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governmetnal power to regulate: It was generally presumed that the power to pass ones property at death was not a conitutionally prteocted right. In Irving Trust Co. V day, SCOTUS said that nothing in the constitution forbids the legislature of a state to limit, condition, or even abolish the power of the testamentary disposiion over property within its juridiction. o 2. Right to transfer-governmental cannot abrogate completely: In Hodle v. Irving, however, SCOTUS reversed itself and held that the escheat provision of the Indian Land Consolidation Act of 1983 constituted an unconstitutional taking of decedents property without just compensation. o 3. Right to transfer-governments power to increase - Many courts now have recognized a new property right, right to publicity, applies to parties when they are alive or dead. Ex. Marilyn Monroe case.  Public policy y Pro: consistent with a system of private property, encourages and rewards a life of hard work, promotes family ties, encourages family ties and family protection y Con: perpetuates economic disparity and discrimination and is unearned windfall to those who happen to have wealthy relatives. Exam Tip: If tested on the power to transfer ones property at death, it will be ap ure theory question or you will need to see a statute that abrogates an individuals ability to transfer his or her property at death. Riase and address both the public policy consideration and the constitutional considerations.



A. Definition: Dead hand control arises where a decedent conditions a gift to a beneficiary upon a beneficiary behaving in a certain way. By qualifying the testamentary gift, the decedent is attempting to exercise control over the beneficiary even after the transferors death. Such conditional gifts are typically made in a trust commonly known as a an incentive trust. B. Valid conditions: Testamentary conditional gifts (dead hand control) are valid unless they violate public policy or judicial enforcement of the conditoin would constitute state action violating constitutionally protected fundamental rights. The courts have been reluctant to find that upholidng conditional terms of the gift constitutes sufficient state action to offend the Constitution, and the court have been very reluctant to hold conditional gifits as contaryr to public policy. C. Invalid Gifts as against public policy: o 1. Aboslute restrains on marriage: Gifts conditioned on the beneficiary not marrying anyone-at least as to first marriges-generally are considered to violate the fundamental right to marry and are void.

a. Exception - partial restraint: Partial restraints on marriage that impose only reasonable restrictsion generally are not contrary to public policy and and are vlid. What constitutes a reaosnable restirction is very fact sensitive. The courts pay particular close attention to the age of the intended beneficiary and the time frame of the intended restriction or donction.  b. exception - temporal/religion requirement: Gifts requring a beneficiary to marry within a reasonable time period, even to someone of a particular religious background, have been held valid. Such gifts arguabley do not restrict an individuals right to marry; the merely encourage him or her to marry within a certain time frame and within a particular religion. y See Shparia case page 5 2. Religion requirement: Gifts that require a beneficiary to remain faithful to a particular religion generally are held to violate public policy concerning religious freedom and are invalid. 3. Encouraging separation or divorce: Gifts that require a beneficiary to separate or divorce before receiving the gift generally are deemed against public poliyc and are void. But gifts that provide for a beneficiary only in hte event of separation and/or divorce are not necessarily deemed to encourage divorce. The controlling factor appears to be the decents dominant intent: to encourage the separation/divorce or merely to provide support in the event of separation/diviorce. 4. Promoting family strife: Gifts condtioned upon family members ostracisizing and/or not communication with other family members gnerally have bene held to violate public policy and are void. 5. Property destruction directive: Although individuals generally afre free to destroy property while they are alive, individuals generally are not free to destory property upon their death, and such directives are invalid. Destruction of preoprty inter vivos carries wit an economic cost that deters owners. Destruction of peropty at death carries wit no meaningful economic cost for the decedent and deprives society of the opportunity to determine the best use of the property. E. Remedy: Where there is a conditional gift that violates the public policy, the critical variable is whether there is a gift-over clause: a clause in the instrument that provides where the gift is to go if the condition or restriction is not satisfied. 1. Gift-over clause: Where a gift-over clause exists and the conditoinal gift violates public policy, more often than not hte courts will strike the condition as void as against public poliy, but the courts will give the property to the beneficiary subject to the condtion. Instead, the property will be distrubited to the alternative beneficiary under the express gift-over clause. 2. No gift-over clause: Where no express gift-over clause exists, if there is a condtional gift that violates public policy, most often the courst will simply strike the oid condtion/ restriction and permit the beneficiary subject to the conditoin to take the property free and clear of any conditions. Exam Tips: Dead hand material can be overlapped with a devise in a will or a gift in trust. If you see a conditional gift, remember the general rule: Condtional gifts are valid unless the condition falls within one of the well-recognized exceptions. If the condtional gift does not fall squarely within one of the exceptions, argue by analogy to the closets exception. Focus on the nature of teh beneficiarys affected right and the degree of unreasaonablenesss caused by the requirements of the condition.


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A: Macro Issue is who gets the decedents property when he or she dies? B: Macro Answer is first and foremost the answer turns on what type of property is involved: nonprobate or probate. C: Probate vs. Nonprobate property: A will disposes of the decedents probate property only. There are a number of ways to dispose of property without the property having to pass through probate. These property arrangements are refereed to collectively as non probate property. D. Non probate property: The decedent has to take affirmative steps for the property to qualify as nonprobate property. There are basically only four types of property arrangements that qualify has Nonprobate. o 1. Join tenancy: Join tenants hold the property in question concurrently. They own it in whole and in fractional shares. The key characteristic of join tenancy is its right of survivorship. Upon the death of one join tenant, his or her fraction share is extinguished, and the shares of the surviving join tenants are recalculated. Technically, no property interests passes upon the death ofa join tenant. o 2. Life Insurance: Life insurance is an agreement between the insured and the insurance company that, upon the insureds death, benefits will be paid to the beneficiary or beneficiaries selected by the insured. Life insurance proceeds are not probate property and are distributed directly the other beneficiaries without being subject to the probate process.  Modern trend - POD contracts: A life insurance policy is a contract with a POD caluse. The modern recognizes all contract POD clauses as valid, nonprobate transfers exempt from teh propbate process. o 3. Legal life estates and remainders: When the party who hold a legal life estate dies, although the right to possession passes to the party holding the remainder, the transfer is the result of the original grantors division of the property between the life estate and remainder, no the result of the deceased life tenant passing a prepty interest. Propertly creatd legal life estates and remainders avoid probate.  Modern trend - transfer on death deed: A growing number of juridictions permit a transferor to creae3 a revocable deed that does not pass any interest until the party dies. This arragement permits a decedent to transfer his or her interest in real property upon death without hte transfer being subject to the probate process. o 4. Inter vivos trusts: A rust is an artificial legal entity that holds and manages the property places in the trust. There are several types of trusts: inter vivos trust, testamentary trusts, and uniform testamentary additions to trusts act trusts. Of the three, only property properly transferred to an inter vivos trust during the life of the party avoids passing through probate. (prof prefers theses.) E. Probate property: If the property in questions does not qualify as nonprobate property, the property automatically falls to probate as the default system. o 1. Will v.s intestacy: Who takes the decedents probate property depends on whether the decedent has a valid last will and testament. A properly executed will constitutes an express of a persons intent as to who should take his or her

property when he or she dies. If a decedent does not have a will or if the will does not dispose of all the decdents property, the property passes via intestacy to the decdents heirs. o 2. Intestacy is the default o 3. Opting out of intestacy: one can opt out of intestacy by property executing a will or by properly executing a will substitute-one of the reconginzed nonprobate methods of transferring property. IV. THE PROBATE PROCESS: AN OVERVIEW

Terminology o Testate: dies with a valid will o Intestate: dies without will o Testator: male executes a valid will o Testatrix: femail who executes a valid will o Devise: a gift of real property under a will o Devisee: a beneficiary receving real property under a will o Bequest: a gift of personal property under a will. o Legacy: a gift of money under a will. o Legatee: a beneficiary receiving money under a will o Pesonal representative: the person appointed by the propbate court to oversee th admin process of wrapping up and probating the decdents afairs. o Executor: What hte pesonal rep is called if the decdent dies testate and the will names the personal representative. o Aministrator: What hte pesonal rep is called if the decdent dies intestate or testate but the will fails to name a pesonal rep. increasingly today the more generic term personal rep is used. o Heirs: At common law, if a decdent died intestate, the decedents real property was said to descend to the decdents heirs o Next of kin: At common law, if a decdent died intestate, the decedents personal property was distrubited to the decedents next of kin.  Today next of kin and heirs is interchangeable D. Probating a decedents estate is important because it 1. provides for an orderly transfer of the title of the decdents property 2. ensures that creditors receive notice, an opportunity to present their claims, and payment, 3. extinguishes claims of creditors who do not present their claims to the probate court, and 4. ensures that the decedents propety is properly distributed to those who are entitled to receive it. o 1. Opening probate: The probate court in the county where the decedent was domiciled at time of death has primary (or domiciliary) juridiction over the decedents real property located within that jurisdiction. The UPC provides for both notice probate and ex parte probate. The forming is called formal probate, the latter is informal probate. The person asking for letters can choose. Formal probate- formal probate under the UPC is a litigated judicial determination after notice to interested parties UPC 3-401. A formal proceedings may be used to probate a will, to block and informal proceeding, or to secure a declaratory judgment or intestacy.

Formal proceedings become final judgments if not appealed. UPC 3 YEAR STATUTE OF LIMITATIONS RULE.

In formal probate the court supervises the actions of the perosnal representative in admining the estate. This supervision can be time consuming and costly. The court must approve the inventory and appraisal of the estate; payment of dets; family allowances; granting optoin on real estate; sale of real estate; borrowing funds and mortgaging property; leasing of property; proration of federal estate tax; personal reps commissions; attys fees; preliminary and final distributions; and discharge of the personal reps o No proceeding, formal or informal, may be initiated more than three years from the date of death. UPC 3-108(1990) If no will is probated within three years after death, the presumption of intestacy is conclusive. The three years statute of limitation of the UPC changes the common law, which permits probate at any time.

Informal Probate - In informal probate, after appoinment, the personal rep administers the estate without going back into court. The rep has the broad powers of a trustee in ealind with the estate property and may collect assets, clear titles, sell propety, invest in other assets, pay creditors, continue any business of the decedent, and distribute the estate - all without court approval. UPC 3-715. The estate may be closed by the personal rep by filing a sworn statement that he published notice to creditors, administered the state, paid all claims, and sent a statment and account to all known distributees. UPC 3-1003. Under UPC, informal probate is the norma, but an intreseted party may file a petition for formal probate at any time during the admin of the state. UPC 3-502. y UPC 3-301 sets for forth the requ for informal probate. Without giving notice to anyone, the rep petitions for apointmetn; the peition contains pertinent info about the decedent and the names and addresses of the spouse, the children or other heirs, and, if a will is ionlved, the devisees. If the petition is for probate of a will, the oringal will must accompany the petition. The exetuor swears that, the best of her knowledge, the will was validly exectuted; proof by witness is not requried. A will that appears to have the required singatures and that contains an attestation claus showing that requrements of execution have been met is probated by the registrar without futher proof. UPC 3-308. Within 30 days after appointment, the personal rep has the duty to mailing notice to every interested person, including heirs apparanetly disinhereited by a will. UPC 3-705. Proboate is opened by presenting the decdendets death certificate. Depending on the situation, the probate court ussues letter testamentary appointing an executor or letters of

administration appointing an adminstrator. A majority of the jurisdictions require notice to interested partes before selection and appointment of the exector or adminstrator. Ancillary juisdiction: Anscillary jurisdiction may be necessary if the decedent owned a real property located in a different jurisdiction his or her domicile. Ancillary jurisdiction ensures 1. that local creditors in the jurisdiction where the real property is located receive notice an opporutnity to present their claims, and 2. that there is compliance with that jurisdictions recording system. 2. Will contests: if a party wishes to file a claim challenging the validity of a will offered for probate, most jurisdictions have a staute requring that the contest be brought in a timely manner after probate is opened, or the claim is barred. 3. Probate amin: once the court issues its letters, the personal rep is authorized to begin his or her responsibilities. E. Personal reps powers: The jurisdictions are split on this. Some jurisdictions require probate court supervision and authorization at almost every step fo the way, thereby incurring greater expense for the estate. Other states permit unsupervised administration under most circumstances, with one final accounting behind filed with the probate court at the end. F. Personal reps duties 1. Inventory decedents assets; Take control of and take inventory of decedents probate property for the court. 2. Give notice to and pay creditors. Second, the personal rep gives notice (usually by publication, but known creditors may be entitled to actual notice) of the opening of probate and that creditors of the decedent are required to file any and all claims within a set statutory period or their claims will be forever barred. The personal rep must pay those creditors who present valid claims wihin the prescribed time period. The personal rep must also file state and federal tax returns and if necessary pay any taxes due. These individual specified time for creditors to file claims are called nonclaim statutes. They come in tow basic forms. 1. they bar claims not filed within a relatelively short period after probate proceedgins are begun (4 months under UPC) or 2. whether or not probate proceedigns are commeneded they bar claims not filed within a longer period of time after the decedents death. (one year under UPC). UPC 3-803. 3. Distribute decedents probate property: Whatever properby is left over after paying creditors claims is then distributed to those who are entitled to receive under the decedents last will and testament and/or to those entitled to receive under the states statue of descent and distribution depending on whether the decedent died testate or intestate (or both). G. Costs and delays of probate: Probating a typica estate is costly process that tiesl up the decedents probate assets during the process. The proces is costly due to probate court fees, personal rep fees, attys fees, and misc. other fees that may be applicable. This usually takes at least 1-2 years. H. Probate and titled property: As a practical matter, probate is necessary to transfer title to those assets, real or personal, that were titled in teh decdents name. Where the probate asset has a writeen form of title in the deceents name, a probate court order needed to transfer title properly. 3. The UPC permits the decedents heirs or residuary devisees to petition the probate court for universal succession, which is to granted where the court determines administration appears unnecessary.

Universal succession provides that title to the decdents property passes to the appropriate heirs or residucary devisees automatically and by operation of law tihoiut the need for a personal rep or probate. The heirs or resdiary legatees who take title to the decedents assets are then responsbile for payin the decedents creditors and the estates tax liability and distributing the decedents prpooerty to the appropriate takes. V. ESTATE PLANNING Try avoid probate Try to avoid estate taxes use non probate arrangements as much as possible E. Professional responsibility: The scope of attorneys professional responsibility is critical to determining who has standing to sue the attorney for malpractice. o Moder trend-Majority approach: Under the majority modern tend approach, the attorney-client relationship is construed broadly such that intended beneficiares have standing ot sue the testators attorney for malpractice.  a. Tort-duty: Under the modern trend approach, a majority of courts that have considered the issue have extended the attorneys duty to intended beneficiaries based on the reasonable foreseeability of injury to the intended beneficiaires if the attorney fails to exercise due care.  b. Contract privity: Under the modern trend approach, a majority of courts that considered the issue have held that a nonparty to a contract can sue for breach of contract if the nonparty qualifies as a third-party beneficiary. y Once the clietn identifies to the estate planning attorney to whom the client wishes his or her property to go, the intended beneficiary achieves third-party beneficiary status and is in privity of contarct with the attorney. The intened beneficiary has standing to bring a malpractice action if the attorney errs. Pro: permits valid claims form intended beneficiaries. Con: Fails to protect attys from baseless and/or fraudulent claims by frustrated individuals who thought they were going to take under the decedents estate planning docs but did not. Modern trend -curative doctrines: Increasingly, courts are adopting doctrines that permit courts to cure defects in the wills execution and that permit courts to reform wills that correct attys drafting errors. These developments reduce the risk of a malpractice claim because they permit the courts to correct the attorneys mistake. Conflicts of interest and duty to disclose: The testators atty may owe a duty of care to another party if the atty has an ongoing atty-client relationship with the party. The lawyer may have a duty to dislcose what otherwise would be considered testators confidential info to the attys other client. Exam Tips: For malpractice issues look for: 1. A will has not been properly executed 2. A will was not property revoked, or a will or trust was not drafted properly
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Consider whether the party adversely affected was an intended beneficiary. Thus, were they were named in the will but did not receive their share of the property because of one of the errors above.

A. Probate and Non-Probate Property: 1. Probate property: is property that passes through probate under the decedents will or by intestacy. 2. Nonprobate property: is property that is transferred outside of probate under an instrument other than a will. a. joint tenancy property, real & personal: decedents interest vanishes at death. b. life insurance c. contracts with POD provisions under these 3 in order to collect all beneficiary must do is file a death certificate for the decedent. d. interests in trust CHAPTER 2 II. Intestate Distribution Scheme: A. Introduction 1. intestacy the norm: half the population dies intestate. any property not disposed by nonprobate means falls to probate. any probate property not disposed of by will falls to intestacy where it is distributed to the decedent's heirs. 2. heirs vs.heirs apparents: to qualify as an heir (intestate taker) the heir must survive the decedent. because an heir must survive the decedent, a person who is alive has no heirs, only heirs apparent. 3. expectancies: children who expect to receive some property at the death of a parent. an expectation by an heir apparent is an expectancy. a. not a property interest: heir needs to survive to take, and even if heir survives the decedent, the decedent can defeat expectancy by transferring property inter vivos or by executing a will that devises property to others. b. transferability: general rule is expectancy is not transferable cuz its not a property interest. a court of equity will enforce the transfer of an expectancy if the heir apparent attempts to transfer

the expectancy for valuable consideration and then tries to avoid enforcement of the agreement on the grounds of the general rule. this applies only when it is fair in equity under the circumstances. 4. Descent and distribution statute: under intestacy, a decedents personal property is distribute according to the law of descent and distribution statute of the state where the decedent was domiciled at the time of death, and decedents real property is distributed according to the law of descent and distribution in the state where the property is located. B. Typical Intestate Scheme: basic structure of most descent and distribution statute is the same. The statute provides a list in order of who takes in the event an individual dies intestate, and how much an individual is entitled to take. Who takes? How Much? 1. Surviving Spouse----------------- 100% if no issue, parents, or issue of parents; or 50% if one child, or issue of one deceased child, or no child, but parents, or issue of parents; or 33% if > one child (alive or deceased with issue) Any property not passing to a surviving spouse passes as follows: 2. Issue-------------------------------- Equally 3. Parents----------------------------- Equally 4. Issue of parents------------------- Equally 5. Grandparents---------------------- Equally 6. Issue of grandparents------------ Equally 7. Next-of-kin--------------------------By degree of relationship 8. Escheat to the state---------------100% Tiered Approach: the categories of possible takers are listed in order, in tiers. Any property not passing to the surviving spouse falls to the first tier where there is a live taker. Once that is determined, all the property that the surviving spouse did not take is distributed to that tier. No property falls to a lower tier. C. The UPC Approach: UPC s. 2-102 through 2-105, has fewer tiers of takers and a different method of calculating their respective shares: Who Takes? How Much? 1. Surviving Spouse 100% if no issue or parents; or 100% if all decedents issue are also issue of surviving spouse and survivng spouse has no other issue; or $200,000 + 75% of rest if no issue but surviving parent or: or 150,000 if all issue are also issue of surviving spouse and surviving spouse has other issue; 100,000 + 50% of rest if one or more issue not issue of surviving spouse. Any property not passing to a surviving spouse passes as follows: 2. Issue-------------------------------Equally

3. Parents----------------------------Equally, or all to the survivor 4. Issue of parents------------------Equally 5. Grandparents/Issue--------------50% to maternal grandparents or survivor; otherwise to their issue equally; 50% to maternal grandparents or survivor; otherwise to their issue equally; if no surviving grandparents or issue on one side, all to other side 6. Escheat to the state-------------100% III. Surviving Spouse: Who Qualifies A. Marriage Requirement: the term spouse as used in descent and distribution statute assumes that the couple has gone through a valid marriage ceremony 1. cohabitants: nonmarried couples who live together generally do not qualify as spouses and have no inheritance rights upon the death of one. 2. Common law marriage: common law marriage doctrines generally provide that if a couple lives together for a requisite period of time and holds itself out as a married couple, the couple is treated as married even tho its members fail to go thru a valid ceremony. If cohabitants meet the requirements for common law marriage, they have inheritance rights of a married couple. Not all jurisdictions recognize this. B. Putative Spouses: generally do not qualify as spouses. this occurs when 1 party goes thru with what turns out to be a void marriage. As long as one party reasonably believes in good faith it is valid, the spouses qualify as putative spouses and are treated as spouses for purposes of most intestate schemes. C. Married but Separated: spouses who are legally separated generally still qualify as spouses for purposes of the intestate dist. scheme. Even if the parties have filed for divorce, the parties remain legally married until court enters final judgment or decree of dissolution of marriage. spousal abandonment: in some states if one spouse abandons the other, the abandoning spouse may be disqualified from inheriting from the other spouse. D. Survival Requirements: to be eligible to receive property, a taker must survive the decedent both factually and legally. If claimant fails to meet the survival requirements the claimant is treated as if he predeceased the decedent. Common Law: to qualify as an heir the party had to prove by a preoponderance of the evidence that he or she survived the decedent by a millisecond. This is a question of fact. Uniform Simultaneous Death Act: USDA codifies common law rules. Where there is no sufficient evidence as to who survived whom, the party claiming the right to take is to be treated as having predeceased the decedents. USDA was amended in 1991 to conform with the UPC approach. See Janus v. Tarasewicz:

determining time of death: to determine whether one person survived another, one needs to know when each party died. Common Law: cessation of circulatory and respiratory functions. Modern Trend: irreversible cessation of total brain activity Some states have raised the bar to a clear and convincing evidence standard in order to minimize litigation between family members. UPC 120-hour requirement: the UPC requires that a taker prove by clear and convincing evidence that he or she survived the decedent by 120 hrs (5 days). UPC 2-104 and 2-702. Mechanics of Analysis: 1) did claimant actually survive the decedent, 2) did the claimant legally survive the decedent. a. Apply separately to each decedent: you must apply it all over again when analyzing who gets second to die decedents property. otherwise you get caught in an abstract catch 22 where first to die takes second to dies propery cuz second to die may be treated as predeceasing first to dies property. USDA approach: Pete died first. Gerrie can prove she actually survived him with clear and convincing evidence. When Gerri dies two days later, because Peter failed to survive her, her property goes to her mom, Maude.

