets.
XXIV. NOTE, that many of these duties can be WRITTEN out of the trust:
A. E.g., the duty of care can be written out for mere negligence.
XXV. Uniform Prudent Investors Act (no need to know for this class)
A. Controls the duties that a trustee has as an investor of trust assets.
XXVI. Uniform Priniciples of Income Act (no need to know for this class)
A. Discusses how assets will be treated
XXVII. TRUSTEE must ACCEPT his or her duties
A. RULE: A trust WILL NOT FAIL for lack of a trustee
B. If a trustee REFUSES to take duties as trustee, the court will APPOINT a new
C. If a trustee takes possession of assets, but then refuses to be trustee, the person
MUST take care of the assets for purposes of preservation.
XXVIII. A TRUST MUST have a BENEFICIARY
A. Otherwise, there is nobody around to enforce the Trust.
B. MOSS (p. 451)
1. Will makes a 3rd party the sole judge as to who will be the beneficiary.
2. Here no person is named.
3. The court decides that YES the trust is valid, because the question of who
"provided the best care in the declining years" is ASCERNTAINABLE
from extrinsic evidence.
4. LEWIS: But, where a trust is TOO VAGUE (such as "to the person who
has made my life most bright and happy"), the court may find the trust
invalid for lack of a sufficiently identifiable beneficiary.
I. PRIVATE EXPRESS TRUST
II. TRUSTS and RULE AGAINST PERPETUITIES
A. Interests in trust must vest subject to the rule against perpetuities.
III. DUTIES of TRUSTEE (see probate code chapter on this, p. 403 in book)
A. § 16000 et seq.
B. DO NOT READ for class.
A. Must be ASCERTAINED or ASCERTAINABLE from all the facts
B. BENEFICIARY must be SOMEWHAT SPECIFIC
1. IF too general, this is more like a charitable trust.
C. Moss case (p. 452) as example.
1. Can be a bit vague AS LONG AS a COURT with EXTRINSIC
EVIDENCE has the ability to determine who is the beneficiary AND as
long as there is DISCRETION for the COURT or TRUSTEE to choose
between members of an identifiable class (e.g., best caregiver).
D. Example, trust to give to "friends" fails, because it is too vague.
V. IMPORTANT DISTINCTION - POWER of APPOINTMENT
A. Outright Gift to A w/ power to appoint to (a category of persons).
1. In this case A has a gift in fee with an ability to appoint to other, or A has
a power of appointment.
2. The above grant is unclear.
B. The BEST WAY to state this: Simply saying A is granted power of appointment
C. Mere power to appoint vs. Trustee's DUTY to appoint.
1. BARE POWER of APPOINTMENT is DISCRETIONARY with the
person granted the power.
2. POWER of APPOINTMENT to a TRUSTEE however, is
a) The TRUSTEE MUST appoint the taker from a class.
VI. CA RULE § 15205
A. A trust other than a charitable trust is created only if there is a BENEFICARY
1. Beneificary or class that is ascertainable.
2. OR, a grant of a power to a trustee or some other person to select a
beneficiary based on any standard or even in discrection of trustee.
B. THUS, in CA, if the same gift in Moss v. Axford had been given to "friends" it
would probably be upheld.
VII. CA RULE § 15204
A. Trust created for indefinite or general purpose is not invalid if it can be
determined that the trust property comes within that purpose.
VIII. What about a trust for the family dog.
A. Trust is invalid, because the beneficiary doesn't have legal standing to SUE. (e.g.,
no dogs in court).
B. BENEFICIARY has to be a PERSON, and a PERSON does not include a dog.
C. SIMILAR problem with wanting flowers left on grandma's grave.
IX. HONORARY TRUSTS
A. Allows a trustee to take on such trusts as a VOLUNTARY matter, but as soon as
the TRUSTEE decides to stop, the trust reverts to the estate.
X. § 15212 - Animal Trust
A. Statute ALLOWS animal trusts for "domestic or pet animals."
XI. § 15211 - Trust for GRAVE
A. Allows performance of trust for 21 years.
XII. RES - there must be a CORPUS to the trust
A. Taxpayer, Mr. Brainard, wants to invest in market and give proceeds to children.
He takes $10K of the proceeds for himself as administering the funds, and then
distributes the rest to his kids by distributing it into accounts.
