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INTRODUCTION Dead Hand Control A decedent may condition a beneficiarys gift on the beneficiary behaving in a certain manner as long as the condition doesnt violate public policy. Generally upheld unless the condition constitutes a complete restraint on marriage, requires a beneficiary to practice a certain religion, encourages divorce or family strife, or directs the destruction of property. Who Takes Decedents Property? Nonprobate property: 1) property held in joint tenancy, 2) life insurance contracts (modern trend to include other POD contracts, 3) legal life estates and remainders, 4) inter vivos trusts. o Passes through the terms of the nonprobate instrument Probate Property: passes pursuant to the terms of decedents will, otherwise through intestacy. o Probate is the default o Personal representative is appointedthrough will, or by court. Inventories assets, pays creditors, distributes property. TESTAMENTARY CAPACITY Testamentary Capacity Generally o Requirement: Must have testamentary capacity to create a valid will Must be 18 years old and have the ability to know: 1) nature and extent of his property, 2) the natural objects of his bounty, 3) the nature of the testamentary act hes performing, 4) how these things all relate to constitute an orderly plan of disposing of his property. o Strong presumption of testamentary capacity absent evidence to the contrary. o Even if the testator has testamentary capacity generally, if the will or any part thereof is caused by a defect in capacity, the court strikes as much of the will as was affected by the defect. Insane Delusion o A false perception of reality that the testator adheres to against all reason and evidence to the contrary. Majority TestIf a rational person could not reach the same conclusion under the circumstances, the belief is an insane delusion Minority Testif there is any factual basis to support the belief, the belief is not an insane delusion o Causation: The delusion must cause the testator to dispose of his property in a way that he would not have otherwise. Majority Testbut for causation Minority Testmight have affected Undue Influence o Another substitutes his intent for the testators intent; where the is coercion (not physical) Traditional Rule: Plaintiff bears the burden of proving 1) the testator was susceptible, 2) the defendant had the opportunity, 3) the defendant had a motive, 4) causation Presumption Doctrine: If plaintiff shows: 1) a confidential relationship, 2) weakened intellect, 3) defendant takes a bulk of the estate, there is a presumption of undue influence and the burden shifts to the defendant to overcome the presumption. o Gifts to attorneys: presumption of undue influence unless married or related to testator. Most jurisdictions require clear and convincing evidence that the gift was really the testators intent. Other jurisdiction differences: create an irrebuttable presumption, presumption regardless of the size of the gift, presumption even if attorney didnt draft the instrument, require an independent attorney to consult the testator. o No Contest Clauses: if a challenge is anticipated, the testator can include a clause that provides that if a beneficiary challenges the will, they are barred from taking under the will.

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Some jurisdictions will not enforce the clause if there is probable cause to support the challenge.

Fraud o

Intentional misrepresentation, made knowingly and purposely to influence the testators testamentary scheme, that causes the testator to dispose of his property in a way in which he would not have otherwise Fraud in the inducementintentionally misrepresents a fact to the testator to induce the testator to execute a will, or amend or revoke the will, in reliance upon the misrepresentation Fraud in the executionintentionally misrepresents the nature of the document that the testator is signing

Duress o Wrongdoer performs, or threatens to performs, a wrongful act that coerces the donor into making a donative transfer he would not have otherwise made. Tortious Interference with Expectancy o Tort action. Plaintiff still has to prove either fraud or undue influence. Bringing the claim as a tortious interference has several advantages: not a will contest for purposes of a no contest clause; punitive damages may be available; the action is subject to the standard statute of limitations, not the shortened probate statute of limitations WILL EXECUTION AND REVOCATION Assuming testamentary capacity, next requirement is a property executed will. o Jurisdictions Wills Act formalities o How strictly courts require testator to comply Common Law ApproachAttested Wills o Requirements: 1) a writing that is 2) signed and 3) witnessedeach jurisdictions adds additional requirements. Typically require strict compliance. o Typical Statutory Requirements: Signatureanything the testator intends to be a signature. Most states permit another to sign if the testator is present and at the testators direction Witnessestestator sign or acknowledge his signature in the presence of 2 witnesses present at the same time. Witnesses must sign the will and know they are signing a will, Presenceparties must perform in the presence of other parties Line of sight approach: must be capable of seeing the act if he or she looks at the moment it is being performed. Conscious presence approach: has to understand, from the totality of the circumstances, that the act is being performed. Order of Signingtestator must sign before the witnesses, unless they all sign as part of one transaction and no one leaves the room. Writing Below Signaturestyped of handwritten notes validity depends on 1) whether the state requires the testator and/or witness to subscribe the will (sign at the end), and 2) if the will need not be signed at the end, on temporally when the gift was added to the will (if before it was signed, valid; if after it was signed, invalid) Delayed AttestationCommon law, witnesses have to sign the will immediately after the testator signs or acknowledges. Modern trend, delayed attestation is ok as long as witnesses sign within a reasonable time.

