Wills & Trusts Outline

I. What is a will?
a. A will is a document executed by a testator that takes effect on the death of the testator.
i. Ambulatory: revoked by the testator at any time during the testator’s life
ii. No effect until death
iii. Purpose:
1. Dispose of testator property
2. Appoint a personal rep.
3. Exercise a power of appointment
4. Direct the method of payment of debts
a. Direct source – what account to pay for it – not the order of paying
b. Attorney’s get paid first
5. Revoke prior will in whole or in part
iv. Probate estate:
1. Property owned solely by decedent
2. Property owned by declarant as Ten. In Common
3. VR held by decedent

II. Will Substitutes: (T Survivorship CLAP)

a. Joint Tenants
b. Tenancy by Entirety
c. Totten Trusts
d. JT Bank Accounts
e. POD/TOD/In Trust For
f. Convenience Bank Account
g. Life Insurance
i. Disposition of life insurance proceeds
h. Pension/Retirement
i. Annuities

III. INTESTATE SUCCESSION

a. No will
b. Invalid Will
c. In part valid/In part not valid

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d. Intestate Distribution
i. (Spouse Share)
1. Surviving Spouse & No children – 100%
2. Lineal Descendants of BOTH spouses – 100% (children from same parents)
3. Surviving Descendants – but NOT lineal to the surviving spouse – 50% (child of
dead person but not of spouse)
4. Surviving Descendants from both & surviving spouse has her/his own
descendants – 50% (child from wife who is still alive but not child of the dead
person)
a. EVERY CHILD FROM THE DECEDENT SHARED THE ½
ii. Lineal Descendants
iii. Parents
iv. Descendants of Parents
v. Grandparents & Descendants of Grandparents
vi. Kindred of Last DECEASED Spouse (Goes thru parental)
vii. Escheat to State
viii. Case: In Re Tim
1. 53 nephews claiming to be family
a. Burden Shifting:
i. Presumption that decedent has heirs
ii. State rebuts presumption
1. Death
2. No Spouse
3. w/o will (intestate)
4. Diligent search for heirs
iii. Heirs/Claimant prove & demonstrate it
ix. Per Stirpes:
1. Each member of the ROOT generation receives a share – alive or dead @ time of
decedent’s death
2. If a member predeceased the decedent – the share goes down to the member’s
lineal descendants
a. Case: In re Estate of Davol – Per stirpes is used in Florida

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e. Adopted
Children:
i. Adopted child is cut off from her NP UNLESS:
1. NP married the AP
2. Other NP died before the AP married the surviving NP
3. Close Family adopted (treated as close family)
a. Brother, Sisters, Grandparents, & Aunts/Uncles

f. Virtual (Equitable) Adoption: (K/Perf(3)/Intestate)

i. K made b/w NP & AP
ii. NP perform by giving up child
iii. Child performs by living w/ AP
iv. AP partially perform by taking the child in & treating as their own AND
v. AP die intestate
1. Case: Kay v. Swartz
a. Zena’s share goes to Perry because Perry was adopted by Zena & Husband
– Zena Died – H remarries W2 – W2 adopts Perry – but Zena died – not
relinquished rights
i. AP = treated as BLOOD!
vi. Standard of Proof: Clear & Convincing Evidence (Pender Case)
g. Statute: takes effect @ time of death
i. Expectancy until the person dies intestate

h. Non-Marital Children: (MAA)

i. A NMC & his father has NO inheritance rights UNLESS:
1. Marriage: NP marries before or after the birth of the child even if its void
2. Adjudication:
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 a.
Paternity established by adjudication before or after father’s death
b.
An action to establish paternity for inheritance rights must be commenced
w/in 4 years of the date the child reaches 18.
3. Acknowledgement: father acknowledges it in writing
ii. Case: Brown
1. Stnd. Of Proof: Clear & Convincing Evidence
a. Presumption a child is of the marriage

i. After Born Children

i. A child may inherit from her father if she is conceived before but born after her father’s
death.

1. Sometimes – artificially conceived

j. Half Blood:
i. ONLY Collateral Inheritance (siblings)
1. One part – HB
2. Two parts – WB
a. Bottom number – denominator
b. Determination of parts – numerator

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 ii. Divide:
1. Susan: 2
2. Annie: 1
3. TOTAL = 3 x2 = 6 (x2 because its ½ share for that side)
iii. Shares:
1. Susan: 2/6 = 1/3
2. Annie: 1/6

IV. Personal Representative

a. MUST:
i. At least 18
ii. Mental Capacity; AND
iii. No felony conviction
1. Generally, FL residency is required EXCEPT: (GADS)
a. A grandparent of the decedent or a descendant of a grandparent;
b. An adopted child or adoptive parent;
c. The decedent’s spouse or a grandparent, parent, child or grandchild of the
decedent’s spouse; or
d. A spouse of any of the persons listed above.
b. Financial Institutions as PR: A federal or Florida bank, savings and loan, or trust company
may serve as a personal representative if its charter authorizes it to exercise fiduciary powers in
Florida.
c. Selection of PR:
i. No Will:
1. Surviving Spouse
2. Person selected by the majority in interest of heirs
3. Heir of the nearest degree of kinship
ii. Will:
1. Person selected in Will
2. Person selected by majority in interest
3. A devisee
d. No longer Qualified:
i. MUST file notice of her inability
ii. No notice filed:
1. PR may be removed by Court
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 2. PR may be charged w/ cost of removal

V. Will Formalities (WSEPW)

a. Writing
b. Signature
i. Test. Sign OR
ii. Another person subscribes the test. Name at the direction of AND in the presence of the
test.
1. A formal signature not required – Any mark such as an X or initials will suffice
(Case: Baron)
c. Signed at the end (Case: Schiele)
i. The Florida Probate Code does not define the “end” of the will.
1. Under Common Law: Logical End (below all the dispositive provision of will)
2. Other: Temporal end of her preparation of the will
3. Chronological end: after it’s all done – what comes after – end of process (Case:
Bradley)

d. In the presence of 2 attesting witnesses, the test.

i. Signs the will OR
ii. Acknowledges
1. He previously signed the will OR
2. Another person subscribed his name for him
e. The witness sign in the presence of:
i. Testator AND
ii. One Another
1. Line of sight: the Test. Must actually see the witnesses sign (capable to see)
2. Conscious Presence: Merely be aware of that the witnesses are present and are
signing her will
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f.Witness Qualifications:
i. Any competent person:
1. Able to observe and appreciate the test. Signing (capable of understanding)
2. No need to be disinterested
g. Attestation Clause:
i. Recites facts of Execution
1. Prima facie evidence
2. May help when witnesses don’t remember the facts of execution

h. Self-Proving Affidavit:
i. Attached to a will attesting to execution in conformity with FL. Law
ii. Signed at execution of later date
iii. Subscribed by 2 witnesses – who may also be for the Will
iv. Permits will to be entered into probate w/o further proof

i.No Self proving affidavit:

i. Oath of a witness is required for probate if the will is not self-proving
ii. If a witness is not available, cannot remember, or is incompetent, the personal
representative, or a disinterested person, may swear to the authenticity of will.

j.Foreign Language Will:

i. Accompanied by English Translation

k. Burden of Production:
i. A party with the burden of production (primary or initial burden of proof) has the initial
burden to present enough evidence to avoid a directed verdict.
ii. A party avoids a directed verdict if he convinces the judge that his evidence is strong
enough to convince a reasonable jury that the elements he must prove are met.

l.Burden of Persuasion:
i. A party with the burden of persuasion (ultimate burden of proof) is required to prove her
case to the jury by a particular degree.
1. Preponderance of the Evidence Standard
a. The preponderance standard has been met if it is more probable than not
that the fact in issue is true.
b. The preponderance standard is sometimes said to require the greater
weight of the evidence or proof by more than 50%.
2. Clear and Convincing Evidence Standard
a. Evidence is clear and convincing if it produces in the trier of fact a firm
belief or conviction, without hesitancy, as to truth of the allegations
sought to be established.

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 b. The clear and convincing standard is sometimes said to require proof by a
high probability.

VI. TESTAMENTARY CAPACITY

a. A testator MUST be:
i. 18 years old or
ii. Emancipated minor
b. To have test. Capacity a person must know: (nature/disp./relationship)
i. Natural objects of her bounty
ii. Nature & Extent of her prop.
iii. The disposition made AND
iv. The relationship of these elements in forming a plan for disposition
c. A test. Is presumed to have test. Capacity UNLESS he has been adjudicated incompetent.

d. Challenge to Capacity:
i. Burden of Proof: In a will challenge, other than in cases of undue influence, the burden
of proof is on the contestant.
ii. Effect of Successful Challenge
1. Challenge to Whole Will: The whole will is void.
2. Challenge to Portion of Will: The challenged portion is void.
iii. Physical and Mental Disabilities: Physical and mental disabilities have no effect if the
testator understands the elements listed on the previous slide.
iv. Adjudication of Incompetency: An adjudication of incompetency raises a presumption
of incapacity, which shifts the burden of production to the will proponent.