B. In this case, the TRUST WAS ORAL, not WRITTEN
C. ISSUE: This is income shifting case, he claims the kids owns the $$, IRS says
that he does.
D. THE QUESTION is WHEN does this transfer of trust get created?
1. We have the elements of the trust EXCEPT, the RES is not the STOCK
ITSELF, but rather, the EARNINGS. And so, the TAXPAYER still owes
E. EXAMPLE: I leave to my son in trust, my inheritance from my sister (sister is
still alive). INVALID.
1. BUT, if the transfer is of a vested interest (e.g., sister just died and will has
been probated). Then trust is valid.
A. Must be sufficiently ascertainable and identfiable in a reasonable time
B. Must be alienable and transferrable property
1. No "expectancy interest"
2. No non-transferrable interests
a) e.g., social security benefits, certain property rights.
C. EXCEPTION to REQUIRMENT of HAVING A CORPUS
1. STANDBY TRUST
a) This is a trust set aside, with nothing in it, to be fulfilled by the
assets of the estate.
b) This is essentially a POUR OVER trust.
c) Requires that § 6300 be satisfied.
XIV. INTENT to CREATE A TRUST
A. Spizer case
1. Dispute b/t husband and sister of testator.
2. Unclear whether property is being given to sister in fee, or as a trustee.
3. COURT determines that there is no EXTRINSIC EVIDENCE showing
any particular scheme, even though there was "precatory" language.
I. LAST TIME -
A. Necessity of having identifiable beneficiary
1. Must be ascertainalbe or ascertained in the document, OR
2. May be selected by discretion of trustee, OR
3. as long as some measurable standard is established by which the
beneificary might be identified.
B. HONORARY TRUST
1. Animal trust - may last for the life of the named pet
2. Non-charitable trust for noncharitable purpose (e.g., trust to maintain
flowers on the grave)
a) Must not last for more than 21 years.
(1) If established in perpetuity, trust is still valid, but only for
statutory duration (21 years).
C. TRUST must have a RES (§ 15202)
1. Trust is created only if there is trust property.
2. Value of the property need not be much, but it does need to be something
that is ASSIGNABLE and which could be put down on a NET WORTH
3. EXCEPTION: CA STATUTE allows POUR OVER trust after death.
Thus, trust created before death, to be funded by assets on death, is
1. Spicer v. Wright case
a) Bequest was to sister "tobe distributed as already agreed between
b) COURT HOLDS that this is NOT A TRUST. It was a outright gift
to the sister, with "precatory words."
2. WHAT if the statement had been "to my sister, in trust, to be distributed as
already agreed between us."
a) This would probably be fatal, because we cannot view this as a
mere bequest of a fee interest.
b) BUT, there is also no identifiable beneficiary.
II. Leven v. Fitch (p. 462)
A. FACTS: Similar to Spicer case, except here the decedent wrote "it is my desire
that each year X$$ should go to my brother and sister." The court in this case held
that a trust had been established.
B. DIFFICULTY HERE: Is that there is prior language that says "to my brother and
sister in equal shares."
C. This is a weird holding, because the word "DESIRE" would almost seem to be
precatory language. If so, this should have probably been deemed to be an
D. LEWIS: points out that this seems to be BACKWARDS from the previous case.
1. The court looks to the CONTEXT and the EXTRINSIC EVIDENCE to
determine that this is a TRUST.
E. FACTORS CONSIDERED
1. The decedent has far more $$ than the recipients.
2. There was evidence that the testator had cared for her brother and sisters
F. LEWIS points out that we should look for the TESTATOR'S INTENT
1. In this case, (Levin), arguably the court reached its decision in order to get
the money to the named beneficiary (the sister), rather than invalidating
the trust, and allowing the gift to default to testator's children.
III. Problems, p. 464.
A. Problem 1.
1. Here $10K goes to the accountant "to be disposed of in accordance with
a) If we assume that there is no UNDUE INFLUENCE here, then is
this a gift? A trust? Void?
b) LEWIS: Thinks that this is more likely to be construed as a trust
than a gift. So if this is a trust, will it fail for lack of an identifiable
beneficiary? Probably yes. Here there is no IDENTIFIBLE
STANDARD, and there is no language indicating the beneficiary is
to be selected by the trustee's SOLE DISCRETION (because it says
B. Problem 2.
1. $10K to my beloved brother, as to whom I have explained my charitable
a) Is this a trust or a gift? Probably a trust -- because of the word
C. Other problems on this page:
1. Point out that we need to look at the words and the specific relationships
between the testator and the named party to make arguments about
whether the legacy is a fee interest or a trust.
