4 Wills

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WILLS, TRUST, AND ESTATES Wills, Trust, and Estates is a state based topic and every state his it own probate code.
RIGHTS OF A PROPERTY OWNER Assets are owned by someone who has died; when someone dies there is property that has to be distributed. Property rights include the right to decide who succeeds in ownership (1) Inter-Vivos: During a lifetime (2) Testamentary: After death General Rules for Gifts The General Rule is that Inter-Vivos Gifts (during a lifetime) can NOT be revoked The Exception to this GR is Gift Causa Mortis Gift Causa Mortis
Gift made in contemplation of death. The D/or makes the gift when facing imminent impending
death. D/or of the gift has to die of what he believes is about to kill him. (1) (2) (3)
3 Requirements for a Gift Causa Mortis Donative Intent Delivery Constructive or Actual Acceptance is Presumed
Majority Jurisdictions: If the D/or does NOT die of the impeding cause the gift is
Automatically Revoked w/out any action by the D/or and its deemed to be owned by the D/or at the time of death.
Minority Jurisdictions: the gift is NOT automatically revoked it is Revocable and the D/or has
to take steps to get the gift back/revoke. Re Van Wormer: Clyde died b/4 his death he divorced his wife and was suicidal. During this time he gave his brother Paul stocks b/4 he moved to CA to be w/ his mother. However, Clyde had a will for his ex-wife and 2 kids. Issue in the case dealt w/ timing. Honoring Decedents Intent Courts want to honor the decedents intent (person who dies). However, honoring the intent of the decedent is not w/out limits. There are limits on how far the court will go and how far the will is allowed to control. Eyerman: Mrs. Johnson wanted her house to be demolished. The case is in Ct b/c the community didnt want the house to be destroyed neighbors were seeking an injunction. W/out the house the area would look like a swore tooth (aesthetic appearance), safety of neighborhood, and decreased property values which are all not legal reasons. However, this case deals w/ PP rational. Court: The Ct held that the term Public Policy can NOT be comprehensively defined. But phrases Against Public Policy have been characterized as that which contravenes any established interest in society. Recap: The Cts want to honor the decedents intent but NOT if it goes against public policy.
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4 General Principals The Court will Honor the Decedents Intent but w/in Limits. The decedents intent will NOT be honored if it goes against PP The decedents intent will NOT be honored if it violates the law both civil and criminal
(2) The Court can NOT determine the decedents Intent b/c they are Dead (the expert on intent is the decedent who is no longer available). (3)
The Court has to look for Reliable Evidence to show Intent. A will is the most reliable evidence When there is ambiguity or conflicting testimony Cts look to reliable evidence.
(4) If there is no Reliable Evidence available the Court has to make Presumptions. If there is no will the court will look to statutes.
General Vocabulary Probate: (1) the Court that hears the matter of the decedents case and (2) the Process of handling the decedents estate. Probate Estate: The assets that have to be distributed though the probate process. Distributable Probate Estate: Once we paid all the priorities we can figure out who gets what. Decedent: The person who dies. This includes both testate (w/ a will) and intestate (w/out a will). Successor: The person who takes ownership of property after the decedent no longer owns it. Testacy Proceeding: Proceeding dealing w/ a will. Personal Representative: Person who goes through and administers the estate. Sometimes called the executor/administrator. Descendant: Are surviving people down the family chain descending from the decedent.
Intestate Estate Vocabulary Intestate: Some or all of the assets are NOT passed via a will. There is no reliable evidence on where these assets should go.
Heirs: Is a term of art. Those individuals that take under intestacy. Testate Estate Vocabulary Testate: Is a will. Testator: Person who make a will.
Will: Codicil, Revocation, and Replacement legally enforceable document. Devise: Is a gif. Devisee: The person who receives the gift under the will. Testamentary Intent: The intent of a person regarding of how that person wants his estate to be distributed as reflected in his will. General Concept The general concept is that dead people dont own property and the property needs to be owned.
