1

| |
Trust Wills Estates Horton Fall ’19 |

Table of Contents
INTRODUCTION 2
I) PRIMARY DEFINITIONS 2
II) POWER TO PASS PROPERTY 2
III) BARS ON THE RIGHT TO INHERIT 3
INTESTACY 5
I) INTESTATE: SURVIVING SPOUSE 5
II) SHARES OF DESCENDANTS 8
III) 3 DISTRIBUTIONAL SCHEMES 8
A) Per Stirpes (aka “English Per Stirpes” or “Strict Per Stirpes”) 8
B) Per Capita With Representation 9
C) Per Capita at Each Generation 11
IV) TRANSFERS TO CHILDREN 14
WILLS 21
I) EXECUTION OF FORMAL WILLS 21
II) HOLOGRAPHIC WILLS 22
III) HARMLESS ERROR 25
IV) CHALLENGES TO A VALID WILL 26
A) Incapacity, Insane Delusion, Undue Influence 26
B) Care Custodian 28
V) WILL AMENDMENT AND REVOCATION 29
VI) PARTIAL REVOCATION BY PHYSICAL ACT AND REVOCATION BY DIVORCE 32
X) POWERS OF APPOINTMENT 40
XI) LAPSE/ANTILAPSE/CLASS GIFTS 43
XII) ADEMPTION AND ABATEMENT 46
XIII) INTERPRETATION 48
TRUSTS 51
I) INTRODUCTION TO TRUSTS 51
II) TRUSTEES, BENEFICIARIES, AND CREDITORS’ RIGHTS 53
III) TRUSTEE’S DUTY OF LOYALTY 55
IV) RIGHTS OF AN OMITTED SPOUSE 56
V) RIGHTS OF OMITTED CHILDREN 59
2
| |
Trust Wills Estates Horton Fall ’19 |

Introduction
(1) Primary Definitions
A) Intestacy
1.) Someone dies without a valid will or trust. Their property passes through court-supervised
probate according to default rules.
B) Wills
1.) The traditional way of passing property at death. Wills also go through probate. The person
who makes a will is a testator.
C) Trusts
1.) A contract-like arrangement in which a trustee manages and distributes property for
beneficiaries. Trusts avoid probate. The person who makes a trust is a settlor.
D) Other non-probate transfers
(i) People often use joint tenancy, life insurance, and pay-on-death accounts to distribute their
property after they die.
E) Not mutually exclusive:
1.) Some estates feature multiple mechanisms. Suppose D executes a valid will passing her house
to A and a valid trust leaving her car to B. D also owns a bottle of 100 year-old whisky. The
whisky passes through intestacy.
(2) Power to Pass Property
A) Testamentary Freedom
1.) Dispose of property as they please
2.) U.S. law grants testators and settlors not only the bare power to pass property at death, but
nearly unfettered “distributional control”: the ability to say who gets their property and how
much they get.
B) Dead-hand control
1.) Not given as much in US
2.) Owners put terms and conditions on their estates that affect their beneficiaries or last long after
death.
3.) Is limited by RAP and other state laws
4.) Case
(i) Shapira v. Union National Bank (1974)
a) Facts
(1) Father says in will only get money if you marry a Jewish woman
b) Holding
(1) Posthumously-imposed restraints on marriage are valid if they are “reasonable.”
(2) Here, the restraint is reasonable b/c, in the court’s eyes, Daniel has a decent
opportunity to find a woman who meets that description within seven years of his
father’s death.
3
| |
Trust Wills Estates Horton Fall ’19 |
(3) The court also mentions “the depth of the testator’s conviction” as evidenced by the
fact that the gift to Daniel would pass to the State of Israel if Daniel did not meet
the condition.
c) Notes
(1) Incentive Trusts
 Financial rewards for beneficiaries to pursue specific educational, lifestyle, or
career paths.
C) Other kinds of dead-hand control – destruction of property
1.) Eyerman v. Mercantile Trust Co. 1975
(i) Facts
a) Woman wants house to destroyed. City is like nope.
(ii) Issue
a) Should the razing of the house be enjoined?
(iii) Holding
a) Yes
(iv)Reasoning
a) Public Policy—it would depreciate the value of surrounding properties. “[T]his
senseless destruction serving no apparent good purpose is to be held in disfavor. A
well-ordered society cannot tolerate the waste and destruction of resources when such
acts directly affect important interests of other members of that society.”
(v) Dissent
a) Who cares about depreciation of others or the city? Also, the rational has unsatiated
claims about the reason for the razing.
(3) Bars on the Right to Inherit
A) The Slayer Rule – UPC 2-803
1.) If you kill someone (intentionally and feloniously) you cannot inherit from them.
(i) Applies to intestacy, wills, trust, and other non-probate transfers – like life insurance.
2.) The UPC treats the slayer as deceased.
3.) The CPC also treats the slayer’s descendants as deceased if they’re different than the
victim’s descendants.
(i) If youre deceased- you cannot inherit, that’s why they call them deceased.
4.) Case
(i) Castro v. Ballesteros-Suarez 2009
a) Facts
(1) Adolfo owned 2 life insurance policies listing his spouse Luz as the death
beneficiary. He was shot to death. Luz was suspected but was never charged. In a
civil trial over the policies, Luz took the Fifth.
b) Take away
(1) All you have to prove is that they most likely caused the murder in civil court. Here
this happened. She was never convicted in criminal court, but because of the civil
standard she was still considered a slayer
c) Notes
(1) Also, inchoate crimes = slayer crimes.
4
| |
Trust Wills Estates Horton Fall ’19 |
B) Disclaimer
1.) Definition
(i) When an heir or a beneficiary voluntarily refuses to inherit.
2.) Rule
(i) UPC § 2-1113: A disclaimer of an interest in property is barred if any of the following
events occur before the disclaimer becomes effective:
a) (1) the disclaimant accepts the interest sought to be disclaimed [or]
b) (2) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the
interest sought to be disclaimed or contracts to do so . . . .”
(1) Cant act like its yours
3.) Taxes
(i) Disclaimers can be done for tax purposes.
a) Suppose O dies, leaving a rich sister. The sister wants the money to go to her two
struggling artist children. They’ll get taxed twice! But if the sister disclaims, she
predeceases O, and the kids get taxed once.
4.) Case
(i) In Re Estate of Gardiner 2012
a) Facts
(1) Marlene inherited a life estate in real property in trust from Scott. After she died,
the property would pass to Scott’s two kids. The property was encumbered by
mortgage. The trust required Marlene to pay “reasonable fees . . . that would
normally accompany a property.” Marlene continued to live in the house. She paid
utilities and taxes. In early 2009, she sent a nastygram to the trustee instructing him
to warn Scott’s kids that they didn’t have the right to enter the house. In August
2009, a judge ruled that Marlene had to pay off the interest on the mortgage. In
May 2010, Marlene sought to disclaim her life estate.
b) Holding
(1) Didn’t work. It was considered not disclaimed.
C) Simultaneous Death - What happens when closely related people die at the same time?
1.) CPC §220
(i) OTHER THAN INTESTACY- if you can’t tell who died first, each person is treated as
though they survived the other for purposes of their own estate (i.e. don’t distribute any
property to the other dead person). Your property goes to who you want after the other
person.
2.) CPC §6403
(i) INTESTACY- if you can tell that one person survived the other by 5 days, treat each
person as though they survived the other for purposes of their own intestate distribution
scheme (apply legal fiction as long as they died within 5 days of each other) treated as
though they survived the other for purposes of their own estate.
3.) Explained
(i) The “simultaneous death fiction”:
a) when two closely related people die near the same time, we treat each of them as
having survived the other for the purposes of their own estate plan.
5
| |
Trust Wills Estates Horton Fall ’19 |
b) When do we apply the fiction?
(1) In intestacy, if one person didn’t survive the other by five days.
(2) In other contexts, we apply the fiction if we can’t clearly tell that one person
survived the other.
6
| |
Trust Wills Estates Horton Fall ’19 |

Intestacy
I) Intestate: Surviving Spouse
A) Surviving spouse in interstate
1.) Rule: UPC §2-102
(i) UPC §2-102
a) The intestate share of a decedent’s surviving spouse is:
(1) (1) The entire intestate estate if: (A) no descendant or parent of the decedent
survives the decedent; or (B) all of the decedent’s surviving descendants are also
descendants of the surviving spouse and there is no other descendant of the
surviving spouse who survives the decedent;
(2) (2) The first $300,000, plus three-fourths of any balance of the intestate estate, if
no descendant of the decedent survives the decedent, but a parent of the decedent
survives the decedent;
(3) (3) The first $225,000, plus one-half of any balance of the intestate estate, if all of
the decedent’s surviving descendants are also descendants of the surviving spouse
and the surviving spouse has one or more surviving descendants who are not
descendants of the decedent;
(4) (4) The first $150,000, plus one-half of any balance of the intestate estate, if one or
more of the decedent’s surviving descendants are not descendants of the surviving
spouse.
b) Test
(1) Start with share of surviving spouse
(2) They get entire thing if:
 No descendant or parent of the decedent is alive OR
 They all have the same children and the spouse has no other kids
7
| |
Trust Wills Estates Horton Fall ’19 |
2.) Summary
(i) The surviving spouse’s intestate share under the UPC hinges on (1) whether D leaves
descendants (or, if not, a parent), (2) and the composition of a “blended” family.
a) S’s share is lowest (first $150,000 + 1/2 of the rest) if D leaves at least one descendant
who isn’t also S’s.
b) S’s share is medium (first $225,000 + 1/2 of the rest) if D leaves at least one
descendant who is also S’s and S also has a descendant from another relationship.
c) S’s share is higher (first $300,000 + ¾ of the rest) if D leaves no descendants but at
least one parent).
d) S takes all when EITHER (1) D leaves no descendants or parents OR (2) all of D’s
descendants are also S’s and all S’s descendants are also D’s.
3.) Rule CPC § 6401
(i) CPC § 6401
a) § 6401. Surviving spouse or surviving domestic partner. . .
(1) As to CP [and quasi-CP], the intestate share of the surviving spouse is the one-half
of the [CP/quasi-CP] that belongs to the decedent . . . .
(2) As to separate property, the intestate share of the surviving spouse or surviving
domestic partner is as follows:
 The entire intestate estate if the decedent did not leave any surviving issue,
parent, brother, sister, or issue of a deceased brother or sister.
 One-half of the intestate estate in the following cases:
o Where the decedent leaves only one child or the issue of one deceased child.
1 bloodline
o Where the decedent leaves no issue but leaves a parent or parents or their
issue or the issue of either of them.
 One-third of the intestate estate in the following cases:
o Where the decedent leaves more than one child. 2 bloodlines
o Where the decedent leaves one child and the issue of one or more deceased
children.
(3) Where the decedent leaves issue of two or more deceased children.
b) Bloodline
(1) Child is alive or child who died but left living kids.
c) For community property – spouse takes all because decedent had ½ and that goes to
spouse
d) For spousal property – see chart
8
| |
Trust Wills Estates Horton Fall ’19 |

(ii) Summary
a) The surviving spouse’s intestate share under the CPC centers on (1) the status of
property (CP or SP), (2) whether D leaves parents or issue of parents and (3)
counting D’s surviving kids or dead kids who left issue.
(1) S takes all of the CP. That’s easy! Hooray!
(2) S’s share of the SP is lowest (1/3) if D leaves (1) more than one child, or (2) one
child + the issue of a dead child, or (3) issue of two or more dead children.
 (Note that the key here is how many of D’s kids are alive or left children of
their own—NOT the total number of D’s grandkids).
(3) S’s share of the SP is medium (1/2) if D leaves (1) only one child or the issue of
one dead child, or (2) at least one parent, or (3) at least one issue of parents (sibling,
nieces and nephews).
b) S takes all of the SP if D leaves no parents or issue of parents.
II) Shares of Descendants
A) Intestacy Succession Order
1.) UPC § 2-103: Share of Heirs Other than Surviving Spouse
(i) Any part of the intestate estate not passing to the surviving spouse (“S”) or the entire
intestate estate if there’s no S goes in the following order to:
a) (1) D’s descendants by representation;
9
| |
Trust Wills Estates Horton Fall ’19 |
b) (2) D’s parents equally, or to one if only one survives;
c) 3) The descendant’s of D’s parents by representation;
d) [4] To the state.
2.) CPC § 6402. Intestate estate not passing to surviving spouse of surviving domestic partner
(i) [T]he part of the intestate estate not passing to the surviving spouse or surviving domestic
partner . . . passes as follows:
a) (a) To the issue of the decedent, the issue taking equally if they are all of the same
degree of kinship to the decedent, but if of unequal degree those of more remote degree
take in the manner provided in Section 240.
b) (b) If there is no surviving issue, to the decedent's parent or parents equally.
c) (c) If there is no surviving issue or parent, to the issue of the parents or either of them
d) [d] To the state.
B) Shares of Descendants: Taking “By Representation”

III) 3 Distributional Schemes

A) Per Stirpes (aka “English Per Stirpes” or “Strict Per Stirpes”)
1.) Used in 1/3 of states—treats each line of descendants the same
2.) Divide into shares at children’s generation; each “line” gets a share if there are (1) living
children or (2) deceased children who left issue. The issue of a deceased child (usually the
decedent’s grandkids) split the share of the deceased child.
10
| |
Trust Wills Estates Horton Fall ’19 |

Note that E doesn’t

count because E has
no descendants.

B) Per Capita With Representation (Modern Per Stirpes )

1.) Used in ½ of states, including CA.

2.) Divide into shares at first generation with living members, not necessarily the children’s
generation.
3.) Otherwise exactly the same as Per Stirpes.
11
| |
Trust Wills Estates Horton Fall ’19 |
12
| |
Trust Wills Estates Horton Fall ’19 |

Note that H GETS

nothing because D
is alive.

C) Per Capita at Each Generation

1.) Introduced in 1990 UPC—goal is “equally near/equally dear” (all similarly-situated relatives
treated alike)
2.) Like Per Capita with Representation, divide into shares at “first living generation”
(i) Then combine the shares of all deceased takers with issue in a given generation and split
them equally among the issue of those deceased takers in the next generation.