2. LEWIS: You have to look at the totality of the will.
IV. Goodman v. Goodman
A. FACTS: Decedents mother is given $$ in trust for grandchildren. Before death,
the mom cares for dececedent and is given power of attorney. Before his death, he
gave his tavern to his mother. Bottom line is that it appears that there are no
assets on death. What the argument is over, is whether the $$ that were
transferred during life in fee, or in trust for the kids when they come of age. Ex-
wife of decedent comes in with extrinsic testimony that grandma, at funeral, said
the gift was a trust (grandma denies this statement).
B. ISSUE here: There is no WRITING. The trust (if any) is oral.
C. HOLDING: The JURY decides that there is enough evidence to declare an
D. RULE: All that we need to find is some MANIFESTATION OF INTENT in
order to find that there is a trust created.
1. This can be provided by extrinsic evidence.
V. TRUST can be:
1. Deed of Trust
a) Used where trustee and settlor are TWO DIFFERENT PERSONS.
2. Declaration of Trust
a) Used when there is IDENTITY between the trustee and the settlor.
In this case there is no "deed" because there is no transfer of
VI. § 15200 - How to create a trust
B. Transfer of property to another as trustee
C. Transfer by will to another as trustee
D. Exercise of power of appointment to another to pick a beneficiary.
E. An enforceable promise to create a trust.
VII. § 15206 - Evidence required - REAL PROPERTY
A. If trust involves real property THERE MUST BE A WRITING.
1. Note that IF a court finds that a trust was intended for real property, BUT
there is no writing, then a court MIGHT impose a constructive trust.
2. Note that the writing does not have to be RECORDED with the county. It
only need be written.
B. In other Jx's, often courts will uphold such trusts, even if no writing.
VIII. § 15207 - PERSONAL PROPERTY
A. An oral trust conveying personal property must be supported by CLEAR and
1. An oral trust conveyning real property will NOT be upheld on the mere
allegation that an oral statement of trust was made. There must be more
IX. BOTTOM LINE:
A. Write the trust.
B. In other words, use whatever mechanisim you would normally use to transfer a fee
interest in the property.
1. For instance, with personal property, an oral statement combined with
delivery should be enough.
2. NOTE that this becomes difficult when the trustor and trustee are the
X. IN CLASS EXAMPLES
A. "To Joe, $10K, & I ask that he use it to help A"
1. Questions: Who is Joe (a relative? An accountant?)
2. PROBABLY without more we would probably say that this is a gift with
B. "To Joe, in trust, FBO C (for life)" (assume that C is dead)
1. In this case, rules of construction indicate that the trust will revert to the
C. "To Joe, in trust, for my best caretaker in Joe's discretion."
1. Valid in CA under statuory standards (MEASURABLE STANDARD, and
D. Secret trusts and semi-secret trusts... (we will continue with this next class).
I. TIMES when there is NOT A TRUST
A. No identifiable beneficiary
B. Not sufficient INTENT to create trust
C. Failure of meeting formalities
A. From Joe to a and I hope he uses for C
1. Here there is an issue of whether there was INTENT to form a trust.
2. Without more, we would probably say that this is precatory language.
3. BUT, what if we say "I ask that he gives it to C" or "I demand he use it for
C" then we might be more willing to establish a trust.
4. Also, we might look to the PATTERN of the pre-exising relationship.
a) EXAMPLE: Case where, during life, decedent had provided for
sister. "precatory language" is found to acutally have sufficient
intent, due to prior pattern.
5. ALSO, if this language is used in an INTERVIVOS TRUST, we have a
question of whether there was an OUTRIGHT GIFT or a TRUST.
6. In order to effect any TRANSFER, there must be DELIVERY
a) May be actual (delivery of the item)
b) OR, symbolic
(1) Delivering a key, or a writing.
c) IN order to transfer REAL ESTATE, there MUST be a writing.
7. NAMES of DOCUMENTS: DEED of trust (conveying to another), or
DECLARATION of trust (conveying to one's self).