Step 1: Property Owner Step 2: Moment Property Owner Dies (1) Probate Estate: Assets that are distributed though out the probate process Property that goes into the estate. These belongings are solely owned by the decedent and have to go through the probate process. Ex: clothes, jewelry, books, a car. Tenants in Common: Has NO SURVIVORSHIP RIGHTS. Also the ownership interest does not have to be equal. If the decedent owns property as T/C the share of the decedents property goes into the estate, and is inheritable. Inheritable Interest. (2) Non-Probate Estate (outside of the estate): Property passes outside of the estate Joint Tenancy: Where 2 people share individual ownership of property during their lifetime and when one dies the survivor becomes the sole owner Right of Survivor Ship. Tenancy by Entierties: Owned by H & W right of survivorship passes to the surviving spouse. Insurance Etc: Contractual agreement wherein the beneficiary receives a payment upon the death of the owner (owner, insured, beneficiary). These are considered Common Forms of Will Substitutes Step 3: 3805 - Priority (1) Figure out Probate vs. Non-Probate (2) Total Probate Assets Priority Expenses 3805 = Amt Available for Distribution aka Distributable Estate. Step 4: Distribute the Estate 2 Types: All the $$ left after the priority claims will pass in one of 2 ways (1) Testate/ Will: Issue of Testacy Will governs what will happen (2) Non-Testate/No Will: These assets are dealt w/ by state statutes that will make presumptions. Presumption is that decedent will want their family to take first. We are looking at statutes that make presumptions. This is b/c there is no will and the statutes (intestate succession statutes) presume what the decedent would want. Intestacy Def 2101: Anything not passed by will passes by intestate succession. Section 3805. Figures out in this order who gets paid Payment of Claims Priority
(1) If the estate does not have enough $ to pay all the claims in full you must pay in the following
order:
(a) Cost and expenses of administration

(b) Reasonable funeral and burial expenses (c) Homestead allowance (d) Family allowance (e) Exempt property (f) Debts and taxes with priority under federal law, including, but not limited to, medical assistance payments that are subject to adjustment or recovery from an estate under section 1917 of the social security act, 42 USC 1396p. (g) Reasonable and necessary medical and hospital expenses of the decedent's last illness, including a compensation of persons attending the decedent. (h) Debts and taxes with priority under other laws of this state. (i) All other claims. Note: the family is NOT responsible for debts that the estate can NOT cover if a creditor is at the bottom of the list they do not get paid. 2104 Survival Requirement Qualification to take by Intestacy or Testacy is that you must survive 120 hrs 2104 In order to take under testacy or intestacy you must survive by 120 hours. An individual that fails to survive by 120 hours is deemed to have predeceased.
2108 Posthumous Heir: A child conceived before but born after the death of the parent. Section 2108- An individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. INTESTATE SUCCESSION
2101 When does Intestacy Apply Any part of a decedents estate not effectively disposed of by will (no will, bad will, left over assets not in will) passes by intestate succession to the decedents heirs as prescribed in this act, except as modified by the decedents will. Intestate statutes are statutes of presumption Intestacy applies either when you dont have a will or your will does not effectively dispose of your entire estate for one reason or another.
SUVIVING SPOUSES SHARE 2801 Who Isnt a Surviving Spouse 2801 Tells us what a surviving spouse is NOT! A SS is someone who is married to the decedent and at the time of death she/he survived the deceased spouse by 120 hrs.
A SS is NOT:
A person who is divorced (ex-spouse) A persons whos marriage has been annulled unless they remarry Mere separation is NOT a divorce Negotiating a divorce settlement the ct presumes the couple to be divorced/they can not take from the decedent Bigamous relationship Absent Deserted
Recap: In order to take, you must (1) Survive 120 hrs (2) Spouse and children get the first crack at the estate, but surviving spouse takes first.
2102 Surviving Spouses Share by Intestate Intestate share of the SS is one of the
following 6 formulas: (a) No surviving descendents (children or grandchildren), or parents of the decedent, SS gets entire intestate estate 100%. This means that aunts, uncles, nieces, and nephews can NOT interfere w/ the surviving spouses share. (b) gets 1st $150 + of the balance. Decedent and the SS share the same descendents SS The decedent and the SS share mutual descendants (children or grandchildren).
(c) No descendents (children or grandchildren) but at least one of the decedents parents survives, SS gets 1st $150k + balance. If the decedent has no descendants but the decedent has a surviving parent, the surviving parent has to be the parent of the decedent (not the spouse). A grandparent does NOT count as a parent. (d) Decedent and the SS have mutual descendants (children or grandchildren) and the SS has 1 or more children from outside of the marriage, SS gets 1st $150k + of the balance. The step child has no relationship to the decedent. They are not blood relatives but relatives by affinity. Step children do not take unless they have been adopted. (e) Decedent has descendants (children or grandchildren) that are NOT descendants of the SS. But the decedent and the SS had at least one child (descendent) in common, SS gets 1st $150k + of balance Decedent and SS have at least 1 child or more together and the decedent has a 1 child or more from a previous relationship. Relationship is bros and sisters (all of them are blood relatives to the decedent). (f) Decedent has descendants none of which are the SS's , SS gets the 1st $100k + of the balance (after the 100k deducted) Children are not from the decedent & SS marriage. Instead they are from the decedents prior relationship. SS gets less $ b/c there is no blood relationship w/ children.