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o Interested witnesses: witness takes under the will. Different approaches: void entire gift to witness, purge the witness of the excess interest he or she would take if this will were valid, interested witness creates only a rebuttable presumption of wrongdoing. Swapped Wills: some courts save it under misdescription doctrine. Modern trend is to probate will under scriveners error.

UPC Approach to Attested Wills o UPC Requirements: Witnesses present at the same timewitnesses need not be present at the same time; testator can sign or acknowledge in front of each witness separately. Acknowledgmenttestator can acknowledge either the signature or the will in front of the witness. Conscious presencewhere another signs for the testator, the conscious presence approach applies to the requirement that the party sign in the testators presence and at his direction. Writing below signaturesubscription not required Delayed attestationwitnesses may sign the will within a reasonable time (implicitly rejects that witnesses have to sign in the testators presence) o Curative Doctrines: UPC repudiates strict compliance and advocates the harmless error/dispensing power approach. Substantial Compliance: a will is property executed as long as 1) there is clear and convincing evidence that the testator intended the document to be his will, and 2) there is clear and convincing evidence that the testator substantially complied with the Wills Act formalities Harmless Error/Dispensing Power: the will was properly executed as long as there is clear and convincing evidence that the testator intended the document to be his or her will. o Interested Witnesses: UPC abolishes the interested witness doctrine Notarized Wills o Under UPC, a will is valid if signed by 2 witnesses or a notary Holographic Wills o Holographic wills need not be witnesses, but 1) there must be a writing, 2) the writing has to be in the testators handwriting (completely or at least the material provisions depending on jurisdiction), 3) the writing must be signed by the testator, and 4) the writing must express testamentary intent. Some jurisdictions require 5) that the will be dated. Scope of a Will o Integration: those pieces of paper physically present when the will is executed and that the testator intends to be part of the will constitute the pages of the will o Republication by codicila codicil has the effect of reexecuting, republishing, and thus redating the underlying will, but if redating the underlying will appears inconsistent what the testators intent, the courts to not have to redate the will. Important for incorporation by reference o Incorporation by Referencedocument not executed with Wills Act formalities may be incorporated by reference and given effect along with the will if 1) the will expresses the intent to incorporate the document, 2) the will describes the document with reasonable certainty, and 3) the document was in existence at the time the will was executed (courts apply this last requirement strictly) o Acts of Independent Significancea will may refer to an act or event that is to occur outside of the will, and that act or event may control either who takes or how much they take, as long as the referenced act has its own significance independent of its effect upon the will