III. ISSUE REGARDING DELIVERY
A. Question is whether the trust itself can declare delivery or whether there must be a
separate document or actual delivery.
1. IS a separate assignment required?
2. For real property a GRANT DEED is required, even if transferring to one's
IV. GRANT DEED and DECLARATION of TRUST documents (handouts).
A. CA RULE: in order to create a DECLARATION OF TRUST of personalty, there
must be more than a mere ORAL DECLARATION.
1. Oral declartion + other evidence
2. Written declaration
B. In order to create a DECLARATION OF TRUST of realty, there MUST be a
WRITTEN TRANSFER of the real property.
V. ALSO, BE CAREFUL to distinguish between TRUSTS and other types of custodial
A. e.g., giving clothes to the cleaners is NOT a trust, it is a BAILMENT
B. giving papers to lawyer to deliver to other is an AGENCY.
C. To CREATE a TRUST there must be a SHIFT IN TITLE that creates
1. LEGAL TITLE in the TRUSTEE
2. EQUITABLE TITLE in the BENEFICIARY
VI. Next Example
A. "To A, in trust, for the best caretaker"
1. Question here is IDENTIFIABLE BENEFICIARY
a) CA rule says that if there is a conveyance with a STNADARD or
with DISCRETION to TRUSTEE, this is enough.
VII. POWER of APPOINTMENT
A. This is NOT A TRUST, because no title goes to A.
B. A is under NO OBLIGATION to appoint.
C. IF A refuses to exercise power, the res reverts to the estate.
D. BUT it the statement is "in trust, with power to appoint beneficiary" then this is
considered a VALID TRUST, and the duty to appoint is mandatory.
VIII. RESULTING TRUST
A. Example: "to A in trust for he knows who."
1. Here we know that there is a TRUST, but there is no identifiable
2. In this case there is NO IDENTIFIABLE BENEFICIARY
a) No STANDARD given
b) No DISCRETION given
B. IN this case, we have a RESULTING TRUST
C. A RESULTING TRUST lapses into intestacy
IX. What if language says ony "To A." And A has been sworn to manage the "gift" for
the benefit of B?
A. This is a SECRET TRUST.
B. Here, IF B can show that there really was a trust intended.
I. LAST TIME - TRUSTS - "how to do it right"
A. TWO STEPS
1. A Trust document AND a
2. Transfer document.
B. Intervivos TRUST
1. Trust document with
2. Deed for transfer.
C. For TESTAMENTARY TRUST
1. TheWILL creates the trust and
2. The EXECUTOR effects the transfer.
D. THE PROBLEM occurs where both documents are not done, or where they are
deficient. IF so, the the courts must determine
1. Is there an INTENT to CREATE a trust
2. IF SO, are the necessary elements/documents present
a) REAL ESTATE: MINIMUM req't is that there is a WRITING
transferring the res.
3. COMPARE to a WILL
a) Requires two witnesses at same time, signed by testator, etc.
b) Thus, it is much easier to create a trust.
II. § 15200
A. You can create a trust by
1. A declaration by the owner
2. A transfer to a third party
3. A transfer by will
III. § 15201
A. Rquires intent
A. Requires a res
A. Valid trust purpos
A. Requires identifiable trust beneficiary
VII. 15206 / 207
A. REAL ESTATE requires a writing (statute of frauds)
B. ORAL TRUST must be supported by CLEAR and CONVINCING evidence
(declaration alone not enough).
VIII. TRUSTS that arise by OPERATION OF LAW
A. RESULTING TRUST
1. Only occurs where there is CLEAR INTENT to create a trust and the trust
fails or there is a GAP in the trust and the trust does not clarify what
a) RESULTING TRUSTS are returned to the settlor's estate.
2. IF the trust fails for a violation of RAP, the court, once again imposes a
B. CONSTRUCTIVE TRUST
1. Works where a person comes into posession of property and court now
finds that allowing them to keep would be UNJUST enrichment.
2. In this case the court will CHANGE THE NATURE of "OWNERSHIP" to
a CONSTRUCTIVE TRUST for the proper beneficiary.
C. Review page 472 for clarification on this.
IX. VALID TRUST PURPOSE
A. § 15203
1. Trust may be created for any purpose that is NOT ILLEGAL or against
a) Trust cannot require the trustee or the beneficiary to do illegal
X. AVOIDING PROBATE
A. Green case: Bank account created, and then argues that it is a TOTTEN TRUST
created for benefit of another.