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e. Testamentary Intent:
i. Present intent to make a will
1. Presumption of Present Intent:
a. The use of the words “last will and testament” creates a presumption of
present testamentary intent.
b. The presumption is rebuttable by evidence of a sham will.

ii.Condition Precedent:
1. NOT effective if the will is subject to a CP.
a. Example: At the beginning of his will, testator states: “This will shall
take effect if I die from the chemotherapy treatment that I will undergo In
June 2011.”
iii. Motive:
1. Effective is there is conditional language merely showing the test. Motive for
executing her will
a. Example: At the beginning of her will, testator states: “I am executing
this will because I will undergo chemotherapy treatment in July 2011.”
f.Insane Delusion:
i. If a person suffers from an insane delusion, he believes nonexistent facts and conducts
himself accordingly against all evidence and probability.
1. A testamentary capacity challenge based on insane delusion rarely succeeds in
Florida.
g. Illogical Belief:
i. An illogical belief is supported by reasoning derived from a known premise.
1. An illogical belief is not grounds for a testamentary capacity challenge.
ii. Case: Edwards
1. Believed his brother was stealing from him – brother was on property w/o
permission – some factual basis – NOT illogical belief
iii. Case: American Red Cross
1. 3 will – Feb/July/Nov – Adjudicated MI retroactively to May
a. did not have lucid moment – FEB will wins!

h. Undue Influence:
i. What is a presumption?
1. Assumption of fact from existence of another fact
a. Except – conclusive presumption – rebuttable
2. Burden of production – bursting bubble
3. Burden of Persuasion – need 51% - preponderance of evidence – heavy burden
ii. Undue influence exists if (COS Would Not)
1. A person exerts control over the mind of the testator,
2. Overcoming that person’s free agency and free will,
3. Substituting the will of another,

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 4. Causing the testator to do what he would not otherwise have done but for that
control.

iii. Presumption of Undue Influence: Confidential Relationship (SCA)

1. A presumption of undue influence arises if the person exerting control
a. Was a substantial beneficiary under the will;
b. Had a confidential relationship with the testator; and
c. Was actively involved in procuring the will.
i. Factors (7): (PPRKISS)
1. Presence of the beneficiary at the execution of the will.
2. Presence of the beneficiary on those occasions when the
testator expressed a desire to make a will.
3. Recommendation by the beneficiary of an attorney to draw
the will.
4. Knowledge of the contents of the will by the beneficiary
prior to execution.
5. Giving of instructions on preparation of the will by the
beneficiary to the attorney drawing the will.
6. Securing of witnesses to the will by the beneficiary.
7. Safekeeping of the will by the beneficiary subsequent to
execution.
iv. Rebutting the Presumption:
1. The burden is on the controlling beneficiary to provide a reasonable explanation.
2. More proof may be required if the testator was mentally impaired at the time of
the influence.
v. No Confidential Relationship: In the absence of a confidential relationship,
1. There is no presumption of undue influence.
2. However, undue influence may be proved by evidence of
a. Suspicious circumstances coupled with
b. An “unnatural” gift preferring a stranger over blood relatives.
vi. If UI portion of will – not void whole will – UI section will be intestacy

i. Fraud:
i. Fraud in the Factum (Execution)
1. Fraud in the factum exists when a person does not know the nature of the
document she is executing.
a. Example: Benny convinces Teri to execute a will by misrepresenting the
will as a contract for sale. The will is void.
2. Effect
a. Fraud in the Factum as to an Entire Will: The entire will is void.
b. Fraud in the Factum as to a Portion of a Will: The affected portion of the
will is void.

ii. Fraud in the Inducement

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 1. Fraud in the inducement exists when a person knows the nature of the document
she is executing but is fraudulently induced to execute the document.
a. Example: Testator makes a large gift in his will to a person who
fraudulently represents that she will care for his children after his death.
2. Effect
a. Under the Forsythe rule, mistake in the inducement is not grounds for
voiding a will under F.S.A. § 732.5165.
b. Because fraud is governed by that same statute, it is possible that fraud in
the inducement is also not grounds for voiding a will.
c. Inducement Leading to Omission:
i. If a fraudulent inducement leads to an omission from a will,
enforcement of the will generally is not affected.
ii. However, if that fraud also leads to the inclusion of a gift to the
party who practiced the fraud, the court may impose a constructive
trust on the defrauding party.

j.Duress:
i. Duress: The will, or a portion thereof, is void if it is procured by PHYSICAL duress.

k. If will is invalid – spouse

i. Intestate – Spouse if fraud/duress/UI – not entitled to rights
ii. Lose immunity
1. Except: the other spouse knows about it – waiver
l. Mistake:
i. Mistake in execution:
1. VOID – if test. Was mistaken in the execution of the will (not know it’s a will)
ii. Mistake in the inducement:
1. NOT grounds for voiding (knows it’s a will – induce to sign it)
iii. Mistake of Omission:
1. Mistake resulting in omission does NOT affect enforcement
a. Some courts may deny probate if the mistake is CLEAR on its face
b. NOT grounds for reformation
iv. Reformation to Correct mistake:
1. An interested person may petition the court to reform the terms of the will to
conform to the test. Intent.
2. Petitioner must prove by clear & convincing evidence:
a. Testator’s intent AND
b. The terms of the will were affected by a mistake of fact or law, in the
expression or in the inducement
i. The Court may consider evidence relevant to the test. Intent even if
the evidence contradicts an apparent plain meaning of the will
3. Tax objectives:
a. On petition of an interested person, the court may modify the terms of a
will to achieve the testator's tax objectives.
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 i. This modification may not contradict the testator's probable intent.
ii. The court may provide that the modification applies retroactively.
m. Ambiguity
i. Patent: on face of will
1. Modern/Florida: Allows extrinsic evidence
2. Traditional: not admissible extrinsic evidence
ii. Latent:
1. Not evidence from face of will
a. Extrinsic evidence may be admitted
VII. Codicil:
a. Tail: 1. Revoke codicil only – will still alive ----- 2. Revoke will – Codicil dies too

VIII. REVOCATION
a. Writing
i. Express: a will may be revoked by a writing that satisfies will formalities
ii. Inconsistent Subsequent Will
1. Once revoked – always revoked – need to re-execute will w/ will formalities
b. Physical Act:
i. Burning, tearing, canceling, defacing, obliterating, or destroying a will by the testator or
someone acting under his direction AND his presence
1. Intent
2. Direction
3. Presence
ii. Case Bancker – test. Directed daughter to destroy will in his safe – door closed – not see
it – not revoked by physical act – not in the presence of test.
iii. Case Moneyham – test. Not able to get out of bed – tells daughter to get it – she says she
can’t find it but keeps it – might destroy it – not have both intent & act – need both
iv. Case Tolin: atty kept original – test. Had copy – wanted to revoke – destroyed copy – not
revoked original – valid will
v. Case Kuhn – niece found will torn into 2 pieces thru signature – presumed revoked if
torn
1. Presumption:
a. Will in test. Possession
b. Will – not found or found in mutilated state
i. Shifts burden of Production
2. Challenger: interested person
vi. Florida – does not recognize partial rev. by physical act
c. More than 1 will copy – revokes all copies
d. Exam Note:
i. Testamentary Capacity FIRST**

IX. Other Dispositions

a. Incorporated by Reference (BID)
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 i. A writing may be incorporated by reference into a will if
1. The writing is in existence when will is executed AND
2. The will:
a. Manifest an intent to incorp. (stated in will) AND
b. Describes the writing sufficiently to allow identification
ii. Once Doc. Is incorp. By ref. – FROZEN – irrevocable
b. Pour Over Trust:
i. Assets from the test. Estate are poured over into a trust.
1. Elements: (TIE(in will) B/C)
a. Trust executed properly
b. Trust established before OR concurrently w/ Will
c. Identification of the trust in the will AND
d. Trust embodied in writing
ii. Revocable unless Incorp. By reference
iii. Funding: inter vivos or the death of the test.
iv. Amended inter vivos

c. List of Tangible Personal Property (RSACD(NW))

i. Will refers to the writing
ii. Signed by test.
iii. Describes the items & bequests
iv. Not need to be attached
v. May be written/changed by the test. Thru lifetime
vi. No witness required
1. Multiple list: allowed – if conflict exists – last in time governs
2. NOT money – unless coin collection – not for monetary value
3. Before/During/After will – no time limit
4. Will & List inconsistent – will governs no matter the time will was made
d. Acts of Independent Significance
i. Will says all of my furniture – during life buys new sofa (independent act) – devisee gets
new sofa
e. Dependent Relative (Conditional) Revocation
i. Test. Prefers a prior disposition over intestacy
ii. Factors:
1. Intent to revoke dependent on validity of new disposition and
2. Similarity of schemes
a. DRR ONLY applies if Will #2 is invalid & Will #1 is revoked by physical
act
b. Could be revoked by writing #1 but part of #2 is UI (Murphy case)
iii. DRR & Undue Influence:
1. Can consider extrinsic evidence
2. Burden of Persuasion & Production shifts
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X. Lost or Stolen Will
a. A petition must contain a copy of the will or its substance AND 2 disinterested witnesses OR
b. 1 Correct Copy & 1 disinterested witness
i. Correct copy: copy conforming to an approved or conventional standard and this
requires an identical copy such as carbon or photocopy.
1. Computer copy – not exclusive list
ii. Interested person: effect by the outcome of the probate court – has standing
1. Notice
2. Ability to challenge
3. Including Personal Rep.
iii. Disinterested Witness: no stake in the will OR stand to benefit
1. PR can be an interested person but also not an interested witness
a. Case: Smith v. Deparry
i. Here PR was an interested witness because
1. directly responsible for lost codicil
2. Could be sued for malpractice by the Minor grandchild &
for letting Smith take out from the trust before probate OR
3. Smith can sue for the 40K
ii. The other witnesses were not interested but:
1. Did not know the content of the codicil
a. Didn’t read it
b. Didn’t see the execution
i. Maybe if she prepped it and then later saw it
was signed
c. Has to be before administration is closed