1. What level is there

living people?
2. How many people at
that level?
3. Make sure each level
gets the same fractional
distribution
4. Make sure at the last
level that all the fractions
add up to one.
Note that H gets
nothing.
13
| |
Trust Wills Estates Horton Fall ’19 |
14
| |
Trust Wills Estates Horton Fall ’19 |
15
| |
Trust Wills Estates Horton Fall ’19 |
IV) Transfers to Children
A) Adoption of Minors: the Transplantation Theory
1.) An adopted child’s adoptive parents are treated as his or her legal parents.
(i) (1) The child can inherit from his or her adoptive parents. See UPC § 2-118.
(ii) (2) The child can inherit through his or her adoptive parents. See id.
a) I.e., A dies intestate, leaving no spouse or descendants. A’s parents, Y and Z, are dead,
and left an adopted child, B. B takes A’s estate.
(1) Because A and B are siblings
(iii) (3) The adoptive parents can inherit from the child. See id.
a) I.e., B dies intestate, leaving no spouse or descendants, but a adoptive parent, Y. Y
takes B’s estate.
B) Hall v. Vallandingham
1.) Facts
(i) Four children appeal from a judgment wherein it was determined they were not entitled to
inherit from their natural uncle, by taking the share their deceased father would have
received intestate, due to the fact they were adopted by the man their mother married after
their father’s death.
2.) Issue
(i) Should they be able to inherit
3.) Holding
(i) No
4.) Reasoning
(i) Under the Maryland law: Md. Estates & Trusts Code § 1-207: “On adoption, a child no
longer shall be considered a child of either natural parent, except that upon adoption by the
spouse of a natural parent, the child shall be considered the child of that natural parent.”
Thus they wouldn’t be able to inherit because that wasn’t their uncle anymore
5.) Notes
(i) UPC is different and would allow inheritance- UPC § 2-219: “A parent-child
relationship exists between an individual who is adopted by the spouse of either genetic
parent and (1) the genetic parent whose spouse adopted the individual; and (2) the other
genetic parent, but only for the purpose of the right of the adoptee or a descendant of the
adoptee to inherit from or through the other genetic parent.”
C) Adult Adoptions
1.) UPC 2-705
(i) although adopting an adult can make the adult an heir under intestacy, it can’t make
them a beneficiary for wills and trusts.
2.) Minary v. Citizens Fidelity Bank 1967
(i) Facts
a) Decedent’s son adopted his adult wife in the hopes of bringing his wife under the
provisions of decedent’s trust in order for his wife to share in the proceeds from the
trust.
(ii) Issue:
a) Does adoption allow for this?
16
| |
Trust Wills Estates Horton Fall ’19 |
(iii) Holding
a) No
(iv)Reasoning
a) See UPC 2-705. Adopting an adult for the purpose of bringing that person within the
provisions of a pre-existing testamentary instrument, when that person was clearly not
intended to be covered by the instrument, should not be permitted.
3.) Problem
(i) Question:
a) Suppose Alana adopts her adult boyfriend Stuart and later dies intestate, survived by
only Stuart and her sister, Sally. How would Alana’s estate be distributed?
(ii) Answer
a) Stuart would inherit Alana’s entire estate as Alana’s “child” because adult adoptions
are fine for the purposes of intestacy.
(iii) Question
a) Suppose further that, after Alana’s death, her sister Sally died testate (meaning that she
made a will), survived by only Stuart (Sally’s nephew because, as noted above, Alana
adopted him) and Sally’s first cousin Cary. Sally’s will devises everything to her nieces
and nephews. How would Sally’s estate be distributed?
(iv)Answer
a) This is a nasty question. UPC § 705(f) excludes an adopted adult (here, Stuart) from
taking a gift under a will or trust because of their adopted status. So Stuart seems to be
out. But since no one else exists that can inherit under Sally’s will, Sally’s property
passes through intestacy. Bizarrely, Stuart is Sally’s closest relative. And there’s no
problem with adopted adults inheriting in intestacy. As Sally’s nephew, Stuart takes to
the exclusion of Cary, a mere cousin.
(v) Question
a) Suppose instead that, after Alana’s death, her sister Sally died intestate, survived by
only Stuart (Sally’s nephew by adoption, as mentioned above) and Sally’s first cousin
Cary. How would Sally’s estate be distributed?
(vi)Answer
a) Stuart would inherit Sally’s entire estate for the reasons stated in the answer to 2B
D) SUMMARY
1.) Who is a “child” for the purposes of intestate succession?
(i) For the adoptive parents: the adopted child is their child for all purposes.
2.) For the genetic parents, the adopted child is not their child, subject to several exceptions:
(i) Suppose the spouse of a genetic parent adopts the child. (To make matters concrete, recall
Hall—genetic dad, Earl, died. Genetic mom, Elizabeth, marries Jim). Then, under all
approaches, the child is still Elizabeth’s child for all purposes.
a) A and B have kids and then A dies. B remarries C. C adopts kids. B and C are
now the parents. Genetic parent, B is still treated as a parent.
3.) Can the child inherit from or through the “replaced” genetic dad, Earl?
(i) There’s a split in authority. Cases like Hall say no. The UPC says yes.
4.) Can the genetic dad, Earl, or his heirs, inherit through the child?
17
| |
Trust Wills Estates Horton Fall ’19 |
(i) Under all approaches, the answer is no. (The UPC is a one-way street: the child can
inherit from or through the “replaced” genetic parent, but the “replaced” genetic
parent can’t inherit from or through the child).
5.) Who is a “child” for the purposes of wills and trusts?
(i) An adopted child is a “child,” but an adopted adult is not a “child.” An adopted child can
inherit.
E) Posthumously Conceived Children
1.) Think test babies/sperm bank
2.) UPC § 249.5. Posthumous conception; child of decedent deemed born in decedent's
lifetime; conditions 
(i) purposes of determining rights to property to be distributed upon the death of a decedent, a
child of the decedent conceived and born after the death of the decedent shall be deemed to
have been born in the lifetime of the decedent . . . if the child or his or her representative
proves by clear and convincing evidence that all of the following conditions are satisfied:
a) The decedent, in writing, specifies that his or her genetic material shall be used for the
posthumous conception of a child of the decedent, subject to the following:
(1) (1) The specification shall be signed by the decedent and dated;
(2) [2] a person is designated by the decedent to control the use of the genetic material;
(3) [3] the person designated by the decedent to control the use of the genetic material
has given written notice . . . to a person who has the power to control the
distribution of [the decedent’s property] within four months of the [death];
(4) [4] the child was in utero . . . within two years of . . . the decedent’s death . . . .
(ii) This subdivision does not apply to a child who shares all of his or her nuclear genes with
the person donating the implanted nucleus as a result of the application of somatic nuclear
transfer technology commonly known as human cloning.
3.) Summary
(i) Written consent
a) With above specifications
(ii) Cloning is not included in this provision.
F) Advancements
1.) Under the “advancements” doctrine, courts deduct the value of certain lifetime gifts from the
heir’s share of the intestate estate.
2.) 3 Schemes
(i) Under the common law:
a) All gifts were presumptively advancements. The heir bore the burden of proving that
the decedent didn’t mean a gift to reduce the heir’s inheritance
b) If a decedent’s heir received an advancement but failed to survive the decedent, the
advancement was deducted from the heir’s heirs.
(1) I.e., A has two kids, B and C. A gives B $10,000 during life. B dies before A,
leaving children, D and F. D and F take $10,000 less from A because of the
advancement to B.
(ii) Under UPC § 2-109:
18
| |
Trust Wills Estates Horton Fall ’19 |
a) If an individual dies intestate as to all or a portion of his [or her] estate, property the
decedent gave during the decedent's lifetime to an individual who, at the decedent's
death, is an heir is treated as an advancement against the heir's intestate share only if
(1) the decedent declared in a contemporaneous writing or the heir acknowledged in
writing that the gift is an advancement or
(2) the decedent's contemporaneous writing or the heir's written acknowledgment
otherwise indicates that the gift is to be taken into account in computing the
division and distribution of the decedent's intestate estate.
b) [In addition, under the UPC, an advancement is NOT deducted from the
recipient’s heirs unless the decedent’s contemporaneous writing states otherwise].
(iii) Advancements: CPC § 6409
a) (a) If a person dies intestate as to all or part of his or her estate, property the decedent
gave during lifetime to an heir is treated as an advancement against that heir's share of
the intestate estate only if one of the following conditions is satisfied:
(1) (1) The decedent declares in a contemporaneous writing that the gift is an
advancement against the heir's share of the estate or that its value is to be deducted
from the value of the heir's share of the estate [OR]
(2) (2) The heir acknowledges in writing that the gift is to be so deducted or is an
advancement or that its value is to be deducted from the value of the heir's share of
the estate.
b) (b) Subject to subdivision (c), the property advanced is to be valued as of the time the
heir came into possession or enjoyment of the property or as of the time of death of the
decedent, whichever occurs first. 
c) (c) If the value of the property advanced is expressed in the contemporaneous writing
of the decedent, or in an acknowledgment of the heir made contemporaneously with the
advancement, that value is conclusive in the division and distribution of the intestate
estate. 
d) (d) If the recipient of the property advanced fails to survive the decedent, the property
is not taken into account in computing the intestate share to be received by the
recipient's issue unless the declaration or acknowledgment provides otherwise.
3.) How to value advancements
(i) Under the UPC and the CPC, a gift is an advancement only if
a) (1) the decedent declares so in a contemporaneous writing or
b) (2) the heir acknowledges so in writing.
(ii) Neither the decedent nor the heir need use the word “advancement.”
(iii) Both the UPC and the CPC eliminate the common law presumption that
advancements are counted against the shares of predeceasing heirs.
a) I.e., if A gives B a $10,000 advancement, but B dies before A, the advancement
doesn’t reduce the shares of D and F.
(iv)This is a default rule: under the UPC and CPC, the decedent can provide otherwise in the
contemporaneous writing (“this gift will reduce the shares of B’s children in intestacy”);
under the CPC, the heir can also provide otherwise in the written acknowledgment.
(v) Question
19
| |
Trust Wills Estates Horton Fall ’19 |
a) Suppose A has two children, B and C. In 1995, A gives B a house in San Francisco
with a market value of $100,000. “This is an advancement on your inheritance,” A
tells B. In 1997,B executes a writing acknowledging that the house is an advancement
and declaring that its value is $50,000. In 2012, A dies. The house is worth $800,000.
What result?
(vi)Answer
a) Under the UPC and CPC, a gift is not an advancement unless the decedent declares
so in a contemporaneous writing. Thus, A’s oral statement is insufficient to make
the house an advancement. However, under the UPC and CPC, the heir’s written
acknowledgment is sufficient even if it isn’t contemporaneous. Thus, B’s 1997 writing
makes the gift an advancement.
(vii) Under the UPC, the parties can’t set the value of the advancement.
(viii) Under the CPC, the parties can only set the value through a contemporaneous
writing; B’s 1997 writing comes two years later and thus fails. B/c the house’s value is
set at the time B first owns it, it is an advancement worth $100,000.
4.) Steps to calculate shares
(i) HOTCHPOT
a) Add the amount of the advancement to the total estate;
b) Divide the estate into shares by representation;  depends on jurisdiction
c) Subtract the advancement from the share of the heir who received the gift;
(ii) Example
a) Suppose X died intestate, leaving children A, B, and C. During life, X gave A a
$10,000 advancement. X’s estate is worth $110,000.
(1) Add the amount of the advancement to the estate: $110,000 plus $10,000 equals
$120,000.
(2) Divide the estate into shares: each child gets 1/3 of $120,000, or $40,000.
(3) Subtract the advancement from A’s estate:
 A takes $30,000
 B takes $40,000,
 and C takes $40,000.
(iii) For large advancements
a) A child who receives a large advancement will keep it and not participate in hotchpot
at all.
(1) E.g., suppose X dies intestate, with an estate of $100,000, survived by her children,
A, B, and C. During life, X gave A $80,000 and executed a contemporaneous
writing saying that it was an advancement.
 If A participates in hotchpot, the pot consists of $180,000. Each child takes
1/3, or $60,000. That would make A’s share -$20,000.
 Because we assume that X wanted A to have at least $80,000, we remove A
from the equation. B and C split the $100,000 estate equally (each taking
$50,000).
(2) If we need to do hotchpot, we just ignore A:
20
| |
Trust Wills Estates Horton Fall ’19 |
b) Same facts as above, but suppose X also gave an advancement of $20,000 to B. A opts
out of hotchpot.
(1) We add the $20,000 to X’s estate, making the total $120,000. Then we divide it
between B and C, giving them $60,000 each. Finally, we subtract B’s $20,000
advancement, meaning that A takes nothing, B takes $40,000, and C takes $60,000.
5.) Final example of advancements
(i) X has three children, A, B, and C. In 2010, X gives A a valuable watch (worth $20,000)
and executes a writing saying that it’s an advancement worth $1,000. Also in 2010, X
gives B a rare comic book worth $10,000, and C a 1994 Ford Aspire. As X makes these
gifts, X says “the comic book is an advancement.” In 2011, C writes: “the Aspire I got
from X was an advancement worth $1,000.” In fact, in 2010, the car was worth $5,000. In
2011, A dies, leaving two children, E and F. In 2012, X dies, unmarried and intestate.
What result if X’s estate is worth $85,000?
a) The Watch
(1) Under the common law, all gifts are presumptively advancements. Under the UPC
and CPC, the decedent’s declaration in a contemporaneous writing makes a gift an
advancement; we have that here. Under the common law and UPC, the actual
value of the watch at the time A acquires it -- $20,000 – governs. Under the CPC,
the decedent can set the value in a contemporaneous writing; because X wrote at
the time of the gift that the watch was worth $1,000, that’s its value. Under the
common law, because advancements are deducted from a predeceasing heir’s heirs,
E and F will take $20,000 less. Finally, b/c the UPC and CPC reverse this rule, A’s
death means that there’s no advancement issue!
b) The Comic Book
(1) For the reasons already noted, the comic book is an advancement under the
common law. But the UPC and CPC require a writing, and there’s none here. (X’s
oral statement isn’t effective). Under the common law, the advancement is worth
$10,000 -- its market value when B acquired it.
c) The Aspire
(1) Under the common law, the Aspire is an advancement worth its value at the time C
acquired it ($5,000). Under both the UPC and CPC, the car is an advancement
because C acknowledged that fact in writing (even if it’s not contemporaneous).
Under the CPC, an heir can set the value in a contemporaneous acknowledgment;
because C acknowledged a year after the gift, C’s attempt to do so fails.
d) Values
(1) Common law: E and F receive an advancement of $20,000 (through A). B
receives an advancement of $10,000. C receives an advancement of $5,000.
 Hotchpot: X’s estate is worth $85,000 + all advancements ($35,000) =
$120,000 divided by 3 lines = $40,000 per line.
 E and F take $40,000 - $20,000 = $20,000/2 = $10,000 each.
 B takes $40,000 - $10,000 = $30,000.
 C takes $40,000 minus $5,000 = $35,000.
21
| |
Trust Wills Estates Horton Fall ’19 |
(2) UPC and CPC: there’re no advancement issues for E, F, and B. C received an
advancement worth $5,000.
 Hotchpot: X’s estate is worth $85,000 + all advancements ($5,000) = $90,000
divided by 3 lines = $30,000 per line.
 E and F take $30,000.
 B takes $30,000.
 C takes $30,000 minus $5,000 = $25,000.
22
| |
Trust Wills Estates Horton Fall ’19 |