UPC approach: 1. Analysis of the first spouse to die: Pete died first. Can Gerri prove that she actually survived Pete? Yes, she survived him by 2 days. Can Gerri prove that she legally survived Pete? No she did not survive him by 5 hours. Gerrie is treated as she predeceased him. All of petes probate property passes to his father Frank. 2. Analysis of second spouse to die: Who takes Gerri's probate property . Because she is treated as predeceasing Pete she has no surviving spouse. When analyzing who gets Gerri's probate property ask whether 1) Pete actually survived Gerri 2) legally survived Gerri. Here Pete did not actually survive Gerri, so she has no surviving spouse. Her probate property passes to her mother Maude. Failure to meet survival requirement: Whichever standard is applied, if the claimant fails to meet with the survival requirement, he is treated as having predeceased the decedent. Wills and nonprobate instruments: as applied to probate testate and nonprobate property, the statutory survival requirement is a default rule that applies if the written instrument does not have its own express survival requirement. If a written instrument has an express survival requirement it applies.

IV. Surviving Spouse: Calculating Share A. Traditional intestate distribution Scheme: under the traditional intestate distribution scheme, a surviving spouse takes 100% of the deceased spouse's intestate property only in the absence of any surviving issue, parents, or issue of parents. If surviving issue: If the predeceased spouse had surviving issue, the surviving spouse share often depended on how many surviving children (alive or dead but survived by issue) survived the decedent. 1. if one surviving child: if the deceased spouse is survived by one child (alive or dead but survived by issue) typically surviving spouse takes 50% of the predeceased spouses intestate property. 2. if more than one surviving child: if the deceased spouse is survived by more than one child (alive or dead but survived by issue) typically the surviving spouse takes 33% of the predeceased spouses intestate property. 3. if surviving parents or issue of parents: if predeceased spouse has no surviving issue, but has surviving parents or issue of parents, typically the surviving spouse takes 50% of the deceased spouses intestate property. 4. small estates: some states give the surviving spouse the first $50,000 or $100,000 of the deceased spouses intestate estate and the the appropriate fraction of the rest of the deceased spouse's probate intestate estate. the effect is to give the surviving spouse all of the deceased spouses intestate estate where the estate is small enough. B. UPC Approach: surviving spouse is better off under the UPC than the typical intestate scheme UPC 2-102. If surviving issue: UPC gives surviving spouse 100% of decedents property even if decedent has surviving issue, if 1) the surviving spouse is also the parent of the surviving issue and 2) the surviving spouse has no other issue. UPC 2-102(1)ii Whose surviving issue: Not all issue are issue of surviving spouse: the surviving spouse takes the first 100,000 or 50% of the rest of the predeceased spouses's intestate property. The remaining 50% is distributed equally among the deceased spouses issue. UPC 2-102(4) surviving spouse has own issue: when all of them are issue of the surviving spouse, but surviving spouse has issue of his or her own who were not issue of predeceased spouse, the surviving spouse takes the first $150,000 plus 50% of the rest of the predeceased spouses intestate property. The remaining 50% is distributed among the deceased spouses issue. UPC 2102(3)

no issue but surviving parents: where the deceased spouse has no issue but surviving parents UPC gives first $200,000 plus 75% of rest of deceased spouses property UPC 2-102(2). Surviving parents worse off than under typical state statute. No surviving issue or parents but surviving issue of parents: most states give surviving spouse 100% only if there are no issue, parents, or issue of parents. UPC gives 100% to spouse even if issue of parents, does not consider issue of parents when determining surviving spouses share. UPC 2-102(1)i. Tiered approach: just like with typical intestate distribution schemes, any property not passing to a surviving spouse falls to the first tier where there is a live taker, and all the falling property is distributed to that tier. Analysis: Each states distribution statute must read to determine: 1) possible fractional shares of surviving spouse, 2) what determines which fractional share the surviving spouse receives. V. Descendants/Issue: Calculating Shares A. Property to Descendants/Issue: In all jurisdictions if there is no surviving spouse, or there is a surviving spouse but he or she does not take all of the decedents property, both the typical intestate scheme and the UPC give the property to the decedents issue equally. Issue vs. Children: issue is a term much broader than children, issue are all of ones offspring, not just immediate offspring such as children. (grandchildren, great-grandchildren, etc.) B. Calculating Shares: if a decedents issue take under intestacy, they take equally. But that is overly simplistic and masks a subtle number of issues. 1. Taking Equally: where all of the decedents children survive the decedent, what constitutes taking equally is rather straightforward. Example: Decedent is survived by A,B,C, decedents property falls into intestate and is divided up equally, one third each. Question becomes more complicated if one or more of the children have issue of their own: Decedent is survived by A,B, and C, A has children D, E B has children F,G,H C and Surviving Spouse 2. Determining which issue take: 3 fundamental principles need to be kept in mind when distributing property to a decedents issue.

a. issue of predeceased children take their place: If the decedent had a child who predeceased but is survived by issue, his or her issue will share in the distribution of the decedents property. It is often said the surviving issue of the predeceased child take by representation, they step up and represent deceased relative. If A predeceased the decedent, As issue who survive the decedent would take As 1/3rd share, which would be divided up equally between them. b. if person takes, issue do not: if B survives the decedent, B would receive a share but his issue would not receive a share of the estate. c. absent adoption, only blood relatives qualify as heirs: If C predeceases the decedent survived by his wife and her children from another marriage, neither Cs wife nor her issue from prior marriage are entitled to a share of the distribution. General rule sons in law, step-children do not qualify as eligible takers under the intestate distribution scheme. 3. taking equally where issue of unequal degree: there are three different approaches to calculate the shares when the surviving issue are of unequal degree. To understand the three approaches, it is necessary to understand the subissues inherent in the problem Example: A has D,E -----D the has I,J,K B has F,G,H, ----F has L, H has M,N C and his surviving spouse Assume A,B,C,D,F and G predecease the decedent who dies intestate, assuming no surviving spouse the issue take 4. Analytical Steps in calculating shares: 3 distinct subissues that need to be answered to determine what issue take in the intestate scheme where one or more of decedents children predecease him a. 1st at which generation should the decedents property be divided first? At the first generation, even if there are no live takers in the first generation, or at the first generation where there is a live taker? b. 2nd, at whichever generation the estate divided, how many shares should the estate be divided into? Answer to this step is always the same, one share for each descendant who is alive at that generation, and one share for each descendant at that generation who is dead but is survived by issue. c. 3rd, how are the dropping shares distributed? The dropping shares are the shares the decedents who are dead but survived by issue. Should the dropping shares drop by bloodline to the issue of that party, or should the dropping shares be pooled?

5. Distributions to issue of collaterals: Where a decedents property is distributed to the issue of collateral relatives, the per stirpes, per capita, and at each generation doctrines apply as well in calculating the shares. C. English Per Stirpes: under the English per stirpes approach, always make the first division of the decedents property at the first generation of descendants, whether there any live takers or not; dropping shares then drop by bloodline. Decedent has A,B,C A has E,F, B has G C has H,I,J E has K,L,M G has N J has O,P A,B,C,E,H,J all predecease the defendant, who takes the decedents property assuming no surviving spouse? Step 1: Under English Per Stirpes, always divide the decedents property at the first generation (among decedents children), even if everyone at that generation is dead. Step 2: One share is given to each party who is alive, and one share is given to each party who is dead but survived by issue. Here, although A, B,C are all dead, ABC are all survived by issue, so each receives a one-third share. Step 3: Under per stirpes, the shares for each party who is dead but survived by issue drop by bloodline. Each share drops only to issue of the predeceased party. As one-third drops to his or her issue; Bs one third drops to his or her issue; and Cs one-third drops to his or her issue. When distributing As one-third, drop to the next generation of As descendants and divide it one share for each party who is alive at that level and one share for each party who is dead but survived by issue. As one-third is divided equally between E and F, one-sixth each, and Es onesixth drops by bloodline to Es issue, K,L,M to be shared equally 1/18th each. Bs 1/3rd drops to his issue, G, if G is alive, G gets nothing, if G is deceased, N gets Bs 1/3rd share. Cs 1/3rd drops down to his descendants. Dividing up Cs shares, at the next generation, the formula is one share for each party who is alive and one share for each party who is dead but survived by issue. H predeceased C and is not survived by issue, so H does not take a share. I is alive, so I takes a share. J is dead but survived by issue so J takes a share. Cs one third is split 1/6th to I 1/6th to J. Js 1/6th drops by bloodline to 0 and P 1/12th each.

D. Modern Per Stirpes: (also known as Per Capita Representation): Under this approach make the first division of decedents property at the 1st generation where there is a live taker; the dropping shares the drop by bloodline. Decedent has ABC A has EF, E has KLM B has G, G has N C has HIJ, J has O,P ABCEHJ all predecease decedent who dies intestate. Who takes assuming no surviving spouse? Step 1: At which generation should it divide first? Under modern per stirpes always divide at the first generation in which there is a live taker. Here it is Es generation because F, and G are alive. Step 2: How many shares should the property be divided into? One share is given to each party who is alive and to each party who is dead but survived by issue. FGI are alive, J,E survived by issue. 1/5th each, H has no share. Step 3: How are the dropping shares distributed? Under modern per stirpes they drop by bloodline. Js 1/5th goes to O,P 1/10th each. Es share drops by bloodline to KLM, who each get 1/15th. Under English and modern per stirpes equally related descendants have a risk of taking unequally.

E. Per capita at each generation: UPC 2-106: Under this approach, always make the first division where there is a live taker, and the dropping shares drop by pooling-combine them and distribute them equally among eligible takers at the next generation. Decedent has ABC A has EF, E has KLM B has G, G has N C has HIJ, J has O,P Assume ABCEHJ all predecease decedent who then dies intestate. Step 1: Under UPC 2-106, always divide at the first generation where there is a live taker. Here divide at Es generation. Step 2: One share is given to each party who is alive, and one share is given to each party who is dead but survived by issue. Here FGI are alive,and E and J are dead but survived by issue. Here they are divided into 1/5th because H has no issue and is dead.

Step 3: Under UPC approach pool the dropping shares. There are 2 dropping shares, Es one fifth and Js one-fifth= 2/5ths and divide the total equally among eligible takers at the next generation. KLMO and P are eligible, N is not because G took. KMLOP each take 2/25s. Under the UPC approach all descendants at a generation take equally. 2/5x1/5= 2/25 F. Negative Disinheritance: assuming one does not want a particular heir to take any of his intestate property, what must be done to disinherit that heir? a. Common law: the only way to disinherit the heir is execute a valid will that disposes all of the decedents property so that nothing passes into intestacy. Even if there is an express intent in the will but some property drops to intestate, that heir will still take if they qualify to receive a share. b. UPC 2-101(b) approach: Under the UPC a decedent can disinherit an heir by properly executing a will that expresses such intent, even if some property falls into intestacy and the heir would qualify for a share. The heir is treated as if he predeceased the decedent. If the heir is survived by issue, they take by representation unless the will expressly disinherits. VI. SHARES OF ANCESTORS and REMOTE COLLATERALS A. Introduction: When a decedent dies intestate, his property is first distributed to his immediate family. If there is no surviving spouse or issue, the property flows up to the decedents ancestors and collateral relatives. There are 3 major approaches to determine how it flows up; 1) parentelic approach, the 2) degree of relationship approach, and 3) the degree of relationship with parentelic tiebreaker approach. Collateral Relatives: The decedent, the decedents spouse, and the decedents issue are all immediate family. All of the other decedents relatives are technically called collateral relatives. The decedents parents and their issue (brothers and sisters) are first-line collaterals, because their line is the first line removed from the decedents immediate family. His grandparents and their other issue are second-line collaterals. Great-grandparents and their other issue are called third line collaterals, etc. B. Parentelic Approach: Start with decedents family the move out along collateral lines. Distribution keeps going out until there is a line with a live taker. The property is then distributed to the decedents relatives at that parentalic line. You the use whatever intestate distribution scheme applies. Perstiripes, etc. Under the parentelic approach one simply keeps going out until one finds the first collateral line with a live taker. Once a collateral line with a live taker is found, the property is distributed to that line. How much those relatives take varies. Some jurisdictions split property 50-50 between maternal and paternal common ancestors and then distribute to their issue. So if B,C,D were last collateral

relatives, B,C take 25% and D takes 50%. Other jurisdictions apply modern per stirpes and UPC approach. C. Degree of Relationship Approach: The degree of relationship approach focuses on the degree of of relationship between decedent and claiming relative, regardless of which parentilic line. One simply counts the degrees of the relationship and the lower degree (closer) take to the exclusion of a more remote (higher) degree. Analysis: To calculate the degree, the key is to identify the closest common ancestor who both parties share (closest grandparent). Count the steps up from the decedent to that ancestor and then down from the common ancestor to the party in question. Under the degree of relationship approach, those relatives with a closer degree take to the exclusion of a more remote degree. If more than one relative have the same degree, the estate is divided equally. D. Degree of relationship approach with parentelic tiebreaker (MA RULE): The third approach to property passing to collateral relatives is the degree of relationship with parentelic tiebreaker. Analysis: First step is to determine the degree of relationship of possible takers. Those of a closer degree take to the exclusion of a more remote degree. If there are multiple takers at the closest degree, under the tiebreaker, the person with the closer parentelic/collateral lines takes. So ABC are all 5th degree takers. A shares GGGPs with decedent, BC share GGPs with decedent. BC take, dividing the share 50-50. E. Half-Bloods: half bloods are relatives who share only one common parent as opposed to the traditional relationship where siblings share both parents. 1. Common law: half bloods were not entitled to inherit from non-parent. 2. UPC 2-107: The UPC has abolished the common law rule and treats half bloods as whole bloods. F. Laughing Heirs and Stepchildren: UPC 2-103(a) draws the line at grandparents and their descendants. No inheritance by relatives traced through great-grandparents and other remote ancestors. Half the states have abolished laughing heirs (heirs so removed they are not upset and laugh all the way to the bank.) A few states and the revised 2008 UPC 2-103(b) created a class of heirs in stepchildren when there are no surviving kin. STEPCHILD EXCEPTION ON EXAM G. Escheat to State: if the intestate leaves no survivors entitled to take under intestacy the property escheats to the state. Escheats of substantial estates are rare because relatives usually keep tabs on kinfolk of great wealth, the larger the estate, the likelier it is someone stakes a

claim. Also heir-hunting firms seek out unknown or uninformed heirs offering to disclose the name of an estate to whom a person may be an heir for a share of the inheritance. VI. Descendants/Issue: WHO QUALIFIES A. Decendants/Issue as takers: intestate gives decedents probate property to first surviving spouse the to descendants/issue. Often issue receive share even if surviving spouse exists. B. Qualifying as descendant/issue: to qualify as descendant/issue, one must establish a parentchild relationship somewhere down the line. C. Establishing the parent-child relationship: Starting point is to apply biological test. 1. Parents married : under common law and modern approach if child is born to married parents a relationship exists for inheritance purposes. 2. Inheriting from and through: General rule inheritance rights run in both directions, parentchild, child-parent. A child can inherit FROM and parent if the parent dies intestate and vice versa. You can also inherit through a person. Your parent dies, then your grandparent dies. You can inherit from your grandparent through your parent. This can also happen when a parent is predeceased by a child, if the childs issue die. You would inherit from your grandchildren through your child. a. Presumption: a child born to a married couple is presumed to be the child of that couple. The wife is presumed to be the natural mother and husband natural father. General Rule: child can inherit from and through either NP and either NP can inherit from and through the child. b. UPC 2-114(c): requires the natural parent to openly treat the child as his or her own and not refuse to support the child before the parent or relatives of parent can inherit from and through the child even if the natural parents are married. 2008 revisions: deletes subsection c and provides instead a genetic parent can inherit from and through a child unless the child died before 18 and there is C/C evidence that immediately before childs death parental rights could have been terminated based on non-support, abandonment, abuse, neglect, etc. c. Posthumously born child: conceived while child is alive but born after he dies. If couple is married this doctrine applied. As long as wife gives birth 280 days after husbands death, rebuttable presumption arises that child is a natural child of predeceased husband. If born after 280 days, child has burden to establish dead guy is his father.