XI. Types of Devise

a. Devise: gift of real property
b. Bequest: gift of tangible/intangible personal property
c. Legacy: money
d. Modern – Devise: means ALL types
i. Specific Devise: identify what and only can be satisfied by receipt of particular property
ii. Demonstrative Bequest: fixed amount payable from a particular fund
1. Source
2. Insufficient funds: if the designated fund is insufficient to cover a demonstrative
gift fully, the gift is treated as a general legacy to the extent of the insufficiency
iii. General legacy: Indicate amount/quantity – can be paid from any asset
iv. Residuary Gift: Gifts of whatever probate asset have not been devised by specific, demo,
or general devises.
1. Whatever is left
2. If testator gives all estate – that’s residue (all he got)
a. Example: Case Lorenzo – Test. Gave 50% to Brother & 50% to Brother
in law – is a residue gift
XII. Abatement
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a. No provision in the will was made for payment of the claim OR
b. The estate assets are INSUFFICIENT to pay debts and to satisfy all specific & general devises
i. Testator can state what sources to use to pay the creditors but NOT the order if which the
creditors get paid
1. If no provision in will on how to pay the creditors (follow this order):
a. Intestacy
b. Residuary
c. General
d. Specific & Demonstrative
c. Pro Rate Abatement: Generally, abate equally without preference of real or personal property,
however the surviving spouse rights abate last in any given class
i. Percentage – last to go
ii. Case: Potter
1. Residence to Daughter – Specific
2. Equal amount – General
a. Amount – abate first

d. Reaching Revocable Trust:

i. NOT incorp. By reference because it is a revocable trust
1. Order of abate:
a. Intestacy
b. Residuary clause of the WILL
c. Residuary clause of the TRUST
d. General in WILL & TRUST – Pro Rata – treated like they were created in
the same instrument
e. Specific & Demonstrative in WILL & TRUST – Pro Rata – treated like
they were created in the same instrument
e. Classes: (AFF IF CB ALL)
i. Costs, expenses of administration, compensation of personal representatives and their
attorney’s fees (PR/ATTY)
ii. Reasonable funeral, internet, and grave marker expenses not to exceed $6,000 (funeral)
iii. Debts and taxes, with preference under federal law, certain Medicaid claims, and claims
in favor of the state for unpaid court costs, fees, or fines (IRS)
iv. Reasonable and necessary medical and hospital expenses of the last 60 days of the last
illness of the decedent (last 60 days illness)
v. Family allowance up to $18,000
vi. Arrearage from court-ordered child support (child support)
vii. Debts acquired after death by continuation of the decedent’s business (continue business)
viii. All other claims, including the founded on judgments rendered against the decedent
during his lifetime and any excess over the sums allowed in funeral expenses (2) and
expenses of last illness under class 4 (4).
1. Funeral expenses excess
2. Other expenses of last illness
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 a. Pro Rata Payment: insufficient to pay all creditors of a particular class –
the creditors are paid ratably in proportion to their claims.
i. Hypo: Owe 60K in class 4 – class 1-3 paid in full – only have 30K
left in assets – 3/6 = ½ proportion will be split between creditors in
class 4
f. Outside of probate – creditors CANNOT touch it
i. Ex. Life Insurance: unless taken out to pay creditors

XIII. Ademption
a. A testamentary gift is adeemed if it is not in the test. Estate at the time of the test. Death
i. Intent: to determine whether a gift has been adeemed
1. Maybe intent to get equivalent
a. Hypo: devises condo 1 – sells it & buys condo 2 – beni. will get
b. Applies: Specific devise
c. Partial Ademption: A gift may be adeemed partially (usually stocks)
i. Exception to Ademption:
1. The balance of the purchase price owing at the testator’s death;
2. The amount of an unpaid condemnation award
3. Unpaid proceeds of fire or casualty insurance, or other recovery for injury to
property;
4. Property owned by the testator at his death and acquired by foreclosure of a
security interest for a specifically devised obligation.
5. Property sold by a guardian of the property (or if a condemnation award,
insurance proceeds, or recovery for injury to property has been paid to the
guardian of the property), with a general pecuniary devise equal to the net sale
price (or the amount of a condemnation award or insurance proceeds). However,
this exception does not apply if, subsequent to the sale (or condemnation or
casualty), an adjudication determines that the disability of the testator has ceased
and the testator survives the adjudication by one year.
a. Hypo: R sells condo to J – down payment of $300K – worth $3 Million –
R dies – Gets left over purchase price of $2.7 Million

d. Securities:
i. 100 shares – GENERAL
ii. MY 100 shares – SPECIFIC

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XIV. Exoneration
a. Florida Rule
i. Liens will NOT be exonerated unless:
1. The will expressly provides for exoneration (CLEARLY)
a. Cannot just say: payment of all debts
XV. Pretermitted
a. Pretermitted Spouse
i. Who married the testator AFTER the test. Executed the will
1. Takes an intestate share of the test. Estate UNLESS: (P/W SI)
a. Spouse is provided for or waives the pretermitted spouse’s share in a
pre-nup or post-nuptial agreement
b. Spouse is provided for in the will by contemplation of the marriage
i. Provide for person named in will AND
ii. make the provision in contemplation of marriage to the named
person
1. if a will makes a provision for a person who later becomes
the test. Spouse
a. The surviving spouse has the burden of proving that
the provision was not made in contemplation of
marriage
b. Extrinsic evidence may be admitted to prove that
the provision was not made in contemplation of
marriage
c. Testator demonstrates an intent not to provide for the surviving spouse
i. Include expression of that intent in the will
ii. Intent to omit may be implied by the terms of the will
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 iii. Extrinsic evidence may be introduced
2. Share is taken from the test. Estate according to the abatement rules (Class 8)

b. Pretermitted Children (AITSS)

i. Is born to a testator AFTER the will is executed
1. If child gets intestate share and there is surviving spouse that his/her parent –
the spouse gets 100% & child will get 0%
2. Intestate share unless:
a. Child received advancement
b. Will demonstrates an intentional omission OR
c. The testator:
i. Had 1 or more child when will was executed AND
ii. Devised SUBST. all of estate to other parent of pretermitted child
(his/her mom/dad) AND
iii. Other parent survived the test. And was entitled to take under the
will
1. Similar to the survival spousal share thru intestate –
surviving spouse gets 100% if child from same parents
ii. Codicil republishes date of execution: child born after will but before codicil – not
pretermitted child
iii. Adopted – treated as NC – pretermitted
iv. Non-Marital Child: determined by the date of birth NOT the date of legitimation

XVI. Annulment & Divorce

a. Revokes all test. Gifts or gifts in revocable trust to the former spouse
i. Revokes life insurance beneficiary designations
1. Treated as if the former spouse died UNLESS:
a. The will states that the devise be valid despite the divorce OR
b. Divorce decree stipulates the devise be valid anyway
ii. Exception: Separation does not revoke
iii. Remarriage: does NOT revalidate the provisions after divorce/annulment
XVII. Lapse
a. If the beni. Predeceases the test. Or disclaims the gift
i. Effect: if a gift lapses, a resulting trust arises in favor of the test. Estate
ii. Protected beni: antilapse statute protects GP or lineal descendants of the GP of the test.
1. Adopted child: considered like NC – lineal desc. Of the AP
2. If protected antilapse: the property is distributed per stirpes to the lineal desc. Of
the deceased beni.
3. Alternative: Will make other provision for the distribution of a lapsed gift
a. If lapses – goes to someone else
b. Express conditional of survivorship: Lapses
i. Example: T – D (if survives me) – express conditional of
survivorship** - & residue to Robin – Robin gets it – lapsed –
goes into residue