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Revocation o A validly executed will (attested or holographic) can be revoked by act, by writing (if the writing qualifies as a will), by presumption, or by operation of law. o Revocation by actif 1) the act is destructive in nature, and 2) the testator has the intent to revoke when the act is performed. Someone else can perform the act if in the presence of the testator and at their direction Common law: act has to affect at least some of the words of the will UPC: act need not affect the words of the will as long as the act affects some part of the will UPC does permit partial revocation by act. o Revocation by writingif the writing qualifies as a will (either attested of holographic). A subsequent will can revoke a prior will either expressly or implicitly (through inconsistency), and either in whole or in part (through a codicil). Codicila will that merely amends and/or supplements an existing will that does not completely replace an existing will. o Revocation by presumptionwhere will was last in testators possession and cannot be found after testators death, a presumption arises that the testator revoked the will (by act). The presumption can be rebutted if the proponents prove by preponderance of the evidence that a more plausible explanation exists for why the will cannot be found. If rebutted, the will is not revoked, and under the lost will doctrine, the will can be probated if its terms can be established by clear and convincing evidence. o Dependent Relative Revocationeven where properly revoked, if 1) testator revoked the will, in whole or in part, 2) based upon a mistake, and 3) the testator would not have revoked but for the mistake, the revocation will not be given effect. Court also requires that either 4) the mistake must be set forth in the revoking instrument and be beyond the testators knowledge, or 5) there must be a failed alternative scheme (typically an attempt at a new will that failed). o RevivalAmerican Approach: will #2 revokes will #1 the moment #2 is executed. Split on what is needed to revive #1. some require that #1 be reexecuted. Others require only that the testator intended to revive #1. Where #2 is revoked by act: courts will take virtually any evidence of the testators intent to revive #1. Where #2 is revoked by writing: intent to revive #1 must be expressed in will #3 Under UPC, if will #2 is a codicil, revocation of the codicil automatically revives the provisions of the underlying will that the codicil had revoked. o Revocation by operation of lawwhere testator divorces, all of the provisions of the will in favor of the ex-spouse are automatically revoked by operation of law (some jurisdictions apply this to ex-spouses family; and some jurisdictions apply this to will substitutes too). Contracts Concerning Wills o A person may contract to execute a particular will, to make a particular devise, or not to revoke a particular will or devise. If the contract is valid under contract law, the contract will be enforced against the testators estate before the decedents estate is distributed. At common law, the alleged contract could be oral. Under UPC, there must be a writing signed by the decedent evidencing the contract. o Joint Will: will executed by 2 different people that each intends to constitute his or her own will.

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General rule is that the execution of a joint will does not give rise to even a presumption of a contract not to revokethe intent to form a contract not to revoke must be express. Contract rights vs. spousal protection rights: where surviving spouse remarries and then dies, and the surviving spouses spouse claims his or her spousal protection rights, if such rights constitute breach of a contract not to revoke, the jurisdictions are split over whether contract beneficiaries under the contract not to revoke come first (typically children under first marriage) or whether the spousal protection rights of the surviving spouse come first. Majority: terms of the contract not to revoke are enforced and the contract beneficiaries take before the new spouse.

CONSTRUING WILLS Admissibility of Extrinsic Evidence o Starting assumption is that the will is the best evidence of the testators intent and extrinsic evidence shouldnt be allowed to vary its meaning, but it is admissible if it goes to the validity o the will. Modern Rule: admit extrinsic evidence to help construe the will, and maybe to reform the will, anytime there is clear and convincing evidence 1) that the will contains a mistake, and 2) its effect on testators intent. o Common law (majority): Plain Meaning Rulenot admissible to show that testators words mean something other than their plain meaning. Only admissible to construe a latent ambiguity (not apparent on the face of the will). o Modern Approach: take evidence of the circumstances surrounding the testator at the time of execution to held determine if there is an ambiguity, latent or patent. o Scriveners Error: Modern Approachif there is clear and convincing evidence of a scriveners error, and clear and convincing evidence of its effect on testators intent, extrinsic evidence admissible to establish and correct the error. Changes in Beneficiary o Lapse: where a beneficiary predeceases the testator, the gift is said to lapse and will fail o Failed Gifts: failed specific gifts and failed general gifts fall to the residuary clause, if one, otherwise to intestacy; failed residuary gifts fall to intestacy. Failed part of residuary: under common law, that part falls to intestacy because no residue of a residue. Under modern trend, the part goes to the other residuary takers. o Anti-lapse: may save a gift that otherwise would lapse and fail. Provides that where there is a lapsed gift, if 1) the predeceased beneficiary meets the requisite degree of relationship to the testator (grandparent or lineal descendant under UPC), and 2) the predeceased beneficiary has issue who survive the testator, then 3) the gift will go to the issue of the predeceased beneficiary 4) as long as the will does not express an intent that anti-lapse should not be applied. Under UPC, anti-lapse doctrine doesnt apply to gifts to spouses where the spouse predeceases the testator because a spouse does not meet the requisite degree of relationship requirement (may be because of step children). o Class gifts: may also save a gift that otherwise fail. Has a built-in right of survivorship so that if one member of the class predeceases the testator, his or her share is redistributed among the surviving members of the class. Anti-lapse and class gifts: where a member of a class gift dies survived by issues, the jurisdictions are split over which doctrine should be applied first to save an otherwise failed gift. Modern trend: apply anti-lapse first (which gives to the issue) before applying the class gift doctrine (which gives to the other members of the class). Changes in Testators Property