Uniform Parentage Act s. 4: any child born within 300 days of husbands death is presumed to be child of husband. D. Adoption: j/ds split on whether adopted child has 1)right to inherit from natural parents, and 2) right to inherit from adopting parents. 1. UPC 2-114(b) 1990: an adopted child inherits from adopted relatives and also from genetic relatives if the child is adopted by a stepparent. 2. 2008 UPC amendments: UPC revised whether there is a parent-child relationship. The parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession, by , from, or through the parent or child. UPC 2-116. UPC 2-118(a): a parent-child relationship exists between an adopted child and adoptive parent. UPC 2-119(a): a parent-child relationship does not exist between an adopted child and his genetic parents; EXCEPT Stepparent Exception UPC 2-119(b)(1)(2): 1) adoption establishes relationship between adoptee and adopting stepparent, 2) establishes relationship between adoptee and genetic parent, but only for purposes of adoptee to inherit from or through genetic parent. Genetic parent loses right to inherit from child. 3. Adoption by relative of parent UPC 2-119(c) 2008: where a child is adopted by a relative of genetic parent, or spouse or surviving spouse of relative, child retains right to inherit from both natural/genetic parents. 4. Post-death adoption: 2-119(d) allows for the child to inherit from and through both genetic parents where the adoption occurs after the death of either or both parents. 5. Adult adoptions: General rule adopted adults treated same way for inheritance purposes as adopted children. 6. Construction of Wills, trusts, etc.: technically whether adopted child qualifies as child or heir is a question of intent of decedent, not intestate scheme. Written words presumed to be best evidence of decedents intent. Often fail to address issue. Common law adopted kids can inherit FROM and NOT THROUGH their adoptive parents. Modern trend and general rule adopted kids can inherit FROM AND THROUGH his adoptive parent, unless written instrument expresses contrary intent. Some courts reluctant to apply this when adopted person is an adult. See UPC 2-705 for adopted adults and class gifts, pg. 106. E. Equitable Adoption: applies when natural parents transfer custody to someone who promises to adopt but fails to complete proper paperwork to make it legal. Equity treats the child as a child of adoptive parent for purposes of distributing adoptive parents intestate property.

1. Traditional Requirements: 1)an agreement between natural parents and adoptive parents, 2) natural parents fully perform giving up custody, 3) child fully performs by moving in with adoptive parents and living with em. 4) adoptive parents partially perform by taking child in and raising as own, 5) adoptive parents die intestate. (handful of j/d say its ok to apply even testate.) 2. Childs Right to take: if requirements met, child has right receive adoptive parents intestate share of probate estate. Foster parents and relatives cannot inherit from the child because they faield to perform by in fact adopting the child, they have no clam in equity. 3. Agreement to adopt can be oral or implied, need not be in writing. Modern Trend: Courts should remember and apply doctrine to promote equity, and the doctrine should apply any time a child has been led to believe he was adopted. F. Child Born out of Wedlock: 1. Common law: cbws were illegitimate and could inherit from no one. 2. UPC 2-117: CBW has parent-child relationship with both genetic parents. Can inherit with natural mother from and through. Inheritance from and through natural father requires proof of paternity. 3. UPA: Uniform Parent Act applies the same principles as the UPC. If presumption of paternity arises child can bring action to establish inheritance rights any time. If no presumption arises, action must be brought within 3 years of child reaching age of majority or it is barred. A presumption of paternity arises if father acknowledges child by taking it into his home while a minor and holding child out as his own or if father acknowledges paternity in writing and files it with appropriate agency or court. 4. UPC 2-114(c): requires natural parent to openly treat child as his or her own and not to refuse support the child before that parent/relative can inherit through and from the child. 2008 revisions: deletes subsection c, instead genetic parent can inherit from and through cbw unless child died before reaching 18 and clear and convincing evidence that parental rights should have been terminated by c/c evidence. Includes abuse, neglect, abandonment, non-support etc. UPC 2-114(a)(2)2008. G. Reproductive Technology: 1. Posthumously conceived children: MA law, Woodward v. Commissioner of SS: MA LAW: posthumously conceived children may enjoy inheritance rights of issue under the states intestacy scheme where the surviving parent or childs legal guardian where childs parent

or legal rep demonstrates 1) genetic relationship between child and decedent, 2) decedent affirmatively consented to posthumous conception and to support resulting child. Action must be brought in timely manner and notice given to all interested parties. UPC 2-120 (2008): 1) parent while alive authorizes posthumous use of genetic material in writing or by c/c evidence. 2) child is in utero within 36 months of or born within 45 months of parents death. Construction of wills trusts and instruments: instrument fails to address issue Case: In re Martin B: when instrument is silent, child born with new technology with consent of parent is entitle to same rights as a natural child. UPC 2008 revisions expressly provide posthumously conceived child may be included in a class gift or a will of a 3rd party so long as 2-120 is satisfied. ( 2-705(b) and 2-120(f), and 2705(g)) Surrogacy: when motherhood arises where couple contracts with woman to bear a child for them, may or may not be sperm and egg of couple and woman agrees to give child to couple. Under UPC 2-121 (2008) a surrogate mother has no rights in the child absent a court order to the contrary, unless the surrogate mother is the genetic mother and no-one else has a parent-child relationship with the child Same Sex couples: when woman has child thru artificial insemination and then lesbian partner adopts child. To avoid lesbo partner from severing mothers parent-child relationship, courts permit natural mother to adopt along with partner eliminating this problem. UPC 2-102(c), (f) (2008) : child conceived by assisted reproduction other than surrogacy has parent-child relationship with birth mother and another if either party 1)consented in writing to birth mothers assisted reproduction with intent to be other parent, or 2) functioned as parent of child within 2 yrs of childs birth. VII. GIFTS to CHILDREN: A. Advancements: the doctrine of advancements addresses the issue of whether inter vivos gifts a decedent made to an heir should count against the heirs share of the decedents probate estate. IF the donor dies testate, the doctrine of satisfaction applies. 1. Common law: under common law, if parent makes inter vivos gift to child, rebuttable presumption is that gift is advancement of heirs share of his probate estate. (if donor dies testate, the doctrine of satisfaction applies, issues are very similar.) a. hotchpot: all inter vivos gifts to child are added back into parents probate intestate estate to create the hotchpot. Then hotchpot is divided equally among the decedents heirs. Any

advancement received by a child is counted against his share of pot. Child actually receives his parents intestate share of hotchpot minus any advancement already received. b. rationale: assumed parent loved each child equally. Example: Decedent gives A 25K inter vivos gift, B 50K, and C 75K. Decedent dies with 150K probate estate intestate. Analysis: Hotchpot is 300K, 150K estate plus 150K gifts. A gets 75K from probate estate, B gets 50K probate estate, and C gets 25 K from probate estate. c. advancement exceeds share: if inter vivos gift exceeds share of what he gets from hotchpot, does not have to give back to probate estate, just not qualified to take any probate distribution d. child predeceases after receiving gift: still applies to share of parents estate going to a childs issue. 2. UPC 2-109: inter vivos gifts do not constitute an advancement unless a writing indicates the donor intended the gift to be an advancement. 2-109(a):writing requirement; if donor creates the writing, writing must be made contemporaneously with inter vivos gift. If the done creates the writing, the writing may be made any time. Scope: reduces scope of doctrine because it applies only if a writing expresses such intent, also expands doctrine to apply to any heir, not just a child. UPC 2-109(a). 2-109(b): valuation; if inter vivos gift qualifies as advancement, it is valued at the time the donee receives possession or enjoyment of the property, whichever occurred first. 2-109(c): donee predecease: if the donee predeceases the donor and the inter vivos gift to the donee qualifies as an advancement, the advancement does not count against the share of the donors estate going to the donees issue unless writing expressly provides. The advancement is not taken into account in determining the share of the recipients descendants. B. Transfers to Minors: 1. Guardianship: guardian guards and preserves wards property until minor reaches 18. Has minimal powers over property. Have to go to court for authorization to deal with property. If minor needs help, can only use income generated from property, not property itself, absent court order. Must account regularly with court. Very inefficient. 2. Conservatorship: conservator takes title as trustee for minor and has all the powers a trustee would have over property. Conservator has to account with court only once a year. Far more efficient see UPC Article V.

3. Custodianship under UGMA/UTMA USE THIS FOR EXAM: custodian has discretionary power to use property for benefit as custodian deems appropriate without court approval. UTMA 14(a). Upon minor turning 21, custodian must disburse property to minor. Custodian has no duty to court, only to minor turning 21. More efficient than guardianship, most appropriate for small to mid-size gifts. 4. Trusts: Terms of the trust control scope of trustees power over the property, ability to use the principal/and or income for benefit of the child, duty to account, and when trust is to terminate and property distributed. Trust is most flexible way to hold and manage property for a minor, but costs involved in creating trust and may have high administrative fees depending on trustee fees. Appropriate for large gifts to minors. VIII. Bars to Succession A. Introduction: doctrine deals with when an otherwise eligible taker is barred from taking when the decedent dies intestate. B. Homicide: where a party who otherwise is entitled to take from a decedent kills the decedent, equitable principle denies the killer from taking under the rationale one should not profit from ones own wrong doing. 1. Jurisdictional approaches: a. decedents property passes to killer because statutory probate scheme instructs, if court alters scheme, its legislating. b. killer is barred from taking property because equity demands it. c. legal title of property passes to killer, constructive trust is imposed to prevent unjust enrichment, court orders property to be distributed to next in line to take. In re Estate of Mahoney: wife convicted of manslaughter of husband who died intestate. No homicide statute, court barred succession due to equity. 2. UPC 2-803: killer shall not take from his victim, killer is treated as predeceasing the decedent. 3. Intentional and felonious killing: killing must be intentional and felonious, involuntary manslaughter not within scope of doctrine. Self defense is not within doctrine, mercy killings/assisted suicide are. 4. Burden of Proof: conviction is res judicata on issue 2-803(g) but even if acquitted, if found civilly liable for decedents death intentional and felonious death, killer is barred from distribution of victims estate. In civil suits the court uses the preponderance of the evidence standard. Reason is it is about killer not profiting from wrong, not with protection of accused.

5. Remedy: general rule is if doctrine applies, treat killer as if predeceasing the decedent. 6. Killers Issue, UPC 2-803 Slayer Statute: UPC treats killer as if he disclaimed the property which arguably permits killers issue to take under the anti-lapse and per stirpes/per capita doctrine if they would otherwise qualify. 7. Scope: UPC 2-803 applies to all types of property, Nonprobate, probate testate and probate intestate. Joint Tenancy: operation of law killer/victims joint tenancy is converted in a tenancy in common. Killer keeps his interest and victims is distributed as if killer predeceased victim. C. Abandonment/Elder Abuse: a number of states have other doctrines that bar a taker from receiving if the taker is guilty of misconduct such as abandonment, or elder abuse; physical abuse, neglect, or fiduciary abuse of the decedent while he or she was an elder or dependent adult. D. Disclaimers: sometimes an heir or devisee will decline to take the property, a refusal that is called a disclaimer. Disclaimers allow for post-mortem estate planning. The most common motivations for disclaimer are to reduce taxes or to keep property from creditors. Predecease Decedent: To eliminate the difference between disclaiming an intestate share and devise, almost all states have enacted a disclaimer legislation that provides the disclaimant is treated as having died before the decedent or before the time of distribution. Property does not pass to the disclaimant and under state law the disclaimant makes no transfer of it to his heirs UPC 2-1105, 2-1106 (2002 rev., 2006). 1. Saving Estate Taxes: O dies intestate and survived by sister A. If A disclaims, she is treated as predeceasing O, and Os estate passes by intestacy to As kid B. To pass property on to B without a gift or estate tax being levied, A can disclaim the inheritance. If B is being taxed at a lower income tax rate than A, the disclaiming of the inheritance will also save income taxes for B. Most states require disclaimer being made within 9 months of creation of interest being disclaimed. UPC 2-1101-2-1107: adopted in 1/3rd of states, sets no specific time limit to disclaim. Federal Tax Code: even if a person properly disclaims under applicable state law, they still must be qualified as a disclaimer under federal tax code. To qualify under federal tax code, the disclaimer must be made within 9 months after the interest is created or after the donee reaches 21, whichever is later.

2. Avoiding Creditors: as a general rule creditors can reach an transferable property the debor holds. If an heir or devisee is facing a creditors claims, such that any property they inherit would go directly to creditors, devisee can elect to disclaim the property to avoid it going to creditors. Devisee rejects the gift so they never accept it and take, so creditors have no right to reach it. Federal Government as Creditor: Disclaimer statutes provide that a disclaimer relates back for all purposes to date of decedents death under the relation back doctrine. In an intestate estate, the disclaimer takes effect as of the time of the intestates death. UPC 2-1106(b)(1). When a bankruptcy petition is filed before the debtor disclaims, the courts will hold the disclaimer is ineffective under federal bankruptcy law. The IRS as a creditor is treated differently than individual creditors who cannot reach an asset disclaimed by a debtor not already in bankruptcy. Medicaid: applicant for Medicaid must meet strict income and resource requirements, recipients often must spend down in order to qualify. Giving away property may result in disqualification from assistance for a certain period of time depending on the nature of the transfer. Certain transfers are exempt such as of a home to a spouse and a transfer in trust for certain disabled persons. A person who qualifies for Medicaid benefits may still have their inheritance they disclaimed, that then passes to their issue/heirs be subject to reimbursement of Medicaid expenses. CHAPTER 3 GENERAL TESTAMENTARY CAPACITY: I. Mental Capacity: A. Requirements: to execute or revoke a will the testator must be at least 18 and of sound mind 1. Sound Mind: requires the testator to have the ability to know the a) nature and extent of his or her property, b) the natural objects of his bounty, c) the nature of the testamentary act he is performing, d) how all of these elements relate together in forming and orderly desire to dispose of his property. a. Ability to Know: the testator need only have the ability to know the information covered by the requirements. He or she need not actually know the information. The test is one of capability, not actual knowledge. If the test were one of actual knowledge a reasonable mistake about whether your child was alive or dead would render you mentally incompetent. b. Low Threshold: Testator does not have to be of average intelligence, otherwise it would incapacitate half the population. Test of sound mind is extremely low, there is a strong presumption one has testamentary capacity.

c. Burden of Proof: The majority approach is that once a proponent offers prima facie proof that a will was duly executed, it creates a rebuttable presumption the testator had testamentary capacity and the burden is on the contestant to prove lack of testamentary capacity. Wilson v. Lane and Breeden v. Stone. Minority approach is will proponent bears burden of proof. In re Estate of Washburn. Fact sensitive issue, burden of proof can affect outcome. 2. Standing: general rule is that a party has standing to contest the validity of a will or provision only if that party will financially benefit from his successful challenge. 3. Professional Responsibility: A lawyer may not draft a will for a person the lawyer believes to be incompetent, but the lawyer may rely on his own judgment of clients capacity. 4. Ante-Mortem Probate: ARK, ND, and OHIO have statutes that authorize a person to institute during life an adversary proceeding to declare the validity of a will and the testamentary capacity and freedom from undue influence of the person executing the will. All beneficiaries and testators heirs must be named in suit. Rarely invoked, known as living probate. 5. Lucid Interval: if a person who lacks capacity executes a will during a lucid moment, the will is valid even though person lacked capacity for some period of time before or after executing the will. (condition immediately before and after execution is relevant to capacity at moment of execution.) 6. Defects in Capacity: even if person has general testamentary capacity, person may suffer from defect that may invalidate all or part of will. 1)insane delusion, 2) undue influence, 3) fraud, 4) duress. General rule is court strikes as much of will caused by defect. II. Insane Delusion: A person may have sufficient mental capacity to execute a will but be suffering from an insane delusion to cause the will for lack of testamentary capacity. If an insane delusion is shown, but delusion did not materially affect disposition, will stands. Much of the litigation is focused on causation. A. Definition: false sense of reality to which a person adheres against all evidence and reason to the contrary. 1. Delusion: a belief not susceptible to the correction by presenting the testator with evidence of its falsity. 2. Mistake: susceptible to the correction if testator is told truth. B. Jurisdictional Split: 1. Majority: Rational person test, to determine what is an insane delusion. If a rational person in the testators situation could not have reached same conclusion, it is insane.

2. Minority: Any factual basis test; if there is any factual basis to support belief, its not an insane delusion. Breeden v. Stone: Crazy guy who believed govt. was spying on him was wasted on booze and coke, smashed his car and killed another driver. Didnt stop kept partying. Was barricaded in his house when cops showed up. Scribbled out a will that disinherited his family, leaving all his property to Stone. Then shot his dog and then himself. Rational person analysis: easy to conclude a rational person could not hold delusions and paranoia that govt. and his family were out to get him. Factual Basis analysis: came out later one of his friends is FBI informant, unclear whether probate court knew, or would find the fact alone supported his delusions. Court found he suffered from delusions but found there was not sufficient evidence that materially affected the wills provisions. In re Honigman: testator went in for prostate surgery and became his obsessed his wife was unfaithful. Told anyone who would listen she fucked every dude she met. Executed a will that left his wife bare statutory minimum. Wife challenged belief was insane delusion and will invalid. Siblings presented evidence of anniversary card from other guy, and testimony dead guy hid in bushes one day and watched same dude go into his house, wife asked when dead guy would be coming home. Rational person: while theoretically possible seems preoposterous, doesnt pass rational person test. Factual basis: key is how much nexus between belief and allegedly supporting evidence. Siblings only gave 3 tidbits,but have argument. Court held contestants (wife) presented enough evidence dude suffered from insane delusion. Dead Mans Statutes: many states had dead mans statutes that prohibited interested witness to in probate proceedings testify about alleged oral statements decedent made while alive. Only minority of states still follow this, some states abolish, while others allow them in if corroborated by other evidence or testimony is found reliable by court. C. Causation: even if testator suffers from insane delusion, delusion is irrelevant unless its shown the belief caused him to dispose of his property in a way he wouldnt of otherwise done. 1. Majority: but for test he wouldnt have disposed of shit the way he did. Some courts soften it to insane delusion materially affected will provisions. 2.Minority: only that insane delusion might have affected disposition of property. Fact sensitive: more preposterous the belief, the more likely it is to be insane delusion.

III. Undue Influence A. Definition: when one influences the testator to the extent that the will expresses the influencers intent, not the testators intent. Rarely is there direct evidence, most is circumstantial. It may occur where there is a confidential relationship or none at all. If part of will is product of undue influence portions of affected will are stricken, and if invalid portions can be stricken without defeating testators intent or destroying testamentary scheme, remainder of will is valid. B. Traditional Rule: has 4 elements 1. Susceptibility: donor must have been susceptible. 2. Opportunity: wrongdoer must have had opportunity to exert influence. 3. Motive: must have a motive 4. Causation: result appears to be effect of undue influence. C. Burden-shifting Approach: if elements of burden shifting doctrine are satisfied, presumption of undue influence arises, and burden shifts to defendant to rebut. Most jurisdictions use this approach. In many jurisdictions the presumption of UDIF arises if: 1. There was a confidential relationship between D and testator 2. D receives bulk of the estate 3. testator was of weakened intellect. LAKATOSH: dude befriends an old lady then takes advantage of her. The more UNTRADITIONAL THE RELATIONSHIP, the MORE courts and the jury will impart their own values in assessing the nature of the relationship. D. Suspicious Circumstances: need CR and suspicious circumstances; Restatement gives number of factors to raise inference of abuse in relationship; 1. weakened mental/physical state 2. extent of participation of bad guy in creation of instrument 3. whether person received advice from attorney or other competent and disinterested advisors they chose to ignore. 4. prepared in secrecy,haste 5. attitude toward loved ones has changed by reason of relationship with wrongdoer 6. discrepancy in new will with previous will 7. continuity of purpose running from former will to new will indicating a settled intent to dispose in that manner. 8. whether disposition of property is such that a reasonable person would regard it as unnatural, unjust or unfair.