1. INITIAL QUESTION: Is this legal. Since 1904 case In re Totten, courts
have held that these trusts are okay.
2. This is now codified in POD and TOD designations.
3. Joint tenancy or POD designation will do it.
B. REVOCABLE TRUSTS: are valid trusts, even if the settlor retains a lot of
dominion and control.
1. Statutes now provide that REVOCABLE LIVING TRUSTS are valid
XI. p. 487
A. What happens when there is changed MARITAL CIRCUMSTANCE
1. e.g., trust set up for benefit of spouse, and then there is a divorce.
2. § 6122 only revokes WILLS in favor of spouses, thus trusts to ex-spouses
REMAIN VALID until revoked.
3. UPC provides that ALL TESTAMENTARY DISPOSITIONS to a spouse
XII. p. 496
A. Trusts can be defined on how they are created (intervivos v. testamentary)
B. They can also be defined based on their TERMS
C. DISCRETIONARY TRUST
1. $10 from O to X, in trust, to distribute all income to one or more people in
2. $10 from O to X, in trust, to distribute so much of the income as X shall
decide in his sole discretion, to A.
a) Discretionary because X gets to decide who from the class will
D. MANDATORY TRUST
1. $10 from O to X, in trust, to distribute all income to A for life, & then
everything to B.
E. SUPPORT TRUST
1. $10 from O to X, in trust, to pay out as necessary for A's support and
F. SPENDTHRIFT TRUST
1. $ 10 from O to
XIII. COMBINING TYPES
A. $10 from O to X, in trust, to distribute all income and so much of the principal as
X shall determine in X's sole discretion to A for life.
1. Here we have a MANDATORY TRUST with regard to the income, and a
DISCRETIONARY TRUST with regard to principal.
B. $10 from O to X, in trust, for X in his sole discretion to pay out for A's support
1. This is a DISCRETIONARY SUPPORT trust.
2. Note that this is different than a pure support trust, because if the
BENEFICIARY can show that an expense is necessary for the support
purposes, then X is MANDATED to make the payment (no discretion).
XIV. Wells v. Sanford (p. 498)
A. Here a mandatory support trust is created for mom. Trustee of trust assets is also
mom's guardian, and so tries to sell the FEE interest before selling the trust assets.
1. Heirs of mom argue that the trust should be exhausted BEFORE the
mom's other assets.
B. RULE: Unless soemthing appears in the will indicating a different purpose, the
PRESUMPTION is that the settlor intended that the trust assets are available for
immediate use and exhaustion.
1. THIS makes a rule that a SUPPORT TRUST is the FIRST resource pool
for support, even to the point of exhausting the trsut assets, before going to
the beneficiaries other assets.
XV. Marsman v. Nasca (p. 502)
A. Here the first wife leaves a DISCRETIONARY SUPPORT TRUST for husband,
with ability for the trustee to INVADE the trust. Daughter retains a reiduary
B. Husband remarries. Continues to live in the house (which he owns) and he has a
life estate in the furniture.
1. Hubby runs into bad financial times and asks for support from trust.
2. HE gets a runaround from trustee.
3. NEXT time arund, he gives the house to his daughter in exchange or
taking over mortgage. He wants daughter to let second wife to live there.
4. daughter dies, hubby dies. Daughter's husband wants to kick second wife
XVI. COURT HOLDS:
A. TRUSTEE failed his duties. HE should have used trust assets to pay for support
B. Since daughter and her husband were purchasers for value, and had no notice of
the breach, the HOUSE cannot be transferred to the second wife.
C. BUT, the court IMPOSES a constructive trust on the SUPPORT TRUST ASSETS
in favor of the second wife. (BOTTOM LINE: she gets $$ instead of the house).
II. TRUSTS - DISPOSITIVE PROVISIONS (as opposed to how they are formed)
A. FORMATION TYPES
a) A trust created during LIFE
b) Includes POUR OVER trusts
(1) The ASSETS are PROBATE ASSETS, but they are placed
into an INTERVIVOS TRUST.
a) A trust created UNDER the WILL
B. DISPOSITIVE PROVISISON
1. Determine what the TRUSTEE must do with the trust assets
a) Generally with respect to the trust corpus and or income.
b) May include terms of payments (monthly, quarterly, annually, etc.)