Wills
I) Execution of Formal Wills
A) Formalities and the Execution of Wills
1.) All states require formal wills to be
(i) (1) in writing
(ii) (2) signed by the testator, and
(iii) (3) attested (signed by more than one witness).
2.) CPC § 6110: “[A] will shall [1] be in writing . . . [and] shall be signed . . . [2] by the testator
[or] in the testator’s name by some other person in the testator’s presence and by the testator’s
direction [and] . . . [3] the will shall be witnessed by being signed, during the testator’s
lifetime, by at least two persons each of whom . . . being present at the same time, witnessed
either the signing of the will or the testator’s acknowledgment of the signature or of the will.”
(i) No such thing as an oral will
(ii) Signed by testator or 3rd party in testator’s name in testator’s presence
(iii) Signed in testator’s lifetime
(iv)In front of 2 witnesses OR 2 witnesses were present when the testators acknowledge the
will
(v) Witnesses don’t have to be together when they sign
3.) UPC § 2-502: “[A] will must be: (1) in writing, (2) signed by the testator or in the testator’s
name by some other individual in the testator’s conscious presence and by the testator’s
direction, and (3) . . . signed by at least two individuals, each of whom signed within a
reasonable time after the individual witnessed either the signing of the will . . . or the testator’s
acknowledgment of that signature or acknowledgment of the will.”
(i) Reasonable time
(ii) Testator doesn’t have to be alive
(iii) Witnesses have to be together when they sign
B) Wills: Function of Formalities
1.) Ritual Function
(i) The performance of some ceremonial act for the purpose of impressing the transferor with
the significance of his statements.
(ii) Assure that the will is product of self/careful reflection by testator happened
2.) Evidentiary Function
(i) Supply satisfactory evidence to the court.
(ii) Physical record
3.) Protective Function
(i) Prophylactic purpose of safeguarding the testator.
(ii) Protects testator’s wishes
4.) Channeling Function
(i) Standardization of form simplifies administration.
(ii) Provides us with standard expression of testator’s intent
C) In re Groffman
23
| |
Trust Wills Estates Horton Fall ’19 |
1.) Facts
(i) A widow challenges the validity of a will where both witnesses acknowledged a testator
sign his will, but were not present at the same time.
2.) Issue
(i) Is a will valid if it is witnessed by two people in front of the testator if the witnesses were
not together.
3.) Holding
(i) No
4.) Rational
(i) Though a will represents the testator’s testamentary intentions, it is not valid if the testator
does not acknowledge his signature or sign in the presence of two witnesses who are
together at the time the testator signs or acknowledges his signature.
5.) Notes
(i) Witnesses have to see
a) The signing
b) Acknowledgement of the signature
c) Test for presence: if you can detect by other senses than you are present. Must be
physically present
d) Test for signature: any authentic mark meant to legitimize
D) Your main source of law for will execution problems is the CPC and the UPC.
1.) Under the CPC, the will must be
(i) (1) in writing and
(ii) (2) signed by T or by some other person in T’s presence at T’s direction, and
(iii) (3) signed during T’s lifetime by 2 people who were present at the same time and
witnessed either (a) T sign the will or (b) acknowledge the will or (c) acknowledge the
signature.
2.) Under the UPC, the will must be
(i) (1) in writing, and
(ii) (2) signed by T or some other person in T’s conscious presence and by T’s direction, and
(iii) (3) signed by 2 people within a reasonable time after they witnessed either (a)
a) T sign the will or
b) (b) acknowledge the will or
c) (c) acknowledge the signature.
II) Holographic Wills
A) Handwritten Wills
1.) UCC 2-502(b)-(c) (b)
(i) A will that does not comply with [the UPC’s Wills Act requirements for attested wills] is
valid as a holographic will, whether or not witnessed, if the signature and material portions
of the document are in the testator’s handwriting.
(ii) (c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be
established by extrinsic evidence, including, for holographic wills, portions of the
document that are not in the testator’s handwriting.
2.) CPC 6111
24
| |
Trust Wills Estates Horton Fall ’19 |
(i) (a) A will that does not comply with [the CPC Wills Act requirements for attested wills,
section 6110] is valid as a holographic will, whether or not witnessed, if the signature and
the material provisions are in the handwriting of the testator.
(ii) (c) Any statement of testamentary intent contained in a holographic will may be set forth
either in the testator's own handwriting or as part of a commercially printed form will.
B) Elements
1.) in the testator’s handwriting,
2.) signed by the testator, and
3.) exhibit testamentary intent.
C) Characteristics
1.) In the testator’s handwriting: in some states, the entire will must be handwritten by T. Under
the CPC and UPC, the material parts of the will (who gets what) must be handwritten by T.
2.) Signed: as we’ll see, courts aren’t too finicky about the form of the signature.
3.) Testamentary intent: T must intend the writing to be a will (as opposed to mere notes for a
will or a gift). As we’ll see, this is tricky.
4.) Exception: if the document is both handwritten and typewritten, the UPC allows courts to
consider the typewritten language when determining whether testamentary intent exists. But
the CPC only allows courts to consider non-handwritten language if it’s part of a
“commercially printed will form.”
D) Cases
1.) Kimmel’s Estate
(i) Facts
a) man writes will/letter dies soon after.
(ii) Issue
a) is “father” as signature ok?
(iii) Holding
a) yes.
(iv)Notes
a) There is testamentary intent - “it may help you out” Functionally it looks like a will.
Testamentary intent can be in letters and the such as long as there is intent.
2.) Williams v. Towle
(i) Facts
a) Stepdaughter finds will in draw. Rest of family is estranged. Gives a portion of will to
stepdaughter.
(ii) Issue
a) Is it valid
(iii) Holding
a) Yes.
(iv)Rational
a) even though the signature is in block letters not where signatures are usually- the court
was ok with it because of other documents that showed he did this before.
(v) Notes
a) Courts knew there was no intent but the daughter was worthy
25
| |
Trust Wills Estates Horton Fall ’19 |
3.) In re Estate of Kuralt 2000
(i) Facts
a) In 1968, Charles Kuralt, a well-known journalist who had been married to Suzanne
Baird (plaintiff) for six years, started an affair with Patricia Elizabeth Shannon
(defendant). Without Baird ever learning of the affair, Kuralt remained in contact with
Shannon and financially supported her and her family until he became suddenly ill and
died unexpectedly on July 4, 1997. During their affair, Kuralt purchased a 20-acre lot
near Twin Bridges, Montana where he and Shannon built a cabin. Kuralt later
purchased two adjoining lots, resulting in a combined lot of approximately 90 acres.
On May 3, 1989, Kuralt executed a holographic will that bequeathed all of his real and
personal property in Montana to Shannon. Baird had no knowledge of the holographic
will and on May 4, 1994, Kuralt executed a formal will that revoked all prior wills and
made no gifts to Shannon. Then, on April 9, 1997, Kuralt deeded the 20-acre lot in
Montana to Shannon as a disguised purchase by providing her money for the purchase
price prior to the sale. Kuralt planned to deed the other two Montana properties to
Shannon in a similar transaction in September 1997. However, Kuralt was hospitalized
on June 18, 1997, on which date he wrote a letter to Shannon enclosing checks for
$8,000 and $9,000 and stated that he would have his attorney make sure Shannon
inherited the remaining property in Montana, “if it comes to that.” Shannon filed a
Petition for Ancillary Probate seeking to probate the June 18, 1997 letter as a
holographic codicil to Kuralt’s formal will. Kuralt’s estate (objector) opposed
Shannon’s petition and the district court granted partial summary judgment for the
estate. Shannon appealed to the Montana Supreme Court which reversed and remanded
the case to resolve disputed issues of fact. Following an evidentiary hearing, the district
court determined that the June 18, 1997 letter was a valid holographic codicil to the
formal will. Kuralt’s estate appealed that decision to the Montana Supreme Court.
(ii) Issue
a) Is a letter expressing the decedent’s testamentary intent to make a specific bequest
enforceable as a holographic codicil to the decedent’s formal will?
(iii) Holding
a) Yes.
(iv)Rational
a) If the facts adequately demonstrate that the decedent intended the letter to effect a
transfer of specific property, but not all of his property, upon his death, the letter is
testamentary and may be enforced as a holographic codicil to the decedent’s will.
(v) Notes
a) Later will supersedes what was in earlier will
b) Holographic codicil
(1) A document entirely in the handwriting of a testator that makes changes to some
but not all aspects of the will and is executed by the testator without statutory
formalities, i.e., without the presence and signatures of witnesses.
(2) He knew how to make a holographic so the one he wrote was not legit thus he
probably didnt intend it to be a will.
26
| |
Trust Wills Estates Horton Fall ’19 |
c) Also, “if it comes to it” shows an intention to make a will not the intention of a will.
E) Holographs and Extrinsic Evidence: “Commercially Printed Will Forms”
1.) For the issue of whether T intended a document to be a will:
(i) The UPC says we can look at any part of the document (even typewritten parts).
(ii) The CPC says we can only look at either (1) T’s handwriting or (2) a commercially-printed
will form.
(iii) But remember that even if T intended a document to be a holograph, the “material
provisions” (or “material portions”) must be handwritten.
2.) In re Will of Theodore John Morris
(i) Facts
a) Suppose to be a fill in the blank form. Only one witness so not a real will. When there
is typewriting and handwriting ONLY look at what is handwritten.
(ii) Holding
a) Courts calls it valid
(iii) Notes
a) Start by asking if it’s a formally attested will
III) Harmless Error
A) UPC §2-503: Harmless Error
1.) Although a document or writing added upon a document was not executed in compliance with
[the Wills Act], the document or writing is treated as if it had been executed in compliance
with that section if the proponent of the document or writing establishes by clear and
convincing evidence that the decedent intended the document or writing to constitute
(i) (i) the decedent’s will,
(ii) (ii) a partial or complete revocation of the will, [or]
(iii) (iii) an addition to or an alteration of the will…
B) CPC § 6110
1.) California’s harmless error rule only applies to attestation errors (problems with paragraph
6110(c)(1), which governs the issue of witnesses).
2.) California’s version of the rule thus can’t cure problems related to a testator’s signature.
3.) It is unclear whether California’s version of the rule can cure an attempted holograph that fails
b/c there’s too much typewriting
4.) Still need signature
C) CasesA
1.) In Re Ehrlich
(i) Facts
a) Left most of his stuff to nephew. The copy found had no signature by himself or
witness original can’t be found.
(ii) Holding
a) Under harmless error the will is allowed
(iii) Dissent
a) Harmless error doesn’t apply to unsigned wills.
(iv)Notes
a) There was clear and convincing evidence that he wanted it be legit
27
| |
Trust Wills Estates Horton Fall ’19 |
b) However, context suggests that as a will lawyer he knew better thus he can changed his
mind.
2.) In re Stocker
(i) Facts
a) Gives money in will. Urinates and burns old will got friend to write for him.
(ii) Issue
a) Can California Harmless Error work here
(iii) Holding
a) Yes
(iv)Rational
a) Clear and convincing evidence
(v) Notes
a) Not witnessed but problem was he didn’t write it
3.) In re Probate of Will and Codicil of Macool
(i) Facts
a) Woman’s husband died. Revised will to give property to certain children. Her will was
recorded and then transcribed. She died before it could be signed.
(ii) Issue
a) Can a will that the decedent did not review and give final assent to be admitted to
probate?
(iii) Holding
a) No.
(iv)Rational
a) A draft will cannot be admitted to probate absent clear and convincing evidence that
the decedent reviewed the draft and gave final assent to it. Otherwise, the court could
only speculate whether the draft is an accurate depiction of the decedent’s last wishes.
Here, although Rescigno showed that Macool intended to change her testamentary
plan, Rescigno failed to show that Macool intended the draft will to be her final
testament. Macool did not have an opportunity to review the draft will and to discuss
the discrepancies between the draft will and her handwritten notes with Calloway.
Thus, this court can only determine that the draft will was incomplete. Therefore, the
judgment of the trial court is affirmed. However, the trial court improperly found that a
will must be signed in order to be admitted to probate. New Jersey law allows for
admission of unsigned wills. Had Macool been able to review and assent to the draft
will, the trial court could have properly found the will to be valid under New Jersey
Law.
IV) Challenges to a Valid Will
A) Incapacity, Insane Delusion, Undue Influence
1.) Incapacity
(i) They’re suffering from some kind of mental impairment (e.g., Alzheimer’s) or are very ill
or are very intoxicated and EITHER
a) Can’t roughly describe what they own, or
b) Can’t identify the people who are most dear to them, or
28
| |
Trust Wills Estates Horton Fall ’19 |
c) Can’t understand that they’re making a will or a trust, or
d) Can’t hold all these concepts in their head at the same time.
2.) Insane Delusion
(i) persistent false belief that materially affected the will or the trust.
(ii) Even if a testator or a settlor has capacity they can still have a delusion
(iii) If there’s a plausible alternative explanation for the testator or settlor’s choices, the
insane delusion doesn’t materially affect the document (and thus doesn’t invalidate it).
3.) Cases
(i) Breeden v. Stone (2013)
a) Facts
(1) Spicer Breeden killed himself after being involved in a highly-publicized hit and
run accident.
(2) He had been drinking rum, snorting coke, and he believed that people were trying
to eavesdrop on him and “assassinate him and his dog.”
b) Issue
(1) Was this a valid will?
c) Holding
(1) Yes
d) Rational
(1) Have to show delusion sis something outside the norm. This was normal for him.
(ii) Estate of Zielinski (1999)
a) Facts
(1) Cecilia executed a will in June 1992 which left her estate to her sister Barbara and
Barbara’s husband and disinherited (1) her son Eugene, (2) her grandchildren, and
(3) her great-grandchildren.
(2) For many years, Cecilia had suffered from delusions regarding Eugene. She
believed that Eugene (1) gave her injections, (2) placed balloons in her stomach,
and (3) “was getting instructions from a ‘device’ that turned the world inside-out.”
(3) Cecilia regularly spit into a jar to preserve evidence of Eugene’s conduct. I’m so
sorry to mention this, but it’s in the case: Eugene later found “25 to 30 one-gallon
jars in [Cecilia’s] closet, apparently filled with the saliva she had saved.”
(4) There was evidence that Cecilia was close to Eugene before the delusions started.
b) Issue
(1) Was this a valid will?
c) Holding
(1) No
d) Rational
(1) She was suffering from intense delusion evidenced by being close to her son and
then suddenly not.
4.) Undue Influence
(i) A donative transfer is procured by undue influence if the wrongdoer exerted such influence
over the donor that it[:]
a) overcame the donor’s free will and
29
| |
Trust Wills Estates Horton Fall ’19 |
b) caused the donor to make a donative transfer that the donor would not otherwise have
made….”
(ii) Confidential Relationship (Fiduciary, Reliant) + Suspicious Circumstances (Decedent has
weakened intellect, “Unnatural bequest” (when you don’t give to your heirs), Alleged
wrongdoer is active in procurement of will or trust, Decedent’s attitude toward others
changes suddenly) = Presumption of Undue Influence (Burden Shifting)
5.) Cases
(i) In re Kauffmann (1966)
a) Facts
(1) Testator, Robert Kaufman left almost his entire estate to the defendant, Walter
Weiss. The plaintiffs, the Kaufman family, claimed the will was invalid because the
defendant exerted undue influence over Robert Kaufman in the construction of his
will.
b) Issue
(1) Whether a beneficiary exerts undue influence over a testator where eth testator
could easily have been taken advantage of, the beneficiary dominates the testator
and the testator relies exclusively on the beneficiary’s knowledge in making
dispositions?
c) Holding
(1) Yes
d) Rational
(1) A will is invalid for reason of undue influence where the evidence shows that the
beneficiary dominated the testator, the testator could be easily taken advantage of,
and the testator relies exclusively on the beneficiary’s knowledge and judgment
concerning the disposition of all material things in the testator’s life. Here the
proponent of the will planted in the testator’s mind that his family was obstructing