Unnatural disposition: in a will, to the wife and children is natural: no natural: more likely to be challenged: disinheriting a child: leaving substantial assets to care giver, non-family member, charity or pet exclusion to other heirs. Lipper v. Weslow: predeceased sons issue disinherited. Issue contest will saying surviving son had undue influence. He was attorney who drafted will, testatrix was susceptible, son had opportunity, lived next door, and motive, got more money from will and hated dead brother. Court found no causation cuz lady would always tell people shes going to disinherit her grandchildren and they treated her shitty after their dad died. If the requirements are satisfied, the burden of proof is shifted to D to rebut presumption. E. Gifts to Attorneys: Many courts hold that a presumption of undue influence arises when an attorney-drafter receives a legacy, except when the attorney is related or married to the testator. The presumption can be rebutted only by clear and convincing evidence provided by the attorney. There is an exception permitting a gift to a nonrelated lawyer-drafter if the client consults an independent lawyer who attaches to the instrument a Certificate of Independent Review, which must state the reviewing lawyer concludes the gift is not due to undue influence, fraud, or duress. (CA statute) Model Rule 1.8 ethical code, a lawyer may not solicit any substantial gift from a client. Only exception is when the client is a relative of the donee. Fiduciary Appointments: 1.8(c) must obtain informed consent from client, lawyer should advise client concerning nature and extent of lawyers financial interest in appointment, as well as availability of alternative candidates for the position. F. No-Contest Clauses: provide that if beneficiary sues contesting instrument, loses whatever he or she is taking under instrument. Majority/UPC 2-517 and 3-905: refuses to enforce a no contest clause if there is probable cause to support the will contest, regardless of the nature of the contest.

G. Deterring Will Contests: number of ways one can use to reduce likelihood of a suit. The most common suits allege lack of capacity or undue influence, insane delusion, and fraud. Easy to litigate before a sympathetic jury. 1. Explanatory Statement: used to deter a will contest or help convince a jury the provisions are true to testators intent. Do not include in the actual will because; a. portraying family member poorly increases likelihood of bringing suit to defend himself. b. if reasons given, reasons must be completely accurate and defensible, if not raises issues of capacity/undue influence.

c. statement libels a person, person can bring suit for testamentary libel. Have the client hand write a letter to the attorney using general statements of explanation explaining reasons for unnatural disposition. Attorney can then disclose the letters during probate to those affected. Same can be achieved through video. Reduces chances anyone will feel the need to sue to clear ones name and minimizes any possible damages if statement is libelous. Also can have capacity assessed by mental expert, have 3rd witness at execution. 2. Inter vivos Trusts: another way a person can try to protect his estate plan is to use an inter vivos trust instead of a will. Increases chase testamentary scheme will survive a challenge. Advantage is its harder to attack an inter vivos trust if the settlor had a course of dealing with the trustee to evidence competence and the absence of influence. Most states the inter vivos trust can be kept secret from donors heirs, might not learn of its existence until its too late to contest it. Trust disputes heard before a judge, avoids risk jury will rework the donors dispositive scheme to attempt to do equity for a disinherited or disfavored heir. Puckett v. Krida: THIS TYPE OF CASE WILL BE ON EXAM, CONFIDENTIAL RELATIONSHIP AND SUSPICIOUS CIRCUMSTANCES, FIDUCIARY RELATIONSHIPS, FACT PATTERNS Facts. The defendants were hired as nurses to provide around the clock care for the testator. After their employment, the nurses persuaded the testator that her family wanted to put her in a nursing home and were misappropriating her funds. The defendants were aware when they began work that the testators biggest fear was going to a nursing home. They separated the testator from all of her family, friends, and former professional contacts. At different times, the defendants made false statements to the testator and concealed facts from her. The defendants listened to Hoopers phone conversations and told her that her niece was wasting or misappropriating funds and then reimbursing herself for renting fancy cars and airline expenses. The testator entrusted her niece Jean Law to handle her financial affairs. The evidence at trial showed that Law managed her affairs properly, made every effort to keep the testator out of a nursing home, and never reimbursed herself for any of the expenses. The trial court also found that the niece kept meticulous records. The defendants however, had irregular dealings with the testators money. The defendants isolated the testator and controlled access to her. In regards to the testators professional and business relationships, the defendants (1) made new professional relationships for the testator and eliminated all former associations, (2) made serious decisions about the testators real property to avoid contact with her previous realtor, and (3) replaced her long time tenant with one of their family members. Furthermore, the defendant made the testators neighbors feel unwelcome and threatened the family with a lawsuit. Issue. Whether a presumption of fraud and undue influence is raised where the testator is in a confidential relationship with people who involuntarily isolate the testator and make misrepresentations on which the testator relied in making her will?

Held. Yes. There is sufficient evidence here to support a finding of fraud and undue influence because the defendants, standing to benefit from the will, had exclusive access to the testator and control over her physical person. Furthermore, the defendants were in a confidential relationship with the testator because they were employed as nurses to provide the testator with around the clock care and one of them was her attorney-n-fact. These facts together with evidence showing III. FRAUD: occurs when someone intentionally misrepresents something to the testator, with intent of influencing testatmentary scheme, and misrep causes testator to dispose of property in a way he would not have otherwise. A. Misrepresentation: person must intentionally misrepresent something to a testator, knowing it to be false when he makes the representation. B. Fraud in the inducement: occurs when person misrepresents a fact to testator for purpose of inducing him to execute a will with certain provisions, or for purpose of inducing him to revoke a will, or to refrain from revoking a will. Key is that misrep doesnt go to terms of will per se, rather concerns facts that are important to testator and may induce testator to dispose of his property differently in light of the misrep. C. Fraud in the execution: occurs when person intentionally misreps the character or content of instrument signed by testator. Occurs when either a person tricks another into signing a document that purports to be signers will, but signer does not realize it, or when he realizes hes signing the will but person misrepresents contents.

D. Elements: 1. mens rea: misrep must be made knowingly and for purpose of influencing testamentary scheme. If it is meant as practical joke, fraud doctrine cant apply. Rarely direct evidence of partys intent at time of misrep, and jury is free to draw whatever inferences it wants. Free to disbelieve self serving statements made by party who made misrep. 2. Causation: fraud must cause testator to dispose of his property in way he would not have otherwise. 3. Remedy: depends on effect of misrep conduct a. fraudulent provisions: strike as much of will affected by fraud, if necessary strike whole will. b. fraudulent failure to revoke: strike will or clause would have revoked but for misrep. c. fraudulent failure to execute: court wont execute the will but can impose a constructive trust on parties who take decedents probate property and order property distributed to parties who would have taken the property if decedent executed the will he

was prevented from executing. This is rare, GENERAL RULE: Unjust enrichment must have resulted. IV. DURESS: when undue influence becomes overtly coercive, it is called duress. Occurs where wrongdoer performs or threatens to perform a wrongful act that coerces the donor into making a donative transfer he otherwise wouldnt have made. Transfers procured by duress are invalid. Subset of undue influence. Latham v. Father Divine: testatrix will left almost all of estate to father divine. Plaintiffs allege she intended to revoke and execute a new will leaving estate to them, but she was prevented due to divine and his followers undue influence, fraud, and physical force. Court ruled complaint state a case for relief in equity and if proved, entitled plaintiffs to a constructive trust ordering beneficiaries under testatrixs will to transfer property to plaintiffs. V. Tortious Interference with Expectancy: where a third party has intentionally committed tortious conduct in the testamentary process, those who would have taken but for the misconduct can also sue third party for tortious interference along with contesting the will. THEORY CANNOT BE USED WHEN CHALLENGE IS BASED ON TESTATORs MENTAL INCAPACITY A. Element of a claim: plaintiff typically must prove 1) existence of an expectancy, 2) a reasonable certainty the expectancy would have been realized but for the interference, 3) intentional interference, 4) tortious conduct involved with interference, fraud, duress, etc., and 5) damages. B. Advantages: 1. Not a will contest, wouldnt invalidate a will with a no contest clause, if you lose in tort you can still take under the will. 2. punitive damages: eligible to claim punitive damages. 3. longer statute of limitations C. Procedural Issues: some j/ds require the claim to be brought in probate court first, to exhaust probate remedies, failure to do so will bar a tort interference suit. Plaintiff loses in probate court, res judicata bars the suit. Exception exists where circumstances surrounding the tortious conduct precludes adequate relief in probate court. Refusal to answer or return opponents calls might be enough. Probate Exception to Federal Jurisdiction: exception prohibits federal courts from entertaining a suit that encroaches on traditional jurisdictions of state probate courts.

CHAPTER 4: Will Execution, Revocation, Scope I. MODERN TREND APPROACH TO ATTESTED WILLS: Attested will: must satisfy Wills Act formalities Typical Formalities: 1. writing: to have a valid will, there must be a writing 2. signature: writing must be signed, anything the testator intends as his own signature. No requirement he signs his full name, but if person intends to sign full name, and doesnt complete it, general rule is partial signature doesnt qualify as signature. 3. signing by another: will may be signed by someone other than testator, so long as other person signs testators name , in his presence, and at tesators direction. Must be express direction. 4. witnesses: testator must sign or acknowledge will in presence of 2 witnesses at same time. Acknowledgment: need not sign in front of witnesses, so long as testator acknowledges in front of witnesses present at same time, signature already present on doc is his signature. 5. presence: T must sign or acknowledge in presence of witnesses and under CL witnesses must sign in presence of testator. 6. order of signing: because witnesses are required to witness testator signing, order is implicit UPC: requires witnesses to sign after witnessing testator sign,but harmless error doctrine with C/C evidence order of signing is irrelevant. 7. writing below signature: A. UPC 2-502 Statutory provision/ UPC Statute of Wills version: UPC has tried to simplify execution process for attested wills by 1) reducing the number of requirements and 2) loosening up on several of the requirements that remain.
2-502. Execution; Witnessed Wills; Holographic Wills. (Bk. Pg 226). (a) Except as provided in subsection (b) and in Sections 2-503, 2-506, and 2-513, a will must be: (1) in writing; (2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (3) signed by at least two individuals, each of whom signed within a reasonable time after he [or she] witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will. (b) A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. (c) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.

UPC 2-502(a) requires: 1) a writing 2)signed by the testator or in the testators name by another in the testators conscious presence and by the testators direction; and 3)signed by at least 2 individuals, each of whom signed within a reasonable period of time after he witnessed either 10) the signing of the will or the testators acknowledgment of the will. The UPC 1990, rev. 2008 is 1) writing, 2) signature, and 3) attestation & signature by 2 witnesses OR notarization. The UPC as amended treats the notary as the equivalent of two attesting witnesses. MA RULE: This is not so in MA, in MA it requires both 2 witnesses and notarization.

B. UPC Requirements: eliminates several common law Wills Act formalities and loosens up on several others. 1. Need not sign at the end: the UPC does not require the testator sign the will at the end or foot of the will. 2. Signed by another: UPC expressly provides that where another signs for the testator, in the testators presence and at the testators discretion, the test for the requirement that the other sign in the testators presence is the conscious presence test-a looser standard than the line of sight approach. UPC 2-502(a)(2). 3. Acknowledgment: UPC loosens acknowledgment option by providing that the testator may acknowledge either his or her signature or the will. UPC 2-502(a)(3). At common law you had to acknowledge your signature. Had to open will where he had signed so that witnesses can see signature. Trips up careless testators. UPC significantly lowers threshold for valid acknowledgment by permitting the testator to acknowledge the signature OR the will. 4. Separate Witnesses: UPC doesnt require the witnesses to be present at the same time for any reason, even when testator signs or acknowledges. UPC 2-502(a)(3) 5. Witnesses execution: UPC provides witnesses need to sign within a reasonable time after witnessing testator sign or acknowledge. UPC 2-502(a)(3). Implicitly rejects they must sign in presence of testator and arguably endorses delayed approach. 6. Witnesses presence: UPC does not require witnesses to sign the will in either testator or other witnesses presence. UPC 2-502(a)(3). Many traditional wills act formalities do. B. Curative Doctrines: UPC modern trend encourages courts not to insist on strict compliance with Wills Act formalities. 1. Substantial Compliance: even if a will is not executed in strict compliance with formalities, court is empowered to probate the will if 1) clear and convincing evidence shows testator intended to constitute his will 2) clear and convincing evidence shows that will substantially complies with statutory formalities.

UPC Self proving-affidavit: UPC permits a combined attestation clause and self-proving affidavit that requires the testator and witnesses to sign their names only once, avoiding the potential mistake of witnesses only signing a self proving affidavit instead of the will. (common law sfa was used in lieu of calling in witnesses to testify.) UPC 2-504 2. Dispensing Power/Harmless Error UPC 2-503: under dispensing power/harmless error approach, if a will is not executed in strict compliance with formalities, court is empowered to probate the will if clear and convincing evidence shows the decedent intended the document to constitute his will. Difference with this rule and substantial compliance is that courts are not directed to look at whether the purposes of the formalities were served, but at whether the decedent intended the document or writing to constitute his will. Scope: as applied to the three basic requirements, (writing, signed, and witnessed) many argue that a) witness requirement is least important and most easily dispensed with, and b) the writing requirement is the most important and cannot be dispensed with under any scenario. In states that have adopted the harmless error rule, the effective minimum requirement for admitting a document to probate as a will has been reduced to little more than the intent the document be a will. UPC 2-503: applies to validate a writing so long as there is clear and convincing evidence the decedent intended the writing to constitute i) the decedents will, ii) a partial or complete revocation of the will, iii) an addition to or an alteration of the will, or iv) a partial or complete revival of the will. Switched Wills situations: 2 different modes of correcting a switched wills error. 1) probate the will that decedent intended to sign but did not, (UPC remedy), or 2) probate the will the decedent actually signed and then reform its terms to make sense. II. NOTARIZED WILLS: Revised 2008 UPC 2-502(a)(3), a will is valid if signed by 2 witnesses or a notary. Reason is because under harmless error doctrine, such a will would be valid even without the notarization. This is not so in MA, in MA it requires both 2 witnesses and notarization. III. Holographic Wills: A. Distinguishing Feature: holographic wills do not require the will be witnessed. To offset lack of witnesses, number of other requirements be met, namely the will must be in testators handwriting. 1. Jurisdictional split: half the states, in South and West recognize holographic wills; raises number of issues, capacity, potential for fraud and undue influence, intent, conflicts of multiple wills, costs of administration.

2. UPC 2-502(b) recognizes Holographic Wills: A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. B. Requirements: most states compensate for lack of witnesses by adding additional requirements for holographic wills. 1. Writing: holographic wills must be in writing, the same as attested wills. 2. Signed: as with attested wills holographic wills must be signed. Anything testator intends as his or her signature qualifieds as a valid signature. Unlike attested wills, only testator can sign holographic wills. Most states do not require the will to be signed at the end, but it raises questions about whether person wrote his name itnending it to be a signure or for ID puproses only. 3. Dated: Some states require them to be date, UPC 2-502(b) does not. 4. Handwritten: offset lack of witnesses, holographics must be in testators handwriting. Decreases potential for fraud in execution. UPC 2-503(b) requires only material provisions and signature be in handwriting. Some states require entire document to be in handwriting. 5. Testamentary Intent: intent document constitutes last will and testament-intent is that will be probated as decedents will. Express intent is meant to ensure only writings decedent wanted to serve as a will, as opposed to drafts, are probated. Use of words indicate document is to have significance after persons death. Words such as save this show intent, however, estate standing alone is too ambiguous. UPC Extrinsic Evidence Approach 2-502(c):expressly disavows formalist approach that intent must be discernible from testators handwriting. UPC allows for intent to be derived from the handwritten material, non handwritten provisions, or other extrinsic evidence. IV. REVOCATION: A. Revocability of Wills: wills are executed inter vivos but not effective until death. If testator changes his mind, he can revoke it, replace it or amend it any time. Can be revoked 1) by act, 2) by writing, 3) by presumption, or 4) by operation of law. B. Revocation by Act/ UPC 2-507(a)(2): may be a physical act, as long as destructive in nature, and performed with intent to revoke, other person may do act, but must be performed at testators direction and in his presence. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a "revocatory act on the will," whether or not the burn, tear, or cancellation touched any of the words on the will. Common law approach the act must destroy some part of written will. C. Revocation by Writing: Under UPC 2-507(a)(1) a will may be revoked expressly or by a subsequent inconsistent will.

1. Express Revocation: will can be revoked by subsequent writing expressing intent to revoke, only if the subsequent writing qualifies as either an attested or holographic will. Clear and express statement of intent to revoke the prior will. Properly executed instrument that does no more than express intent to revoke the prior will is a valid will. 2. Revocation by Inconsistency: occurs when subsequent will disposes of decedents property in a way that is incosistent with prior will. Later expression of intent controls over prior time expression of itnent, prior will is deemed revoked to extent of any inconsistencies. 2-507(a)(1) 3. Will vs. Codicil: If subsequent will only partiall revokes or amends the prior will, expressly or by inconsistency, the will is called a codicil. Prior will stands and is valid to extent it is not revoked by codicil. a. Codicil execution: Codicil is a will-must be executed with the requisite Wills Acts formalities. 2-507(d): The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent. A codicil is a will that merely amends an existing will rather than replacing it. b. excpections-codicils to holographic wills: exception to general rule codicil must qualify as a valid will on its own is handwritten amendments (interlineations) to holographic wills constitute valid holographic codicils, even if interlineations do not qualify as valid holographic wills in their own rights. 4. mixed wills and codicils: holographic codicils to attested wills are valid, and attested codicils to holographic wills are valid. 5. Revocation of codicil/will: revocation of codicil does not revoke underlying will, revocation of a will revokes all subsequent codicils. 7. Writing as revocation by act: If a testator types VOID on attested will across first page but does not sign the document after writing VOID on it. Under common law, this act of writing VOID but not signing would not qualify as a valid revocation by writing cuz it doesnt qualify as a valid will, neither attested nor holographic cuz not signed. But act of writing void does qualify as a destructive act assuming she had intent, which is implicit in the act, act of writing VOID qualifies as revocation by act MODERN TREND: as long as act affects some portion of the will. If a testatrix wrote on her back of will inpresence of attorney and another, null and void, but did not have it attested cuz no witnesses and not holographic cuz its not a material provision, but signed it then dies 3 weeks later. Under modern approach it could be revocation by writing because it was created in writing, in the presence of two witnesses. Delayed attestation is permitted as long as it occurs within a reasonable time. A REASONABLE TIME IS 6 MONTHS in most courts. Here witnesses could be brought in to sign the notation as witnesses.