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 i. If there is a residue: lapses & goes into residue
ii. No residue: Lapses & goes into intestate
iii. Case: Lorenzo
1. Testator gave to brother & brother in law (equal shares of all he had) & if they do
not survive – to the spouse of each – Residue clause – because giving it all away
– brother died – spouse of the brother dies – niece & nephew to see if they can
take
a. Brother is protected under antilapse statute & lineal descendant of GP but
the will had an alternative gift – “to the spouse if brother dies” – spouse is
not protected under the antilapse statute – therefore lapsed – share went
to the residue which was the brother in law
b. Lapsed Class Gifts:
i. Class gift:
1. Test. Gives to a group of individuals such as “my children”
a. However, if makes to “my children, A & B, it’s a gift to individuals – not
a class gift
ii. Lapse w/in class: (NOT protected by antilapse statute) – other members in class take it
iii. Antilapse Statute & Class Gift: lineal descendants of that member gets the share
2. Example: T to nephews – Nick, Ned, Nolan – Ned dies but leaving 3DS
(daughters) – protected by antilapse statute – Ned’s daughter get 1/9 each and
Nick & Nolan get 1/3. The daughters share per stirpes Ned’s share of 1/3
iv. Avoidance of lapse:
1. A class member must survive until the date the gift vests (time of distribution –
death of test.) unless will says otherwise
2. Increase or decrease class between the execution of the will and the test. Death.
c. No Residue of Residue Rule:
i. Common Law: partial intestacy would result if the deceased residuary devise was not
protected under antilapse statute
ii. FL Rule: remaining residuary devise takes all if the deceased devisee is not protected by
the anti-lapse statute
1. Example: T to A & B (individuals) – A dies –
a. C/L: goes to intestate
b. FL Rule: B absorbs gift – not intestacy
XVIII. Homestead
a. Requirements:
i. Natural person
ii. Amount:
1. Municipality: extends to ½ acre of continuous land
2. Outside municipality: extends to 160 continuous acres including improvements
iii. Permanent Residence of the owner or his family (domicile- look at DL, mailing address,
voter registration)
1. If more than the acreage protected – partition it
2. Outside municipality – not include limitation of the residence of the owner or
family
3. Protection as to municipality acre is when the property began
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 a. Incrop. – Corp. – treated as Incorp.
4. Can have more than 1 homestead
b. Personal Property Homestead – up to $1,000
c. Restrictions on Devise:
i. Depends on ownership form
1. TBE (ROS) – governs NOT will
2. Cannot devise homestead if there is a surviving spouse or minor children even if
give it in will – not effective
a. If only surviving spouse – give to her only
b. No surviving spouse or minor children – devise to anyone
3. Traditionally:
a. Spouse would get LE
b. Lineal Descendants would get VR
4. Elects:
a. Surviving spouse can elect LE or TIC w/ lineal descendants shared ½
undivided interest
d. Protected from creditors:
i. MOST except: (TMM)
1. Taxes/assessments
2. Obligators contracted (mortgage)
3. Mechanics Liens
e. Devise homestead exemption to anyone who COULD take under intestate succession if there is
NO surviving spouse or minor children (Case: Snyder v. Davis)
i. Hypo: devise to step son – could take thru intestate
ii. Hypo: divorce wife – treated as predeceased – her lineal descendants can still take

XIX. Family allowance

a. Up to $18,000 may be claimed by:
i. Surviving spouse AND
ii. Lineal Descendants and descendants the decedent was obligated to or did support.
1. Unless the will provides otherwise, the family allowance is in addition to the
spouse or heir’s share of the decedent’s estate.
a. Minor child – obligated to
b. Adult child but in college – did support
c. GP – did support
i. Class 5 in abatement classes
XX. Exempt Personal Property
a. The surviving spouse, or the decedent’s children if there is no surviving spouse, may take
i. Up to $20,000 in household furniture, furnishing and appliances.
ii. Two automobiles held in the decedent’s name used by the decedent or the decedent’s
immediate family for personal use.
iii. Florida pre-paid college contracts.
iv. Certain benefits paid on the death of school teachers and administrators.
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 1. Finance car – can still claim – secured creditor
2. Unsecured creditors – CANNOT attach to property
a. Rule: Devise to anyone who could take thru intestate

XXI. Elective Share

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a. Surviving spouse can ask for elective share even if testator wanted to omit her from taking anything
a. Spouse can only waive it by Prenup/Postnup
b. If 1 thing goes into probate & another category = put in probate
c. If can fit into 2 categories – which would give the highest value
d. Surviving spouse gets 30% of elective estate
e. Pro Rata distribution – intestate/Residuary/General/Specific & Demo
a. Ways to remember Elective Estate:
i. Include:
1. Probate
2. Will Subs
3. Rev/Irrev.
4. Benefits
5. Prop. Transfer
ii. Exclude:
1. BA(SW)EL
XXII. Simultaneous Death
a. Distribution:  If two people die and the order of death cannot be determined, the property of
each passes as if other died first.
i. Treat as H died – assets
ii. Treat as W died - assets
b. Types of Distributions Subject to Simultaneous Death Act
i. Testate distributions
ii. Intestate distributions
iii. Joint tenancies
iv. Tenancies by the entirety
v. Life insurance contracts
c. U.P.C. 120 hour rule: The U.P.C. 120 hour survival rule has not been adopted in Florida.

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XXIII. Slayer Statute
a. A person who unlawfully and intentionally kills another, or procures death of another, forfeits all
death-related benefits he would have derived from the decedent.
b. Application: The slayer statute applies to
c. Intestate Distribution
i. If the decedent died intestate, the decedent’s estate passes as if the killer disclaimed his
interest.
ii. Thus, a child of killer may take killer’s share by representation.
d. Statutory benefits, including elective share and pretermitted spouse or child share.
e. Will substitutes, such as life insurance policies.
f. Survivorship interests, including joint tenancy or a tenancy by entirety
i. The survivorship estate is transformed into tenancy in common.
g. Trusts
h. Evidence of Killing
i. A criminal conviction for murder is conclusive proof the killing was unlawful and
intentional.
ii. If the alleged killer has not been convicted, the court determines by preponderance of
evidence whether the killing was unlawful and intentional.
1. Case: Congleton
a. Choked wife to death – called 911 said he was sorry – at criminal trial –
was not guilty due to insanity – civil standard (preponderance) found that
he was SANE @ time of killing – therefore slayer statute applies
2. Case: Kendall
a. Son killed mother & brother – can the descendants of the killer take? Yes
they can – statute only bars the killer – treat killer as disclaimed
(predeceased) – lapses unless anti-lapse statute
3. Case: Fiel v. Hoffman
a. Wife & step children were on will – wife killed the man – she cannot take
but her children can take because they are named on the will
XXIV. Advancements
a. An advancement is a transfer to a potential beneficiary that occurs before the intestate death of
the decedent.
b. An advancement requires
i. Delivery to the heir with a contemporaneous written designation of advancement or
ii. Acknowledgement by the heir in writing.
c. Value of Advancement
i. Cash: Sum received
ii. Property: The value of the property at the time the advancement was made (not at the
time of the decedent’s death).
d. If get more advancement than the estate – not return it
e. Hotchpot example:
i. Ben received an acknowledged advancement of $75,000 from his father, Sven. Two years
later, Sven died, leaving an estate of $525,000.  Sven was survived by two sons, Ben and
Len, and one daughter, Gwen. To determine the value of Ben’s estate, the following
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 computation is made:

a. Estate + Advancement = total x parts (how many heirs) = share for each –
Advancement = Share of person who got
b. advancement
XXV. Satisfaction of Devises
a. Satisfaction of devises is the testate version of advancement for testate shares.
b. A devise will be deemed satisfied if
i. The will provides that the gift satisfies the devise;
ii. The testator executed a contemporaneous writing confirming the gift as a satisfaction; or
iii. The recipient acknowledges the satisfaction in writing.
c. A satisfaction is valued at the earlier of
i. The date the beneficiary possesses or enjoys the gift or
ii. The date the testator dies.
d. NOT go through Hotchpot – just deducted amount from the share given in the will
i. Example: R give $20K advancement – in will states $100K for each child – R gets $80K

XXVI. TRUSTS
a. Essay Note:
i. Establish trust
ii. Construe provisions in Trust
iii. Trust duties/obligations
iv. Terminate trust
1. Unless Charitable Trust

b. Essence of a trust
i. The essence of a trust is a split between the legal and equitable interests in property.
ii. The settlor conveys property to a trustee to hold in trust for certain named beneficiaries.
iii. Example  
1. Settlor conveys Blackacre to Trustee to hold in trust, to pay the income to A for
life and then to distribute the principal to B and her heirs.
2. Interests Created
a. Trustee has the legal fee simple absolute in Blackacre.
b. A has an equitable life estate in the income produced by the trust.
c. B has an equitable vested remainder in Blackacre.
iv. Example: H conveys blackacre to trustee (J) to hold and pay income to trustee (J) for life
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 and then distribute to the kids. – still a trust because there is a future interest in the kids –
not solely for the trustee.
v. Example: H conveys blackacre to trustee (J) for the income of trustee (J). – NOT a trust
– Legal & Equitable merges – trust extinguished
1. If it’s for the SOLE benefit of the trustee & no future interest – NO TRUST!
a. Failed trust – goes back into probate estate
c. Revocability:
i. Presumption of Revocability
1. Traditional Rule: Traditionally, a trust was irrevocable unless the settlor expressly
provided otherwise.
2. New Trust Code: Unless the instrument provides that the trust is irrevocable, a
trust may be amended or revoked by the settlor.
ii. Will Formalities:
1. Most revocable trusts are will substitutes.
2. Testamentary Aspects
a. The testamentary aspects of a revocable trust must be executed with will
formalities.
b. “Testamentary aspects” means trust provisions disposing of assets on or
after the settlor’s death.
i. Trust says to dispose ON/AFTER death of settlor
iii. Self-Settled Trust: A  trust  is a “self-settled trust” if
1. It is revocable by the settlor or
2. The settlor is a mandatory or permissible distributee.
iv. Creditors
1. Revocable Trust: Creditors may reach the assets of a revocable trust while the
trust remains revocable.
2. Irrevocable Trust: Creditors may reach the assets of an irrevocable trust to the
maximum extent the assets may be distributed to, or for benefit of, settlor.
v. Duty of Trustee: When a trust is revocable:
1. The trustee’s duties are owed exclusively to the settlor.
2. Thus, the trustee may follow directions of the settlor that run contrary to trust
provisions.