2. POWER to INVADE
a) Ability for TRUSTEE to use CORPUS if income alone is not
b) Power to invade may be made in TRUSTEE's discretion OR it may
be triggered by specific needs (e.g., education, or support, etc.).
3. Bottom line: there is a LOT OF FLEXIBILITY in the powers that are
given to the trustee.
C. Wells v. Sanford case
1. Here court was trying to deide whether the TRUST BENEFICIARY had to
exhaust her own assets before the trustee paid out money for support.
2. COURT HOLDS that funds are IMMEDIATELY AVAILABLE (no need
to exhaust other assets first).
D. Marsman case
1. ISSUE: Does a trustee with a SUPPORT TRUST have a DUTY to
INQUIRE whether support is needed. (there was an ability to invade the
trust in trustee's discretion. Here trustee didn't invade, even though he
knew that the beneficiary was in financial trouble).
2. COURT HOLDS: There is a duty to INQUIRE for the trustee.
E. COMMON QUESTION for TRUSTEE:
1. WHO DO I FAVOR? The life beneficiary, or the remaindermen?
a) Issue here is who might sue based on what is paid out.
F. Dunkley case (p. 508):
1. Here the beneficiary went "shopping" for a trustee that would give him all
the money that he wanted. The COURT HOLDS that a trustee cannot go
so far to ABUSE their discretion, even if discretion is absolute.
G. LANGUAGE at p. 502
1. Creates a MANDATORY TRUST with regard to income from trust, and a
DISCRETIONARY SUPPORT TRUST with regard to the principal.
H. NOTE that in the MARSMAN case, there was a clause the absolved the
TRUSTEE of any liability for anything less than "willful neglect or default."
1. Thus, in this case, there is probably at most negligence, and so no personal
III. NOTE p. 510-13
A. Even when a TRUSTEE is given ABSOLUTE DISCRETION, there is still limits.
1. TRUSTEE CANNOT ACT ARBITRARILY or DISHONESTLY
2. (but trustee can act "unreasonably")
B. SPRAY or SPRINKLE TRUST
1. Here the TRUSTEE had discetion to determine where the trust assets will
2. SPRAY POWER is to give to all equally.
3. SPRINKLE POWER is ability to select each person, and the amount that
will be paid.
IV. PROTECTING BENEFICIARIES from CREDITORS
A. Sometimes beneficiaries owe MONEY.
B. TYPICALLY an interest in a TRUST is ASSIGNABLE
C. BUT, if it is not a MANDATORY INTEREST, what is the creditor really getting?
1. Example, discretionary support trust.
2. Here, trustee does not pay until there is need for support and maintenance.
3. Or, just a regular discretionary trust.
a) Even with an assignment, the creditor collects nothing if trustee
decides not to pay.
D. SPENDTHRIFT TRUSTS:
1. Can be MANDATORY PAYMENT language, but makes the interest in
the trust INALIENABLE
a) Trust language says that the BENEFICIAL INTEREST in the trust
cannot be willfully or unwillfully assigned..
2. ISSUE is whether this is morally proper.
a) Here, we say that the CREDITORS should just watch their own
interests. They CAN get to the assets, but only after they have
been DISTRIBUTED to the beneficiary.
V. Wilcox v. Gentry
A. FACTS: Trust divided into five shares. $40K judgment against beneificary of
trust for property she had bought. This is a DISCRETIONARY TRUST.
B. ISSUE: Are the DISBURSEMENTS from a DISCRETIONARY TRUST subject
to a court jugdment in favor of beneficiaries creditors?
C. HOLDING: YES.
1. AT the point in time, WHEN the TRUSTEE decides, in their discretion to
make a distribution, creditors have access to that distribution. BUT, the
creditors cannot FORCE the trustee to make disbursements to satisfy their
claims or a court judgment in their favor.
D. WRINKLE in this case:
1. The language of the TRUST SAYS "ON BEHALF OF" the beneficiary.
So here, since money is theoretically paid to OTHERS on behalf of the
beneficiary are subject to the same rule. COURT says yes. It does not
matter whether the payement is "TO THE BENEFICIARY," or "ON
BEHALF OF THE BENEFICIARY."