D. Revocation by Presumption: if a will was last in the testator possession and cannot be found following death, rebuttable presumption arises he revoked will by act. If presumption not overcome, will is revoked. If presumption is rebutted, will is deemed lost, and extrinsic evidence is admitted to prove its terms. If terms are established, lost will is probated. Either preponderance of evidence or clear and convincing evidence, almost any evidence is admissible. Weak Presumption, if those challenging the will offer a more plausible explanation becomes issue for trier of fact. 1. Duplicate Originals: originals of same will, each properly executed. Photocopy not duplicate. Testator must execute each version of a DO. Attorney usually keps one and testator takes other one home. a. revocation by writing: affirmative evidence testator properly revoked original automatically revokes all duplicate originals. b. revocation by presumption: j/ds split over whether presumption applies to revoke all duplicate originals if one tesator took home is not found but other duplicate original is found. i. revokes all duplicates: applies to all originals if presumption applies to one duplicate original. ii. not revoke all duplicate originals: presumption does not revoke unless none of duplicate originals are found following death. Harrison v. Bird: lady told attorney she wanted will revoked, he tore it up into pieces and mailed it to her. Court said revocation by act not valid, not done in her presence. But pieces that were mailed were never found, court ruled presumption of revocation applied, even to any duplicates found thereafter. 2. Partial Revocation by Physical Act: UPC 2-507: majority recognizes partial revocation by physical act, permits gift to fall to residuary and to increase residuary, but cannot increase gifts outside residuary. UPC provides will should be given effect as it reads with partial revocation by act regardless ofwhwere that means the revoked gift goes. E. Dependent Relative Revocation: even if a will is validly revoked, it may yet be possible to probate the will if the revocation was based upon a mistake of fact or law, and if tesator would not have revoked if testator had known the truth. Doctrine becomes much more diffcult when one overlaps added observation that the courts tend to apply the doctrine only if 1)there is a failed alternative testamentary scheme, or 2) if the mistake set forth in writing that revoked the will and the mistake is beyond the testators knowledge. 1. Revocation by act: classic scenario, is where testator revokes gift by act, (valid revocation) on belif that new will or codicil is valid, but it is not (mistake of law). Intended beneficiary stands to take nothing because original is validly revoked and new gift fails due to mistake of law. DRR reasons it is better to save original gift if that is what testator would want had he known new will/codicil was invalid. Where revocation is by act, almost invariably mistake of law because tesators attempt at new will fails for some legal reason. 2. Revocation by Writing: less common DRR is where the revocation is by writing. Intrinsically, cannot be failed alternative testamentary scheme because new will or codicil had to be valid for there to be a successful revocation of the first will by writing. Instead where revocation is by writing, almost invariably it is a mistake of fact. Courts require

the mistake of fact be set forth in writing, and msut be beyond testators knowledge. I.E. give mistaken reason for revoking gift in subsequent will/codicil. Revocation by writing is almost invariably mistake of fact because it must be set forth in a valid revoking instrument. Possible to make mistake of law by revocation of writing, by violatine rule against perpetuities, public policy, etc. F. Revival: assuming a testator validly executes will 1, and thereafter validly executes will 2 that expreslly or implicitly revokes will 2, there after validly revokes will 2, intending to give effect to will 1, j/ds are split over what constitutes a revival. UPC 2-509: thinks requiring the testator to satisfy Wills Act is too burdensome, all he must do to revive will 1 is to intend to revive it.. However, states limit what evidence courts can consider to prove testators intent ot revive depending on how he revoked will 2. Proving Intent to Revive: key to proving intent to revive is how he revoked will 2. If testator revoked will 2 by an act, courts take almost any evidence of testaors intent to revive will 1., even testators own alleged statements. UPC 2-509(a). Under UPC 2-509(a) if a subsequent will that wholly revoked a previous will is revoked by physical act, the presumption is that the previous will remains revoked. Uner UPC 2-509(b), if a subsequent will that partly revoked the previous will itself is revoked, the presumption is the previous will is revived. Burden of proof is that testator did not intend to revive the revoked provisions of will 1. UPC 2-509(c), If revoked will 2 by writing new will, will 3, itnent to revive will 1 must be set forth in new will 3. G. Revocation by operation of law-Divorce: UPC 2-804: divorce automatically and irrebuttably revokes all provisions in a testators will in favor of the ex unless will expressly provides otherwise. UPC Scope: revocation by operation of law applies not only to wills but also the will substitutes, life insurance, joint tenancy, pension plans, and nonprobate arrangments. UPC 2-804(b)(1): takes broad approach, revokes provisions in favor not only of ex-spouse, but also provisions in favor of exspouses relatives. VII. COMPONENTS of a WILL: A. Integration: the scope a will starts with determining what constitutes the pages of the will. Doctrine of integration provides that those pieces of paper that are physically present at the time of the exuecution and that the testator intends to be part of the will constitute the pages of the will. B. Republication by Codicil: executing a codicils to a will reexecutes and republishes the underlying will. 1. Republication by codicil: General Rule, a codicil automaticaly redates the underlying will. Redating the will may be significant for many reasons, one of which is incorporation by reference. Codicil can either redate the underlying will expressly, via an express clause, or implicity, in absence of clause, courts presumpe intent to redate.

A will is treated as re-excuted as of the date of the codicil. Updating original will in this manner has important consequences. Suppose tesator revokes a first will by a 2nd will, and then executes a codicil to the first will. First will is republished, and second will is revoked by implication (squeezed out.) Doctrine shold not be applied automatically, only whe updating will carries out testator intent, even though some courts ignore it. Exception: in handful of scenarios redating underlying will may be counterproductive to apparent wishes of testator. Parties can argue to court testator must not have intended to redate inlight of adverse consequences that would follow. Courts receptive to this argument where no express clause exists, but not when express republication clause exists. (one can try to argue express clause is boilerplate thrown in by attorney, not real intent). 2. Preexisting Will: classifying a will as a codicil implicity presumes a prexisting valid will. If underlying will is not valid, codicil is not a codicil, but a new will. Does not automatically rexecute and republish invalid will, may be possible to use valid will to give effect to testamentary wishes expressed in invalid will through incorporation by reference. 3. Curative Powers: if there were potential problems with original will execution ceremony that do not affect its validity in whole (interested witness, or undue influence claim as to part of will), C. Incorporation by Reference: a valid will can incorporate by reference a document that was not executed with Wills Act formalities, giving effect to the intent expressed in the incorporated document, so long as 1) will expresses intent to incorproate the document, 2) the will describes the document, 3) document being incorporated was in existence when the will was executed. UPC 2-510: Incorporation by Reference 1. Intent and Describe Requirements: if will makes reference to document, that is enough to constitute intent to incorporate it into will. If description in will is not 100% accurate, but court is persuaded this is document testator wanted incorpated, court will find the will describes document with reasonable certainty. 2. Document in existence requirement: courts strictly apply requirement that the document has to have been in existence at time the will was executed. Exact dating not necessary, but plaintiff bears burden of proving by preponderance of evidence that document was in existence when will was executed. If document changes over time, only document as to time will was executed is incorporated by reference. 3. UPC 2-513 Tangible Personal Property List: permits testator to give away tangible personal property via a list not executed with Wills act formalities even if the list is created after the will is executed, so long as will expressly states intent. Modifies incorporation by reference by waiving requirement of existence at same time will is executed so long as it refers only to tangible personal property Fundamental difference between republication by codicil and incorporation by reference is that republication applies only to a prior validly executed will, whereas incorporation can apply to will in a language or instruments that have never been validly executed. D. UPC 2-512 Acts of Independent Significance: under the doctrine of acts of independent significance, a will may dispose of property by reference to acts outside the will (can control who or how much takes/taken) as long as the referenced act has significance independent of its effect upon testators probate estate. Permits a testator to change the provisions of his or her will without having to execute a codicil.

Example, lady executes a will, 1000 to son in law, stuff in garage to bob, and 10K to someone I will name in a letter to executor I will leave for a later date. Daugther isnt married at time of will, but gets married, son in law gets 1000 cuz marriage is indepenedent act of siginficance apart from will. Same goes if she bought a car and left it in garage, act of putting car in garage is independently significant, storing and using items are legitimate inter vivos purposes that show referenced act has its own independent significance. Bob gets new lawn mower without her executing new codicil. Last clause is invalid, letter doesnt have independent significance apart from its effect on who takes , whoever is named in letter doesnt get any money. Writing as Independent Act: creation of a wrting, even testatmentary in nature qualifies as an act of indenepent significance as long as it has its own independent significance apart from its effect on the will. Example: testator leaves 10K to persons listed as beneficiaries in his brothers will. Qualfies cuz his brothers will was created to dispose of brothers probate property, not testators. Temporal Prosepctives: 1. republication by codicil: look back in time by requiring a valid will be executed BEFORE the codicil is executed. 2. incorporation by reference: looks back in time by requiring document to be created befor the will was executed for it to be incorporated into the will. 3. acts of independent significance: with rare exception, referenced act is one that is to occur in the future. Whenever it is an act in the future that dictates who or how much takes, this is the only doctrine that applies. VIII. CONTRACTS RELATING TO WILLS: A. Introduction: under probate, creditors take first before beneficiaries. Creditors are entitled to recover before donees because they have extended valuable consideration to the testator. 1. Potential for fraud: someone can claim that testator promised him something in exchange for consideration if they are left out of the will as a beneficiary. Frustrated invidual can claim to have contracted and is entitle to claim the gift as a creditor. 2. Contract Requirements: need basics, offer, acceptance, and consideration. Person can enter contract to make a will or to revoke a will. To enforce a K, 3rd party beneficiary must sue under contracts law and prove it to be valid. 3. Remedy: if K is binding, and party dies leaving a will not complying with K, will is probated but K beneficiary is entitled to remedy of a broken K. Court might impose a constructive trust on the estate or other beneficiaries, order specific performance, award damages, or in ususal case remedy takes form of either transfer of promised property or payment of value of property that was promised by the K. Equitable Estoppel: If K doesnt satisfy statute of frauds, beneficiary may still recover under quantum meruit because they are entitled to restitution for value of services rendered. Still must prove a K. In context of promise to make a will for services rendered, value decedent put on

services in oral agreement, I promise to leave you half my estate is evidence of the reasonable value of those services. B. Writing Requirement UPC 2-514 Contracts Concerning Succession:UPC requires contracts to make wills by requiring contract be in writing with evidence by some writing signed by the testator. Done to prevent fraud. UPC 2-514. C. Ks not to Revoke a Will: contract not revoke a will/provision raises issues not raised by Ks to make a will. 1. Joint Will: a single will properly executed by 2 parties that serves as will for both people. Joint will says on death of first party, all property goes to surviving spouse in joint will, and on death of spouse, 2nd to die property goes to agreed upon K beneficiary. 2. Mutual Wills: also known as mirror wills, similar to joint wills except 2 wills with same testamentary scheme. Each spouse has own separate will that provides upon death everything goes to surviving spouse, then to child. a. Ambiguity: issue that arises is whether joint/mutual wills implicity contain K not to revoke, so upon death of birth party, testamentary scheme becomes binding. Ultimate a question of intent, absence of good drafting can at minimum give rise to potential for litigation. b. UPC 2-514: executing mutual/joint will does not create a presumption of contract not to revoke. Surviving party is free to dispose of all property as they see fit. 3. K rights v. spousal rights: where K not to revoke and parties are husband and wife, if after 1st persons death survivor remarries, K not to revoke comes into conflict with 2 statutory protection schemes a. spousal protection doctrine: pretermitted spouse doctrine provides where a will is exectued premarriage, and testator marries and dies without changing will to provide for new spouse, statute presumes testator wanted to provide for new spouse but failed to before death. Elective share doctrine permits surviving spouse to claim a share of deceased spouses estate regardless of terms and b4 any benes take under the will. b. order of takers: General Rule 1) creditors take first, 2)spousal protection takes before beneficiaries, 3) creditors claims, (other than under K not to revoke) take before spousal protection c. Contract beneficiaries: if surviving spouse dies without remarrying, benes take under the will in their capacity as benes. If spouse remarries, and breaches K not to revoke, will benes are also benes of K not to revoke and can claim as creditors. Breach of not to revoke helps beneficiaries because they jump in line of takers from last to first as creditors. d. Breach: some Ks say anything that alters agreed upon scheme even remarriage of spouse. Typcial example testator leaves a will that does not comply with K. Other Ks say only if spouse revokes K, so new spouse can take b4 will/K beneficiaries not to revoke because there is no breach and they only can claim as beneficiaries. i. Majority: K not to revoke lets creditor beneficiaries take before new spouse ii. minority: spousal protection rights upon remarriage dont breach K not to revoke, spouse takes first.

4. Property affected: scope should be addressed in K, absent clear drafting, court tends to hold standard K applies to both property received by spouse from dead guy but also to surviving spouses property, held at time of death and later acquired. 5. Right to Use: surviving spouse has life estate in property subject to K not to revoke with right to use and consume property as reasonable. 6. Survival Requirement: under will doctrine: bene has to survive to take, under K doctrine, bene to K does not have to survive to claim. Applied to Ks not to revoke, general rule, courts will hold benes claim as benes unless there is a breach. If breach, then status changes to creditors claiming under K, dont need to survive decedent. If no breach, only a bene and need to survive. CHAPTER 5: CONSTRUCTION of WILLS I. MISTAKES and AMBIGOUS TERMS A. Scope: Modern Trend applies will construction doctrines to nonprobate instruments as well, such as trusts with POD clauses. Scope in modern trend is to wills, trusts, and other testamentary instruments. B. Plain meaning rule: common law against admitting extrinsic evidence is found in plain meaning rule, general rule extrinsic evidence not admissible to show testator meant something other than the plain meaning. Extrinsic evidence is admissible to construe words if there is an ambiguity. 1. Majority: plain meaning rule applies, extrinsic evidence only if ambiguity in will. 2. Modern Trend/UPC 2-805: rejects majority, allows for extrinsic evidence to be admissible to prove testators intent. C. Ambiguities: 2 types patent/latent 1. Patent Ambiguities: A patent ambiguity appears on the face of the will, it is apparent from the four corners of the will, no extrinsic evidence is needed to realize ambiguity. Will reads: T leaves a disposable portion of my estate to daughter A, and next clause reads my entire estate to Ts daughters A and B. Under traditional law extrinsic evidence is not admissible to clarify a patent ambiguity. Increasingly however, extrinsic evidence is allowed to aid in interpreting a patent ambiguity 2. Latent Ambiguities: A latent ambiguity manifests itself only when the terms of the will are applied to the testators property or designated beneficiaries. 2 types; Equivocation: first type occurs when a will clearly describes a person or thing, and two or more persons or things equally fit that description. Misdescription: The second type of latent ambiguity exists when no person or thing exactly fits the description, but two or more persons or things partially fit. Classic example is typographical error when numbers and names get inverted.

Personal usage exception: personal usage exception is form of latent ambiguity, analogous to equivocation except court treats personal usage that testator gave to object or person as equa to proper name of object or person. 3. MODERN TREND: Allows for Reformation a. Rejects Plain Meaning Rule: considers extrinsic evidence surrounding testator at time executes the will to determine intent and ambiguities. b. Rejects Latent v. Patent: admits extrinsic evidence anytime there is an ambiguity. UPC 2-805 allows to reform terms even if unambiguous. c. Correcting Mistakes: UPC 2-805 allows to correct mistakes by clear and convincing evidence if there is mistake of law or fact, in execution or inducement. UPC 2-302(c) Omitted Children: IMPORTANT FOR FACT PATTERN If testator fails to provide for living child solely because he mistakenly believes the child to be dead, the child receives an intestate share in the testators estate. d. Scrivners error: where there is clear and convincing evidence scriveners erro had impact on intent, it is admissible to establish and correct mistakes. UPC 2-806(2008): allows for reformation of mistake as well as outright modification of wills and trusts as necessary to achieve a tax advantage. II. (Changes) in or DEATH OF BENEFICIARY BEFORE DEATH OF TESTATOR: A. Survival Requirment: UPC default rule is that a beneficiary under a will or trust must prove by clear and convincing evidence he survived decedent by a millisecond. Will may expressly opt out of survival requirement or may impose a longer surival requirement than UPC. B. Lapse: if a beneficiary fails to survive the testator, the gift is said to lapse. Lapsed gifts fail. Void Gift: A gift is void if beneficiary is dead when will is executed. Gift lapses when bene is alive when executed but dead before testator. Void gift is treated as lapsed gift for most purposes under modern trend. C. Failed-Void Gift: Default Takers: gifts can fail for many reasons, void, lapse, ineligible taker (gift to a pet fails, not eligible), or may violate Rule Against Perpetuities. If not saved falls in a cascading scheme. 1. Specific Gifts: if specific gift fails, falls to residuary clause, if there is one, if not to intestacy. Example: A watch 2. General Gifts: if a general gift fails, it falls to a residuary clause, if there is one, if not to intestacy. General gift is of general pecucinary value and satisfied by using any item that fits description of gift. Example: $10,000 to Bill

a.demonstrative gifts: general gifts from specific source, 10K from BOA checking account. Subset of general gifts and treated as general gifts. 3. Residuary Gift: gift that gives away all of testators property that has not been if a residuary gift fails completely, it falls to intestacy. Common law: no residue of residue rule, part that fails falls to intestacy. UPC 2-604(b): REJECTS NO RESIDUE OF RESIDUE RULE: reasons that testators intent was for all property to pass via the will, nothing thru intestacy, as long as part of residuary clause is valid, that part catches whatever residuary clause fails, and reallocates the share of a predeceased residuary benefirciary to other residuary takers. 2-604(b) Rule Statement: if part of residuary clause fails, other part catches it. Part that fails is distributed among other beneficiaries in the residual clause D. Anti-Lapse Statute: one of two doctirnes that is used to save a failed gift. Presumption that testator would prefer gift to fail where bene dies before him doesnt apply when bene was related to him, court presumes it goes to predeceaseds issue rather than fail. Presumption can be rebutted only by an express contrary intent in the will. 1. UPC 2-605 Anti-lapse, Deceased Devisee, Class Gifts (1969) most widely accepted: 1) where there is a lapse, 2) and the predeceased beneficiary is a grandparent or lineal descendant of a grandparent of the testator, 3) the issue of whom survive the testator, the lapsed gift goes to issue of that predeceased beneficiary, 4) unless the will expresses a contrary intent. 1990 version of 2-605 expands scope of predeceased beneficiaries to include stepchildren. 2. Lapse Requirement: covers both when beneficiary actually predeceases testator or is treated as predeceasing testator. UPC 2-605(1969): applies anti-lapse doctrine to any qualifying beneficiary who predeceases the testator, regardless if he dies before or after execution of the will. Void-dead before exection, Lapse-dead after execution, UPC dont give a shit (like a honeybadger) 3. Degree of Relationship: UPC requires predeceased beneficiary to be a grandparent or a lineal descendant of a grandparent to qualify for antilapse doctrine. 1990 version expands it to cover stepchildren. 4. Survived by Issue: Predeceased beneficiary must have issue that survive the testator by 120 hours. UPC 2-605. 5. Contrary Intent: General rule is that any express words of survival or express gift-over in a will in event of first beneficiarys death are sufficient express contrary intent to bar application of anti-lapse doctrine. UPC 2-603(b) 1990: provides mere words of survival (if he survives me, my surviving issue) without more are not sufficient to constitute an express contrary intent barring application of antilapse. Criticized by commentors and attorneys for imposing presumptions on what an individual would do over express words in a will, exposes attorneys to malpractice claims when drafting such clauses.