his goal of independence and made false accusations against the testator’s brother.
The testator was inexperienced, and the proponent exerted undue influence over
him when he disposed of almost his entire estate to the proponent.
(ii) Estate of Sarabia (1994)
a) Notes
(1) A person contesting a will on this ground is aided by a presumption of undue
influence if the contestant produces evidence that the beneficiary:
 had a confidential relationship with the decedent;
 was active in procuring the will
 'unduly' profited from it.
(2) “Undue benefit” calls for “a qualitative assessment of the relationship between the
decedent and the beneficiary.”
B) Care Custodian
1.) The Care Custodian Statute: 2011 Version
(i) Summary
30
| |
Trust Wills Estates Horton Fall ’19 |
a) This is the version in the statutory supplement for this class; it governs any estate plan
that can still be revoked or amended as of January 1, 2011.
b) Thus, the old version of the statute governs a will or trust when the decedent died on
December 31, 2010 (or earlier).
c) The new version governs a will or a trust when the decedent was still alive on January
1, 2011 or later.
d) Elements
(1) The prohibition on bequests to “care custodian[s]” has narrowed.
(2) “Dependent adult” means someone over age 65 who is seriously impaired.
(3) There’s no limit on the evidence that the accused care custodian can use to
rebut the presumption of invalidity.
(ii) Problem
a) Question: John has been Alice’s friend for twenty years. In January 2015, when Alice
turns 65, she begins to have mental problems and becomes unable to run errands or
dress herself. Starting then, and continuing until Alice’s death in March 2016, John
comes over every day to help with all of her daily activities and only charges Alice $10
per hour for his services. Which of the following is/are true? (I) If Alice executed a
will in February 2016 leaving all of her property to John, it is presumptively invalid
under the care custodian statute; (II) If Alice executed a will in April 2014 leaving all
of her property to John, it is presumptively invalid under the care custodian statute.
(1) I.
(2) II.
(3) Both I and II.
(4) Neither I nor II.
b) Answer: I. I is right b/c even though John and Alice are longtime friends, there is no
preexisting relationship exception to the definition of “care custodian” for paid
caregiving. In addition, Alice makes the will during the time John is providing
services. II is wrong b/c Alice makes the will more than 90 days before John begins
providing services.
V) Will Amendment and Revocation
A) Codicils
1.) Characteristics
(i) A codicil is an amendment to a will. (It needs to meet the requirements for being a valid
will, whether by being attested, or being a holograph, or via harmless error).
(ii) Unless a document is completely inconsistent with the previous will (or expressly revokes
the previous will), it’s a codicil (rather than a new standalone will).
(iii) Codicils “republish” the underlying will. That is, we treat the underlying will as
though it had been executed as of the date of its most recent codicil.
a) Anytime a testator makes will and then amends will- then date of amendment = date of
will
(iv)When you republish an underlying will it reexecutes it.
31
| |
Trust Wills Estates Horton Fall ’19 |
(v) Remember in divorce the things in the will no longer count unless republished- THEN the
provisions are back in full effect and the divorced part would still inherit if the will isn’t
changed to reflect that.
2.) Holographic Wills and Codicils
(i) In states that recognize holographic wills, testators often make holographic codicils on the
face of previously-executed attested wills. As long as the handwriting meets the test for
being a valid holograph, this is fine.
B) Revocation
1.) Characteristics
(i) There are four ways to revoke a will:
a) Execute an “anti-will”: a document that complies with the Wills Act formalities (or the
requirements for holographic wills or harmless error) and says, “I revoke my will.”
b) Perform a revocatory act (ripping, tearing, crossing out the will) with the intent to
revoke the will. (Or have someone else do this for you in your presence and at your
direction).
(1) By physical act
c) Execute a new will or a codicil that revokes the previous will either explicitly or
implicitly or in whole or in part.
d) If the will was last in the testator’s possession and can’t be found after she dies.
(1) Must be a valid will
2.) Law
(i) UPC §2-507: Revocation of Wills
a) (a) A will or any part thereof is revoked:
(1) [by making an anti-will, a new will, or if the will was in T’s possession but can’t be
found at death], or
(2) by performing a revocatory act on the will, if the testator performed the act with the
intent and for the purpose of revoking the will or part or if another individual
performed the act in the testator’s conscious presence and by the testator’s
direction. “Revocatory act” includes burning, tearing, canceling, obliterating, and
destroying the will or any part of it . . . whether or not the burn, tear, or
cancellation touched any of the words on the will.
(ii) California law is the same, but requires the burn, tear, or cancellation to touch the
words of the will.
C) Revocations and Codicil
1.) To keep in mind
(i) Revoking a codicil does NOT revoke the underlying will.
(ii) But Revoking the underlying will DOES revoke any codicil to that will
2.) Cases
(i) Harrison v Bird (1993)
a) Facts: Daisy Speer executed duplicate wills naming K. Harrison as the main
beneficiary. Speer instructed her attorney by phone to revoke her will. The attorney
tore the will into four pieces and sent the pieces along with a letter stating that the will
32
| |
Trust Wills Estates Horton Fall ’19 |
was revoked to Speer. Speer dies. The letter from the attorney is found, but not the
pieces of the will.
b) Issue: In order for someone to destroy will- needs to be in front of the testator.
c) Holding: The will is considered revoked because they couldn’t find the will at Speer’s
death.
d) Notes: If pieces of the will were found it wouldn’t have been revoked.
(ii) Thompson v. Royall (1934)
a) Rule of Law: A will is not revoked where the testator fails to execute another valid
will or attempt in some way to physically obstruct the will by causing words or marks
to come into contact with the will or destroy the will itself.
b) Facts: Kroll signed a will before 3 attesting witnesses; she gives the instrument to the
executor for safe-keeping. Kroll signs a codicil before two attesting witnesses; she
gives the instrument to the attorney who prepared both documents. Kroll wanted to
destroy will and codicil; lawyer convinced her to keep them. He wrote “null and void”
on the manuscript cover (will) and back (codicil) and she signed before two witnesses
who did not sign. Kroll dies.
c) Holding: The will was not revoked because the words “this will null and void” did
physically come into contact with the words of the original will, even though the
testator wrote words on a separate paper attached to the will that declared the will null
and void. And witnesses didn’t sign the codicil
d) Notes: Under UPC she would be fine
D) Harmless Error
1.) UPC §2-503: Harmless Error
(i) Although a document or writing added upon a document was not executed in compliance
with Section 2-502, the document or writing is treated as if it had been executed in
compliance with that section if the proponent of the document or writing establishes by
clear and convincing evidence that the decedent intended the document or writing to
constitute
a) the decedent’s will,
b) a partial or complete revocation of the will,
c) an addition to or an alteration of the will, or
d) a partial or complete revival of his [or her] formerly revoked will or of a formerly
revoked portion of the will.
2.) California
(i) California harmless error only applies to attestation mistakes (not failed revocations
by physical act).
E) Review Question
1.) T executes a valid typewritten and attested will. Later, intending to revoke the will, T puts it
into the microwave. (This makes the will warm).
(i) Under all approaches, T has not revoked the will. To revoke by physical act, T must burn,
tear, cancel, obliterate, or destroy the will.
(ii) Under all approaches, harmless error can’t help. It doesn’t apply to botched attempts to
revoke by physical act.
33
| |
Trust Wills Estates Horton Fall ’19 |
2.) Now suppose, in front of two witnesses, T handwrites “I revoke my will” in large letters across
the first printed page. T signs, but the witnesses don’t.
(i) T has created a valid holographic anti-will. (It’s entirely in her handwriting and signed).
a) If T had typed the words (rather than handwritten them), T may have created a valid
anti-will under the harmless error rule. (Note that there’s strong evidence of intent
b/c of the signature and witnesses; even under the CPC, the fact that the witnesses
don’t sign can be excused).
(ii) Whether T handwrote or typewrote, T may also have revoked the will by physical act. By
writing “I revoke my will” on the face of the will, T “cancelled” it with the intent to revoke
it. Under the CPC, this would only be true if the writing touches the printed words. Under
the UPC, this would be true even if the writing never touches the printed words.
VI) Partial Revocation by Physical Act and Revocation by Divorce
A) Partial Revocation by Physical Act
1.) T makes a will that says: “I leave my property to be divided evenly among Jake, Tim,
Madison, and Ryan.” At T’s death, the will contains a line through the name “Ryan.” Has the
bequest to Ryan been revoked?
(i) Under the common law, no: recognizing partial revocation by physical act would
improperly permit T to amend her will without satisfying the Wills Act.
(ii) Under the CPC and UPC, yes: “[a] will or any part thereof” can be revoked by
physical act.
2.) Case
(i) In re Estate of Schumacher
a) Facts: David executed a holographic will devising shares of stock to his cousins,
Cheryl, Deborah, and Maria. David then hired an attorney to prepare an attested will
based in part on his prior holograph. The attorney testified that David had changed his
mind about giving stock to Cheryl and Maria because he wasn’t close to them. The
attorney also testified that he saw either an original of the holograph or a photocopy of
it, and Cheryl and Maria’s names had been crossed out. The attorney then prepared a
typewritten will devising all of the stock to Deborah, as David had asked, and sent it to
David. However, David died more than a year later without executing the typewritten
will. Before he died, David had sent some boxes to his secretary for storage. In one of
them was the original holograph with the crossed-out names.
b) Issues: Is this a valid revocation
c) Holding: Clear and convincing evidence that David revoked the gifts to the two
cousins he wanted to cut out. He did it by partial revocation so Deborah gets it.
d) Notes: Revocation doesn’t republish a will. Wouldn’t make a difference if it was
holographic or typed
B) Revocation on Divorce
1.) UPC§ 2-802. Effect of Divorce, Annulment, and Decree of Separation.
(i) (a) An individual who is divorced from the decedent or whose marriage to the decedent has
been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he [or
she] is married to the decedent at the time of death. A decree of separation that does not
terminate the status of husband and wife is not a divorce for purposes of this section . . . .
34
| |
Trust Wills Estates Horton Fall ’19 |
2.) UPC § 2-804. Revocation of Probate and Nonprobate Transfers by Divorce
(i) (b) [Revocation Upon Divorce.] Except as provided by the express terms of a governing
instrument, a court order, or a contract . . . divorce or annulment of a marriage: (1) revokes
any revocable (A) disposition or appointment of property made by a divorced individual to
his [or her] former spouse . . . [or] a relative of the divorced individual’s former spouse . . .
(C) nomination in a governing instrument, nominating a divorced individual’s former
spouse or a relative of the divorced individual’s former spouse to serve in any fiduciary or
representative capacity, . . . and (2) severs the interests of the former spouses in property
held by them at the time of the divorce or annulment as joint tenants with the right of
survivorship [or as community property with the right of survivorship], transforming the
interests of the former spouses into equal tenancies in common.
a) Although divorce revokes a gift to a former spouse, it usually has no effect on gifts
to the former spouse’s relatives. If this is not the intended disposition, the testator
should also make this change.
3.) Case
(i) Lincoln Benefit Life Co. v. Guerrero (2016)
a) Facts: Neftaly and Bertha, who are married, take out a life insurance policy,
designating each other as the primary beneficiary. Neftaly also designates Bertha's
mother, Ignacia as the contingent beneficiary. Neftaly and Bertha divorce. The
divorce decree doesn’t mention the life insurance policy. Neftaly and Bertha meet with
the insurance company to sever their policies. Neftaly signs Bertha’s “Application for
Term Conversion.” Allegedly, he also says that he wants Bertha to continue to be the
primary beneficiary on his policy. Neftaly dies.
b) Issue: Did Neftaly’s conduct in 2008 override the presumption that his divorce revoked
his designation of Bertha as a beneficiary?
c) Holding: No
d) Rational: Because Bertha has failed to rebut the presumption that her divorce from
Decedent revoked his designation of her as beneficiary on the Policy, the Court
concludes that summary judgment should be granted in favor of Decedent's estate.
C) Problem
1.) In 2015, Elizabeth and Debra marry. They buy a house, which they hold as joint tenants with
the right of survivorship. In 2016, Elizabeth makes a will that leaves $100,000 to Debra,
$25,000 to Debra’s mom, Nancy, and the residue to Elizabeth’s dad, Brad. Elizabeth’s will
names Debra as the executor, Nancy as the alternate executor, and Brad as the second alternate
executor.
(i) Question
a) In 2016, Elizabeth and Debra separate. In 2017, Elizabeth dies. Who inherits what
from Elizabeth? Who serves as executor of her will?
(ii) Answer
a) The revocation-on-divorce statute applies only when parties divorce—not when
they separate. Thus, Debra takes Elizabeth’s half of the house as a joint tenant with
the right of survivorship. Under Elizabeth’s will, Debra inherits $100,000, Nancy
takes $25,000, and Brad takes the residue. Debra serves as executor of the will.
35
| |
Trust Wills Estates Horton Fall ’19 |
(iii) Question
a) Same facts as above, with the following change: in 2016, Elizabeth and Debra divorce.
Who inherits what from Elizabeth? Who serves as executor of her will?
(iv)Answer
a) Now the revocation-on-divorce statute governs. It revokes any disposition to Debra or
her relatives and it transforms any joint tenancy with right of survivorship into a
tenancy in common. That means that Brad most likely takes Elizabeth’s interest in the
house as the residuary beneficiary of the will. Brad also takes both the $100,000 that
Elizabeth left to Debra and the $25,000 that Elizabeth left to Debra’s mom, Nancy.
Finally, the revocation-on-divorce statute prohibits both Debra and Nancy from serving
in a fiduciary capacity for Elizabeth’s estate, so Brad steps in as executor, too.
2.) Suppose T creates a valid will that leaves her house to her friend, F, her bank account to her
nephew, N, the residue to her uncle, U, and disinherits her only child, C. T takes the will home
with her and keeps it in a file cabinet in her bedroom. T dies, and the will is found with a line
through the devise of the bank account to N.
(i) Answer:
a) Under the UPC and CPC, testators can partially revoke a will by physical act.
Moreover, b/c the will has been in T’s possession the entire time, we assume that T did,
in fact, revoke the gift to N. U, the residuary beneficiary takes, the bank account.
(ii) Now suppose that T dies, and the entire will can’t be found.
a) This raises a presumption that T destroyed the will w/ the intent to revoke it.
(iii) But suppose C had a key to T’s house, visited often, and knew that T had stored
the will in the file cabinet. Suppose also that T told disinterested third parties just before T
died that T was angry at C.
a) This likely rebuts the presumption of revocation.
b) T’s will can be probated as a “lost will” as long as there’s evidence of its terms (usually
a photocopy kept by T’s lawyer).
VII) Dependent Relative Revocation and Revival (DRR)
A) Characteristics
1.) If T revokes all or part of a will because of a mistake of fact or law, the revocation is
ineffective if she wouldn’t have revoked the will if she’d known the truth.
(i) Example 1
a) T makes Will 1. Later, T burns Will 1 and tries to execute Will 2. But Will 2 is
invalid. DRR applies and “unrevokes” Will 1 if a court finds that T would prefer Will
1 to intestacy.
b) T makes Will 1, leaving her estate to Mary. T wrongly believes that Mary is dead, so
T writes “void because Mary is dead” over the face of Will 1. T dies intestate. DRR
applies and “unrevokes” Will 1 if a court finds that T would prefer her property to go
to Mary than T’s intestate heirs.
(1) DRR operates from the legal fiction that the mistake negates T’s intent to revoke.
36
| |
Trust Wills Estates Horton Fall ’19 |