VI. Spendthrift Trust (p. 518)
A. Broadway Nat'l Bank v. Adams
1. Adams is beneficiary under a testamentary trust created by brother's wills.
Income is to be paid semi-annually "free from the interest of creditors."
2. Court interprets this as a SPENDTHRIFT TRUST
3. ISSUE: Court (in 1882) is trying to determine whether such a trust should
B. § 15300 - Spendthrift Trust Income
1. Spendthrift trust income is only payable to beneficiary (not creditors). But
on payment it can be directed to creditors. Spendthrift trust INCOME can
only be attached on PAYMENT to the INCOME BENEFICIARY.
C. § 15301 - Spendthrift Trust Principle
1. Same rule for corpus, EXCEPT that the PRINCIPLE can be attached when
it is AVAILABLE FOR PAYMENT (thus it does not have to go into the
hands of the beneficiary).
D. § 15304 -
1. No escaping creditors by creating a Spendthrift Trust for one's self.
2. RULE: No "SELF-SETTLED SPENDTHRIFT TRUSTS."
E. § 15302 - EDUCATION / SUPPORT TRUST
1. To the extent that the support trust is NECESSARY to satisfy its purposes,
then it cannot go to creditors.
F. § 15303 -
1. Provides that if the trust is DISCRETIONARY, then the creditors cannot
COMPEL payment of trust assets.
2. BUT, once DISCRETION is exercised, then it can be attached by the
VII. Bacardi v. White (p. 524)
A. Here, ex-wife seeks spousal support. Husband is a beneficiary of a spendthrift
support trust. Can wife attach?
1. COURT finds that the wife is an INVOLUNTARY CREDITOR, and thus
the wife should be granted the ability to attach.
VIII. § 15305
A. If the beneificiary has the ability to compel payment, then the court MAY attach
the spendthrift trust in order to MEET SUPPORT OBLIGATIONS.
IX. § 15305.5
A. Similar rule for RESTITUTION JUDGMENTS by courts
X. § 15306
A. Says that beneificiary should not be allowed to live off welfare when spendtrhift
thrust assets are available.
A. BIG RULE: Just know that DISCRETIONARY, SUPPORT, and
SPENDTHRIFT TRUSTS are generally protected from creditors.
1. HOWEVER, distinctions are made between VOLUNTARY CREDITORS
(e.g., contract) and INVOLUNTARY CREDITORS (e.g. tort claims). For
INVOLUNARY CREDITORS, courts and statutes are allowing these
types of trusts to be attached.
I. USING TRUSTS to PROTECT AGAINST CREDITORS
A. DISCRETIONARY TRUST
B. SUPPORT TRUST
C. SPENDTHRIFT TRUST
1. A valid spendthrift trust MUST protect against BOTH VOLUNTARY and
INVOLUNTARY alienation. Just one or the other will not work.
A. People who provide NECESESSARIES and who are TORT CREDITORS can get
access to assets.
1. BUT, CONTRACT CREDITORS are SCREWED.
III. Many times DISCRETION is not added with the INTENT to protect against
creditors, but rather with the idea of allowing the trustee the ability to have some
control over the distributions.
A. This is important with the drafting of language.
IV. Look at §§ 15300
V. The importances here
A. UNDERSTAND HOW THE THREE TYPES GENERALLY WORK
VI. QUALIFICATION for MEDICAID
A. COHEN v. COMMN'R (p. 531)
1. P. 530 - Planning for cost of institutional care
2. Here we have a sick spouse and a healthy spouse. The sick spouse wants
the best medical care, but also wants to provide for family.
3. A typical strategy is to transfer ASSETS to EXEMPT STATUS for
income purposes of medicaid income calculations, and then attempt to
qualify for medical care.
4. CONGRESS has seen through these attempts as abusive. In 1993,
Congress disallowed almost all trusts used for these purposes. Today, if
just about anything can be paid to the parent from the trust, then it will still
5. AND, there is a LOOK BACK period of 6 months for transfers in trust,
and 3 years for outright transfers.
a) Congress just doesn't want "fake poverty" being fabricated in order
to provide free health care to the very wealthy.
b) BOTTOM LINE: Any right that the settlor has, will be counted
toward the amount that is available for medical care.