d. Elements of a Private Trust (SITRAVW)

i. Settlor
ii. Intent
iii. Trustee
iv. Res (and Delivery)
v. Ascertainable Beneficiaries
vi. Valid Purpose
vii. Writing (Land and Testamentary Aspects of Trust)
1. Res Element
a. Subject matter of the trust
i. Real Property
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 ii. Tangible Personal Prop.
iii. Intangible Personal Prop.
b. MUST be in existence
i. Mere expectancy NOT trust res
ii. POT or Life Insurance are trust res
c. Future rights (remainder/future earnings)
d. Promise to create:
i. Promise not supported by consideration: no unless intent to create
a trust
ii. Promise supported by consideration: trust when property is
acquired w/o renewed trust intent
e. Record deed – even if kept in possession – constitutes delivery (Adams
case)
2. Settlor Element:
a. Must be at least 18 years old
b. Testamentary Trust: will capacity is required
c. Revocable trust: will capacity is required
d. Irrevocable trust: power to convey the trust res is required
e. Testamentary aspect: will capacities required
i. Testamentary capacity – 4 elements
1. Nature objects of her bounty
2. Nature & extent of her property
3. Disposition made AND
4. The relationship between elements
3. Intent Element:
a. Must have present intent
b. At the time the trust is created
c. Oral or Written words or Conduct
i. Precatory Language:
1. Wish, Desire, Hope, Be nice
2. NOT intent
ii. Non-Precatory Language:
1. Shall, Direct, Must
2. INTENT
a. “Instructed by me” – not precatory – mandatory
language
d. Secret Trusts:
i. Testator makes an outright devise with an oral trust with
instructions for the benefit of another person
1. Outright devise w/ instructions
2. Resolution of conflict claims:
a. Avoid unjust enrichment – will enforce the secret
trust for the beneficiary
i. Constructive trust
e. Semi-Secret Trusts:
i. Property is devised to a trustee in trust without the designation of a
trust beneficiary.
1. Resolution of Conflict claims:
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 a. Avoid taking property away from heirs or residuary
devisees – NOT enforce semi-secret trust.
i. Resulting trust
f. Result back:
i. If trust fails – goes to estate or residue if there is one

4. Trustee Element:
a. Qualifications:
i. Individual:
1. 18 years old
2. Competent AND
3. Capable of Acquiring property in her own right
ii. Corporate entity:
1. If its charter gives it the powers of trustee
b. Settlor as trustee: Sole trustee is okay if he is NOT the sole beni.
c. Compensation:
i. Reasonable compensation and may receive reimbursement for
reasonable expenses
d. Acceptance of trusteeship:
i. Comply w/ method of acceptance stipulated in the trust
ii. Accepting delivery of the trust property OR
iii. Exercising the powers or performing the duties of the trustee
1. Not an acceptance by preserving or inspecting it unless
delivery
e. Rejection of trusteeship:
i. Trustee sends written notice to the settlor or beneficiaries of intent
to reject
1. Trust will not fail for lack or want of trustee
5. Beneficiaries Element:
a. Person or entity, living or not with a beneficial interest, present or future
in the trust AND
b. With power of appointment over trust assets
c. Private trust:
i. MUST be ascertainable
d. Charitable trust:
i. No need to be ascertainable benis.

e. Qualified Beneficiary:
i. Current Beni
ii. Intermediate Beni
iii. First Line Remainder Beni
1. A descendant of a remainder distribute may become a
qualified beni on the death of a remainder distribute
2. Class gifts: living children are qualified – non-living NOT
qualified yet – become qualified @ time of distribution

iv. Special Rights of Qualified Beneficiaries:

1. Modification and Termination of an Irrevocable Trust:

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 The statutory provisions for modification and termination
of an irrevocable trust may be invoked by qualified
beneficiary only.
2. Notice: Many notice requirements and consent provisions
apply to qualified beneficiaries only.
3. Accounting: A trustee of an irrevocable trust must provide
an annual accounting to qualified beneficiaries.
4. Removal of Trustee: However, the right to seek removal
of a trustee extends to
a. All beneficiaries,
b. The settlor and
c. Co-trustees.
6. Declarations of Trusts Proved: (Writing Element)

e. Funding Trusts:
i. Intangible Personal Property:
1. Stocks, Bonds, & Other Securities Not Held in Brokerage Account:  The security
must be re-registered in the name of the trustee.
2. Brokerage Account: The account must be re-titled in the name of the trustee.
3. Bank Account: The account should be re-titled in the name of the trustee.
4. Cash: Cash may be transferred by check or electronic transfer
ii. Tangible Personal Property:
1. Publicly Titled Personal Property (e.g., automobile): The item must be retitled in
the name of the trustee.
a. Other Personal Property (e.g., works of art or jewelry): A document of
assignment should be executed, and the document and item should be
delivered to the trustee
iii. Real Property
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 1. Third Party Trustee: To satisfy the Statute of Frauds requirements for funding a
trust with realty when a the trustee is a third party, the transfer to the trustee must
be accomplished by a deed that is
a. Signed by the settlor and
b. Witnessed by two witnesses.
2. Self-Declaration of Trust: The execution of a deed is not required for a self-
declaration of trust in realty.

f. Homestead in Trusts:
i. Retain homestead protection against creditors if: (In Re Alexander)
1. Sole trustee
2. Sole beni. during lifetime
3. Living on property
4. Right to revoke (Revocable inter vivos trust)
ii. What aspects of Homestead?
1. Protect from creditors during lifetime
2. Protection after death of testator
3. Devise
iii. If you want to use homestead to pay creditors – EXPRESSLY say it (sell homestead to
pay creditors)
1. Case: Engelke
a. Wife signed prenup (waived H. protection (like predeceased)) & Adult
children – can devise to anyone
iv. Statute: Devise includes REVOCABLE intervivos trust
1. If surviving spouse & Minor children – CANNOT devise
2. If no minor children – can devise to surv. Spouse
3. If NONE – can devise to anyone
a. For protection to continue – devise to someone who COULD take by
intestate
4. IRREVOCABLE trusts – not a devise under the statute
a. Creditors cannot touch it anyway but once homestead is in one – no longer
homestead (like selling/transferring it)
i. Gave up ownership
g. Trusts Contests:
i. Validity of all or part of the revocable trust or revocation can be brought when the trust is
1. Irrevocable OR
2. Settlor’s death
a. Need clear & convincing evidence of settlor’s intent.

h. Modification or Revocation of Revocable Trust:

i. Can be modified or revoked by:
1. Substantial compliance w/ a method provided in the terms of trust OR
2. If no terms in trust, by either:
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 a.A later codicil that expressly refers to the trust or specifically devises
property that would otherwise have passed according to the terms of the
trust OR
b. Any other method manifesting clear & convincing evidence of the settlor’s
intent
i. Can be by physical act – need intent & act (like wills revoke by
physical act)
ii. The amendment (and probably revoke) of a REV trust with testamentary aspects needs to
conform to WILL formalities.

iii. Divorce: revokes unless the trust or divorce judgment state otherwise

i. Cross Over Issues:

i. Reformation: (correct mistake) expression or inducement need clear & convincing
evidence

ii. Undue Influence: (same as wills)