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o 4 types of gifts you can make in a will: 1) specific gift, 2) general gift, 3) demonstrative gift (general gift from a specific source and treated like general gifts, 4) residuary gift (everything not given specifically or generally) Ademption: Testator makes a specific gift, and it is not in the testators estate at time of death. Identity Approach: irrebuttable presumption that the gift was revoked. Under UPC, a presumption against revocation arises, and the beneficiary is entitled to any replacement property the testator owns at time of death, or the monetary equivalent Satisfaction: Under UPC, if the testator makes an inter vivos gift to any beneficiary under his will, the gift does not count against the beneficiarys testamentary gift unless there is a writing evidencing such an intent. If the donor creates the writing, it must be contemporaneous with the gift; if the donee creates the writing, it can be created any time. Abatement: if testator has made more gifts than he has assets, the doctrine states that residuary gifts should be reduced first, general gifts second, and specific gifts last.

WILL SUBSTITUTES AND PLANNING FOR INCAPACITY Overview: one can opt out of intestacy either 1) by executing a valid will, or 2) by creating a valid nonprobate instrument. Inter Vivos Trusts o Trustee holds legal title; beneficiary holds equitable title. Even if trust is revocable and the settlor is the life beneficiary, there is no need to transfer legal title upon the death of the settlor. Property placed in the trust inter vivos passes pursuant to the terms of the trust and is nonprobate property. Revocability: Common lawif a trust is silent as to its revocability, it is irrevocable. If that trust is revocable and expressly provides for a particular method of revocation, only that method suffices. If trust does not provide for a method of revocation, any method that adequately demonstrates the settlors intent to revoke suffices. Modern Trend/UTC: a trust is revocable unless it expressly implies that it is irrevocable. If the trust expressly provides for a particular method of revocation, that method is not exclusive unless the trust expressly so provides. A subsequently written will can expressly or implicitly revoke the trust, in whole or in part. Creditors rights: a life tenants (testator as life beneficiary) interest is extinguished at death, so creditors have no right to reach the property. Under modern trend: where the settlor is the life beneficiary of a revocable trust, creditors of the settlor can reach the property in the trust, even after death. Contracts with Payable-on-Death Clauses o Common law: the only type of contract with a P.O.D. clause that qualified as a valid nonprobate transfer was a life insurance contract. o Modern Trend: expands the life insurance nonprobate exception to include all third party beneficiary contracts with a P.O.D. clause. Multiple Party Accounts o Three possible intents parties may have had when creating the account: 1) a true joint tenancy, 2) an agency account, 3) a P.O.D. account.

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o Upon the death of one of the parties, the courts take extrinsic evidence of the parties true intent and treat the property accordingly. Under Modern trend, the presumption is that inter vivos the parties own in proportion to their contributions, and at death there is a right of survivorshippresumption can be rebutted and change the disposition of the funds.