VII. SUPPLEMENTAL NEEDS TRUST
A. Where there is a disabled child who is on medicaid, the wealthy parents can set up
a trust for "supplemental needs" of the child. The amounts paid from this trust
will not be counted toward the childs' income for purposes of determining
VIII. TRUST MODIFICATION and TERMINATION
A. RULE in MAJORITY of Jx
1. In the absence of language to the contrary, when a trust is created, it is
2. CA: CHANGES THIS RULE
a) § 15400 - provides that all trusts are REVOCABLE UNLESS the
trust document says that the trust is IRREVOCABLE.
b) § 15402 - if a trust is REVOCABLE, the trust may be MODIFIED
by the procedure used for revocation.
IX. METHOD of REVOCATION and MODIFICATION are THE SAME
A. Conn. General Life Insurance (p. 561)
1. Settlor creates revocable insurance proceeds trust naming bank as trustee.
Trust instrument reserved the right to revoke or amend by making a
writing and providing it to the trustee during the life of the settlor. Setllors
wife and three kids are beneficiaries of the trust. Settlor becomes
remarried. Settlor then executes a new will, that says all previous will and
trusts are invalidated, and names the new wife as beneficiary. Settlor dies.
2. ISSUE: Did the will revoke the insurance trust?
3. HOLDING: NO, because in this case the will would not take effect until
death, and it was never DELIVERED to the TRUSTEE
X. CA RULE
A. TRUST can be revoked
1. BY express terms of the trust
2. IF no express terms, then trust can be revoked by a writing signed by
settlor and delivered to the trustee during life OTHER THAN A WILL.
B. NOTE: IF there are EXPRESS PROVISIONS for revocation/modification, that is
the ONLY WAY to modify the trust.
C. NOTE 2: A WILL can NEVER be used to revoke a trust.
XI. CA RULE on DIVORCE
A. Divoce REVOKES all TESTAMENTARY DISPOSITIONS to the spouse
XII. BOTTOM LINE:
A. Method of REVOCATION specified in the TRUST is the only way to REVOKE,
unless there is NO PROVISION for REVOCATION in which case, revocation
can be done by writing
B. POWER of ATTORNEY does not allow the person with power of attorney to
revoke a will. (subsection c)
XIII. MODIFYING TRUSTS
A. Suppose a trust is revocable and all of the beneficiaries want to modify it, can they
1. REVOCABLE TRUSTS are only modifiable by the terms of the trust.
2. IRREVOCABLE TRUSTS: beneficiaries MAY petition the court to alter
or terminate the trust.
a) BUT, the court must first determine that the modification of the
trust will not destroy the MATERIAL PURPOSE of the trust.
(1) SO, for example a SPENDTHRIFT TRUST or a TRUST
that intendended to provide income in a STEADY
MANNER might not be subject to termination or
modification by the court.
(2) This is the CLAFLIN DOCTRINE.
I. EXPLANATION of EXAM
II. HANDOUT - WILL VALIDITY OVERVIEW
A. First, is there any document that might be a will.
B. If so, have the necessary formalities been followed.
C. Then, is there anything to indicate if the will has been revoked
1. Writing? Physical Act?
2. In whole? In part?
D. Has anything been done to REVIVE the will?
1. No revival by revocation.
3. Revival by Codicil?
E. IF we do have a will, issues to look at:
1. Was there testamentary "mentality"
a) 18 years of age
(1) mental deficiency
2. Was there TESTAMENTARY INTENT
a) undue influence?
b) sham act?
d) All of will invalidated? Or just certain provisions?
3. IF will fails, what is remedy?
F. If will is otherwise valid, are there PUBLIC POLICY overrides?
G. Are there STATUTORY OVERRIDES?
1. Failure to give to spouse?
2. Slayer statute.
3. Does the property still exist?
4. IF so, what are REMEDIES?
H. Finally if all of this is okay, look for QUESTIONS of CONSTRUCTION
1. Plain meaning rule
III. ANALYSIS for TRUSTS
A. IS there something that could be called a trust existing?
B. Are all the ELEMENTS of the trust present?
C. IF ELEMENTS are present, WHAT KIND OF TRUST is it?
1. What effect does type have on ESTATE
a) TESTAMENTARY? INTERVIVOS?
b) SUPPORT? DISCRETIONARY? SPENDTHRIFT?
IV. ILLUSTRATIVE WILL p. 352