1. Undue influence exists if (COS Would Not)
a. A person exerts control over the mind of the testator,
b. Overcoming that person’s free agency and free will,
c. Substituting the will of another,
d. Causing the testator to do what he would not otherwise have done but for
that control.
2. Presumption of Undue Influence: Confidential Relationship
3. A presumption of undue influence arises if the person exerting control: (SCA)
a. Was a substantial beneficiary under the will;
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 b. Had a confidential relationship with the testator; and
c. Was actively involved in procuring the will
i. 7 factors: (PPRKISS)
1. Presence of the beneficiary at the execution of the will.
2. Presence of the beneficiary on those occasions when the
testator expressed a desire to make a will.
3. Recommendation by the beneficiary of an attorney to draw
the will.
4. Knowledge of the contents of the will by the beneficiary
prior to execution.
5. Giving of instructions on preparation of the will by the
beneficiary to the attorney drawing the will.
6. Securing of witnesses to the will by the beneficiary.
7. Safekeeping of the will by the beneficiary subsequent to
execution.
iii. Anti-Lapse Statute:
1. GP or lineal descendants of GP of Settlor (same as will) [Relationship
requirement]
2. Survivorship effect: ALL remainders treated as contingent
a. Example:
i. Language in trust: S- trustee – settlor for life – principal to
beneficiaries
ii. REWRITE statute as ALT. Contingenet remainder: to beni if
survives settlor, but if not to beni lineal descendants living @
distribution date
1. If the trust says^^ this language – antilapse statute does
NOT apply – apply gift as written
iv. Spendthrift Provisions:
1. Definition: A spendthrift trust arises if the settlor provides that the beneficiary’s
interest
a. May not be transferred by the beneficiary voluntarily, and
b. May not be attached by the beneficiary’s creditors
3. Persons Protected
a. A settlor may establish a spendthrift trust for a third person.
b. However, a settlor may not establish a spendthrift trust for himself.
4. Types of Interests Protected: A spendthrift provision may attach to a present
possessory interest or a future interest
5. Generally, creditors cannot reach the beneficiary’s interest. 
a. A beneficial interest in a spendthrift trust may be reached for
i. Services rendered for the protection of the trust.
ii. alimony or child support (but only as a last resort).
iii. A claim of Florida or the U.S., to the extent provided by state or
federal law.
1. IRS
2. Govt. provider:
a. Medicaid/SSI/Welfare
3. Back then: necessities was an exception but now included
under the 3rd category
b. Discretionary Trusts:

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 i. Discretionary Trust:
1. A discretionary trust exists if the trustee has discretion in making payments.
a. Example of Discretionary Trust: “The trustee may pay the income in
such amount and at such times as the trustee in her sole discretion
determines.”
ii. Support Trust
1. In a support trust, the beneficiary can force the trustee to pay out income to the
level of support dictated by the trust.
a. Support the beneficiary
b. Example of Support Trust: “The trustee is directed to pay the
beneficiary $1,000 per month for the beneficiary’s education”
c. Example: $1000 a month or such additional sums as trustee shall
determine (support trust w/ set amount & discretionary trust)
iii. Do NOT confuse w/ precatory language
iv. I devise BA to my son & it is my desire – precatory language
1. But if: sufficient language to create trust
a. I hereby __ & he may pay the income to my grandson – discretionary
language in a trust
v. Usually combined w/ spendthrift provision
1. Spendthrift – controls
vi. Whether creditors can reach it
vii. Creditor Rights:
1. Absolute discretion: The trustee may have unfettered discretions in making
payments.
a. Creditors cannot reach it because the beneficiary cannot get at the
money
viii. Required Level of Distribution
1. In some trusts, the trustee is required to make payments up to a certain level
(e.g., “as much of the trust income as is necessary to maintain the beneficiary in
her current state of life”).
2. In such a case, the beneficiary may force the trustee to make payments to the
beneficiary, up to the level designated in the trust.
3. Because the beneficiary may force payments, some courts may permit the
beneficiary’s creditors to reach the trust, at least to the level of support
designated in the trust.
4. Previous Florida law was silent on whether special creditors could reach support
trusts, and new trust code does not appear to resolve that issue. (no mention of
special creditors)
a. Can force the trustee to pay out
b. Creditors can PROBABLY reach up to the level of required distribution
c. Special creditors:
i. Services
ii. Alimony/CS
iii. Govt. interest
d. Spendthrift provision – it overtakes – the rules apply – some element of
discretion or support in the trust – exception of the 3 special creditors
can reach UNLESS absolute discretion in the trustee
ix. Case: Miller v. Kresser
1. Trust for sons
2. Jerry was trustee
3. Irrevocable trust
a. How is the trust created?
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 i. Difference in writing, how amended/revoked
4. Funded: property in Islamorada
5. Initially outright devise in Will to James – Kresser sues James for Construction
project – judgment against him
6. She amends the will – not the trust because it was IRREVOCABLE
a. POT into trust – Trust existed before the will
b. Spendthrift provision & Jerry (trustee) has absolute discretion on what
he can pay out
i. Can Kresser attack whats in the trust?
ii. Is the trust still existed?
1. Kresser argument: that had both sole trustee & sole beni
= merges – no trust (legal & equitable interest) – james
had so much control
a. The court does NOT agree – it did not merge –
James had equitable interest but could not merge
because Jerry has legal title
2. James was calling all the shots – could he claim the
interest?
a. The trust – jerry had absolute discretion – the beni
cannot get at the proceed unless the trustee gives
it to the benis – nor can the creditors
i. Creditors can only get it if beni gets it
3. Hypo: kresser is ex spouse – discretionary language –
maybe get writ of garnishment for alimony (special
creditor & spendthrift)
a. Difference: no one can force trustee to make
payment if trustee has absolute discretion
x. Typical trust – lifetime payment & remainder
xi. Bacardi case: payment that’s due - $1000 due outright from the trust – creditor (special
exception) – owed $500 – trustee needs to pay creditor & then the excess can go to the
beneficiary
xii. Spendthrift trust – special creditor – they get the first bite – beni gets what is left over
xiii. If trust fails – resulting back in the favor of the settlor’s estate
xiv. Holding property in trust – trust established – the trustee creditors cannot get at it –
even if hes a beneficiary – trustee has legal title – and as long as its properly titled &
established trust then trustee creditors cannot get at it

ii. Termination & Modification of IRREVOCABLE Trusts

1. Cannot revoke – but can terminate or modify
a. Take general sense
b. Substance of the trust
2. Judicial: requires court action (MUST)
a. Grounds:
i. Trust purpose fulfilled or unanticipated events impair the
purpose
1. Ex. Singer trust – Lily (trustee) – purpose to pay Patsi
(law school) – graduates – trust purpose fulfilled – no
purpose to keep going
ii. Best interest of the beneficiary
1. Ex. Illness – need more income
b. Who:
i. Trustee OR qualified beneficiary
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 ii. Trustee OR qualified beni
c. Date:
i. No date
ii. Effective date of statute 12/31/2000
d. Limitations:
i. None
ii. No termination if all interests are valid under 90 year RAP AND
trust terms expressly prohibit judicial modification
1. Ex. Tells Atty – RAP 90 years – vest w/in that time terms
in will & expressly prohibit no judicial
modification/termination
2. Ex. 90 days only – not the express provision – then can
modify
3. Spendthrift – not control

3. Nonjudicial:
a. Grounds
i. Unanimous consent of trustee & and ALL qualified benis after
the death of the settlor (EVERYONE) – not available if settlor
still alive
b. Power of Termination:
i. Trustee AND all qualified benis.
c. Date of trust:
i. After the effective date of the statute
d. Limitations:
i. Valid under RAP 90 day rule UNLESS: the trust terms expressly
permit nonjudical modification
1. Prevent them from changing – she has to make interest
satisfy the 90 day rule (all you have to do) unless the
terms state its okay to do NJ modification
a. ONLY needs to satisfy the 90 day rule – limits it
b. But if she wants to allow it to happen – not satisfy
the 90 days or puts provision in trust that they
have the power
2. Spendthrift – not control
4. Common Law:
a. Grounds:
i. Unanimous consent of ALL benis after the settlor’s death or with
the settlor’s consent during lifetime (NO trustee)
b. Who?
i. ALL benis (w/ settlor if alive)
c. Date of trust?
i. No date
d. Limitations?
i. Cannot have it if there is a trust purpose to be left to be served –
usually age limitation – spendthrift provision – no modify –
purpose left to be served
1. Case: Claflin v. Claflin
a. Trust – to pay out the money for a period of time
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 – until age of 30 – settlor died – was not 30 – but
wants his money now – settlor anticipates it all –
everyone said give the kid the money – get the
principal early?
b. NO – age limitation – trust purpose left to be
fulfilled
c. w/ age limit – prohibit CL modify/termination
2. Case: White v. Bourne
a. Husband – cut out of the trust – everyone is
fighting – all get together –
b. Husband & 2 benis & hospital – the trustee is
NOT there
c. All sat down – this is how we are going to do it
d. Trustee – complained
e. Nonjudical termination: cannot accomplish – no
trustee there
f. CL: all benis – no need to have trustees – all benis happy w/
termination – did it – trustee only wanted their fees
5. Uneconomic:
a. Grounds?
i. Trust corpus below $50,000 if the trustee determines cost of
trust administration impairs trust purpose
ii. Value of trust property is insufficient to justify cost of
administration
1. Not enough money after paying administration
b. Who?
i. Trustee (notice to all qualified benis)
ii. Court on application by trustee OR qualified benis
c. Date?
i. None
d. Limits?
i. If you have a spendthrift provision – not prevent it UNLESS trust
expressly provides the settlor cannot terminate based on
uneconomic trust. (language that specifically prevents that)

b. Question: How can the settlor make sure the trust isn’t broken? – NOT open ended like this
i. Any method that fits the fact situation – go through all – alternative