Downloaded From OutlineDepot.com Note: If the estate doesnt have enough $ to distribute to others the surviving spouse takes it all.
No children, grandchildren, or parent SS takes 100% D and SS have kids together SS takes $150 + D and SS have at least 1 child together (descendents) but D or SS have children from outside the marriage SS takes $150 +
No descendants but PARENTS SS takes $150 + D has descendants but they are NOT from the SS SS takes $100 +
1106(i) Tells us What a Parent is NOT Parent includes, but is not limited to, an individual entitled to take or who would be entitled to take, as a parent under this act by intestate succession from a child who dies w/out a will and whose relationship is in question. Parent does NOT include an individual who is only a stepparent, foster parent, or grandparent. A grandparent does NOT count as a parent therefore, the SS gets everything.
2114 Defines who is the Parents of a Child 21144: Defines who the parents of a child are (especially the dad). This is needed to establish a parent child relationship b/c this is how descendents are determined.
(1)(a) If a child is born or conceived during a marriage, it is presumed that both spouses are the childs natural parents for intestate succession. (1)(b) Child is out of Wedlock or NOT the Husbands. If a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue (child) of that marriage, a man is considered to be the childs natural father for purposes of intestate succession if any of the following occur: (we know who the mom is but we are trying to determine who the father is?)
4 different way a Man can establish Paternity: Affirmative Acts by the Man (i) Man joins mother acknowledges the child as his by an acknowledgement
of parentage.
(ii) Man joins mother in a correction of certificate of birth. (iii)Man and child have establish a mutually acknowledged relationship to
the world. (this begins b/4 the child reaches 18).
(iv) Order of filiation establishing paternity (paternity suit)
Downloaded From OutlineDepot.com (1)(c) A child who is not conceived or born during a marriage is an individual born in wedlock if the childs parents marry after the conception or birth of the child. A child born to an un-wed couple will be deemed a child of the marriage if the parents later marry. (2) Adopted Child: An adopted individual is the child of his or her adoptive parent(s) and not of natural parents, but adoption of a child by the spouse of either natural parent, the adoptive parent can NOT inherit from child (if died intestate) but if ex-husband (natural father) dies then child can still collect from natural father. Termination of Parental Rights: Ends the kinship b/t parent and child.
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1103(f) Who Isnt a Child Child includes, but is not limited to; an individual entitled to take as a child under this act by intestate succession from the parent whose relationship is involved. Child does NOT include an individual who is only a stepchild, foster child, or a grandchild or more remote descendant.
INTESTATE DISTRIUBUTION PART NOT GOING TO SS 2103 Tells us what Happens to the Rest of the $ that Doesnt Pass to the SS under 2102 2103: An part of the intestate estate that does not pass to the decedents surviving spouse under section 2102, or the entire intestate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent: Describes the people in the order that are going to take b/c (1) $ Did not pass to the surviving spouse or (2) There is no surviving spouse.