2.)
(i) Example 2

a) The court can reinstate will 1 under DRR. Cant reinstate will 2.
b) Must find will that is unrevoked. Only will 1 was revoked because of a mistake
B) DRR and Partial Revocation by Physical Act
1.) DRR says if the testator revokes a will because of a mistake DRR can apply and reinstate the
revoked will if doing so is more consistent with the testators intent then continuing to treat the
will as revoked.
2.) T’s valid typewritten will says “I give $1000 to my nephew Charles.” T then crosses out
“$1,000” and handwrites “$1,500.”
(i) What result if a state doesn’t permit partial revocation by physical act?
a) Charles takes $1,000: there’s no effective revocation.
(ii) What result if a state permits partial revocation by physical act?
a) T revoked the $1,000 gift.
(iii) But under DRR, T only revoked the $1,000 gift b/c of her mistaken belief that the
$1,500 gift was valid. So Charles takes $1,000.
(iv)What result in a state that permits partial revocation by physical act if T crossed out
“$1,000” and handwrote “$300”?
37
| |
Trust Wills Estates Horton Fall ’19 |
a) DRR doesn’t apply b/c when T revoked the $1,000 gift on the mistaken belief that T
was making a new, valid $300 gift, T probably would’ve preferred that Charles take
nothing than Charles take $1,000.
3.) Case
(i) Estate of Alburn (1963)
a) Facts: Ottilie L. Alburn executed two wills in her lifetime and destroyed the second
will. Neither of the wills made any provisions to certain next-of-kin. Alburn’s niece, a
beneficiary under her first will filed for probate and Alburn’s heirs at law appealed the
decision.
b) Issue: Can the Kankakee will be admitted to probate or did Ottilie Alburn die intestate?
c) Holding: Admitted to probate. The evidence is sufficient to support a finding that a
testator wants her first will to stand after revoking the second will where she (1) told
her sister-in-law that she wanted her first will to stand , (2) took no steps to make
another will after revoking the second will, and (3) there was no evidence negating the
facts showing she intended to revive her first will. Furthermore, there was no evidence
that any acts occurred subsequent to the revocation of the second will that suggested
that the testator wanted to die intestate.
d) Notes: She revoked the will because of the mistake. So DRR can reinstate the will if
the testators intent is aligned. How do we know reinstating is better? Because its closer
to the Milwaukee will
C) Revival: UPC and California
1.) Revival happens when the testator makes a will and then makes another will that revokes
the first will, what happens when the testator revokes the second will? (This is a
presumption that can be rebutted)
2.) How it plays out
(i) Revival comes into play where T executes Will 1, then revokes Will 1 in whole or in
part by executing Will 2, and then revokes Will 2 by any means.
a) If Will 2 completely revokes Will 1, and then T revokes Will 2 by physical act, Will 1
presumptively isn’t revived. T has no will.
b) If Will 2 partially revokes Will 1 (i.e., Will 2 is a codicil), and then T revokes Will 2
by physical act, the inconsistent parts of Will 1 presumptively are revived.
c) No matter whether Will 2 completely or partially revokes Will 1, if T revokes Will 2
by Will 3 (meaning a codicil, new will, or anti-will), then Will 1 is revived only if T
says so in the text of Will 3.
D) Problem
1.) Hypo: In 1999, T executes will leaving all of her property to A. In 2006, T executes a will
that leaves all of her property to B. In 2009, T burns her 2006 will. T dies. Result?
(i) T has no will. The presumption is that T didn’t meant to revive the 1999 will. (But this
would change if when T burnt the 2006 will, T said, “I’d like A to have all of my
property.” Then the presumption would be rebutted).
2.) Hypo: in 1999, T executes a will leaving all of her property to A. In 2006, T executes a
codicil leaving her house to B. In 2009, T runs the codicil through the blender. T dies.
Result?
38
| |
Trust Wills Estates Horton Fall ’19 |
(i) The presumption is that T revived the part of the 1999 will that the 2006 codicil revoked
(the gift of the house). (But this would change if T said, “I don’t want A to have my
house” as she ran the codicil through the blender. Then the gift of the house isn’t revived
and thus passes through intestacy).
VIII) Components of a Will
A) Acts of Independent Significance
1.) The basic rule: A will may dispose of property by reference to acts and events that have
significance apart from their effect upon the dispositions made by the will, whether they occur
before or after the execution of the will or before or after the testator’s death. UPC §2-512.
2.) The basic idea: non-testamentary acts – acts that are probably not motivated by estate
planning concerns - are permitted to have testamentary consequences even though they
effectively amend the testator’s will.
(i) T’s will states: “I leave my car to my caretaker.” At the time, T owns a Ford Fiesta, and
T’s caretaker is Mark. When T dies, T owns a Tesla, and T’s caretaker is Marsha. We
presume that T didn’t change cars or caretakers for estate planning reasons. Thus, Marsha
takes the Tesla, because the Tesla is T’s “car” and Marsha is T’s “caretaker.”
(ii) But “I leave my house to the person I identify in a writing that will be found in my desk
drawer when I die” is NOT an effective devise. There’s no reason to do this other than
estate planning, so it’s a failed act of independent significance (an attempt to end run the
Wills Act formalities).
B) Integration: The Staple Rule
1.) Restatement (Third) of Property: Wills and Other Donative Transfers § 3.5 Integration
of Multiple Pages or Writings Into a Single Will.
(i) To be treated as part of a will, a page or other writing must be present when the will is
executed and must be intended to be part of the will.
(ii) RULE: Under the doctrine of integration, all papers present at the time of execution
that T intends to be part of the will are integrated into the will.
(iii) Usually, it’s pretty obvious which papers T intends to be part of the will: page
numbers, staples, the flow of the document, and font consistency provide clues.
(iv)Sometimes the doctrine of integration can make unusual items part of a will (i.e., a post-it
note attached to a conventional attested will)—provided that the item was physically
present when T executed the will.
C) Incorporation by Reference
1.) UPC §2-510. Incorporation by Reference.
(i) A writing in existence when a will is executed may be incorporated by reference if the
language of the will manifests this intent and describes the writing sufficiently to permit its
identification.
2.) Elements
(i) Writing in existence
(ii) Will has intent to incorporate it
(iii) Will references
D) Case
1.) Gifford v. Gifford (1991)
39
| |
Trust Wills Estates Horton Fall ’19 |
(i) Facts: Testaor makes will with 2 handwritten codicils.
(ii) Issue:   The question for decision is whether a memorandum in the handwriting of the
testatrix was incorporated into her will by reference.
(iii) Holding: Yes
(iv)Rational:  Both notes are entirely in Mrs. Gifford's handwriting and conclude with her
signature. That, plus their physical attachment to the will, their pagination and the express
allusion of one to the other satisfies us entirely that the probate judge ruled correctly.
E) Problem
1.) Owen Smith had been married for three decades to his high school sweetheart, Kristin. They
had one child together named Robin. One of Owen’s most prized possessions was a rare
stamp that bears an inverted picture of former President Richard Nixon.
2.) Owen died in 2012. In his desk drawer are two sheets of paper. The first one, which is
entirely typewritten, but not signed by Owen or any witnesses, reads: “I LEAVE MY
INVERTED RICHARD NIXON STAMP TO MY DAUGHTER, ROBIN. DATED: MAY 1,
2009.” The second is entirely handwritten (and also not signed by witnesses), and reads: “I
want my wife, Kristin, to have everything (other than my Richard Nixon stamp, for which I
have other plans) after I die. Signed: Owen Smith. Dated: Oct. 1, 2010.”
3.) What result in a jurisdiction that recognizes holographic wills but does not recognize the
curative doctrine of harmless error (UPC § 2-503)?
(i) Answer: Owen’s typewritten document dated May 1, 2009 is not a valid formal will. Such
an instrument needs to be signed by the testator and two witnesses, and here there are no
such signatures. However, Owen’s handwritten document dated October 1, 2010 meets the
requirements for a valid holograph: it is entirely in the testator’s handwriting, signed by
him, and exhibits testamentary intent. Thus, Kristin gets everything that Owen owns other
than the stamp.
(ii) Notes
a) Holographic and typewritten cant be together - integration wont work.
b) Incorporation by reference is a better bet
(1) Doesn’t make it a part of the will, just as a side piece.
IX) Lists of Tangible Personal Property and Classification of Devises
A) Separate Writing Rule
1.) Law
(i) UPC § 2-513. Separate Writing Identifying Devise of Certain Types of Tangible
Personal Property.
a) . . . .[A] will may refer to a written statement or list to dispose of items of tangible
personal property not otherwise specifically disposed of by the will, other than money.
To be admissible under this section as evidence of the intended disposition, the writing
must be (1) signed by the testator and (2) must describe the items and the devisees with
reasonable certainty. The writing may be referred to as one to be in existence at the
time of the testator's death; it may be prepared before or after the execution of the will;
it may be altered by the testator after its preparation; and it may be a writing that has no
significance apart from its effect on the dispositions made by the will.
b) Elements
40
| |
Trust Wills Estates Horton Fall ’19 |
(1) You can only dispose of tangible personal property
 Signed by testator
 Describe items
 Describe Recipients
 Can prepared before of after the will is expected.
(ii) CPC § 6132.
a) The writing must be (1) dated and (2) either in T’s handwriting or signed by T, and (3)
describe the items and recipients with reasonable certainty. In addition, (4) no single
item passed by a separate writing can exceed $5,000 and the total of all items passed by
a separate writing can’t exceed $25,000.
(1) Elements
 Dated or signed by testators or in testators handwriting
o Single item cant be more than 5k. All items cant be more than 25k.
 Valued at time of death.
2.) Case
(i) In Re Last Will & Testament & Trust Agreement of Moor (2005)
a) Facts: Moor made will and then a separate writing property memo. Moor moves to
Delaware. Her property memo was long. The issue is she wanted the property to be
sold and proceed to go to the people. Money is not tangible personal property.
b) Issue: Is this allowed?
c) Holding: Yes.
d) Rational: because she could have given away the property and the recipients could
have sold it right there
e) Notes: At least with money you know the value.
3.) Problem
(i) Shelly owns an antique silver ring. Shelly’s valid will, dated February 24, 2016, leaves the
ring “in accordance with a writing that will be found in the small pocket of my backpack,
which is in a closet in my attic.” After Shelly dies, a handwritten note is found exactly
where Shelly described. It states: “After I die, I leave my silver ring to Adam,” and is
signed and dated February 26, 2016.
(ii) Which of the following arguments would allow Adam to take the ring and why?
a) That the will incorporated the note by reference;
(1) This is wrong b/c the note was not in existence when S executed her will.
b) That the note is a codicil (assuming that Shelly lives in a state that recognizes
holographic wills)
(1) This is right b/c the note is handwritten, signed, and intended to pass property after
death.
c) That the note is an act of independent significance;
(1) This is wrong b/c writing who gets your property after death has no independent,
non-testamentary lifetime significance.
d) That the note is a separate writing passing tangible personal property.
41
| |
Trust Wills Estates Horton Fall ’19 |
(1) This is correct under the UPC b/c the note gives away tangible personal property
and is signed; assuming that the value of the ring is less than $5,000, it’s also
correct under the CPC b/c it’s (1) dated and (2) signed AND in T’s handwriting (in
fact, we actually just need ONE of those two).
B) Classification of Devises
1.) Specific Devises
(i) Gifts of particular pieces of property.
2.) General Devises
(i) Gifts of a particular amount of money.
3.) Demonstrative Devises
(i) Gifts of a particular amount of money payable from a specific source.
a) I give you money from my car.
4.) Residuary Devises
(i) Gifts of anything that is not given away elsewhere in the will.
a) Gets everything else
C) Aldrich v. Basile (2014)
1.) Facts: Ann makes a will. Property to sister, if sister died to brother. Sister dies before Ann.
Sister Ann leaves property to Ann. Ann tries to make codicil to add new property from sister.
It fails. Rother thinks he should get everything. Sister’s daughters think they should get some.
2.) Issue: Who gets the property?
3.) Holding: Passes through intestacy?
4.) Rational: Because she names no one else and no residuary clause- it goes through intestacy.
X) Powers of Appointment
A) Power of Appointment
1.) You deputize someone else to distribute the property after you die. You don’t dictate who gets
your stuff
2.) A power of appointment allows someone else to decide who gets your property after you die
by basically making a will for you.
(i) “I give my house to my partner for life, and then to whomever my partner appoints by
will.”
3.) Rational: If your partner survives you by many years, he or she can make a more-informed
decision about who should get the house.
Persons Types
 Donor: Creates the power.  General power: A power that is exercisable in
 Donee: Holds the power. favor of at least one of the following:
 Objects: Persons in whose favor the o the donee, or his estate, or his creditors,
power may be exercised. or the creditors of his estate.
 Takers in default of appointment: o If the donee can appoint the property to
Persons who take if the power is not themselves. Including the donee’s
exercised. objects (estate, creditors, etc.)
 Special power: Any power that is not a general
power (i.e., a power not exercisable in favor of
42
| |
Trust Wills Estates Horton Fall ’19 |
any one of the following:
o the donee, his estate, his creditors, or
the creditors of his estate).
o It goes to someone else.
 A general power belongs to the donee, a
special power makes the donee basically a
custodian

B) Terminology and Types of Powers of Appointment

1.) Example
(i) S makes a will that gives his house to A for life, then to pass to A’s creditors as A appoints
by will. S has no other testamentary instruments.
a) S is the donor.
b) A is the donee.
(ii) A holds a general power because A can appoint to her creditors. (But instead, if A could
only exercise the power in favor of her children, it’d be a special power b/c it’s not
exercisable in favor of A, A’s estate, A’s creditors, or the creditors of A’s estate).
a) A’s creditors are the objects of the power.
b) S’s intestate heirs are the takers in default because they’ll receive the property if A
doesn’t appoint it.
(1) If donee doesn’t exercise power it goes to donor’s estate and then to intestacy.
2.) In Re Estate of Muchemore 1997
(i) Facts: G. Robert Muchemore’s will leaves most of his property to a trust that benefits his
wife, Agnes (“the marital deduction trust”). The trust states that when Agnes dies, the
trustee will pay the remaining assets to “such person or persons or the estate of [Agnes] as
[Agnes] shall appoint by a Will . . . .” If Agnes doesn’t appoint the property, it passes
under the terms of a different trust (“the credit shelter trust”), which benefits G. Robert’s
nephew and nieces. Their state has an exception - Nebraska imposes an inheritance tax on
posthumous transfers of property. Except, there is no tax on transfers to the surviving
spouse of the decedent.
(ii) Issue: Is this arrangement the functional equivalent of transferring the property to Agnes
and thus triggering the exception from inheritance tax for transfers to a surviving spouse?
(iii) Holding
a) If the power is general, then yes: it is essentially Agnes’s property, and thus it is
exempt from tax.
b) If the power if special, then no: Agnes is a mere custodian for the property, and it isn’t
“hers.”
3.) Exercise of Power
(i) Exercised by deed or will. So the donee has to make a deed or will.
(ii) A power of appointment is exercised to the extent that:
a) the donee manifests an intent to exercise the power in an otherwise effective document;
43
| |
Trust Wills Estates Horton Fall ’19 |
b) the donee’s expression of an intent to appoint satisfies the formal requirements of
exercise imposed by the donor and by applicable law; and
c) the donee’s appointment constitutes a permissible exercise of the power.
(iii) Example
a) In her 1990 trust, S gives A a power exercisable by will. In 2011, A executes a will
that says “I’m exercising the power I hold under S’s 1990 trust. I leave the property to
X.” A has exercised the power. X gets the property.
b) Now suppose that A’s 2011 will doesn’t specifically mention S’s 1990 trust. Instead,
A’s 2011 will has a “blanket exercise clause”—a provision that says “I’m disposing of
all property over which I have a power of appointment, and I give it to X.” A has still
exercised the power. X gets the property.
c) Now suppose that in her 1990 trust, S gives A a power but imposes a specific reference
requirement—a provision that says “you have the power to appoint property only by
making specific reference to this trust.” In 2011, A executes will that has a blanket
exercise clause in favor of X. A has NOT exercised the power. The takers in default
of appointment get the property.
d) In her 1990 trust, S gives A a power and does not impose a specific reference
requirement. In 2011, A executes a will that makes no mention of the power. Yet A’s
will contains a residuary clause, and X is the residuary beneficiary. Does A exercise
the power in favor of X through the residuary clause? See chart
e) But there’s no need to resort to these rules if either (1) the will expressly claims to
be exercising a power or (2) the donor imposes a specific reference requirement!
Residuary Clauses and Powers
Majority Minority
 Residuary clause does not  Residuary clause exercises a general
exercise either a general or a power of appointment.
special power of appointment.  A few states hold that a residuary
 Must say that you are exercising clause also exercises a special power
the power of appointment if the residuary
devisees are objects of the power.