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XXVII. Charitable Trusts
a. May be crated to benefit a charitable purpose (anything under 501(c)(3)).
i. Not just outright gift to charity – need a charity purpose
b. Beneficiaries:
i. No definite individual names- can name charity
ii. Can make a charitable trust for scholarships
iii. May enjoy status fo qualified beni
c. Duration: perpetual – not subject to RAP
d. Selecting Recipients of a trust for General Charitable purpose:
i. The Court may select one or more charitable purposes/beneficiaries
1. Comport w/ settlor’s intent to the extent her intent can be ascertained
ii. Different than Cypres – timing – Cypres Trust is established – later failed
iii. Court decides w/ extrinsic evidence
e. Cypres Doctrine:
i. If the purpose of a charitable trust fails (e.g., if the charity ceases to exist), a court may
fashion a new charitable purpose that is as close as possible to the original purpose (cy
près comme est possible).
ii. The court may invoke its cy pres power to reform the trust only if the trust has a general
(rather than a specific) charitable purpose.
1. General purpose – NOT specific (first thing to address on exam)
iii. If there is an alternative beneficiary in the trust – Cypres does NOT apply – follow
Settlor’s intent (case: Jewish Guild for Blind)
f. Enforcement of Charitable trust:
i. Traditionally – enforce by Attorney General
ii. Now – Attorney General, or Settlor, or Charitable organization that is expressly
designated to receive

XXVIII.Honorary Trusts:
a. w/o human beneficiary & NOT charitable purpose – Limited
b. Trust for care of Animals (Pet trust):
i. Animal must be alive during the settlor’s lifetime
ii. Trust will terminate on the death of the animal (or last surviving)
c. Trust to maintain cemetery plot
d. RAP:
i. Animals: 360 years
ii. Other: 21 years
iii. Burial: exempt from RAP
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 e. Enforcement:
i. Named in the trust OR
ii. Appointed by the court

XXIX. Charity to Charity Rule:

a. Charity lasts in perpetuity (forever) – can be
b. Trust that has several possible gifts
i. A charity for so long as liquor is not served on the premises but if liquor is served on the
premises then to B charity
1. Shifting executory interest – cut short a charity interest – causing it to shift from
charity to charity
2. Both exempt from RAP
a. Charity A Present – always exempt from RAP
b. B is an individual – not charity example
i. C/L vest w/in 21 days – might serve liquor for more – vest too late
c. BUT if shift is for charity to another – protect it
ii. BOTH charities need to be charities
c. Hypo: ^^ but If.. then to C. (ch/ch/individual) – RAP? Charity A is not subject to RAP (present
interest) – Charity B – NO (charity to charity) – Charity B to C (subject to RAP – not ch. to ch. –
gift to C is void! – Resulting trust – in favor of Settlor

XXX. Trustee Duties/Powers

a. Unless the trust document provides otherwise, the trustee has the powers of a fee owner, which
include the power to 
i. Buy, sell, lease, mortgage, repair, insure, and pay claims against trust property,
ii. All without court authorization.
b. Conveyance of Real Property
i. When title to real property is held by a trustee, the trustee has full power to convey title to
a bona fide purchaser, as long as the purchaser pays value and acts in good faith.
ii. The purchaser of the realty is under no duty to inquire whether the trustee has the power
to act or is properly exercising power.
iii. If the trustee exceeds her authority in transferring realty, the trust beneficiary has a
remedy against the trustee, but the transfer stands.
c. Imperative or Mandatory Power
i. An imperative or mandatory trust power must be exercised by the trustee.
1. Example of Imperative or Mandatory Power: Settlor executes a trust that
states, “Trustee shall pay the income of the trust annually to Beneficiary.”
d. Discretionary Power
i. A discretionary power may, but need not, be performed.
1. Example of Discretionary Power: The trust provides that, “Trustee may, in her
sole discretion, pay for the educational needs of Beneficiary.”
2. A discretionary power must be exercised in good faith.
e. Actions of Co-trustee:
i. Traditional Rule: Traditionally, all co-trustees were required to agree before action
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 could be taken.
ii. New Florida Trust Code: Under the new Florida Trust Code, co-trustees who are unable
to reach a unanimous decision may act by majority decision.
1. If a co-trustee is unable to perform because of absence or illness, the remaining
co-trustees may act for the trust.
f. Administration of trust: (umbrella)
i. In the administration of a trust, a trustee must use all special skill or expertise that he may
possess.
g. Prudent Investor: (PSIP)
i. The trustee must invest and manage trust funds as a prudent investor would, in light of
the purposes, terms, distribution requirements, and other circumstances of the trust.
ii. Subject to the prudent investor rule, a trustee may invest in every kind of property and
every type of investment.
iii. The trustee’s investment strategy must
1. Take into account production of income and safety of capital and
2. Be consistent with duty of impartiality and purposes of trust.
iv. The over or under productiveness of a trust is judged by the portfolio as a whole.
1. Trustee has to take into account – purpose & who are beneficiaries
2. As a whole – not individual
3. Case: Feldstein
a. Trustee who is sitting on property – not doing anything w/ it – could have
attempted to lease it
b. Property that is supposed to spin off income – if it’s real property – need
to rent it out – it actually might appreciate the property (goes up) –
eventually get property that is worth more – income expected – not
receiving it
4. Case: Figel v. Wells Fargo
a. Trust set up – to pay income for the settlor’s son for life – then to
distribute to grandson – broad power (power to do anything deemed to be
appropriate)
b. Trustee had mandatory stuff but also had a discretionary to provide
additional sums (invade the principal) in the event the son or grandson
requested payment to sustain lifestyle
i. Son did request that – WF would give it to him – decreasing by 7%
- WF (trustee) stops giving it to him
ii. Terry sues for breach of fiduciary duty
c. Trustee has made a decision based on terry repeated – did 70% equity &
30% bonds – high on end equity (higher risk but potential of growth of the
principal) – WF to make the principal because Terry was causing WF to
dip into principal – then time passed – stock market tanked – not paying
off anymore
i. Terry says: WF should have invested the other way –
d. Issue 1: Bad investment: NO – look at the time the decision was made
e. Issue 2: Consented
i. Terry consented by not responding to the annual accounting
ii. EVEN IF the decision was not prudent – he consented

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 v. Hypo: Johanne (trustee) makes decision to invest money – sit back when mark forces
have changed – say not to worry about it – NO cannot do it – need to continue to monitor
those circumstances
h. Duty to Diversify
i. Unless the trust document provides otherwise, diversification is required unless the
trustee reasonably believes that not diversifying
1. Is in the interest of the beneficiaries, and
2. Furthers the purpose of the trust.
ii. The court also has power to permit the trustee to deviate from the terms of the trust
instrument.
i. Duty of loyalty: Self-Dealing
i. A trustee engages in self-dealing if she enters into a transaction with the trust in her
personal capacity for direct personal gain.
ii. Self-dealing includes: (BTLS)
1. Buying trust assets or selling personal assets to the trust;
2. Buying or selling assets of one trust from or to another trust for which the trustee
is also trustee; and
3. Entering into loan transactions with the trust (but in an emergency, the trustee
may lend her own assets to the trust to protect trust assets); and
4. self-employment for services that fall within scope of trustee’s ordinary duties.
iii. Self-dealing is prohibited unless it is permitted by the trust or by court approval.
j. Self-dealing: Voidable per se
i. If the trustee enters into a transaction involving trust property for the trustee’s own
personal account, the transaction is voidable per se.
ii. If a transaction is voidable per se, under the “no further inquiry” rule, the beneficiaries
may avoid the transaction, without regard to the fairness of the transaction.
iii. Exceptions (BI)
1. A person who in good faith deals with the trustee is protected from liability under
the voidable per se rule. (BF Purch)
2. Investments: A presumption of conflict between personal and fiduciary duties
does not arise when a trustee authorized to engage in trust business invests in
investment instruments that are owned or controlled by the trustee or its affiliate
or from which the trustee or its affiliate receives compensation for providing
services in a capacity other than as trustee.
k. Self-Dealing: Presumptively Voidable
i. A transaction is presumptively voidable if it involves a conflict of interest.
ii. If a transaction is presumptively voidable, the transaction may be upheld if the trustee
proves the transaction is fair.
1. Example: A conflict of interest may arise if the trustee’s spouse or children enter
into a transaction with the trust.
l. Avoid Liability of Self-Dealing: (ABSR)
i. Liability for self dealing may be avoided if
1. The trust instrument authorizes the self dealing,
2. The contract was made before the trustee took office,