(1) The decedents descendants by representation (set up a priority amongst all the descendants you go down family tree- children grandchildren, great grandchildren) (2) If there is no surviving descendant, the decedents parents equally if both survive or to the surviving parent (go up family tree). If there is no surviving descendants (children or grandchildren) we are going to move up the family tree to mom and dad. They will share equally if both are alive or if there is only one person alive that person takes all. (3) If there is no surviving descendant or parent, the descendants of the decedents parents or of either of them by representation (you go to descendant of your parents bros & siss.) Brother, Sister, Half-bro, Half-sis, nieces, and nephews. (4) If there is no descendant of your parents (siblings of the decedent), then go to nieces and nephews. (5) No surviving descendant, parents, descendant of a parent (siblings) or descendants of siblings (nieces and nephews) Go up family tree to grandparents split equally b/t paternal and maternal. The estate is divided into equal shares b/t the Maternal (decedents moms parents) and Paternal (decedents fathers parents). will go to the maternal grandparents or their descendants. The other half will go to the paternal
Downloaded From OutlineDepot.com grandparents or their descendants. Therefore, as long as 1 person is alive on the Paternal side that half stays on that side. As long as 1 is still alive on the Maternal side that half also stays. It is only when one whole side has predeceased the decedent we will take that share and move it over to the other side. (6) If there is no paternal or maternal grandparents, it goes to the grandparents descendants (grandparents childrens) Aunt, Uncle, and Cousin. (7) If there is no one in the entire family tee then the estate escheats to the state. 2113 Individual Related to both Paternal & Maternal Blood Line Any individual who is related to the decedent through 2 lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to a larger share. A person related to both the Paternal and Maternal side only get one share there is no double dipping. This person can take from the side that will give them the larger share. passes to this state. 2105 Escheat If there is no taker under the provision of this article, the intestate estate
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REPRESENTATION 3 PURPOSES Representation establishes a priority among the various generations of descendants: Its the generation closes to the decedent w/ at least 1 person still alive. Remember if no one is alive in the closes generation it moves down to the next generation. How to divide the assets among that generation:
(2) (3)
Tells you what happens to the share of a predeceased member of that generation: The right of a person to take the share of an estate that the predeceased ancestor would have taken (to represent the ancestor) - Preserves a share of a predeceased descendant. Ex: Grandmother, it is presumed that they would want their children to take. Grandmother has 3 children and 2 die. She has to ask herself does she want equal shares to be distributed to her children. 1/3 to A, 1/3 to be shared by EFG, and 1/3 shared by H & I. The grandchildren are not being treated equally they all take different amounts. D A B C
E F G H I Or grandmother could combine B & C share so that all of the grandchildren share equally in the estate. 2 Types of Representation
Downloaded From OutlineDepot.com (1) 2718(2) PER STIRPES: By the Stock (you are going to treat your childrens line of decent equally). Divide the estate at the level of the children, allotting one share to each child. The shares will NEVER be re-combined among the other children or their descendants. The property is divided into as many equal shares as there are surviving CHILDREN at the 1st generation (not descendants). The shares stay in the 1st generation bloodline and never move to another bloodline. Goes straight down, i.e. each childs share, if they die their children step into their shoes and will be next to take. If you dont leave any descendants than there is no one to fill your shoes so nobody takes your share. A, B, & C each will get 1/3rd under Per Stirpes and the descendants children will divided their shares equally.
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Process of Division: Identify priority generation: It will ALWAYS be and ALWAYS remain w/ the children of the decedent. Even if none of the children survive, it is still the dividing point. Count how many children there were.
(2) How many of that generation have survived the deceased: Add them up (3) How many predeceased leaving descendants: Add them up
Remember: We do NOT count those who have predeceased leaving NO descendants. The estate is divided into EQUAL SHARES. (2) 2106 PER CAPITA @ EACH GENERATION: Allows at some point the predeceased members shares to be COMBINED & REDISTRIBUTED. When you have more than 1 descendent who has predeceased, the descendent who is still alive gets their share free and clear. However, the remaining shares (of the predeceased descendants more than 1 are dead) are combined and divided equally among their descendants. Ex: If only A survives and others (B & C) are deceased leaving surviving descendants then combine B & C share and divided it equally among their descendants (E, F, G, H, I). Ex: If all of the priority generation (A-C) have died then the new priority generation is E-I and divide the shares equally. This method is fair to grandchildren. Default Intestate Distribution Plan we use this in an intestate estate UNLESS there is a valid document describing the decedents intent.
The difference comes in when more than 1 member of the priority generation has predeceased leaving descendants. This is when the shares are COMBINED and equally distributed among the remaining descendants.
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Process of Division: Identify priority generation:
Downloaded From OutlineDepot.com Its the generation closes to the decedent w/ at least 1 person is still alive. Remember if no one is alive in the closes generation it shifts down the family tree to the next generation. (2) How many of that generation have survived the deceased: Add them up
(3) How many predeceased leaving descendants: Add them up
Remember: (1) If a member of the generation has predeceased leaving

no descendants we do NOT count that person. (2) If there is more than 1 predeceased member who has left descendants these person's shares are COMBINED and redistributed equally among their descendants.