4.) Case
(i) Hargrove v. Rich (2004)
a) Facts: Rich made a will that gave wife the power to give to all nieces and nephews. He
made it a specific reference requirement. Wife said the magic words in her will. But
she appointed to one niece when she had to appoint to all of them.
b) Issue: Can Frances Rich exercise the power in favor of her niece, Frances Hargrove?
c) Holding: Frances did not have the authority to exercise the power of appointment in
favor of only one niece. Where a power of appointment is limited to the nomination of
certain persons from a class or from persons named or indicated by the donor, the
selection of outsiders cannot be sustained as a valid exercise of the power.  
5.) Problem
44
| |
Trust Wills Estates Horton Fall ’19 |
(i) Roger and Sally are married with two children, Wendy and Paul. Roger executes a valid
will that leaves a vacation home he inherited from his aunt to Sally, and then to such of
their children as Sally shall appoint by will. Roger then dies. Later, Sally signs a valid
will that makes no mention of the power, but leaves “the rest, residue, and remainder” of
her estate to Wendy. Sally then dies
a) What type of power is created by Roger’s will?
(1) This is a special power of appointment because Sally can’t appoint it to herself, her
creditors, her estate, or her estate’s creditors.
b) Is the residuary clause of Sally’s will sufficient to exercise the power? (Who takes
Roger’s vacation home?)
(1) Under the majority approach, residuary clauses don’t exercise powers. That means
the takers in default inherit the vacation home. (We don’t know who they are—
presumably the residuary beneficiaries of Roger’s will).
c) Under the leading minority approach, residuary clauses exercise general powers. B/c
this is a special power, the residuary clause doesn’t do the trick. So again the takers in
default inherit.
(1) However, under the super-minority approach, the residuary clause exercises the
power if the residuary beneficiaries are also objects of the power. Here, Wendy is
an object, so she alone takes the home.
C) In Conclusion
1.) Powers of Appointments
2.) A donor creates a power of appointment by giving the donee the right to appoint property to
certain people (“objects”) by deed or will.
3.) A power of appointment is general if the donee can appoint it to
(i) (1) herself (or to any one of the three other categories of people/entities that are the
equivalent of the donee:
a) (2) her creditors,
b) (3) her estate, or
c) (4) the creditors of her estate).
4.) A power of appointment is special if the donee can’t appoint it to any one of the following:
(i) (1) herself, or
(ii) (2) her creditors, or
(iii) (3) her estate, or
(iv)(4) the creditors of her estate).
5.) “. . . to my wife for life, then to anyone she appoints by deed or will.”
(i) This is a general power b/c the wife can appoint to herself . (It’s also a general power b/c
the wife can appoint to her estate . . . and also b/c the wife can appoint to her creditors . . .
and also her estate . . . and also the creditors of her estate).
6.) . . . “to my wife, then to any of her creditors she appoints by deed.”
(i) This is a general power b/c the wife can appoint to her creditors.
7.) . . . “to my wife for life, then to any of our descendants that she appoints by deed or will.
(i) This is a special power b/c the wife can’t appoint to any one of the following (1) herself,
(2) her estate, (3) her creditors, and (4) the creditors of her estate.
45
| |
Trust Wills Estates Horton Fall ’19 |
D) Exercise
1.) Powers can fail to be exercised when either: *reverts back to donor*
(i) (1) the document that tries to exercise them is invalid (e.g., a will that doesn’t meet the
Wills Act requirements and can’t be saved by harmless error), or
(ii) (2) the donee tries to exercise the power in favor of someone who’s not an object (e.g., the
objects are the donor’s cousins, and the donee tries to exercise the power in favor of her
friend), or
(iii) (3) the donee doesn’t manifest an intent to exercise the power.
2.) If the settlor imposes a specific reference requirement, the donee must say the magic words to
exercise the power. (“I’m exercising the power I hold under my dad’s 1956 trust.”).
3.) If the settlor doesn’t impose a specific reference requirement, a blanket exercise clause in the
donee’s will does the trick. (“I exercise any power of appointment that I hold.”)
4.) If the settlor doesn’t impose a specific reference requirement and the will doesn’t have a
blanket exercise clause, but does have a residuary clause, then
(i) (a) under the majority approach, the donee has not exercised the power,
(ii) (b) under the leading minority approach, the donee has only exercised the power if it’s a
general power, and
(iii) (c) under the super-minority approach, the donee has exercised the power if it’s a
general power OR if it’s a special power and the residuary beneficiaries are objects of the
power.
XI) Lapse/Antilapse/Class Gifts
A) Lapse/Antilapse: Overview of Concepts
1.) Lapse: if a beneficiary dies before the testator, or is an animal or fictional character, the
bequest lapses. That means we need to find a new home for it!
(i) Sometimes the will expressly says where the property goes. (“To A, but if A dies before
me, to B”).
(ii) Sometimes the property falls into the residue (discussed below).
(iii) Sometimes the property passes to the descendants of the dead beneficiary under a
rule called “antilapse.”
2.) Residuary beneficiaries: residuary beneficiaries are either
(i) (1) beneficiaries who take the testator’s entire estate (“I leave all my property to A, B, and
C”) or
(ii) (2) beneficiaries who hold the safety net by taking “any property not otherwise disposed of
by this will” or “the rest, residue, and remainder of my estate.”
3.) The no-residue-of-a-residue rule: in some states, if a gift to a residuary beneficiary lapses, it
passes through the testator’s intestacy scheme. It reverts back to the testator. Other states have
abolished this rule.
4.) California once followed the no-residue-of-a-residue rule but has now abolished it. The UPC
has abolished it, too.
5.) So it’s the remain in residue rule- meaning it goes to the other residue person
B) Examples
1.) Lapse
46
| |
Trust Wills Estates Horton Fall ’19 |
(i) T devises her watch to her friend A, $10,000 to her friend B, and the residue to her friend
C. A and B die before T. Their gifts thus lapse, and C takes both the watch, the $10,000,
and anything else that T owns.
(ii) T devises her watch to her friend A, $10,000 to her friend B, and the residue to her friends
C and D. A and B die before T. Their gifts thus lapse, and C and D split the watch, the
$10,000, and anything else that T owns.
2.) Lapse in Residue
(i) T gives her car to X, her house to Y, and the residue one-half to her friend B and one-half to
her friend C. B dies before T. T dies, owning her car, her house, and $10,000
(ii) If a state follows the no residue of a residue rule, B’s one-half share of the residue (which
is $5,000) goes to T’s heirs by intestacy—not to C. C takes the remaining $5,000.
(iii) If a state has abolished the no residue of a residue rule (meaning that it follows the
remain in the residue rule), B’s one-half share of the residue goes to C. C takes the full
$10,000
(iv)T gives her car to X, her house to Y, and the residue one-half to her friend B and one-half to
her friend C. B dies before T. T dies, owning her car, her house, and $10,000. B and C
die before T.
(v) No matter whether a state follows the no residue of a residue rule, or has abolished the no
residue of a residue rule (meaning that it follows the remain in the residue rule), both B
and C’s shares go to T’s intestate heirs.
C) Antilapse
1.) Characteristic
(i) Antilapse: saves lapsed gifts by giving them to a dead beneficiary’s descendants!
(ii) Under the UPC, antilapse applies when the beneficiary who dies before T is descended
from T’s grandparents.
(iii) Under California law, antilapse applies when the beneficiary who dies before T is
descended from T’s grandparents or the grandparents of T’s current or former spouse
(excluding the spouse). More broad then UPC
(iv)So basically would fall in residue or antilapse depending on relationship of testator and
beneficiaries.
2.) Example
(i) T devises entire estate: one-half to my son A, and one-half to my daughter, B. B dies
before T, leaving a child, C. T dies. What happens to B’s share?
a) Under both CA and UPC anti-lapse: b/c B is a descendant of T’s grandparents,
antilapse applies under both CA law and the UPC. C takes B’s share, so A gets ½ of
the estate, C gets ½ of the estate.
(ii) T devises home to A and residue to B. A dies before T, leaving a child, C. T dies. What
happens to A’s share?
a) Suppose A is T’s niece.
(1) As a descendant of T’s grandparents, A falls within the required relationship of the
CA and UPC antilapse rules. Therefore, C takes the home.
b) Suppose A is T’s friend:
47
| |
Trust Wills Estates Horton Fall ’19 |
(1) B/c A is not a descendant of T’s grandparents (or T’s spouse’s grandparents), the
antilapse statute doesn’t apply under CA law or the UPC. The devise lapses, and
falls into the residue, to go to B.
D) Antilapse is a default rule
1.) The testator doesn’t have to apply antilapse. The testator can expressly say where the property
should go instead.
E) Drafting around antilapse
1.) When you don’t want to apply it
(i) Problem: T devises Blackacre “to my son Sidney if he survives me,” residue to his wife
Wilma.
(ii) Sidney dies before T, leaving a child, Debby.
(iii) T dies. Who takes Blackacre?
(iv)Issue: Do the words “if he survives me” evidence an intention to overide the antilapse
statute, meaning that Sidney’s descendants should not be substituted for Sidney?
a) CA and Majority Rule: An express requirement of survivorship, such as “if he
survives me,” evidences an intention to override the antilapse statute (i.e., that Sidney’s
descendants should not be substituted for Sidney). Wilma takes Blackacre.
b) UPC §2-603(b)(3): The term “if he survives me” is not a sufficient expression of
contrary intent. Antilapse statute applies. Debby takes Blackacre.
2.) Summary: A survivorship condition is a way to draft around antilapse.
F) Cases
1.) Lorenzo v Medina (2010)
(i) Testator writes: To my brother Jose R. Medina and to my brother in law, Jesus Lorenzo, in
equal shares. If either of them do not survive me, the share of the deceased shall be given
to their surviving spouse, Juana R. Medina or Maria Lorenzo respectively. Testator dies.
Jesus takes ½ share. Jose’s ½ share lapses and T drafted around antilapse by making
substitute gift to Juana. Juana’s ½ share lapses, and antilapse doesn’t apply b/c she’s not a
descendant of Cecilia’s grandparents. Under the remain in the residue rule, Jesus takes the
other ½, giving him the entire estate.
2.) Matter of Edwards (2012)
(i) Facts: Sister gives money to brothers, a friend, and nieces and nephews.
(ii) Issue: is “per capita” enough to draft among antilapse?
(iii) Holding: no
G) Class Gifts
1.) Characteristics
(i) Gifts to classes are treated differently than gifts to individuals: if a class member dies
before T, the surviving members of the class divide the total gift, including the deceased
class members’ share.
(ii) The test for whether a gift is a class gift is whether T is “group minded”: “to A’s
children” or “to my nephews and nieces.”
(iii) Identifying the beneficiaries by name presumptively does not give rise to a class
gift: even if the beneficiaries are all members of a specific class (i.e., T’s kids).
2.) Example
48
| |
Trust Wills Estates Horton Fall ’19 |
(i) Class gift: T devises $10,000 to “the children of A”: B and C (a class gift). B dies before
T. Because this is a class gift, C takes B’s share, and thus the entire $10,000.
3.) Anti-lapse overrides the class gift rule.
(i) T devises $10,000 to “T’s children” (B and C). B dies before T. Under the antilapse
statute, B’s children (not C) take B’s share (even though this is a class gift).

No
Lapse ?

Yes

Yes Prede ce asing

Antilapse? beneficiary’s
de scendants take
No (either T drafted around or beneficiary doesn’t fit
required relationship to T)
Yes (T is group minded) Othe r class m e m be rs
Class gift? take - the y abso rb the
share o f the de ad
be ne ficiary
No

Re siduary Yes Outco m e

beque st? de pe nds o n
whe ther state
No
fo llows no
re sidue o f a
Falls into re sidue rule
re sidue

XII) Ademption and Abatement

A) Ademption By Extinction
1.) Specific devises are subject to ademption by extinction (very roughly, if the specific item of
property is not in T’s estate when T dies, then the beneficiary doesn’t receive the property).
(i) “My Picasso,” “my house,” “my wedding ring,” “my collection of snuff bottles.”
2.) The identity theory: the beneficiary of a specific gift takes nothing when the testator. doesn’t
own the property at death.
(i) However, the beneficiary can receive (1) any unpaid sales proceeds if the testator sold the
property, or (2) unpaid condemnation or insurance proceeds relating to the property.
a) E.g., T devises her beach house to A. The government then condemns the beach house
and pays T its fair market value of $100,000. T dies before the payment is issued. A
takes the $100,000.
3.) The intent theory: the beneficiary of a specific gift takes the monetary value of the adeemed
property if the testator didn’t intend the gift to adeem.
(i) The test for when the testator didn’t intend the gift to adeem is whether the property
disappeared in a way that was involuntary as to the testator:
a) The testator didn’t know that it was lost, stolen, or destroyed, or
b) The property was sold when the testator was incapacitated; or
49
| |
Trust Wills Estates Horton Fall ’19 |
c) For some other reason, the testator had no chance to amend her estate plan to give
something back to the disappointed beneficiary.
(ii) Case
a) In re: Estate of Sagel
(1) Facts: T left his tangible personal property to his son. T died in a plane crash while
he was wearing his Rolex watch. Both the plane and the watch were insured.
(2) Holding: Under the identity theory (and the PA statute in force) the son can take
the unpaid insurance proceeds on both items. Under the intent theory, the son
would’ve received the market value of both items even if they weren’t insured b/c
their destruction didn’t stem from T’s voluntary act.
(3) Notes
 Note that if T had sold his plane and watch, his son would take nothing under
both the identity and intent theories.
o Exception: the change-in-form doctrine says that ademption does not apply
to “replacement property” (such as a Cartier watch that T bought with the
funds from the sale of the Rolex). The son would get the Cartier.
 Under intent theory the cash value is paid out from the residuary’s shares
B) Ademption by Satisfaction
1.) Characteristics
(i) Ademption by satisfaction applies to general pecuniary bequests (bequests of money).
It says that when a beneficiary receives a general pecuniary bequest (i.e., $50,000) under
the will, but T then gives the beneficiary a gift during life, under some circumstances, the
gift reduces the amount of cash a beneficiary takes under the will.
(ii) The rule is a will-based version of the advancements doctrine, with one twist: the
common law assumes that gifts aren’t meant to reduce a beneficiary’s inheritance under a
will. See Estate of Condon.
(iii) Under the CPC and UPC, to adeem a bequest by satisfaction, the testator must use a
writing that’s contemporaneous with the gift or the recipient must admit that the gift was
supposed to reduce the amount of cash she receives under the will.
2.) Example
(i) T’s will leaves $70,000 to her friend A. During life, T gives a necklace worth $50,000 to
A. Three years later, T writes “I want the necklace I gave to A to be deducted from A’s
share of my estate.”
(ii) Under the common law, ademption is not presumed. The writing provides some evidence
that T intended the necklace to reduce A’s share under the will, but isn’t dispositive.
(iii) Under the UPC and CPC, ademption occurs only if (1) T states that it should occur
in a contemporaneous writing or (2) the beneficiary states that it should occur in writing.
T’s writing here isn’t contemporaneous, so A takes $70,000.
3.) Case
(i) Estate of Condon
a) Facts: T’s will gave $5,000 to her niece Mary and $5,000 to her nephew Charles, with
the survivor to take the other’s share if the other predeceased. Charles died. Later, T
50
| |
Trust Wills Estates Horton Fall ’19 |
wrote a $5,000 check to Mary with the words “will payment” in the memo.
Supposedly, T did so b/c she “wanted to have the satisfaction of knowing that she gave
the money to the people she wanted to receive it.”
b) Holding: Under Iowa law (which is similar to the common law), we presume that a
devise is adeemed by satisfaction only if (1) T is a parent of the beneficiary or (2) the
amount of the lifetime gift is the same as the amount of the devise under the will.
Although (1) isn’t satisfied, (2) (arguably) is. That plus the notation on the will and T’s
statements mean that Mary’s share of the $10,000 is reduced by $5,000.
c) Under the CPC and UPC, the notation on the check would qualify as a
contemporaneous writing and we’d reach the same result.
C) Abatement
1.) Characteristics
(i) The doctrine of abatement applies when the estate doesn’t have enough property to satisfy
all of T’s bequests.
(ii) The order of abatement: unless T specifies otherwise in the will, (1) residuary devises
abate first, (2) followed by general devises and then (3) specific and demonstrative devises.
All abatement within a particular kind of devise is pro rata.
a) E.g., T leaves $100,000 to A, her house (worth $500,000) to B, and the residue to C. T
dies owning the house and $20,000. C takes nothing. B takes the house. A takes
$20,000.
b) T leaves $100,000 to A and $300,000 to B. T dies with an estate of $300,000.
Because T wanted B to have three times as much as A, B takes $225,000 and A takes
$75,000.
XIII) Interpretation
A) Characteristics
1.) The plain meaning rule: Judges could only consider the four corners of a will when deciding
what the will meant.
2.) Exception: “latent ambiguities”: when extrinsic evidence exposed the fact that language had
more than one plausible interpretation.
(i) “to my friend Bob,” when the testator had three friends named Bob.
(ii) Extrinsic evidence was admissible to resolve the latent ambiguity.
3.) HOWEVER, courts refused to consider extrinsic evidence when there was a “patent
ambiguity”: something in the will that was obviously unclear.
(i) E.g.: “I give $15,000 (Five Thousand Dollars) to my son.”
(ii) A devise with a patent ambiguity would fail entirely, rather than be clarified.
4.) To avoid the harshness of the patent ambiguity rules, courts bent over backwards to find
language NOT to be patently ambiguous.
B) Interpreting Wills: In California
1.) California currently has a two-tier system for interpreting wills.
(i) Tier one: under Estate of Russell (our first case)
a) Each party proposes a meaning and then tries to support it with extrinsic evidence.
b) The judge looks at the extrinsic evidence and decides whether the will is reasonably
susceptible to one or two interpretations.
51
| |
Trust Wills Estates Horton Fall ’19 |
(1) If the will only lends itself to one party’s reading, that party wins.
(2) If the will lends itself to both readings, the jury or the judge in a bench trial picks
the best meaning.
(ii) Tier two: under Estate of Duke (our alumni-authored second case)
a) Even if a will only seems to lend itself to one party’s reading, a court can admit clear
and convincing evidence to show “that the will contains a mistake in the expression of
the testator’s intent at the time the will was drafted and also establishes the testator’s
actual specific intent at the time the will was drafted.”
(1) See this as a safety valve for mistakes.
2.) Cases
(i) Estate of Russell (1968)
a) Facts: A valid will was formed however stuff was given to a dog. Either it was left to
the person to take care of the pet or to the person and the pet. She also left stuff to her
niece.
b) Issue: What did the testator actually mean?
c) Holding: The language of the will is clear and it was meant to go to the dog and thus it
would lapse and go to the niece.
d) Notes
(1) If you give a gift to a dog- it lapses and under no residue of a residue rule it would
go to the niece under the intestacy will.
(2) Extrinsic evidence said don’t leave anything more to the niece. But the court
ignored this.
(ii) In re Estate of Duke (2015)
a) Rule of law: Reformation of an unambiguous will is permissible if clear and
convincing evidence establishes an error in the expression of the testator’s intent and
establishes the testator’s actual specific intent at the time the will was drafted.
b) Facts: Irving Duke prepared a will in which he left all of his property to his wife,
Beatrice. Irving’s will provided that if he and his wife died simultaneously, his
property should be divided between two charities. Beatrice was appointed the executor
of the estate. Beatrice died before Irving, but the will was not changed to select a new
executor. When Irving died, he left no spouse or children. The two charities petitioned
for probate. The charities opposed the Radins’ motion and offered extrinsic evidence to
prove that Irving intended to provide that in the event Beatrice was not alive to inherit
Irving’s estate when Irving died, the estate would be distributed to the charities. 
c) Issue: Who gets it?
d) Holding: The charity gets it. Must show clear and convincing evidence and the intent
of the testator when they wrote the will.
52
| |
Trust Wills Estates Horton Fall ’19 |