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 3.The beneficiary failed to bring a timely suit challenging the contract, or
4.The settlor or beneficiaries ratify the transaction.
m. Allocation of Receipts/Expenses:
i. The Uniform Principal and Income Act applies to all Florida trusts and estates, unless the
governing instrument provides otherwise.
ii. The trustee must follow traditional accounting rules in respect to the distribution of
income and principal.
1. However, the trustee may adjust income and principal if adherence to traditional
principles makes it impossible for the trustee to meet the duty of impartiality.
2. In making an adjustment, the trustee should consider a variety of factors,
including
a. The nature, purpose, and expected duration of the trust,
b. The identity and circumstances of the beneficiaries, and
c. The need for liquidity, regularity of income, and preservation and
appreciation of capital.
n. Impartiality
i. A trustee must administer the trust in a manner that is equitable to all beneficiaries.
ii. In administering the estate impartially, the trustee must take into account, inter alia, the
financial needs, tax positions, and risk tolerance of the various beneficiaries.
iii. Thus, a trustee must not manage trust investments in a manner that maximizes one
beneficiary’s interest to the detriment of another beneficiary.
1. Example
a. Trustee placed all of the trust assets into bonds to maximize the income
for the income beneficiary at the expense of principal that will be enjoyed
eventually by the holder of a future interest.
b. Trustee has violated the duty of impartiality.

o. Delegation to Co-trustees:
i. Delegation is permitted among co-trustees only in respect to functions the settlor did not
reasonably expect the trustees to perform jointly (e.g., incidental ministerial duties).
(divide responsibility)
ii. Traditionally, all co-trustee were required to agree before an action could be taken.
iii. Under the Florida Trust Code, co-trustees who are unable to reach a unanimous decision
may act by majority decision.
1. If 3 co-trustee – can 1 sit back? – NO – duty to administer
2. Hypo: R & Atty – J(teacher) & P (accounting) – divided functions amongst each
(expertise)
iv. Multiple trustee – majority decision rules
v. Hypo: J(trustee) – traditional rule – J would have to do all the investment – not make
good ones – does it make sense – so delegate duties to invest
vi. Hypo: J hires an investment professional (Jeremy) – J has to do due diligence on Jeremy
1. Make sure he’s qualified
2. Duty to monitor as he goes along AND
3. If embezzles – she’s accountable to a certain extent
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 vii. Case: Little River Bank
1. Trustee (bank) hires an attorney to handle the closing
a. Delegation:
i. Trustee function that is delegable? Yes – closing attorneys do it –
the settlor would not expect the trustee to do it
ii. Attorney – licensed/experience/no evidence of prior embezzlement
– no breach of fiduciary duty
iii. Entire closing turned over to the attorney – bank is supposed to be
monitoring
iv. Attorney goes pick up the check
1. Let the client know
2. Deposit in trust account – he did
v. Attorney embezzles money & then dies
b. When delegation goes bad? The bank was not liable – they were on top
of things
2. Hypo: R directed Johanne to sell the condo – J owes R duty while she is still alive
– hires John attorney
a. Due diligence
i. Embezzled before
ii. Experience
3. Hypo: if the bank had not investigated – hire him if he’s embezzled in the past
OR not monitoring
p. Other trustee duties:
i. Duty to Collect and Protect Trust Property: The trustee must
1. Manage trust property so that it is productive;
2. Record documents, such as deeds; (no protection)
3. Pay applicable taxes on trust assets;
4. Insure trust assets;
5. Invest trust funds within reasonable time of their receipt; and
6. Collect claims due on trust.
ii. Duty to Earmark Trust Property: The trustee must earmark trust property by labeling
it as trust property.
1. She may own other property herself – she cannot comingle her property & trust
property
iii. Duty to Not Comingle Funds
1. The trustee must not commingle trust assets with his own or with assets of another
trust.
2. If the trustee commingles funds and property is later lost or destroyed, a
presumption arises that the property lost belonged to the trustee.
3. However, if the trustee maintains records clearly indicating the respective
interests, a trustee may invest as a whole the property of two or more separate
trusts.
a. You will eat the loss – presume it’s your property – not trust property
iv. Duty to Keep Records: A trustee must keep records of trust administration.
v. Duty to Report:

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 1. Within 60 days of accepting the trusteeship, the trustee must provide, for all
beneficiaries who are currently entitled to income from the trust, the trustee’s
name and address.
2. Subsequently, the trustee must provide an annual accounting of the trust.
3. On request from a beneficiary, the trustee must provide information about the
trust’s administration.
a. Regular beni can get basic info too
vi. Duty to Enforce Claims and Defend Trust: The trustee must enforce claims of the trust
and defend the trust against claims.

q. Remedies for Breach of Fiduciary Duties:

i. If a trustee breaches a fiduciary duty, the court may award the following remedies to the
beneficiaries(AIRPO)
1. An injunction preventing the trustee from committing further breaches of trust.
2. An accounting.
3. Removal of the trustee.
4. An order compelling the trustee to pay money or restore property.
5. Any other appropriate relief.
ii. Case: Anton v. Anton
1. Embezzling from trusts – Jared removed (crim. & civil liability)
2. Tracey now named as 3rd trustee – Tracey sued Mitch
3. Mitch seeking grand theft charges & troubled damages – Tracey says cannot do
that –
4. How can Tracey say Mitch cannot sue?
a. Have 3 trustees – a majority of trustee
b. Mitch as trustee – as co-trustee could get Jared removed – but breach of
fiduciary duty – needs to have majority vote
c. Elizabeth Kurp – minimal involvement – choose Mitchell but doesn’t join
– signs affidavit & give letter
i. I fully concur – not really consent to the lawsuit
ii. I consent to attorney fees
1. Enough for the position because of the letter – but put both
affidavit & letter together makes it enough
5. Remedies:
a. Breach of fiduciary duty
i. Criminal proceeding: Require giving restitution
ii. Civil damages – what he took from the trust (provide restitution for
the trust again)
1. Suing as trustee & has a duty to protect the trust
iii. Treble damages – in any other appropriate relief
b. If the court ends up – double recovery –he can get his double recovery and
get it back
iii. Case: Aiello v. Hyland
1. Sell property to pay taxes – trustee picks out target to sell property to brother
2. Trustee selling property to his brother – Conflict of interest
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 a. Selling to family member – voidable NOT void
i. Presumptively voidable if conflict of interest then further inquiry
1. Fairness of the transaction
a. Sold to brother for lesser sum & did not explore
sales around – transaction is voidable
3. Avoided the K & removed the trustee – the trustee said you cannot do that – the
court has no power because they didn’t ask for it
4. ALWAYS available remedy – Court on its own may remove the trustee based on
breach of fiduciary duty
r. Liability of trustee to third persons:
i. Tort Liability
1. A trustee is personally liable for torts committed in the course of trust
administration or for obligations arising from ownership or control of trust
property only if the trustee is at fault personally.
2. When a trustee accepts a testamentary trust, the trusteeship relates back to the
date the settlor’s death.
a. Therefore, the trustee may become personally liable on tort claims that
arise after the settlor’s death but before the trustee formally accepts the
trust.
ii. Contract Liability:  If a trustee discloses fiduciary capacity when she enters into a
contract, the trustee is not liable personally on the contract. (identify capacity in K – no
liability)
iii. Case: Hasting Potato Growers
1. Court can say not to mortgage the property – can restrict the trustee duties
a. Mortgage to lender – representative the mortgage – Subsequent Bona fide
purchaser – no notice
b. Transfer w/o notice – lender gets to keep property
2. Why not keep property? NOT bona fide – knew or SHK because the mortgage
was part of the public record
XXXI. Constructive Trusts
a. A constructive trust may arise if the court in exercise of its equity powers imposes a trust on a
person to avoid unjust enrichment.
b. A court may impose a constructive trust if a person has gained property
i. Through fraud, mistake, undue influence or duress, or
ii. By breach of a fiduciary duty.
c. Example
i. Terry fraudulently induced Orson, the owner of Blackacre, to execute a deed granting
Blackacre to Terry when Orson intended to convey to Bella.
ii. On proof of the fraud, the court may declare Terry to be the constructive trustee of
Blackacre for Bella.
iii. Terry’s sole duty will be to convey Blackacre to Bella.
d. A person requesting the imposition of a constructive trust must prove the grounds for imposing
the trust by clear and convincing evidence.

XXXII. Resulting Trusts:

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a. A resulting trust arises from legally inferred rather than manifested intent.
b. A resulting trust may arise if an express trust fails in whole or in part.
c. Example:
i. Sean devises $250,000 to Tom in trust to pay the income to Bill if Bill reaches 21.
ii. If Bill dies before he reaches 21, a resulting trust will arise in favor of Sean’s estate.
d. Purchase money Resulting Trust:
i. A purchase money resulting trust may arise if one person pays the proceeds for property
that is then titled in the name of another person.
ii. Example: Ana purchased Blackacre for value, and the deed subsequently recorded listed
Bob as the owner.
1. Close Family Relationship
a. If Ana and Bob have a close family relationship (husband/wife,
parent/child, or grandparent/grandchild), a gift from Ana to Bob will be
presumed.
b. In that case, Bob will own Blackacre in his own right.
2. No Close Family Relationship
a. If Ana and Bob are not closely related, a gift will not be presumed.
b. In that case, Bob will hold in resulting trust for Ana.
3. Rebuttable Presumption
a. In either of the cases described above, the presumption is rebuttable.
b. That presumption may be rebutted by competent extrinsic evidence
(written or oral).

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