LIMITATIONS ON INTESTACY SHARE There are several situations which can alter what someone can take under intestacy. (1) Disclaimer: Someone can disclaim their intestate share (2) Slayer Statute (malfeasance): Killing a decedent (look at in terms of the killer) (3) Advancement: Heir gets $ during the decedents lifetime (inter-vivos) as an advance. (4) Assignment of Expectancy: Assignment of someones expectant share of the estate. (5) Right of Election for Surviving Widow: Applies to female SS Disclaimer (Renunciation) Coomes: Adda is the decedent who has a SS and 7 children. Her daughter Lola has financial problems a judgment was rendered against Lola b/4 Adda died (timing is crucial in this case). After Adda died Lola filed a disclaimer (she doesnt want the property). The sheriff is involved b/c he has to collect on the judgment he is trying to take away Lolas share. Lolas atty believed that if she disclaimed and never executed the deed, her share would be safe.
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Downloaded From OutlineDepot.com Court: COMMON LAW RULING When Lola disclaimed she already owned the property. Lolas rights to the property vested immediately as soon as Adda died. Lola can NOT disclaim after the fact. Lolas property is subject to her creditors. Recap: Under CL Theory title vested at the moment the decedent died (intestacy is imposed statutorily acceptance is presumed). Property is owned by person who inherits as soon as the person dies you can NOT disclaim after. However, w/ a will or trust its considered a gift being given by the decedent and therefore, the D/ee can disclaim at anytime. -Now CL principals have been replaced by statutory provisions Uniform Disclaimer of Property Act. 2901(c)(2) What is a Disclaimed Interest Disclaimable Interest: You can disclaim property, the right to receive or control property, and the power of appointment. We are talking about the right to receive under either a will or intestacy. 2902(1) Who can Disclaim A person, or a fiduciary representing a person to whom a disclaimable interest devolves, may disclaim a disclaimable interest in whole or in part. You can disclaim a right to receive property, in whole or in part. Also a representative of a person can disclaim for them. Therefore, a guardian can disclaim on your behalf. This applies to both Testate and Intestate estate.
(1) (2) (3) (4) (5)
2903 Requirements for a Valid Disclaimer A disclaimer is NOT valid unless it complies with all the following: Is in Writing Declare the Disclaimer Describes the Disclaimed Interest Signed by the Disclaimant Is delivered as provide in sections 2904, 2905, & 2906
2904 Changes CL Theory in Coones Case If a disclaimed interest arises (1) under a will or (2) testamentary trust or, (3) by the laws of intestacy, the disclaimer must be delivered AFTER the death of the owner of the property and before any event described in section 2910. Now the disclaimer has to be finalized after the decedent dies. You can only disclaim after the decedent dies overrules CL. 2910 Events (1) The right to disclaim property is barred by any of the following events that occur after the event giving rise to the right to disclaim and before the disclaimer is perfected: If any of these events happen after the death of the decedent (by will or intestate) and they happen b/4 the disclaimer the disclaimer wont be effective. If you take acts of ownership it is presumed that you have accepted the property you can NOT disclaim. (a) Assignment , conveyance, encumbrance, pledge, or transfer of property, or a K for such a transaction. (b) A written waiver of the right to disclaim (waving your right to disclaim) (c) Acceptance of the property or the benefit.
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Downloaded From OutlineDepot.com (d) Sale of the property
YOU MUST DISCLAIM AFTER THE DECEDENT DIES BUT BEFORE YOU HAVE TAKEN ANY ACTS OF OWNERSHIP! 2907 How do you Treat the Disclaimed Share? How do you Distribute? If a disclaimed interest arises under a will, trust, intestacy (all forms of inheritance) and decedent has not provided a way to divide the interest if it is disclaimed (no instructions from decedent on what to do in a disclaimer situation). The disclaimed interest devolves (passes to) as if the disclaimant had predeceased the decedent (treat the disclaimant as if they had predeceased). However, if by law (intestacy), or under a will, testamentary trust, the descendants of the disclaimant would take the disclaimants share by representation if the disclaimer predeceased the decedent (disclaimants descendants will step into his shoes), then ONLY the disclaimed interest passes by representation to the descendants of the disclaimant who survive the decedent. Tells us what happens to the estate if the decedent has not indicated what they would want to happen w/ the disclaimed share. PP: Is that we dont want a descendant disclaiming to manipulate the estate (cause others heirs to get less $$). Therefore, only the disclaimants share passes to the disclaimants descendants (children). If Disclaimer in Facts, Divide Disclaimants Share Equally Per Stirpes (Do NOT Use Per Capita) and disclaimants share passes to their own descendents.
Slayer Statutes Heir Killed Decedent Decedent is murdered by an heir. PP is that killers should NOT be rewarded for their wrongful acts. We are going to punish the heir criminally and then if we prevent the heir from taking the property to which they are entitled this will be a 2nd punishment civil sense. This is conflicting b/c the law-statute says what the heir is to take. Under statutes we are NOT going to take away things from the heir that he already owns. We just wont let him benefit.