Trusts
I) Introduction to Trusts
A) Definition
1.) In a trust, a settlor transfers title of property to the trustee (holds legal title), who manages it
as a fiduciary for the benefit of beneficiaries (equitable title).
B) Element
1.) To create a trust, you need:
(i) (1) the settlor’s intent to make a trust,
(ii) (2) property, and
(iii) (3) beneficiaries.
C) Characteristics
1.) A gift refracted through a 3rd party.
(i) A trust allows you to bequeath a gift but allows you to maintain control of it. So you pick a
trustee to manage it for the person.
(ii) More flexible then a gift. Can put conditions on it. Can slowly pay out the benefit.
2.) When you transfer property to a trust- it is no longer yours. The trust owns it. Probate only
applies to assets you own in your individual capacity.
3.) Trustee does distribution. Beneficiaries have the right to sue
D) Common types of trusts:
1.) Testamentary trusts (arise out of wills). Included in will. Rather than giving property outright
the will says who the trustee is. Still goes through probate.
2.) Revocable inter vivos trusts: will-like documents that distribute the settlor’s property after the
settlor dies.
3.) Pour over trust: residuary trust
E) Trust and Probate and Avoidance
1.) Most people execute both an inter vivos trust and a “pour over will.” The pour over will
leaves everything to the trust, in case some assets are mistakenly omitted from the trust.
(i) You have to transfer title to all your property in the trust. So all the things not transferred
go into a pour over will- saying I leave everything I own to my trust. Must be less than
$150k. If more than that it goes to probate.
(ii) Pour-over wills have to be made. If you don’t have a pour-over will it goes through
intestacy.
2.) Example
(i) Mary owns a house (worth $500,000) and $49,999 mutual fund. She signs a trust that
names herself as trustee and lifetime beneficiary. She specifies that when she dies, her
sister will become trustee, and must use the property the benefit of Mary’s children. The
trust has an appendix (called Schedule A) that lists the house as trust property. Mary then
acquires an apartment complex worth $100,000. She dies.
(ii) Although Mary never placed the mutual fund or the apartment complex in trust, the pour
over will kicks in and conveys them to the trust on Mary’s death. B/c the value of all
property passing by will is under $150,000, there’s no need for probate.
53
| |
Trust Wills Estates Horton Fall ’19 |
F) Intent to create a trust
1.) Cases
(i) Lux v Lux (1972)
a) Facts: woman makes will. Residue leaves entire to grandchildren. Says that Any real
estate…shall be maintained for the benefit of said grandchildren and shall not be sold
until the youngest of said grandchildren has reached twenty-one years of age. Should it
become necessary to sell any of said real estate to pay my debts…it is my express
desire that said real estate be sold to a member of my family.
b) Issue: Did Philomena “intend[] that her real estate be held in trust for the benefit of her
grandchildren”?
c) Holding: Yes
d) Rational: Has elements of a trust. Doesn’t need a trustee.
(ii) Estate of Heggstad
a) Facts: Halvard executes pour over will and trust naming himself trustee and his son
successor trustee. The trust lists his 35% interest in 100 Independence Dr. on Schedule
A. Never transferred property to the trust. All he did it as list as a trust asset. He got
married. Halvard dies without executing a deed conveying his interest in the
Independence Dr. property to the trust.
b) Issue: Does it thus pass through probate under his pour over will?
c) Holding: no
d) Rational: Because Halvard named himself as trustee, the written and signed trust
instrument (1) manifested his intent to include the Independence Dr. property in the
trust and (2) satisfied the Statute of Frauds. Sof requires a trust that contains real
property with something in writing evidencing it should go into the trust.
e) Notes: B/c the SOF requires a writing signed by the trustee to place real property in
trust, note that the outcome would be different if:
(1) Halvard had orally declared himself to be trustee.
(2) Halvard had named his son trustee (rather than successor trustee).
f) Writing needs to be signed by the trustee. If the son was the trustee he would have
needed to sign the trust.
G) Problems - *If you don’t have property at all you cant have a trust.*
1.) Q. S orally declares, “I hold my coin collection in trust for my benefit during life and then to
pass outright to my sister’s kids after I die.” S dies owning nothing other than the coin
collection (which is worth $151,000). Does it pass through probate?
2.) A: No. The requirements of a valid trust are (1) intent, (2) property, and (3) as we’ll see soon,
beneficiaries. We have all three here. The coin collection doesn’t belong to S—it belongs to
S’s trust. S has no “probate assets.”
3.) S orally declares, “I hold my house and my coin collection in trust for my benefit during life
and then to pass outright to my sister’s children after I die.” S dies owning the coin collection
and the house (worth $500,000). Does the coin collection pass through probate? How about
the house?
4.) A: Only the coin collection is exempt from probate. As discussed above, S created a valid
trust with respect to this asset. However, the SOF requires a writing signed by the trustee to
54
| |
Trust Wills Estates Horton Fall ’19 |
transfer land into the trust. We don’t have that here. Because the house is worth more than
$150,000, it passes through court-supervised probate under the rules of intestate succession.
II) Trustees, Beneficiaries, and Creditors’ Rights
A) Trustee Characteristics
1.) Trustees can be people or corporations. The settlor can name them or a court can appoint them.
Trusts never fail for lack of a trustee.
2.) A person named as trustee can decline to serve. However, a trustee who has already agreed to
serve must resign properly by either (1) complying with the trust’s method for resignation, or
(2) obtaining consent from all the beneficiaries, or (3) obtaining court approval.
3.) Trustees are entitled to compensation that is either (1) spelled out in the trust instrument, or, if
not, (2) is reasonable.
B) Rights of Trust Beneficiaries: Overview
1.) Trusts consist of income and principal.
2.) Suppose S puts her IBM stock in trust. The money the stocks earn is income. The stocks
themselves are principal.
3.) Most trusts instruct the trustee to distribute income on a regular basis to the beneficiaries and
distribute the principal only in extraordinary circumstances (or after a set period of time, such
as when the beneficiaries turn a certain age).
4.) Trusts can make distributions mandatory (“all income to A”)(the trustee has to do it) or
discretionary (“principal to A as the trustee deems necessary for educational purposes”).
5.) Discretionary trusts usually have some standard that constraints the trustee’s freedom. E.g.,
it’s common for settlors to permit trustees to distribute income or principal as necessary for a
beneficiary’s “comfortable support and maintenance.”
C) Types of Trust Interests
1.) Mandatory (e.g. “the trustee will pay all the income of the trust to the beneficiary every
month”). Mandatory interests are assignable (meaning that the beneficiary can sell them) and
subject to attachment by creditors.
(i) Creditor can get an order from the court requiring the trustee mandatory
distributions to the creditor directly. Bypassing the beneficiary.
2.) Discretionary (e.g. “the trustee will pay all of the income of the trust to the beneficiary that
the trustee deems appropriate”).
(i) Trustee has the discretion to decide to give out distributions. Must think what settler
would have done if distribution not given out.
3.) Support (e.g. “the trustee will pay all of the income of the trust and such principal as is
necessary to cover the beneficiary’s housing, food, clothing, health care, and education”).
Support interests are not assignable—you cant sell to a third party.
4.) Spendthrift (e.g. “no beneficiary shall alienate their interest in the trust’). Spendthrift
interests are neither assignable nor subject to attachment by creditors.
(i) Not always mutually exclusive: trust interests sometimes exhibit more than one of these
characteristics, such as “spray trusts” (which combine the trustee’s mandatory duty to
distribute income with the trustee’s discretion to choose who gets how much).
(ii) Spendthrift clauses: bar a creditor from getting an order requiring the trustee to pay the
creditor directly.
55
| |
Trust Wills Estates Horton Fall ’19 |
a) Spendthrift clauses are effective against tort creditors.
b) Spendthrift clauses aren’t effective against creditors with the following claims:
(1) alimony
(2) child support, or
(3) unpaid legal services related to the beneficiary’s interest in the trust.
c) Even when a claimant is the “right type” of creditor, the nature of the trust can come
into play. If distributions are mandatory (as income usually is), the creditor will get
paid directly from the trust on a regular basis. But if distributions are discretionary (as
principal usually is), an order requiring the trustee to pay the creditor directly may be
of little use. (The trustee may refuse to make any payments).
(1) So even if you are the right type of creditor getting a direct order only goes so far.
(iii) Exceptions to Spendthrift Provision: UTC §503
a) (b) A spendthrift provision is unenforceable against:
(1) (1) a beneficiary’s child, spouse, or former spouse who has a judgment or court
order against the beneficiary for support or maintenance;
(2) (2) a judgment creditor who has provided services for the protection of a
beneficiary’s interest in the trust;
b) (c) A claimant against which a spendthrift provision cannot be enforced may obtain
from a court an order attaching present or future distributions to or for the benefit of
the beneficiary. The court may limit the award to such relief as is appropriate ... .
D) Creditors
1.) In general, a creditor can get an order from a court instructing the trustee to pay a trust
beneficiary’s creditor directly from the trust.
(i) E.g., Benny’s mom creates a trust that requires the trustee to pay Benny the income from
the trust every month. Benny owes Bank of Overcharge $20,000. BofA can get a court
order requiring the trustee to pay BofA—not Benny—every month until the debt is wiped
out. See Unif. Trust Code §501 (casebook p. 404).
2.) As a practical matter, creditors are much better off if they attach mandatory distributions. If a
distribution is only discretionary, a “pay me directly” court order only goes so far. First, the
trustee can refuse to make distributions. Second, even if refusing to make distributions would
be a breach of the trustee’s fiduciary duty, only the beneficiary—not the creditor—has
standing to sue to compel a distribution. See Unif. Trust Code §504
3.) There’s one partial exception: former spouses with alimony claims and children with child
support claims have standing to sue to compel a distribution under a discretionary trust.
4.) Spendthrift clauses only prevent creditors from getting an order requiring the trustee to pay the
creditors directly—they don’t stop creditors from going after the beneficiary once the trustee
makes the payments.
E) Case
1.) Scheffel v. Krueger (2001)
(i) Facts: Kyle Krueger’s grandmother establishes a trust for his benefit. The trust requires
the trustee to pay Krueger all of the income quarterly and principal if necessary for his
maintenance, support and education. When Krueger turns fifty (which will be in 2016), he
has the right to invade the principal. The trust contains a spendthrift clause. Lorie Scheffel
56
| |
Trust Wills Estates Horton Fall ’19 |
alleges that Krueger sexually assaulted her child, videotaped the act, and posted it on the
Internet. Krueger is sentenced to prison, and Scheffel recovers $551,286.25 in damages
from him. She tries to attach his interest in the trust. Krueger turns 50 and is released from
prison.
(ii) Issue: Does the spendthrift clause prevent Scheffel from attaching Krueger’s interest in the
trust?
(iii) Holding: Yes.
(iv) Rational: The purpose of support and maintenance trust may still be fulfilled while the
beneficiary is incarcerated and after he is released.
III) Trustee’s Duty of Loyalty
A) The duty of loyalty: trustees must administer the trust solely in the best interests of the
beneficiaries.
1.) “The trustee wears two hats: the trustee hat and the hat of the trustee as an individual. The
trustee can’t wear both hats at the same time.”
B) There are two ways that a trustee can violate the duty of loyalty:
1.) (1) Self-dealing: selling or leasing property to herself (or her spouse or close family member).
Here they are wearing hats at the same time.
(i) Under the no-further-inquiry rule, self-dealing is an automatic breach of the duty of
loyalty, even if the transaction turns out to be beneficial for the trust and the
beneficiaries.
2.) (2) Conflicts of interest: A trustee can also breach the duty of loyalty by engaging in a
transaction in her capacity as trustee that also furthers her interests as an individual.
(i) Doing something that gives trustee a benefit. Must do it as a trustee.
3.) Exceptions to the no-further-inquiry rule and the prohibition on conflicted transactions:
(i) the trustee obtains advance judicial approval, or
(ii) the settlor specifically authorizes self-dealing in the trust instrument, or
(iii) the beneficiaries consent after full disclosure.
4.) Case
(i) In Re Glesson’s Will (1955)
a) Facts: Mary Gleeson leased farmland to the petitioner, Con Colbrook. Two weeks
before the lease expired, Gleeson died. She devised the farmland to The petitioner as
trustee for her children. However, the petitioner remained on the property for another
year.
b) Issue: Did Colbrook breach the duty of loyalty by self-dealing when he renewed his
lease?
c) Holding: Yes
d) Rational: The petitioner dealt individually with the farm land as a tenant and breached
his duty of loyalty to the trust. 
e) Policy: Rule exists so that people aren’t taken advantage of.
C) The Duty of Prudence
1.) The duty of prudence requires trustees to exercise diligence, caution, skill, effort, and care in
administering the trust.
2.) This includes:
57
| |
Trust Wills Estates Horton Fall ’19 |
(i) Carrying out the terms of the trust. (E.g., making mandatory distributions and not abusing
discretion by refusing to make discretionary distributions).
(ii) Diversifying trust assets. (As we’ll see, the trustee can’t invest too heavily in a single kind
of asset unless (1) the settlor clearly waives the duty to diversify in the trust instrument or
(2) “special circumstances” exist, such as the fact that a trust holds a family business or
farm).
(iii) Under the duty of prudence, professional trustees are held to a higher standard than
lay trustees.
3.) Case
(i) Wood v. U.S. Bank, N.A. (2005)
a) Facts: The trust held stock of the corporate trustee. The trust authorized the trustee to
retain its own stock, but it was silent as to the trustee's obligation to diversify. Although
the trust beneficiaries did not object to a plan to sell off some stock in order to pay the
estate expenses, they later requested that the trustee diversify the holdings, which it did
not do. Thereafter, the trustee's corporate stock price plunged, and the distributions to
the beneficiaries were made from the decreased assets. The beneficiary filed suit,
alleging that the trustee had a mandatory duty under Ohio Rev. Code Ann. § 1339.54 to
diversify. The trial court adopted the trustee's abuse of discretion and estoppel
instructions, and judgment was entered for the trustee.
b) Holding: the court reversed the judgment of the trial court and remanded the matter for
further proceedings.
c) Notes: you have to say something like the trustee doesn’t have to diversify. Because of
the provision they didn’t violate the duty of loyalty. That is not the same thing as
waiving the duty of prudence.
(ii) Hypo
a) S is a longtime, loyal Bank of Overcharge employee. S has accumulated a large block
of B of O stock—so large that it’s 90% of her assets. S executes a trust that names
herself trustee, followed by B of O as trustee, for S’s benefit during life, and then for
the benefit of S’s kids. S dies.
b) Under the no further inquiry rule, B of O must sell its stock when it becomes trustee
otherwise it violates duty of loyalty. (But S can draft around this rule as in Wood).
c) Under the duty to diversify, B of O can’t hold such a large concentration of stock in
any company. (To draft around the duty to diversify, S needs to be crystal clear that
this is ok).
d) Special circumstances: trustees need not comply with the duty to diversify if
particular assets have non-pecuniary value to S (i.e., a family farm or a valuable
heirloom). It’s an open question whether stock in a beloved employer meets that
standard!
IV) Rights of an Omitted Spouse
A) Accidentally Omitted Spouse
1.) You make a will. You get married later. You never amend your will to add your spouse. The