Pour-Over Wills and Inter Vivos Trusts o Property being poured over to the trust under terms of the will does not avoid probate. o Where a will has a pour-over clause giving probate property to the trustee of the testators separate trust, the pour-over clause must be validated under incorporation by reference, acts of independent significance, or UTATA. Acts of independent significancetrust must have its own significance independent of its effect upon the decedents probate propertythe trust must be funded inter vivos and have property in it when the testator dies. Subsequent amendments to the trust can be given effect regardless of when they are created, but many jurisdictions subjected the trust to probate court supervision (at least the probate property being poured over) Incorporation by referencethe trust instrument is being incorporated by reference into the will. Critical requirement is that the trust instrument must be in existence when the will is executed. Trust need not be funded inter vivos, but the trust that is created is a testamentary trust subject to probate court supervision, and subsequent amendments to the trust are not valid absent a subsequent codicil to the will. UTATApour-over clause is valid as long as 1) the will refers to the trust, 2) the trust terms are set forth in a separate writing other than the will, and 3) the settlor signed the trust instrument prior to or concurrently with the exception of the will. The trust need not be funded inter vivos, yet it will be subject to probate court supervision, and amendments can be given effect regardless of when they are created. Joint Tenancies in Real Property o The right of survivorship means that upon the death of one joint tenant, his share is extinguished and the shares of the remaining joint tenants are recalculated. No property is passed at death, so nothing passes through probate. Planning for Incapacity o Most common tool for property issues is durable power of attorney. o Most common tool for personal decisions about health care are a living will (medical directive) or a durable power of attorney for health care decisions LIMITATIONS ON TESTAMENTARY POWER TO TRANSFER Spousal Protection Schemes o Every jurisdiction has several doctrines that protect surviving spouses that have effect of limiting ones power to transfer ones property at death. Surviving spouse has a right 1) to support, and 2) to a share of the couples marital property. Surviving Spouses Right to Support o In virtually ever state, under 1) social security system, 2) private pension plans pursuant to ERISA, 3) homestead exemption, 4) personal property set-aside, and 5) family allowance. Surviving Spouses Right to Share of Marital Property

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o Separate vs. Community propertydepends on whether the jurisdiction follows the separate property approach (called elective share or forced share) or the community property approach (part of the community property doctrine).

Elective Share o Jurisdictions split over what property is subject to the elective share: Common law: entitles the surviving spouse to a share of the deceaseds spouses probate estate, regardless of the terms of the will. A spouse can avoid the elective share by putting his or her assets into nonprobate arrangements. Modern trend: limits the deceaseds ability to avoid the doctrine by using nonprobate arrangements. Illusory transfer testcourts analyze whether the nonprobate arrangement really constituted an inter vivos transfer or whether the decedent retained such an interest in the property that the transfer is more testamentary that inter vivos (and thus subject to elective share) Intent to defraud test Present donative intent testcourts focus on whether the deceased spouse really had a present donative intent at the time he created the nonprobate transfer. Old UPC approach: surviving spouse is entitled to 1/3 of the deceased spouses augmented estateprobate and certain nonprobate transfers made during the marriage. New UPC approach: survivor starts out entitled to 3% of the augmented estate and the percentage increases 2-3% points a year, reaching 50% after 15 years of marriage. Estate includes both spouses property, including property transferred before marriage. Community Property o Property acquired before marriage, and property acquired by gift, descent, or devise during marriage is each spouses separate property. Property otherwise acquired by either spouse during the marriage is community property. Each spouse has an undivided 50% interest in each community property asset. At death the 50% can be probated o Migrating couples: Property is characterized as separate or community at the time it is acquired according to the laws of their domicile. Changing domicile does not change the characterization of the property Spousal protection scheme is decided by the couples domicile at the time of death. o Separate to Communityrisk is that spouse is underprotected. Spousal protection doctrine will be community property, but if they spend most of their time in a separate property jurisdiction, the risk is that the couples assets will be primarily separate property. Quasi-community propertyupon spouses death, his separate property that would have been characterized as community property in the new domicile, is quasi-community property and treated as such for distribution. Not all jurisdictions recognize quasi-community. o Community to separate-risk is that surviving spouse will be overprotected Spousal protection doctrine will be elective share, but that means that the spouse might double dip. Upon death the survivor gets their 50% interest outright, and the deceaseds share will go into probate where the surviving spouse can claim an elective share in the decedents probate property.

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Uniform Disposition of Community Property Rights at Death Actdeceased spouses share of community property is not subject to elective share doctrine. Not adopted everywhere.