Mahoney: Charlotte was convicted of murder for the killing of her husband Howard. The only people that survived Howard were his mom and dad. Distributable estate - $3,885. This was a case of first impression. There was no slayer statute on the books. 3 Lines of Cases: (1) Legal title should pass to the slayer. (2) Legal title should NOT pass to the slayer. (3) A constructive trust is made. -Owner gives legal title to a trustee but the property (money) goes to the beneficiary. The slayer is skipped and the property is given to the beneficiary. 2803 Statutory Approach (1) If you feloniously and intentionally kill a decedent then you forfeit all of the benefits of the decedents estate Intestate share, elective share, omitted spouses or childs share, homestead & family allowance, and exempt property. If the decedent died Intestate the killer is treated as if they disclaimed their intestate share The shares become Per Stirpes Distribution, only the killers share passes to his descendents.
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Downloaded From OutlineDepot.com (2)(b) Turns Joint Tenancy w/ Right of Survivorship into Tenancy in Common (severs the interest). Killer keeps his share but the part he would have received by Rights of Survivorship goes to the decedents probate estate. Advancements Elements ONLY APPLIES INTESTATE Advancement is an Intro-vivos gift [(1) Intent, (2) Delivery, (3) Acceptance] given while the decedent is still alive to a person who will be an heir. The INTENT requirement of the D/or is that it is an advancement.
Hotchpot Formula for Advancement: (1) ADD advancement to the Net Distributable Estate (as if the advancement never occurred). (2) DIVIDE equally among the descendants. (3) SUBTRACT the amount from the heirs share that received the advancement.
Note: If the advancement is larger than what the heir would have gotten from the estate then you keep the heir out of the distribution ignore him.
2109 (1) If an individual dies INTESTATE (only applies to intestacy) as to all or portion of his or her estate, property the decedent gave during the decedents lifetime to an individual who, at the decedents death, is an heir is treated as an advancement against the heirs intestate share ONLY under either of the following circumstances: Individual dies intestate (only applies to intestate estates). Whether partial or full intestate Given Inter-vivos (during the decendents lifetime) To an individual who would be an heir Is treated as an advancement ONLY Under either circumstances. Writing requirements (a) The decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement Must be in writing by the decedent at the same time as when the gift was given or by the heir at anytime and states that the gift is was an advancement. The writing has to say more than just advancement advancement for the estate. (b) The decedents contemporaneous writing or the heirs writing acknowledge otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedents intestate estate. Must be in writing by the decedent at the same time when the gift was given or by the heir at anytime with words that indicate that the gift is to be taken account in the division and distribution of the estate. (2) If the recipient of property advanced fails to survive the decedent, the property is NOT taken into account in computing the division and distribution of the decedents intestate estate, unless the decedents contemporaneous writing provides otherwise. Deals w/ an heir who has received an advancement but has predeceased the decedent. The property is NOT taken into account in computing the division and distribution UNLESS the decedents contemporaneous writing provides otherwise.
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Downloaded From OutlineDepot.com Assignment of Expectancy Expectancy Interest: The expected share of what one may receive in a future estate, presently its nothing; you have no property/ownership rights.
Assignment: Is a form of a K (Assignor Assignee). The A/ee has to give consideration in exchange for the A/or promise. If the A/or assigns an expectancy, At Law its NOT an enforceable K b/c the A/or did not give anything up (no consideration). At Law the Ct does NOT look at the amount of consideration.
A/ee is not out of luck b/c In Equity to do justice the Ct will look to see if the A/ee gave adequate consideration in return for the assignment. The Ct will look at the amount of consideration.
Ex: I saw a beautiful diamond ring at Johns Jewlery store for $100k. I know that when my incompetent mom who doesnt have a will passes I will receive $1million. I tell John that I will assign to him $125k if he gives me the ring now. A/or Me & A/ee Johns Jewler. I have no ownership in my moms estate b/c she is not dead. All I have is an Expectancy a chance that I might receive some $$.
I have not given up anything no consideration At Law this is a non-enforceable K. Therefore, if John gives me the ring, my mom dies, I inherited money and refuse to pay, John is out of luck.
However, John can turn to The Court of Equity deals w/ fairness & what is just.
At Law we dont look at the amount of consideration that has been given however, In Equity we do. What the A/ee gives up in the exchange for the assignment has to be adequate to equal equity and justice.