6. Scope: majority approach, lapse and anti-lapse applies only to wills. Modern trend is to apply to most will substitutes; trusts, insurance policies, contracts with POD clauses, but not joint tenacies. 7. Spouses: UPC approach anti-lapse does not apply to spouses. Residue of residue overlap: under common law, when gift fails, predeceased spouse share of residuary clause falls to testators heirs in intestacy. Under UPC/modern trend, predeceased share passes to other residuary takers, not heirs. E. Class Gift: class gift is a gift to more than one individual that intrinsically includes a right of survivorship. If gift fails to one member of class, its re-divided among other members of the class. Shares are then recalculated. 1. Transferors Intent: whether gift to multiple parties is class gift with built in right of survivorship or just a gift to multiple people is determined by testators intent. Can be determined 2. Analysis: whether intent is clear gift is supposed to be a class gift is based on 4 factors. To construe testators intent: 1) how did testator describe beneficiaries, 2) how did he describe gift 3)do benes share common characteristic, 4) what is tesators overall testamentary scheme? a. Description of Benes: when referred to collectively, benes gift is intended to be a class gift. When referred to invidually by name, argument against intention to be a class gift. b. Description of Gift: typically described either in aggregate or in shares. When aggregate, argument in favor of class gift. Where gift is in distinct shares, argument against class gift. c. Common Characteristic: when something special about benes that separates them from others, argue in favor of finding intention to be class gift. If none, goes against argument. Prevalence: even when common characteristic, if there are others who share characteristic and not included in gift, some courts find exclusion of those people cuts against argument it is a class gift. d. Overall Testamentary Scheme: very fact sensistive, makes more sense to apply right of survivorship to gift (to find its a class gift.) 2 factors are important. i. express right of survivorship: when there is 1 already in will for 1 gift and other gift doesnt have one. Argument is that this one wasnt intended to be class gift. Counter argument is that its obvious didnt need to be said. ii. alternative takers: important to determine who would take failed gift if not a class gift. If overall testamentary scheme indicates testator wouldnt want person to take property in question, argument is in favor of class gift. 3. Factors not Requirements: all four factors dont have to be satisfied more factors in favor the better, question is about intent only relevant if they shed light on the issue. 4. Restatement 3rd: if gift describes benes 1) only by group presume class gift, 2) only by name presume not class gift, 3) by both label and names or numbers, presumenot a class gift. Rebuttable presumptions can be challenged by both language of instrument or circumstances surround gift.

5. Anti-lapse and class gifts: both anti-lapse and class gift doctrine apply to save a lapsed gift to a class member, but save the gift in favor of different takers. Anti-lapse saved gift goes to dead beneficiarys issue. Class gift saved gift goes to other members of the class. UPC 2-605(1969). UPC applies anti-lapse first to class gifts, if that does not save the gift, then apply class gift doctrine. III. Changes in Property After Execution of Will: A. Ademption by Extinction: most common construction issue arises when testator makes specific gift in his will and then said item is transferred, the devise fails and bene loses right to take. Common Law: where testator makes specific gift, thereafter gift is transferred, common law approach is irrebuttable presumption arises that tesator intended to revoke the gift. Identity approach: if will makes specific gift, executor goes through probate estate and sees if he can identify it. If he can, bene takes item, if cant be found, gift is adeemed (revoked), and court will not take extrinsic evidence about testators intent. Volunary transfer approach: revoked only if volunary transfer, involuntary transfer not revoked. (stolen or destroyed.) B. Modified Intent/UPC approach: follows the identity approach but exempts property that was transferred throuh an act that is involuntary or was made without testators knowledge or consent. Beneficiary gets either pecuinary value of gift, or whatever is left of it minus proceeds that were used to support the testator. 1. Replacement property exception: UPC expressly provides that where testator owns property at death that was acquired to replace property that was specific girl in his will, bene gets replacement property. UPC 2-606(a)5. 2. Outstanding Balance doctrine: where property is transferred voluntarily or involuntarily, if testator is owed money at time of death as a result of transfer of property subject to specific gift, the outstanding balance is given to bene of specific gift. UPC 2-606(a)(1)-(3). 3. Testators Intent Approach: if neither the replacement property or outstanding balance doctrine apply, the UPC provides that the beneficiary of the specific gift is entitled to money equal to the value of the specifically devised property as of the date of its disposition if the beneficiary can establish,it would be inconsistent with testatmentary scheme or testator or he did not intend for ademption to apply. UPC 2-606(a)(6). 4. Conservatorship exception: if property subject to specific gift was transferred during conservatorship or by an agent acting under durable power of attorney for incapacitated principal, ademption doctrine doesnt apply. UPC 2-606(b). E. Stocks: gifts of stock are challenging because of nature of the stock. Most forms of property testator has exclusive control, with stock corporations, can influence the stock owned by testator through splits, dividends, mergers, acquistions, etc. UPC 2-605: rejects specific/general gift approach, focuses on whether at time tesator executed the will he or she owned stock that matched the description of the gift of stock in the will. If so, and thereafter testator acquired additional stock as a result of his ownership of the devised stock and action ininitated by a corporate entity, the bene gets the benefit of whatever changes occurred between date of execution of will and date of death of testator, even if stock in the estate is stock of a completely different corporate entity.

Stock dividends: UPC uses percentage of ownership theory and awards stock dividend to devisee. Other Construction Doctrines: 1. Satisfaction: after executing a will, tesator makes inter vivos gift to beneficiary under will, issue is whether inter vivos transfer should count against the beneficiarys testamentary share of the estate. a. Common Law: rebut presump that he wanted it to count against share of estate. UPC 2-609 Approach: inter vivos gifts to benes presumed not to be in partial or complete satisfactin absent a writing expressing such intent. Writing can be the will, a writing at time of gift, or created by donee anytime. Applies to general gifts only. Advancement v. Satisfaction: Advancments are when decedent dies intestate, satisfaction is when decedent dies testate. 2. Exoneration of Liens: Common law presumption is bene is take devised property free and clear of any debt. UPC 2-607: presumption is that tesator intended beneficiary to take property subject to accompanying debt. General clause to pay all testators just debts is not enough to over come presumption. 3. Abatement: if testator gives away more in his or her will than he has to give, the dcotrine of abatement provides which gifts are reduced first. General approach: residuary clause, general gifts, then specific gifts. UPC 3-902: gives courts flexibility to alter order of abatement where it appears inconsistent with testators overall testatmentary wishes. CHAPTER 6: WILLSUBSTITUES(NONPROBATE TRANSFERS) and Planning for Incapacity I. Overview of Will Substitutes: A. 4 Types: 1. life insurance K 2. joint tenancies 3. certain possesory estates and future interests (legal life estates and remainders) 4. intervivos trusts B. Controlling Law: life insurance contract law, joint tenancy and possessory interests and future interests, property law, inter vivos trusts, trust law. Modern Trend: Subjects will substitutes to wills-related construction doctrines II. Inter Vivos Trusts:

A. Introduction: nothing more than a way to make a gift. It is a bifrucated gift. 3 parties are invovled, settlor, trustee, beneficiary. Legal title given to trustee who holds and administers the property for benefit of the beneficiary. Inter vivos trust: created during settlors life. Revocable trust is always inter vivos. Testamentary trust: created by will. Always irrevocable. A revocable trust can be created by a deed of trust where the settlor transfers the property to be held in trust to the trustee. All jurisidictions allow for trust by deed of trust to effect a nonprobate transfer on death. A revocable trust can also be created by a declaration of trust where settlor simply declares himself to be trustee of certain property for the benefit of himself during his life, with the remainder to pass to others at his death. B. Several Different Types of Trusts as Valid Will Substitutes: 1. Classic Trust: when settlor, trustee, and benee are 3 different parties, assuming trust is irrevocable, the settlor must transfer property to the trust inter vivos. Once settlor transfers the property to the trust, the settlor no longer has any interest in the property. Trustee holds legal title to property, not settlor. When settlor dies, legal title does not have to be transferred because trust continues to hold legal title. Example: sally transfers $1000 to Tess as trustee, to hold for benefit of Bob during lifetime; upon death any remaining money is distributed outright to Betty. Assuming transfer is irrevocable, Sally, the settlor retains no interest in the property. Like any other inter vivos gift Sally may make. When bob dies, any property distrubted to Betty not testamentary transfer because future interest is given to her when trust is created. 2. Settlor as trustee and life beneficiary: as long as trust is irrevocable, and remainder interest has been conveyed to another beneficiary, is still like any other inter vivos gift. Future interest, typically a vested remainder, passes inter vivos to beneficiary holding future interest. Party holding future interst receives rights inter vivos at moment trust is created, even tho right to receive full enjoyment of interest is delayed until possessory interest has ended. Transfer is an inter vivos transfer, no need to transfer title upon settlor/life beneficiarys death. 3. Revocable trust+settlor as life beneficiary: all jurisdictions recognize this is a valid will substitute. 4. Revocable trust + settlor as life beneficiary and trustee: issue of whether gift in trust is testamentary transfer that should be subject to wills act formalities is taken to the limit where the settlor is also trustee, life beneficiary, and retains power to revoke the trust. If it is indistinguishable from a will, it should be subject to wills act formalities. a. Instrument is a Will: to extent settlor wears all 3 hats, and retains power to revoke, arguably trust instrument is indistinguishable from a will, and should be subject to Wills Act formalities. b. Instrument is a Trust: even where settlor is also trustee and life beneficiary and retains power to revoke, a property interest is still conveyed inter vivos to the beneficiaries holding a future interest. Unlike a will, where bene receive no rights or interest inter vivos, bene in trust are owed a fiduciary duty and they immediately receive rights they can enforce against the trustee if he breaches the duty the trustee owes to the beneficiary. Fact trust is revocable does not defeat fact a property interest has been conveyed inter

vivos. Typically, future interest is a remainder, when revocable, its a contigent remainder, still a property interest moment its created, even tho full enjoyment is delayed. c. Wills Act formalities: some argue that even when revocable trust with settlor as trustee and LB, process one goes thru to make an IVT is enough to satisfy functions underlying the Wills Act. C. Traditional Doctrinal Perspective: revocable IVTs are valid will subs that dont need to satisfy Wills Act. Farkas v.Williams: farkas bought stock and claimed himself trustee for Williams. Farkas conveyed himself life interest, remainder to Williams and retained power to revoke. Died intesate, heirs claimed the IVT was invalid testamentary dispostion that failed Wills Act. Court said the IVT passed some interest inter vivos to Williams, even though revocable, and that by creating intervivos trust, he served functions underlying Wills Act. D. UTC 603 Approach: While the settlor is alive, the trustee of a revocable trust owes duties only to the settlor. Standing UTC 604: Courts have held beneficiaries under a revocable trust may bring suit to challenge a revocable trust ONLY after the trust becomes irrevocable after the settlors death. The the beneficiarys interest is contigent and unenforceable during settlors lifetime, they have no standing to bring suit. E. Revocability: traditional and still MAJORITY rule is that inter vivos trusts are presumed to be irrevocable unless terms of trust expressly state otherwise. UTC 602(a)/Modern Trend: reverses trad. Default rule, provides a settlor may revoke or amend inter vivos trust unless trust expressly states it is irrevocable. Still general is a trust is a gift, and gifts irrevocable, trust should be irrevocable. F. RevocationParticluar Method Expressed: where a trust sets forth an express particular method of revocation, only that method of revocation is valid. In Re Estate and Trust of Pilafas: the decedent executed an inter vivos trust and a will. The trust expressly provided that it was revocable by instrument in writing delivered to the trustee. Thereafter, the decedent expressed to his attorney and family members the intent to revise his estate planning documents. The decedent died before executing any new plans. After his death, the will and trust he took with him could not be found. The omitted family members argued the will and trust were revoked pursuant to the revocation presumption doctrine. The court held that the express terms of the trust set forth an exclusive method of revocation that precluded application of the presumption doctrine. The court concluded that the will was revoked, but not the inter vivos trust. UTC 602(c)(1)and (2)/Modern Trend: when trust sets forth particular method to revoke trust, should not be construed as exclusive method unless trust expressly makes it exclusive. Substantial compliance with the particular method is sufficient. A will executed after a trust which specifically refers to turst or power to revoke, can revoke a revocable trust if trust terms do not specify exclusive method of revocation and the will is not thereafter revoked. UTC 602(c)(1). Where trust is not revoked, if settlor retained a life estate interest in revocable trust, following settlors death settlors creditors can reach assests in the trust if the probate estate is insufficient to pay off creditors.

State Street Bank & Trust Co. v. Reiser: Dunnebeir created a revocable inter vivos trust and transferred to the trust and stock of 5 closely held corporations. Thereafter Dunnebier obtained an unsecured loan for $75,000. During the loan application process, Dunnebier represented to the bank that he held controlling interest in the 5 corporations. Court found he had not done so fraudulently. After, Dunnebier died unexpectedly. His probate assets were insufficient to pay his creditors. The bank sued to reach the assets in his revocable inter vivos trust. The court adopted the modern trend and held that to the extent Dunnebier had power over the assets in the revocable trust during his lifetime, those assets should be available to the creditors following the settlors death. The court required the creditors to exhaust the decedents probate assets first. G. Revocation-no particular method expressed: if trust is revocable but silent as to the method of revocation, power may be exercised in any manner that adequately expresses intent to revoke. Trust can be revoked in writing, (even if it not qualify as will), by destructive act coupled with intent, by presumption (arguably), and even orally unless real property is involved. Divorce: UPC 2-804 treats inter vivos revocable trusts like wills and apply revocation by operation of law doctrine automatically to revoke provisions that favor the ex-spouse. H. Rights of Creditors of Settlor: general rule is one should not be able to shields one assets from creditors. 1. Common Law: power to revoke not property interest, just a power, creditors of revocable trust cannot reach power or force settlor to exercise power in their favor. 2. Modern Trend: expands creditors rights to permit creditors rights to reach a settlors power to revoke. 3. Creditors of Settlor: regardless of terms, creditors of trust can reach trust property to the full extent trustee COULD have used property in the trust for the settlors benefit, whether settlors interest is mandatory or discretionary. 4. Spendthrift Clause: if settlor is also life beneficiary and trust has spendthrift clause, clause is null and void as to settlors creditors. 5. Post-Death: where settlor retains LE in his revocable trust, j/ds split over whether settlors creditors can reach his interest following death. Common Law: LE ends at death, settlors creditors cant reach it, no interest in trust exists. Modern Trend: to extent settlor had right to use and benefit from asset in trust during his lifetime, creditors can reach those assets to that extent. If settlor had retained power to revoke the whole trust, all of the trust assets are subject to claims of the settlors creditors. Probate Estate: most j/ds require creditors to exhaust probate estate before reaching settlor trust assets.

III. Contracts with POD Clauses A. Life Insurance: classic example of POD K. Agreement transfers property from insured to a designated beneficiary upon insureds death. Agreement between insured and ins. co. need not be created with Wills Act formalities. 1. Whole Life: also known as ordinary, where insured purchases coverage for his whole life with upfront purchase price with fixed payments spread out over yrs. often completely paid off before insured dies. Nevertheless, insured purchased insurance for his whole life so he is still insured. There is a forced savings component to whole life. 2. Term Life: also known as pure life insurance, is where the insured purchases coverage for a fixed period of time (for a term of yrs). Premiums are usually fixed for the term, but upon expiration of the term the premiums typically increase to reflect risk of death with age. No forced savings, insured pays as they go. SEE PAGE 86/115 about finishing signature. B. Common law: only Life Ins. pod clauses were valid, no other contract could transfer property to beneficiary unless written instrument was a valid will. Invalid attempt to transfer property at time of death. C. ALL INSTRUMENTS Modern/UPC 6-101 Approach: Expands will substitute exemption to all contracts and instruments with POD clauses. 1. Revocability: Beneficiaries of a POD clause do not receive irrevocable property interest inter vivos. Transferor who creates POD clause is presumed to have right to cancel or change POD clause absent consideration. 2. Construction: UPC approach applies all wills-related rules to will substitutes. Willsrelated rules are primarily those of that are changes that can arise between when instrument is created and when transferor/testator dies. Cook v. Equitable Life Assurance Society: Cook purchased a life insurance policy and designated his then wife Doris as beneficiary. Later he and Doris divorced, and he married Marge. The insurance policy expressly provided that the owner of the policy may change the beneficiary by written notice to the company. Douglas never gave written notice to the company, but after his marriage to Marge he executed a holographic will that expressly stated that he was giving his policy to Marge and his sown. The court held that the divorce did not revoke the contractual provisions in favor of his ex-wife and awarded the life insurance proceeds to Doris as the contractual beneficiary designation controlled. Cook typifies common law approach. The revocation by operation of law doctrine applies to wills only.

UPC: Under UPC trend the revocation by operation of law doctrine applies to all will substitutes including life insurance policies. Under this approach, Doriss beneficiary status would have been revoked upon divorce and absent a substitute beneficiary in the life insurance policy, the proceeds would have defaulted to his probate estate where his will provision in favor of Margaret would have been given effect. Survival Requirement in the UPC: although the modern/trend UPC approach is generally to apply the wills-related rules to the will substitutes, an exception to this trend is the survival requirement. While the UPC applies an express survival requirement to life insurance contracts, it is silent as to contracts with POD clauses generally. UPC 2-104, 2-702, 6-101. Transfer on Death Deeds: dozen states permit these, 3 requirements, 1) executed and recorded intervivos, not effective until death of grantor, 2) revocable during grantors life by recording another deed that revokes initial one, 3) transfer is effective immediately upon grantors death and avoids probate. D. SuperWills: if a will is permitted to change the terms of a will substitute, such a will is known as a superwill. Under the modern trend, an individual might have a plethora of written instruments that could qualify as valid will substitute. The individual might have an insurance policy, a pension plan, and a bank account all with POD clauses identifying a particular beneficiary to take upon the individuals death. In as much as these written instruments constitute will substitutes, the issue is whether a subsequently executed will should have the power to revise these instruments. 1. UPC 6-101: UPC adopts superwill doctrine only if K permits the beneficiary of policy to be changed by a subsequently executed will. The UPC is silent as to what the rule should be if K does not address issue, leaving it open for debate; stronger view appears to be bene may be changed by a subsequent superwill only if terms of will sub expressly permit modification. E. Pension Plans: vary greatly tough to generalize, if not completely exhausted by time party dies, they have right to designate a TPB who receives remaining proceeds. 1. Defined Benefit Plans: funded by employer, no individual account, employee entitled to receive fixed benefit, % of salary for remainder of life-time, called an annuity. a. Annuity: stream of $$ for remainder of lifetime, paid monthly in fixed amount b. Joint and survivor annuity: guarantees fixed payments for life of spouse. 2. Defined Contribution Plans: employer and employee contribute fixed %, think 401K. Pension Plans are heavily regulated by federal govt. under ERISA: Egelhoff v. Egelhoff: David and Donna were married. David worked for Boeing and his employee benefits included a life ins. policy and a pension plan. Both were covered by ERISA. David designated his wife as the beneficiary of both. They divorced, and David died 4 months later without changing his beneficiary designation. Washington statute provided that divorce

automatically revokes the beneficiary designation in favor of an ex-spouse in all revocable nonprobate agreements. ERISA expressly preempts all state laws insofar as they may relate to any employee benefit plan. In determining whether a state law has connection with or references such a plan, the Court has focused on the objective of ERISA. The court ruled that the statute had an impermissible connection with an ERISA plan was preempted because it would control who receives benefits under an ERISA plan and interfered with nationally unified plan of administration. IV. Multiple Party Accounts: A. Introduction: can take many forms, bank accounts, brokerage accounts, Totten trusts, etc. B. 3 Types of Accounts: Intent for Multiple Party Accounts 1. Joint Tenancy Account: depositor intended to create a joint tenancy account. Moment it is opened, or 2nd name added, party takes proportional interest in account inter vivos, and upon death there is a right of survivorship. 2. Conveinance Agency Account: where depositor adds 2nd party to account as conveinance to the depositor, to facilitate paying bills, etc. 2nd party acts as agent for depositor, only helping out. Depositor does not intend for 2nd party to receive any interest in the account. Inter vivos 2nd can access account, but only to use it for benefit of depositor, and upon death, no right of survivorship. 3. POD Account: intend POD account to avoid probate. Depositor does not intend for other party to account to take inter vivos interest. At death, intends a right of survivorship. Any $$$ left goes to 2nd party. UPC: POD accounts are one of many possible POD arrangements permitted under UPC. C. Bank/Brokerage Account Perspective: 1. Joint Tenancy Account: as long as paperwork provides account is JT, bank/broker is protected. Thus they often force depositers who want multiple party accounts to use paperwork stating account is JT even if not their true intent. 2. Agency Accounts: exposes banks/brokers to liability in event it knew or should have known agent was misappropriating funds or permittted agent to access account after agency was terminated. Agents authority is cancelled upon principal becoming incapacitated or dying. 3. POD Accounts: at common law banks couldnt do this, under the UPC its OK! D. Extrinsic Evidence: cuz JT might not have been depositors true intent, courts will look to extrinsic evidence to determine true intent. 1. Temporal Focus: what depositor INTENDED at the time of creating account CONTROLS. 2. Subsequent Comments/Actions: although intent @ time created controls, these may be relvelant to issue of intent at time created.