Omitted Spouse o Applies where testator executes a will, thereafter gets married, and dies without revising or revoking his or her willpresumption arises that the testator did not intend to disinherit the new spouse. Rebuttable if: 1) the will expresses intent to disinherit that spouse, 2) the testator provided for that spouse outside of the will and intended for the transfer to be in lieu of the spouse taking under the will, or 3) the spouse waived his right to claim a share of the deceaseds estate. o Courts generally hold that 1) a general disinheritance clause is not sufficient to constitute an intent to disinherit that spouse, 2) a gift in a will to a party that ends up being the decedents spouse does not bar the omitted spouse doctrine unless the testator made the gift in contemplation of the beneficiary being his or her spouse. UPC broadens the evidence that can be used to include: The will Other evidence that the will was made in contemplation of the testators marriage to the surviving spouse; or General provision in the will that is effective notwithstanding any subsequent marriage UPC also limits funding to property not devised to the decedents issue 1) who were born before the testator married the surviving spouse, and 2) who are also not issue of the surviving spouse. o Some states have extended the doctrine to cover both probate property and property in a revocable inter vivos trust. Omitted Child o Where the testator has a child after executing a will and dies without revising the will, a presumption arises that the testator didnt intend to disinherit the child. Rebuttable if: 1) the will expresses intent to disinherit the child, 2) the testator provided for the child outside of the will and intended for the transfer to be in lieu of the child taking under the will, or 3) the testator had one or more children when the will was executed and devised substantially all of his estate to the other parent of the omitted child. o UPC applies only to children born and adopted after the will was executed. Includes children omitted because the testator believes them to be dead, but not children the testator didnt know about. o Some states have extended the doctrine to cover both probate property and property in a revocable inter vivos trust. TRUSTS: OVERVIEW AND CREATION Requirements to Create a Trust o To have a valid trust: 1) settlor must have the intent to create a trust, 2) the trust must be funded, 3) the trust must have ascertainable beneficiaries, and 4) the terms of the trust may have to be in writing. o Intent: specific words arent necessary, but must intend to make a transfer to a second party for the benefit of a third. Precatory trustdonor makes a gift with the wish or hope that the done will use the property for the benefit of another. This is NOT a trust. There is no legal obligation to use the property for the benefit of the other party.

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Gifts that fail for want of deliveryas a general rule, the failed gift cannot be saved by converting the intent to make a gift in the future into a present declaration of an intent to create a trust with the declarant as trustee. Funding: happens when property is transferred to the trust/trustee. Virtually any interests except future profits and expectancies qualify as adequate property interests. Declaration of Trustsettlor is trustee. Settlors expression of intent also transfers the property to the trust. No separate act is necessary to fund the trust. If the property being transferred to the trust is real property, the declaration of trust must be in writing and adequately references the real propertythis is then sufficient to transfer the property without additional writing. Deed of Trustthird party is trustee. If deed was oral, there must be physical or symbolic delivery to the trustee. If deed was in writing, and the writing expressly references the property subject to the trust, jurisdictions are split as to whether this also transfers the property in questions to the trustee or whether there must be a separate act of delivery. Ascertainable Beneficiaries: if they are identified by name or if there is an objective method of identifying the beneficiaries. Only exception is for unborn children or for charitable trusts. Honorary trustswhere a private trust would otherwise fail for fail of ascertainable beneficiaries, but the purpose is such that it is impossible to have ascertainable beneficiaries (like pets and gravesites), and the purpose is specific and honorable, and not capricious or illegal, under the honorary trust doctrine, the courts will permit the trust to continue as long as the trustee agrees to honor the terms of the trust. Subject to Rule against PerpetuitiesCourt can apply wait and see approach. Writing: terms must be in writing if 1) its inter vivos that includes real property, or 2) the trust is a testamentary trust. Remedyfailed inter vivos trust: if a deed is executed orally for real property, at common law, the trustee is permitted to keep the real property because strict application of the Statute of Frauds bars evidence of the oral trust agreement to vary the terms of the deed. Modern trend: a constructive trust is imposed on the trustee to prevent unjust enrichment. Remedyfailed testamentary trust: U Under common law, the key is whether the failed testamentary trust is a secret trust (face of will makes no reference to a trust) or a semi-secret trust (hints that the beneficiary is to take for the benefit of someone else, but a beneficiary is not identified). o Secret Trusta constructive trust is imposed and the property is ordered distributed to the intended beneficiaries. o Semi-Secret Trusta resulting trust is imposed and the property ordered returned to the testators probate estate. Modern approach: a constructive trust is imposed for either Remedial Trusts: constructive trusts and resulting trusts are remedial that arise by operation of law as a matter of equity, and they are not subject to traditional trust requirements. Constructive trusts typically arise and are imposed by courts to prevent unjust enrichment. Resulting trusts arise whenever a trust fails in whole or in part.