When you Assign Expectancy, you are giving up nothing. Not an enforceable contract At Law. However, if valuable consideration is given in exchange it would be unfair NOT to enforce the contract in Equity. Scott: Father Thomas, son Wilmar, divorced wife Grace, daughter Virginia. Ex-wife (Grace) has no rights to Thomas estate b/c there is no blood line she is just an in-law. Wilmar (A/or) assigned to Virginia (A/ee) of his expectancy as part of the divorce negotiation. However, the assignment is not incorporated in to the divorce decree. Thomas died and Wilmar is trying to back out of the deal claiming that there was no consideration given At Law this is an unenforceable K. Court: The Ct applies the Equitable Approach to enforce an assignment. The wife gave adequate consideration by raising the child.
Dower Widows Elective Share in Intestate Estate
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2202(1) : SURVIVING WIDOW (gender specific- female spouse) of a decedent who was domiciled in this state and who dies INTESTATE may file with the court an election in writing that she elects to take 1 of the following: (1) Her intestate share under section 2102 (SS share by intestate). (2) Her dower right - The use during her natural life (life estate) of 1/3 part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof. Dower Right is given to a wife ONLY! Its a life estate 1/3 of the real property which the husband owned. Why would a Wife choose dower? A right to 1/3 of the property can be a possessroy right or to the rents the property generates. FAMILY PROTECTION EXEMPT PROPERTY AND ALLOWANCES Learned about Exempt Property and Allowances in 3805 Priority this applies to both Intestacy and Testacy. Burial Cost 2 items b/4 exempt property and allowances are (1) Administration & (2)
2 Purpose of Allowances: (1) Gives the family $/property to maintain family while the estate is being probated distributed (2) Will NOT allow a SS or child to be disinherited completely. PP: We are preventing a Testator from cutting out his family we are going to give them something from the estate.
2402 HOMESTEAD ALLOWANCE: Rationale - Family should be able to keep a roof over their heads. Statutory amount is $15,000 (adjusted by the cost of living). If there is no surviving spouse, each minor child and each dependant child of the decedent is entitled to a homestead allowance equal to $15,000, divided by the number of decedents minor and dependant children. Purpose of the Homestead Allowance is for up-keeping the house, rental expenses. SS has a right to the $. If there is no SS, it goes to minor/dependent children. The $ is divided by the number of minor/dependent children. 2403 FAMILY ALLOWANCE: Rational -Keep the family going until administration (distribution). A reasonable family allowance is payable to the decedents surviving spouse and minor children whom the decedent was obligated to support, and children of the decedent or another who were in fact being supported by the decedent, which allowance shall continue for longer than a year if the estate is inadequate to discharge allowed claims. May be paid in lump sum or periodic installments Statute states Reasonable Family Allowance - $18,000 is the safe harbor that will be approved by the courts. If you want more than this you have to ask for courts permission.
Purpose is while the estate is being administered we are going to distribute $ so the family can pay for gas and food.
The people who get the R Family Allowance are - the SS & minor children & children who were in fact being supported receive the family allowance only if the
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decedent was obligated to support them if you relied on the decedent to keep you alive, you will receive $ until the estate is distributed. 2404 EXEMPT PROPERTY (2404) - The decedents surviving spouse is also entitled to household furniture, automobiles, furnishings, appliances, and personal effects from the estate up to a value not to exceed $10,000 more than the amount of any security interests to which the property is subject. If there is no surviving spouse, the decedents children are entitled jointly to the same value. Covers household furniture, cars, furnishing, appliances, and personal items (sentimental) up to $10k.
The individuals who can select items under the exempt property statute are: (1) SS and (2) If there is no SS then the decedents CHILDREN (not descendants) equally divide the $ which is NOT only limited to minors.
Section 2 Encumbered Assets: The SS wants the car which has a FMV of $19,500 the
deceased has paid $12k on it. Therefore the amount that is still owed is &7,500 which is the actual value to the estate they can still choose other assets to take up to $10k. INTESTACY IS DONE! MOVING INTO FAMILY PROTECTION WHEN THERE IS A WILL/TESTACY.
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TESTACY GR: We are going to honor the decedents intent but its w/in limits such as the law
and public policy. If the decedents intent goes counter to PP? We have a conflict. Ex: Wife does not want Husband getting anything from her estate. Atty can not do this b/c law says that he has a right to homestead, family allowance, and exempt property. PP views H & W as a team. If spouse cuts other spouse off society will have to
support them.