3. burden of proof: if depositor executes paperwork that expressly state the account is a joint tenancy account, the paperwork creates the presumption the account is a true joint tenancy account. To overcome this presumption, jurisdiction requires clear and convincing evidence of a different.

E. UPC APPROACH 6-201----6-227: UPC provides that inter vivos, its presumed that parties to a multiple party account own in proportion to their contributions, upon death of any party, it is presumed there is right of survivorship. Presumption controls distribution of $$ unless clear and convincing evidence of intent exists. 1. Surival Requirement UPC 6-212: imposes express survival requirement for parties to a multiple account. No express survival requirement for other Ks with POD clauses. 2. POD Accounts UPC 6-212, 2-706: if account is a POD account, UPC applies willsrelated doctrines of lapse and anti-lapse to the beneficiary. In addition if the account is a POD account, the bene cannot be changed by will. UPC 6-213(b). 3. Presumption approach does little to change potential for litigation; merely changes presumed characterization of account from joint tenancy to what amounts to a POD account; also has effect of who has burden of proof. In Varela, UPC approach presumption would arise that Varela did not receive any interest in bank account inter vivos. She would have had burden of proof by c/c evidence that Bernachea intended a true joint tenancy when he added her name to the account. Common law approach, she was entitled to the money in account and B had to prove that he did not intend to do so. F. Totten Trusts: very similar to POD accounts, Totten Trust Savings Accounts. Rationalized form of inter vivos trusts, but not subject to general trust rules. Depositor sets up Totten account by depositing money in the account in the name of the depositor for the benefit of the beneficiary. Legal title is in the name of the depositor, but equitable title is the name of the beneficiary. Bifrucaiton of the legal and equitable title contistutes an intent to create a trust. 1. Revocability: deemed revocable so depositor withdrawals are permitted without constituting breach of trust (general rule is trust is irrevocable unless otherwise stated.) 2. Testamentary modification: express clause in a will changing the beneficiary is permitted (generally wills cannot change terms of a will substitute) 3. survival requirement: bene of Totten trust required to survive depositor (common law no survival requirement for benes under trusts or will subsitutes) 4. Uniqueness: unique/different from reg trusts, should be segregated from other nonprobate property arrangement cuz of unique set of rules. V. POUR-OVER WILLS: intervivos trust with pour-over will combo is most common estate planning scheme today A. Pour-Over Will: will that contains an express clause giving some or all of decedents probate property to the trustee of the decedents inter vivos trust., to hold and distribute pursuant to the terms of the trust. Typcially pour over clause is residuary clause, but doesnt have to be. Clause can transfer to the trust a specific or general gift, but norm is residuary clause.

Example: I give the rest, residue, and remainder of my estate to the trustee of my inter vivos trust, to hold and distribute pursuant to its terms. Most people put larger assests or ones they dont use on a regular basis in these trusts. Use the pour over for other assets or newly acquired shit they couldnt move to the trust before they died. Inter vivos trusts only apply to assets transferred to trust. B. Validity: effect of pour over clause is that document not exectued with wills act formalities contorls who takes probate property. Violates spirit of wills act, that any disposition of probate prop must comply with formalities, before a pour over clause can be given effect, it must be validated. Inter vivos vs. testamentary funding: before inter vivos trust can apply to decedents probate property, pour over clause must be validated. C. Common Law Doctrines: 2 will expanding doctrines used at common law to validate pour over clause. 1. Acts of independent significance: provides a will can reference an act outside of the will and act can control who takes or how much as long as act has its own significance apart from its effect on what happens to probate property a. Act: act referenced in will is the reference to the trust. As long as trust is funded inter vivos, and has some property in it before death, trust has own signifance by managing property and holding it inter vivos. b. temporal sequence: doesnt matter when inter vivos trust is created, as long as it was created intervivos and has property in it at time of death. Trust may be amended regardless of when made. c. probate court supervision: intervivos trust not subject to probate supervision. Testamentary trusts are. Indept.sign. acts while property is placed in trust while settlor alive non probate. Poured into trust via pour over clause also treated as non probate, some j/ds do make them probate tho. 2. Incorporation by Reference: permits a will to incorporate and give effect to provisions of document that was not executed with wills formalities as long as 1) will expresses intent to incorporate the document, 2) will describes the document with reasonable certainty, 3) document was in existence at the time the will was executed. a. Pour-over clause: as applied to pour-over will scenario, incorporates the inter vivos trust instrument into the will and gives effect to it, thereby permitting the terms of the inter vivos trust instrument to control who takes the decedents probate property and how much they take. b. Temporal Sequence: although there are three requirements for incorpoation by reference, as applied to pour over will scenario, invariably the element at issue is whether the inter vivos trust instrument, as opposed to trust itself, was in existence at the time the will was executed. c. Funding: incorporation by reference the trust instrument, not the trust, so there does not have to be any funding of the trust. Ifthere is property in the trust inter vivos, one should prolly use acts of indepened significance to validate the pour over lcuase because it has more benefits associated with it. d. Amendments: incorp by reference validates a pour over clause as it existed at time the will was executed. Any later amendments to inter vivos trust instrument cannot be given effect unless the will was reexecuted or codicil is executed that redates the will under republication by codicil.

e. Probate court supervision: incorp by reference is used to validate pour over clause, trust instrument is incorporated into the will. Effect is that trusts is deemed a testamentary trust at death of the settlor, which undermines point of pouring over into a nonprobate vessel. D. UTATA: Uniform Testamentary Trust Additions to Trust Act gives estate planner and client best of both worlds. As long as transferor meets UTATA requirements, transferor does not have to put any $$ in his intervivos trust; pour over clause is valid, all amendments to trust are valid even if executed after date of the will, and after probate property is poured over ot the trust pursuant to pour over clause. Trust is treated as inter vivos trust not subject to probate court supervision. 1. UPC 2-511 accepts Revised UTATA: requires that 1) will refer to the trust, and 2) terms `of trust be set forth in a writing separate from the will, eliminates requirement that trust instrument be executed prior to or at same time as will. TRUST INSTRUMENT STILL MUST BE SIGNED, only TIME doesnt MATTER. Makes it even easier to validate a pour over clause under UTATA. As long as trust instrument is signed by settlor anytime before he dies, and the will refers to trust instrument and terms of trust are set forth in a separate document, pour-over clause is valid and trust is considered a UTATA not subject to probate court supervision. Orignially 2 types of trust, inter vivos and testamentary, this is now a hybrid because it can be wholly unfunded until time of death. Issue is how utata trust should be classified for purposes of doctrines that draw distinctions between inter vivos and testamentary trusts. 2. Divorce: all j/ds have stautes that provide upon divorce provisions in will that favor ex are automatically revoked by operation of law. Most only apply to ex spouse wills, and not subsitutes. Because a testamentary trust is considered part of a will, doctrine applies to them. Issue is whether UTATA should be treated like a test trust or an inter vivos trust, which is not subject to divorce doctrine. Clymer v. Mayo: Clara Mayo properly executed a will and inter vivos revocable trust instrument. The will gave her personal property to her husband and the residue of her probate property to the trustee of her trust to hold and distribute pursuant to the trust. Clara also changed her life insurance policy and pension plans to make the proceeds payable to the trustee, to hold and distribute pursuant to the trust. Clara divorced her husband and she died without revising any of her estate planning documents. Claras heirs at law claimed that the pour-over clause was invalid because the trust was wholly unfunded at the time of death and tehrefre they were entitled to receive her property. Claras ex-spouse admitted he was not entitled to take under her will due to the revocation by operation of law doctrine, but claimed that he was still entitled to take under the terms of the trust because the revocation by divorce doctrine in that jurisdiction applied to wills only. First the court applied the UTATA and held it proper to validate the pour-over clause and trust. The trust was executed concurrently with the will and did not have to be funded inter-vivos. Second the court held that because the decedent considered the will and trust one integrated testamentary scheme, the UTATA trust should be treated like a testamentary trust-that is subject to the revocation by operation of law doctrine, at least where the trust was wholly unfunded at the time of death.

3. Post-UTATA Common Law doctrines: UTATA doesnt render common-law validation doctrines meaningless. Key is to validate the pour-over clause to give effect to testators intent that property be distributed to terms of trust. UTATA facilitates validating a pour-over clause and has the most benefits associated with it, if trust was funded inter-vivos, use acts of independent significance. Example: dude has his attorney make a intervivos trust and pourover will. Gives residue to trustee to hold and distribute according to trust. Attorney does as told. Dude properly executes pour over will but fails to sign trust instrument. Dude gets killed by a car. Cuz it was trust instrument not signed, pour-over clause cannot be valid under UTATA, even revised version. Cuz dude didnt transfer any property to trust inter vivos, pour over clause cannot be validated under acts of independent significance. Because will referst to trust and instrument in existence, pour-over clause can be validated under incorporation by reference. Trust is considered a testamentary trust subject to probate supervision, but probate property will be held and distributed pursuant to terms of trust. 4. Failure to Validate Pour-over Clause: if pour over cannot be validated under UTATA, acts of ind. Sign. Or incorp by refere, pour over fails. If pour over fails, property cant be distributed by terms of trust. If pour over is residuary clause of will, and it fails, it falls to intestacy. If pour over clause is not residuary clause, and it fails, property falls to residuary clause, or if none, to intestacy. E. Revocable Trusts: pros and cons associated with using revocable inter vivos trusts. 1. time of death: principal benefit of using a revocable, inter vivos trust is that the property transferred to the trust inter vivos avoids probate. Avoiding probate raises a number of different considerations. a. costs: avoiding probate saves court costs, executors fees, attorney fees, but offsetting these future savings are the present fees inherent in having the trust drafted, in transferring assets to the trust, and possibly in paying trustees fees to administer the trust. b. tying property up: probating even a simple estate typically takes 12 to 24 months. Property is tied up during the probate process. Property placed inter vivos avoids probate, thereby avoiding the hassles and delays associated with probate. Putting property in trust, however does increase somewhat administrative difficulties dealing with property. c. Creditors Claims: if you have creditors better to pass thru probate cuz court requires creditors to bring their claims within a fairly limited time frame. If property is in revocable inter vivos trust creditors get full benefit of standard statute of limitations. d. privacy: probate is for full public view, everyone sees who got what, inter vivos trusts are private legal documents not subject to public inspection.

f. family protection doctrines: elective share, pretermitted spouse/child, omitted child protect decedent family members from being disinherited. In some j/ds individual can shield assets by putting them in intervivos trusts cuz some j/ds only apply doctrines to probate property. g. choice of law options: UPC permits testators to choose which states laws will govern the administration of their will and probate estate on the same basis as inter-vivos-except for states family protection doctrines. UPC approach gives testators the same flexibility as settlers in choosing controlling state law. h. Dead hand: using a trust facilitates dead hand control, a trusts can make gifts conditional to beneficiaries. A will devises property in fee simple absolute. VI. JOINT TENANCIES in REAL PROPERTY: A. Joint Tenancies and Tenancies by the Entirety: common methods of avoiding cost and delay of probate. Upon death survivor owns property absolutely, freed of decedents interest in the property. B. Probate avoidance: If a joint tenant or tenant in the entirety dies, his share is extinguished. His share was tantamount to a life estate. The deceased tenant has no interest in the property that can fall to probate. NO interest passes when a joint tenant or tenant by the entirety dies. The tenants owned in whole from the outset. The surviving tenants shares are simply recalculated. C. Devisability: Although a JT can be severed inter vivos and converted into a tenancy in common (with inheritable and devisable shares) the mere execution of a will does not sever a JT or TBE. Even if the will makes express reference to the deceased tenants interest in the property, execution of the will does not sever the JT. The right of survivorship extinguishes the JTs interest before a will has any effect upon the property. D. Creditors Claims: Because a joint tenants interest in the property is extinguished upon his or her death, nothing I left for creditors of a deceased joint tenant to reach. Each joint tenants interest is tantamount to a life estate, and when the life estate is extinguished, the party has no remaining interest in the property for creditors to reach. Creditors of a joint tenant must assert their claims while the joint tenant is alive. Dont worry about rights of creditors to TBEs. VII. Planning for the Possibility of Incapacity: A. Asset Management: Estate planners can use several tools to plan for managing their assets during incapacity. 1. intervivos trusts: best legal tool available for providing for the possibility of ones incapacity. Settlor can appoint himself trustee, the expressly appoint a successor trustee in the event settlor is unable or unwilling to serve as trustee. Can avoid expense and emotional stress of instituting guardianship or conservatorship proceedings.

2. Durable Power of Attorney: A power of attorney authorizes one to act for another it creates a principal-agent relationship where the terms of the power dictate the scope of the agents power to act for the principal. The standard power of attorney automatically terminates upon the incapacity of the other party. The durable power continues despite the incapacity of the principal. It is a simple and cheap method of planning for incapacity. a. Differences from Trust: unlike a trust, agents power under DPA automatically terminates upon principals death. The property subject to the DPA does not avoid probate. An agent does not have legal title to the property subject to the power, making many 3rd parties more reluctant to deal with an agent. b. Scope: most states require that durable power of attorney be created in writing. Writing can either incorporate or reference by a statutory y list of powers or it can be drafted to suit a principals particular wishes. A power gives an agent broad authority to act should be construed in light of the surrounding circumstances. Even if a power is worded broadly enough to appear to authorize actions that may be inconsistent with the principals interests or intent, the instrument should be construed narrowly to prohibit such actions absent express authorization for questionable action What constitutes express authorization for questionable actions has proved to be a fertile source of litigation. In Re Estate of Kurrelmeyer: Louis Kurrelmeyer executed 2 durable powers of attorney in favor of his wife, Martina and his daughter Nancy. Pursuant to these powers Martina a transferred RE from her husband to a trust she created. Louis died in his will designated the property to Martina in LE and upon her death pass to Louiss children. Her trust gave Martina additional rights in the property, including the ability to sell the house. His son objected to the exclusion of the property from the inventory of Louiss estate. The court found first that the durable power of attorney did authorize the creation of a trust because the express words in the instrument included the conveyance of real estate and a clause to and perform all and every act and thing whatsoever is necessary to be done as Louis could do. Furthermore, the fact the trust was created by an agent, an attorney-in fact, did not affect the trusts legitimacy as a trust does not require personal performance such as an affidavit does. Finally, the Court remanded the case to the lower court to determine whether or not Martinas actions in this instance breached her fiduciary duty of loyalty to Louis or violated the power of attorney instrument which prohibited the agent from making gifts to herself. ( On remainder the court upheld the validity of the trust and Martinas actions a decision that was further appealed.) C. Healthcare management: 1. living wills: document that directs no extraordinary medical treatment when there is no reasonable expectation of recovery. Heavily regulated by statute. 2. durable power of attorney for health care decisions: appoints an agent to make healthcare decisions for incapacitated persons. Flexible, can take all circumstances into

consideration and principals wishes before making a decision. Instrument can give general directives to agent often referred to as hybrid approach. 3. decision maker for the incompetent: states can authorize a persons immediate family member to make health care decision for incompetent. Typical order parallels order of intestate takers, spouse, children, parents, etc. Bush v. schiavo: lady was a vegetable, court found she would elect to cease life prolonging measure if she were competent. FL legislature passed law saying governor can stay removal of life support where person has no written medical directive, is on life support, and family member opposes removal. Court ruled statute invalid and unconstitutional cuz it violated separation of powers doctrine, executive branch cant interfere with final determination of judicial branch. CHAPTER 7: RESTRICTIONS ON POWER TO TRANSFER: Protection of Children and Spouse I. Spousal Protection Schemes: 2 types of spousal protection, support for rest of spouses life, and outright share of marital property regardless who acquired marital property. A. Support: surviving spouse has rights under SS, ERISA, homestead exemption, personal property set aside, and family allowance. B. Share of Marital Property: 2 property approaches to marital property. 1. Separate Property Approach: any property acquired by spouses are spouses separate property, including $$ earned. Spouse has no rights to others property absent divorce or death. Spousal protection doctrine that grants survivor share of marital property is elective share. Upon death, survivor has right to claim a share of the dead spouses property regardless of terms of dead spouses will. 2. Community Property: property acquired before marriage and gifts after marriage are separate, but all earnings during marriage are community property. Undivided one half interest in each community property asset. Upon death, property is divided in half, spouse gets his half immediately and outright, other half is goes into probate where he can devise it to whomever he wishes. II. Surviving Spouses Right to Support: A. Spousal Support: although the states are split over the surviving spouses right to share in deceased spouses property, (elective vs. community) j/ds agree surviving spouses, and maybe dependent children are entitled to support for deceased spouse. Surviving spouse is entitled to following despite attempts by deceased spouse to defeat such rights. 1. Social Security: only a surviving spouse can receive the workers survivors benefit. Worker spouse cannot transfer the benefit anyone else.