law presumes that you will have wanted them added to the will.
2.) The law
58
| |
Trust Wills Estates Horton Fall ’19 |
(i) UPC § 2-301. Entitlement of Spouse; Premarital Will. (a) If a testator’s surviving spouse
married the testator after the testator executed his [or her] will, the surviving spouse is
entitled to receive, as an intestate share, no less than the value of the share of the estate he
[or she] would have received if the testator had died intestate as to that portion of the
testator’s estate, if any, that neither is devised to a child of the testator who was born
before the testator married the surviving spouse and who is not a child of the surviving
spouse nor is devised to a descendant of such a child . . . unless: (1) it appears from the will
or other evidence that the will was made in contemplation of the testator’s marriage to the
surviving spouse; (2) the will expresses the intention that it is to be effective
notwithstanding any subsequent marriage; or (3) the testator provided for the spouse by
transfer outside the will and the intent that the transfer be in lieu of a testamentary
provision is shown by the testator’s statements or is reasonably inferred from the amount
of the transfer or other evidence. (b) In satisfying the share provided by this section,
devises made by the will to the testator's surviving spouse, if any, are applied first, and
other devises, other than a devise to a child of the testator who was born before the testator
married the surviving spouse and who is not a child of the surviving spouse . . . abate . . . .
B) Breakdown
1.) UPC § 2-301. Entitlement of Spouse; Premarital Will.
(i) Question 1: is the spouse accidentally omitted? (If the answer to any of these questions
is yes, then the spouse is not accidentally omitted).
a) Did Spouse marry T before T executed her will?
b) Does the will contemplate the marriage? (Does the language of the will mention about
getting married.)
c) Does the will express T’s intent that it shall stand even if T later marries?
d) Did T provide for the spouse through other estate planning devices, such as trusts or
life insurance?
(ii) Question 2: if the spouse is accidentally omitted, how must does she take?
a) Her intestate share.
b) But only calculated on assets that are not devised to a child of T who was (a) born
before T married S and (b) is not S’s child.
(1) Cant be the spouse’s kids.
C) Case
1.) Bell v. Estate of Bell (2008)
(i) Facts: Ralph has two kids, Ralph Jr. and Roberta. Ralph executes a trust that leaves his
property to Ralph Jr. and Roberta and a pour over will that leaves his probate estate to the
trust. Ralph then marries Vivian. Ralph ensures that, after he dies, Vivian will receive
$7,000 in life insurance proceeds, $2,900 per month in retirement income, Medicare
coverage, and long-term health care. Ralph dies.
(ii) Issue: Is Vivian a pretermitted spouse? If so, to what assets is she entitled?
(iii) Holding: Unclear.
(iv)Rational: Remitted because its unknown what his intentions are.
59
| |
Trust Wills Estates Horton Fall ’19 |
(v) Notes: anytime you see marriage and then will- think accidental omittance. Suppose that
she is accidentally omitted. Then she would still be limited by what she gets. Comes down
between the difference of will and trust.
D) Problem
1.) In 1995, Frankie marries Jasper. In 1996, they have a child, Harry. In 1998, they divorce. In
1999, Frankie executes a valid will leaving her property half to Harry and half to her best
friend, Rudolph. In 2000, Frankie marries Lance. In 2016, Frankie dies, leaving an estate
worth $1,500,000.
2.) A. Can Lance take a share of Frankie’s estate as an omitted spouse? If so, how much
can Lance take under the statute?
3.) First, Lance is accidentally omitted. He married Frankie after Frankie executed her will, the
will says nothing about a future marriage, and Frankie didn’t provide for Lance through
other estate planning devices.
4.) Second, how much can Lance take? He gets his intestate share “as to that portion of the
testator’s estate, if any, that neither is devised to a child of the testator who was born before the
testator married the surviving spouse and who is not a child of the surviving spouse.”
5.) Frankie’s will leaves $750,000 to Harry, who was born before the marriage to Lance and
$750,000 to Rudolph (who is not a child of Frankie).
6.) Lance’s share is limited to an intestate share of the $750,000 not devised to Harry.
7.) UPC §2-102(4): decedent survived by descendants who are not the surviving spouse’s 
$150,000 + half balance. Here, that’s $150,000 + ½ of $600,000 = $450,000.
E) California Accidental Omittance
1.) One big difference unlike the UPC is that California treats wills like revocable trusts (trusts
that you create in your own lifetime that you can change). They think them similar. So,
California looks to wills and revocable trusts too.
2.) § 21610. Share of omitted spouse
(i) Except as provided in Section 21611, if a decedent fails to provide in a testamentary
instrument for the decedent's surviving spouse who married the decedent after the
execution of all of the decedent's testamentary instruments, the omitted spouse shall
receive a share in the decedent's estate, consisting of the following property in said estate:
a) The one-half of the community property that belongs to the decedent . . . .
b) A share of the separate property of the decedent equal in value to that which the spouse
would have received if the decedent had died without having executed a testamentary
instrument, but in no event is the share to be more than one-half the value of the
separate property in the estate.
3.) 21611. Spouse not to receive share; circumstances
(i) The spouse shall not receive a share of the estate under Section 21610 if any of the
following is established:
a) (a) The decedent's failure to provide for the spouse in the decedent's testamentary
instruments was intentional and that intention appears from the testamentary
instruments.
b) (b) The decedent provided for the spouse by transfer outside of the estate passing by
the decedent's testamentary instruments and the intention that the transfer be in lieu of
60
| |
Trust Wills Estates Horton Fall ’19 |
a provision in said instruments is shown by statements of the decedent or from the
amount of the transfer or by other evidence . . . .
F) Under California law:
1.) A spouse is accidentally omitted if she marries the decedent after the decedent executes all of
her wills and revocable trusts.
2.) Suppose D executes a will. D marries S. D executes a trust. Under the UPC, S is accidentally
omitted, because the UPC only considers wills. Under the CPC, S is not accidentally omitted,
because D executed a trust after the marriage and could’ve provided for S in the trust.
G) The exceptions are the same under both the CPC and UPC (a spouse isn’t accidentally omitted if
D’s will or trust shows that the omission was intentional, or D provided for the spouse through
other means).
H) The share of an accidentally omitted spouse is all of the CP and her intestate share of the SP
(capped at ½). However, the CPC allows the spouse to recover the intestate share of any asset that
either was part of D’s probate estate or had been transferred to a revocable trust.
I) For example, in Bell, a UPC case, the court held that a potentially omitted spouse could not take
an intestate share of any assets that D had transferred to his revocable trust. In California, the rule
is the opposite: the spouse could take an intestate share of those assets.
J) Also- the amount given to a child doesnt matter for California’s purposes.
V) Rights of Omitted Children
A) Text
1.) UPC § 2-302. Omitted Children.
(i) (a) Except as provided in subsection (b), if a testator fails to provide in his [or her] will for
any of his [or her] children born or adopted after the execution of the will, the omitted
after-born or after-adopted child receives a share in the estate as follows: (1) If the testator
had no child living when he [or she] executed the will, an omitted after-born or after-
adopted child receives a share in the estate equal in value to that which the child would
have received had the testator died intestate, unless the will devised all or substantially all
of the estate to the other parent of the omitted child and that other parent survives the
testator and is entitled to take under the will. (2) If the testator had one or more children
living when he [or she] executed the will, and the will devised property or an interest in
property to one or more of the then-living children, an omitted after-born or after-adopted
child is entitled to share in the testator’s estate as follows: (A) The portion of the testator’s
estate in which the omitted after-born or after-adopted child is entitled to share is limited to
devises made to the testator’s then-living children under the will. (B) The omitted after-
born or after-adopted child is entitled to receive the share of the testator’s estate, as limited
in subparagraph (A), that the child would have received had the testator included all
omitted after-born and after-adopted children with the children to whom devises were
made under the will and had given an equal share of the estate to each child . . . . (D) In
satisfying a share provided by this paragraph, devises to the testator's children who were
living when the will was executed abate ratably . . . .
(ii) (b) Neither subsection (a)(1) nor subsection (a)(2) applies if: (1) it appears from the will
that the omission was intentional; or (2) the testator provided for the omitted after-born or
after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a
61
| |
Trust Wills Estates Horton Fall ’19 |
testamentary provision is shown by the testator’s statements or is reasonably inferred from
the amount of the transfer or other evidence . . . .
B) Breakdown
1.) UPC § 2-302. Omitted Children.
(i) Question 1: is the child accidentally omitted? (If the answer to any of these questions is
yes, then the child is not accidentally omitted).
(ii) Was the child born or adopted before T executed her will? If yes that means youre
disinherited.
2.) Does the will suggest that the omission was intentional?
(i) Did T provide for the child outside of the will (e.g., through trusts or life insurance)? If
they are provided for/ if there is a substitute gift then not accidentally omitted.
3.) Question 2: if the child is accidentally omitted, how must does she take?
(i) If T had no children when T executed her will, an intestate share unless T gave most of the
estate to the other parent of the omitted child.
(ii) If T had at least one other living child when T executed her will, a pro rata share of all
amounts given to these children.
a) For example, if T has a child, A, and then executes a will leaving $10,000 to A, and
then has another child, B, and then dies, B takes $5,000 (a pro rated, one-half share of
the $10,000 devised to A).
4.) Alternatively, if T left child A $100,000 and child X $50,000, and B is after-born and omitted,
B takes 1/3 of the total amount of bequests to children, or 1/3 of $150,000, for a total of
$50,000.
(i) Rules change based on when the child is born.
C) Estate of Maher v. Iglikova (2014)
1.) Facts: T has a child in PM. Has another child AMI a year later. Later in his will, T makes a
class gift to his children. 2 years later he finds about AMI and pays child support. T is
presumed dead.
2.) Issue: Is AMI an accidentally omitted child?
3.) Holding: No
4.) Rational: AMI was born after the will was made. AND because of the class gift, he will get
something.
D) Review Problem
1.) A. In 2009, Evelyn and Kevin marry. In 2010, Evelyn executes a valid will that leaves her
entire estate, which is worth $1,000,000, to Kevin. In 2012, Evelyn and Kevin have a child,
Bruce. In 2016, Evelyn dies, survived by Kevin and Bruce. Can Bruce take a pretermitted
child’s share under the UPC? What is the likely rationale for this outcome?
(i) Bruce was born or adopted after Evelyn executed her will, so he may be omitted. However,
under UPC §2-302(a)(1), an after-born child takes nothing if (1) T had no children when T
made the will and (2) “the will devised all or substantially all of the estate to the other
parent of the omitted child and that other parent survives the testator and is entitled to take
under the will.” Here, both prongs are met, so Bruce takes nothing.
(ii) The logic is that Bruce will eventually inherit Evelyn’s property through Kevin.
2.) B. What if Evelyn had left $300,000 to Kevin and $700,000 to her best friend, Claire?
62
| |
Trust Wills Estates Horton Fall ’19 |
(i) Now Evelyn didn’t leave “all or substantially all of her estate” to Bruce’s dad. So Bruce
can take his intestate share. Yet under the UPC, all of Evelyn’s descendants are also
Kevin’s descendants, so Kevin would take everything in intestacy, leaving nothing for
Bruce. Bruce takes nothing under Evelyn’s will.
3.) C. What if Evelyn had left $300,000 to Kevin and $700,000 to her best friend, Claire, and
Bruce’s father was not Kevin?
(i) Again, Bruce gets his intestate share. However, now Kevin’s surviving spouse share is
lower b/c Evelyn left a kid from a previous relationship (it’s the first $150,000 plus ½ of
the balance, or $150,000 plus (1/2($850,000) = $425,000) = a total of $575,000. Now that
we’ve done Kevin’s share, we can determine that Bruce’s share would’ve been $1,000,000
minus $575,000 = $425,000.
4.) D. Now suppose that Bruce’s father was Kevin, and Kevin and Evelyn also had another child,
Sally, who was born before Evelyn executed her will?
(i) Bruce is omitted but he takes nothing b/c he would only be entitled to a pro rated share of
what Evelyn left to her existing kids. Here, she left her existing kid, Sally, nothing.
5.) E. How would your answer to D change if Evelyn had left $20,000 to Sally and $80,000 to
Kevin?
(i) Bruce is accidentally omitted and can take a pro rated share of the bequest to Sally, so he
gets ½ of $20,000 = $10,000.
6.) F. What if (1) E’s will stated that she disinherited future children or (2) E had given B a gift
with the intent that it serve as a substitute for a gift under the will?
(i) In either case, B takes nothing.
E) Accidentally Omitted Child: California Law
1.) Text
(i) 21620. Child born or adopted after execution of will; share in estate
a) Except as provided in Section 21621, if a decedent fails to provide in a testamentary
instrument for a child of decedent born or adopted after the execution of all of the
decedent's testamentary instruments, the omitted child shall receive a share in the
decedent's estate equal in value to that which the child would have received if the
decedent had died without having executed any testamentary instrument.
(ii) § 21621. Child not to receive share; circumstances
a) A child shall not receive a share of the estate under Section 21620 if any of the
following is established:
(1) (a) The decedent's failure to provide for the child in the decedent's testamentary
instruments was intentional and that intention appears from the testamentary
instruments.
(2) (b) The decedent had one or more children and devised or otherwise directed the
disposition of substantially all the estate to the other parent of the omitted child.
(3) (c) The decedent provided for the child by transfer outside of the estate passing by
the decedent's testamentary instruments and the intention that the transfer be in lieu
of a provision in said instruments is show by statements of the decedent or from the
amount of the transfer or by other evidence.
2.) Breakdown
63
| |
Trust Wills Estates Horton Fall ’19 |
(i) A child is accidentally omitted only if she is born or adopted after decedent executes all of
her wills and revocable trusts. In addition, an omitted child gets an intestate share of all
assets the decedent either owned or placed in a revocable trust.
(ii) Two of the exceptions are the same under both the CPC and UPC (a child isn’t accidentally
omitted (and thus takes nothing) if either(1) T’s will or trust shows that the omission was
intentional or (2) T provided for the child through other means).
(iii) Under the CPC, the child also takes nothing if T had at least one child when T
made her will or trust and gave most of her estate to the omitted child’s parent. (Recall that
this rule only applies under the UPC when T has no children living when she executes her
will).
a) T is married to S. T makes a will leaving everything to S. T and S then have a child, C.
(1) Under the UPC, C takes nothing b/c (1) T had no kids when T made the will and
(2) the will leaves everything to C’s parent.
(2) Under the CPC, C takes an intestate share b/c the exception requires T to have at
least one child when she makes the will or trust that leaves everything to C’s other
parent.
b) Alternatively, if (1) T and S had a child, X, before (2) T executed a will that leaves
everything to S, and then (3) T and S also had C:
(1) Under the UPC, C takes a pro rated share of the property left to X (which is $0).
(2) Under the CPC, C takes nothing b/c T had one child when T made her will and left
everything to C’s other parent.