2. Private Pension Plans: ERISA surviving spouse must have survivorship rights in workers spouse retirement benefits, typically an annuity. Under ERISA surviving spouse can waive his or her rights in worker spouse. 3. Homestead: Homestead right is to ensure a surviving spouse has somewhere to live. Secures family home to surviving spouse and minor children free and clear ofclaims of decedents Details of homestead exemption vary greatly from state to state. Some states grant surviving spouse a life estate in family home, other states grant a sum of money. UPC 2-402 RECOMMENDS LUMP SUM PAYMENT OF $22,500. 4. Personal Property Set-Aside: gives right of surviving spouse to receive tangible personal property of decedent up to $15,000 UPC 2-403. This is in addition to whatever other interests pass to surviving spouse through probate. 5. Family Allowance: probate is long affair, surviving spouse needs $$ to live during that time. UPC 2-404 provides for reasonable allowance, but cannot continue beyond 1 yr. Maintenance of decedent spouse and kids is not allowed after estate is closed. 2-405 allows for personal rep to determine family allowance up to a stated limit without court approval. III. Surviving Spouses Right to Elective Share of Marital Property: A. Elective Share: any and all property earned by either spouse during marriage remains his or her separate property. Typically provides that spouse can take under decedents will or spouse can renounce the will and take a fractional share of the decedents estate. Typical elective share is 1/3rd of all dead spouses probate property plus certain non probate transfers. UPC 2-202 grants 50 % of augmented estate. Only upon termination of the marriage, divorce or death, does the elective share scheme come into play. B. Time: elective share doctrine doesnt arise until marriage is spouse dies and surviving spouse elects to claim their share in statutory amount instead of under the will. C. Rights During Marriage: non wage earner has no rights to wage earners money during marriage, if he fails to provide for her, only recourse is divorce. D. Scope of Property Covered: elective share applies to all of deceased spouses property. E. Order of Deaths: if non wage earner dies first, they have no rights to devise any of marital property acquired by wage earning spouse. IV. ELECTIVE SHARE: Policy Considerations A. Personal Right UPC Approach: general rule only surviving spouse can claim elective share. If surviving spouse dies before asserting the claim, the surviving spouses estate, heirs, and

creditors have no standing to claim the share even if the time to assert the claim has not expired. Because elective share has to be claimed, and only spouse can claim it, it is more like a form of support than true sharing of marital property. B. UPC 2-212 Incompetent Spouse: If elective share is exercised for an incompetent spouse by a guardian of the spouse for her best interests, the share of the elective share that exceeds the share the spouse was taking under the will is placed in a custodial trust, with surviving spouse having a life estate, and a remainder in the devisees under the will (so as to minimize effect upon deceased spouses estate plan.) C. Medicaid Eligibility: elective share and property assets may be included in determining individuals Medicaid eligibility. Courts have ordered incompetent guardians to claim elective share so as not to lose Medicaid. Acting in best interests for spouse. V. Elective Share Doctrinal Considerations: issue becomes how much of deceased spouses property is subject to elective share. Traditional approach to elective share accepts that inter vivos transfers by deceased spouse are not subject to elective share doctrine, only decedents testamentary transfers, property owned at the time of death. Assumes classic inter vivos transfer to 3rd party, with transferor retaining no interest in property following transfer. Nonprobate transfer: property placed in inter vivos trust does not pass through probate, thus avoiding elective share under traditional approach. Yet deceased spouse could retain life estate in trust and continue to benefit from property as if it were not in trust until his death. Under traditional approach trust is not subject to elective share because future interest in trust property passed inter vivos pursuant to terms of trust, not thru probate and not at tie of death. Conflict of Laws: UPC 2-202(d) provides that laws of state where decedent was domiciled at the time of death controls whether surviving spouse is entitled to receive an elective share.

1990 UPC Marital Property Approach: 1990 version of UPC elective share tries to achieve a result that would be approximately the same amount if deceased spouses property was going to surviving spouse under community share doctrine. The augmented estate approach combines the property of both spouses and gives surviving spouse a share of the combined augmented estate depending on length of marriage. UPC Elective Share 2-202(a): surviving spouse of a decedent who dies is entitled to elective share amount equal to 50% of value of marital property portion of augmented estate. UPC 2-203: Composition of Augmented Estate

a) value of augmented estate consists of sum of value of all property, real or personal, movable or immovable, tangible or intangible, wherever situation 1. decedents net probate estate 2-204 2. decedents Nonprobate transfers to others 2-205 3. decedents non probate transfers to surviving spouse 2-206 4. surviving spouses property and Nonprobate transfers to others 2-207 b) value of elective share is sum of 4 categories multiplied by following % marriage length less than 1yr 1yr but less then 2yrs 2yrs but less then 3 3yrs but less than 4 4 years but less than 5 5 years but less than 6 6 years but less than 7 7 but less than 8 8 but less than 9 9 but less than 10 10 but less than 11 11 but less than 12 12 but less than 13 13 but less than 14 14 but less than 15 15 or more percentage of share 3% 6% 12% 18% 24% 30% 36% 42% 48% 54% 60% 68% 76% 84% 92% 100%

Funding the Elective Share: general rule is that if surviving spouse claims elective share, elective share is first satisfied by counting the property the deceased gave under his will to the surviving spouse. Rest of property due the surviving spouse under the elective share is taken pro rata from other beneficiaries or the residuary clause. Issue is whether permitting a life estate interest to count toward the elective share is incompatible with principle of elective share. Life estate is support while elective share is a fair, outright share of marital property. UPC 2-209: under 1969 version, any life estate interest left to surviving spouse did not go against surviving spouses claimed elective share. 1975 UPC switched positions said it did, then in 1993 Valuation: if life estate counts toward elective share, life estate is valued at 50% of the property in which surviving spouse was granted life estate. 1990 version removed 50% valuation and no substitute was insterted. Waiver: general rule is that a surviving spouse may waive his or her right to an elective share at any time as long as waiver was in writing and signed by waiving spouse. Waiver is not enforceable if surviving spouse 1) that it was not voluntarily made, 2) that it was unconscionable when executed, and before executed, surviving spouse did not know nor could have reasonably

known deceased spouses financial situation and surviving spouse did not voluntarily and expressly waive right to know such info. VI. The Omitted Spouse: A. Traditional Scenario: omitted spouse doctrine applies where testator executes a will thereafter gets married, and dies without revising or revoking the will. Question is did he intend to disinherit spouse or just forget to add her in to a new will. B. Omitted Spouse presumption: 1) where testator marries after executing after executing a will and 2) dies without revising or revoking will, creates a presumption that he accidentally disinherited spouse, he meant to amend his will to provide for new spouse but died before doing so. Even if will provides for a person that ends up being the spouse, unless testator thought of that person was going to be his or her spouse when will was executed, the gift in the will to the person who became testaors spouse does not defeat the doctrine. C. Rebuttable Presumption: presumption that testator accidentally disinherited spouse is rebuttable, but can be rebutted by showing 1) failure to provide for new spouse was intentional and intent appears from the will, 2) testator provided for new spouse outside of the will and the intent to transfer outside of the will be in lieu of spouse taking under the will is established by any evidence, including oral statements by testator and/or amount of the transfer; or 3) spouse validly waived the right to share in testators estate. Will evidences intent to omit: courts construe first method of rebutting presumption, that will evidences intent to disinherit very narrowly. General disinheritance clause, even one that disinherits any future spouse, is insufficient to defeat the presumption. The will MUST demonstrate EXPRESS intent to omit this SPECIFIC SPOUSE, and clause must have been executed when testator was contemplating marrying this specific spouse. D. Omitted Spouses Share: if presumption that failure to provide for new spouse was not intentional is not rebutted, typical omitted spouse statute gives her intestate share. E. UPC 2-301: tracks basic provisions of pretermitted spouse doctrine but it has a few revisions. 1. Intent to Omit: UPC broadens evidence that can be used to prove spouses omission from will was intentional to include evidence 1) from the will or 2) other evidence the will was made in contemplation of testators marriage to surviving spouse, or 3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testators statements or is reasonably inferred from the amount of the transfer or other evidence. 2. Omitted Spouse Shares: the UPC grants an omitted spouse the right to receive no less than her intestate share of deceased spouses estate from that portion of the testators estate if any that is not devised to a child of the testator or childs descendants (directly or

thru anti-lapse if 1) child is not child of surviving spouse, and 2) the child was born before the testator married the surviving spouse. The effect of this provision is that if the testator devises all of his probate estate to his child or descendants from a prior relationship or marriage, the surviving spouse will not receive an omitted spouses share despite otherwise meeting requirements of an omitted spouse. (b) In satisfying the share devises made by the will to the surviving spouse if any are applied first, and other devises other than to a devise to a child of the testator who was born before testator married spouse and who is not a child of surviving spouse or a devise or substitute gift under 2-603 or 2-604 to a descendant of such a child, abate as provided in section 3-902. F. Elective share vs. Omitted Spouse: 1. Overlap: typical omitted spouse also qualifies for elective share. If spouses decision is based solely on bottom line, important to know how to calculate exact amount of share she would receive under respective doctrines. Modern trend approach to elective share often includes Nonprobate property as well, making it look more attractive, unless UPC sliding scale has been adopted and marriage has been a short one. 2. UPC: under UPC approach to omitted spouse doctrine, where testator has a will that devises all or substantially all of his property to a child or descendants of a child not surviving the omitted spouse, for all practical purposes the surviving spouse is forced to claim an elective share because the omitted spouses share under the circumstances will be so small. (cuz other kids get almost all the estate) see above.

VII. The Omitted Child: The omitted child doctrine parallels omitted spouse doctrine. Testator can completely disinherit a child but not a spouse (due to elective share doctrine) the omitted child doctrine is more of a presumed intent/corrective doctrine than protective doctrine. A. Unintentional Disinheritance of a Child: applies where a testator executes a will, then has a child, and dies without revoking or revising will. Did he intend to omit new child or died before getting around to amending will. 1. Gift: classic omitted child scenario assumes that testator did not provide at all in his will for children born after execution of will. If will contains provision that gives a share to children born after execution of the will, general rule that child does not qualify as an omitted child. 2. Children Alive at Execution: some statutes extend it to include children who were born before execution of the will but not named in the will.

a. Affirmative Disinheritance: where omitted child statute covers living children as awell, most courts require an affirmative disinheritance (specific reference to the child). A negative disinheritance (blanket statement that T has not children or no children are to take under will) is generally held not to be sufficient. Generic clauses giving a nominal amount to any child who might qualify to take are likewise generally held insufficient to bar the doctrine. B. Omitted Child Presumption: omitted child from prior executed will creates a presumption that testator meant to amend will to provide for new child but died before doing so. C. Rebuttable Presumption: presumption of accidental disinheritance is rebuttable but can only be rebutted by showing that 1) failure to provide for child was intentional and intent appears in the will. 2)testator provided for child outside the will and intent to transfer outside of will be in lieu of child taking under the will is established by any evidence, including amount of transfer, 3) testator had one or more children when will was executed and devised substantially all of his estate to other parent of omitted child. MA statute allows for extrinsic evidence to be admissible to determine whether omission was intentional. D. Omitted childs share: gives omitted child his intestate share of testators probate estate. E. Overlooked Child: many states expand doctrine to include a living child who is omitted because 1) testator does not know about the child, 2) he mistakenly believes child to be dead. Overlooked child receives intestate share just like pretermitted child.

F. UPC 2-302 Omitted Children: tracks basic provisions of traditional doctrine but has a few differences 1. Adopted Children: UPC expressly provides it applies to children adopted after execution of the will. 2. Intent to Omit: unlike UPC omitted spouse doctrine, does not broaden scope of evidence that can be used to prove intent to omit a new child. UPC sticks with traditional rule that evidence that failure to provide for child was intentional must come from the will. 3. Other Omitted Children as Evidence: under traditional approach, if presumption arises kid was omitted accidentally, presumption is rebutted if testator had more kids when will was executed and devised substantially all of his estate to other parent of

omitted child. UPC does not permit such evidence to rebut the presumption, only uses it in calculating how much child should receive. 4. Omitted Childs Share: omitted childs share under UPC depends on whether testator has other living children at time he executes the will. a. No Children: if testator had no children when he executed the will, omitted kid receives his intestate share, unless he devised substantially all of his estat ot other parent of omitted child and parent survies the etsator and is entitled to take in which case omitted child takes nothing. b. 1 or more Kids: if testator had one or more children living at time he executed will, and will devised property to 1 or more of then living kids, omitted kids share is 1) taken out of proportion of testators estate being devised to then-living kids, and 2) should be equal the share of interest the other children are receiving, had the testator included all omitted children with the children receiving shares and given an equal share to each. (gifts to then-living children are to abate prorata). 5. Overlooked Child UPC 2-302(c): expressly provides for a child who is overlooked in will because testator thought child was dead when she executed the will. UPC does not extend omitted child status to an overlooked child because testator did not know about the child. 6. Omitted issue of deceased child: omitted issue of the child who died before the testator take their intestate share.

CHAPTER 8: TRUSTS OVERVIEW AND CREATION: I. Conceptual Overview: A. Bifurcated Gift: a trust is merely a bifurcated gift. Gift in trust is bifurcated in that legal title is given to trustee, while equitable interest is given to beneficiary. Equitable interests is right to use and benefit from the trust. Trustee manages the trust property for benefit of trust beneficiaries. Once title is bifurcated, trustee owes beneficiaries a whole bunch of fiduciary duties. B. Terminology: Settlor: party who creates trust Trustee: party whom settlor transfers trust property to: trustee holds legal title to trust and manages property for duration of the trust. Beneficiaries: parties who own equitable interest in the trust; owed a fiduciary duty by trustee.

Declaration of trust: if settlor is also trustee, expression of intent to create trust, along with terms of the trust. It must be in writing if trust holds real property or is testamentary. Deed of trust: if someone other than settlor is trustee, expression of intent to create a trust is called a deed of trust. Although term implies written, at common law Essay for Wills Final: ISSUES Non-Probate Transfers/Probate Estate: There are a number of potential will substitutes that attempt to make Nonprobate transfers of Tesss estate. The UPC applies wills related doctrines to will-substitutes. 1. Life Insurance 50K: Tim is dead, 6-101(2) states that $ ceases to become payable to a deceased beneficiary, Tess never changed the beneficiary on the insurance policy. Therefore the insurance policy lapses. Anti-lapse doctrine does not apply to spouses, therefore the 50K falls to the probate estate. 2. Bank Account with Dawns name for convenience: This is a multiple party account. It does not avoid probate because it is merely an account with Dawns name added for conveinance, she received no inter vivos interest and does not have a right of survivorship. There is clear and convincing evidence of this because the account is termed a conveinance account. 10K to probate estate 3. Bank Account w/ POD clause payable to Sean.: This avoids probate because it the UPC recognizes bank accounts with POD clauses, Sean is alive and therefore he gets the $200K free and clear of probate. 4. House: TBE avoid probate when 1 spouse dies, the other takes ownership by right of survival free and clear of probate. Because Tim is dead, the tenancy by the entirety terminates, and the home falls into probate. 950K to probate estate. 5. Morgan Stanley $500K: The facts are silent as to what type of account this is. Assuming it is an investment account of some sort, it names no beneficiary upon death and has no POD clause, therefore the $500,000 falls to Tesss probate estate. Her total probate estate is therefore valued at $1,510,000. INVALID WILL: Reasons why will is invalid. Fraud: Sean will want to initiate formal probate proceedings in order to block informal probate proceedings and to prevent Dawn from being named administrator of the estate. The UPC requires him to initiate probate 3 years from the date of death. Fraud occurs when someone intentionally misrepresents a fact to the testator, with the intent of influencing the testatmentary scheme, and it causes her to dispose of property in a way she

would not otherwise have done. Fraud in the inducement occurs when a person misrepresents facts to the testator for the purpose of inducing him to execute, revoke, or refrain from revoking a will. One must prove intent to knowingly influence the testamentary scheme, causation, and a proper remedy exists. Here Sean can argue that Dawn knowingly misrepresented to Tess that he was deceased. If he is in a j/d that does not recognize Dead Mans statutes, he can point to Tesss oral statement that she intended them to share everything. Also he can point to the language in the will that states in view of my sonss death that she would have provided for him had she known he was alive. The only conceivable reason Dawn would withhold such information is because she knew she would have stood to inherit more if Tess believed that Sean was still dead at the time of execution of her will. Remedy: When fraud causes the testator not to revoke a will that she otherwise would have revoked, the appropriate remedy is to strike the will or the portions of the will affected by the fraud. Here, because the frauds impact on the testatmentary scheme is very difficult to determine, it is arguable that the whole should be struck. In such a situation, the court would be forced to distribute Tesss estate to Sean and Dawn through intestacy. Under the UPC intestate distribution scheme, the court looks to the generation in which there is a first live taker, pools the interests together and then divides the shares evenly. Here, both Dawn and Sean are alive so the estate is simply divided in half evenly, with Tom and Jerry receiving no further funds other than the inter vivos gifts they had already been granted. If only portions of the will are to be struck, it is up for debate as to whether Tom and Jerrys provisions are to be struck, or Dawns provision is to be struck. Because Dawn is the person who stands to be unjustly enriched from the misrepresentation, a court may look as to what is equitable and probate the will, and force Dawn to establish a constructive trust for Sean in which he receives of her 3/4share of Tesss estate. Tortious Interference: Sean can also bring a claim of tortious interference with an expectancy against Tess. The plaintiff must prove 1)existence of an expectancy, 2) a reasonable certainty that it would have been realized but for the interference, 3) intentional interference, 4) tortious conduct with the interference (fraud) 5) and damages. Sean has an existence of an expectancy, his mother died with a sizeable estate. He had a reasonable expectation of that expectancy, his mother told him she would allow them to share in her estate, and also the language of the will expressly indicates that she was distributing her estate in that manner in light of her sons death. Sean can state the misrepresentation was intentional, Dawn did not simply lose the letter, she concealed its existence from Tess. That conduct is tortious in that she fraudulently misrepresented to her mother that Sean was still dead, and he can prove damages, he was entitled to receive at least some portion of his mothers estate.

This suit brings advantages in that he may also recover punitive damages and also provides a longer statute of limitations than the 3 years that would be allowed under probate court.

Conditional Will: May argue a conditional will, that it stated an express clause conditioning the will to be given effect upon an express condition precedent occurring. Not a strong argument, courts disfavor and tend to view these clauses as mere explanations for why the decedent executed the will as opposed to an express condition precedent, but nonetheless, Sean could try to argue this since he is alive and his mother felt the need to include in her will the fact she is wrote it in this manner was because of her sons death. VALID WILL Omitted Child Doctrine: In the alternative, or if Sean fails to prove fraud on the part of Dawn, he may bring a claim under the UPC 2-302(c) Omitted child Doctrine. Subsection c states that if at the time of execution the testator fails to provide in her will solely for the reason she mistakenly believes the child to be dead, the child is entitled to share in the estate as if he were an omitted after-born child. The child s share is limited to devises made to the tesators then living children under the will. Therefore, Sean would be entitled to of the estate devised to Dawn. Tom and Jerrys Share: Assuming the will or the clause granting Tom and Jerry share of Tesss estate is valid, the issue exists as to whether the inter vivos gifts they received count against their share of her probate estate. Under UPC 2-609, inter vivos gifts to beneficiaries are presumed not to be in partial or complete satisfactin absent a writing expressing such intent. The writing can be the will, a writing at the time then gift was granted, or created by donee anytime. Here, Tess made an express clause stating that any inter vivos gifts will be deducted from their share of her probate estate. Furthermore, one might be able to deduce by taking a quick look at her ledger, if she wrote the amounts to be deduced at the same time she gave the gifts, that would also satisfy UPC 2-609. The harmless error doctrine applies to the mix-up of there names on the ledger sheet. The court will look to the clear and convincing evidence of the actual amount of the intervivos gifts to the parties in order to determine the correct amount from Tom and Jerrys share.

If the writing was not written at the same time the gifts were given, although her ledger cannot be brought into the will under the UPC Incorporation by Reference doctrine, because by using that doctrine, the document must have been in existence at the time of the will, (she executed the will in 2009, gifts were in 2010), the evidence of satisfaction from the ledger can still come in under the UPC 2-503 Harmless error doctrine. If there is clear and convincing evidence the decedent intended the writing to constitute an addition to or alteration of the will, it may nonetheless come in even though it does not satisfy the wills-act formalities. Here it is clear Tess wanted the writing to be included in her will because she referenced the writing in the will, and futhermore the ledger was found with her will. Jerry Gets $178,750 and Tom gets $188,745.