Under intestacy the SS gets a formula (2102) intestacy protects the spouse and
children. We have to figure out a way to satisfy the Testators Intent and PP. This is satisfied by providing the SS w/ some choices. Ex: Will says I leave nothing to my spouse! We have an expression of intent that is reliable-we have a valid will. However, it runs against PP. What do we do? We have to find a mid-point. SS will still get something but they wont get as much as they would receive under intestacy. ELECTIVE SHARE Elective Share aka-Forced Share: Is an amount of $$ that a SS can take even in spite of the will. This is called Forced Share b/c we are forcing the dead person to give the SS some $.
Intent of the testator is that SS gets nothing but public policy will NOT allow the SS to walk away with nothing, but they will NOT be given everything. 2202(2) Right of an Election in a Testate Estate Provides two choices for ANYONE who is a SS of a decedent who dies TESTATE domiciled in Michigan. (2) 2202(2): The surviving spouse of a decedent who was domiciled in this state and who dies TESTATE may elects 1 of the following: (a) Abide by the terms of the will: SS will only be able to receive the 3 allowances. (b) FORCED SHARE:
Formula:
amt surviving spouse would have taken under intestacy value non-probate assets (JT, TBE, Insur) surviving spouse get when testator died = Amount surviving spouse gets.
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Downloaded From OutlineDepot.com This is paid after all of the priority has been paid but b/4 the estate is distributed. (c) Provides a WIDOW, a 3rd choice: she will take her dower right. The woman has 3 choices (a-c). A man only has 2 choices (a & b).
OMITTED SPOUSES SHARE

TIMELINE
T EXECUTES A WILL
Will does NOT mention SS. Presumptions?: Its intentional that the T didnt want the SS to take anything. Protections for SS: (1) Forced Share (2) Homestead (3) Family Allowance (4) Exempt Property (5) Non-Probate Assets
FORCED SHARE T MARRIES SS
T MARRIES SS
AFTER MARRIED SPOUSE T EXECUTES A WILL
Will does NOT mention SS. Presumptions?: That it was not an intentional omission & that T would have wanted the SS to take from the estate.
2301 Testator Marries Spouse after Executing the Will SS NOT Provided for in the Will
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Downloaded From OutlineDepot.com (1) If a testators surviving spouse marries the testator AFTER THE TESTATOR EXECUTES HIS OR HER WILL, the surviving spouse is entitled to receive, as an intestate share: Statute provides protection for a SS that married the T after the will was executed. Statute presumes that T would have wanted to take care of the spouse and it was not an intentional omission.
The SS is entitled to receive an INTESTATE SHARE that the SS would have received
had the T died intestate.
This amount will be computed ONLY on the share of the Ts estate NOT devised
to Ts children (or their descendants) who were born b/4 T married SS, but who are NOT SSs children.
(a) Property devised to or in trust for the benefit of a child of the testator who was born BEFORE the testator married the surviving spouse and who is not the surviving spouses child (CANNOT tap into the money that is preserved for children which was set-aside before the marriage). These children are NOT the SS children and they were born BEFORE the marriage. PP is that we need care for the child. We are going to subtract from the distributable estate the amount left for (devised to) the children. Ex: If T was previously married b/4 he married SS, and from the previous marriage he had 2 children who are not the SS children. Any property devised to the 2 children the SS can NOT get this devised property to go into their intestate share.
(b) Property devised to or in trust for the benefit of a descendant of a child described above. If Ts children described above, have kids of their own, then any property devised to them the SS can NOT get this devised property to go into their intestate share.
Formula:
Distributable Estate Child/ Descendents Share = Amount left over to calculate SS share 2102.
(2)
Exceptions: The SS will NOT be given a share if it appears (a) The will was made in contemplation of Ts marriage to the SS. (b) The will expresses the intention that it is to be effective despite another marriage after execution. (c) The T gave the spouse $ outside of the will and this is shown by the Ts intent. Sprenkle-Hill: Ida (decedent) married George Hill AFTER she executed her will (testate). Her executed will included a trust that was to disperse amounts to her sons nothing was mentioned about George. She executed the will in 1999. She married George 6 months b/4 she died in 2001. George is the after marriage spouse. Under Georges right of election he chooses his Forced Share 2202 and After Married Spouse 2301. Issue: Whether George is entitled to take his elective share under 2202 Forced Share and is he permitted to take under 2301? Yes! If the 2301 (After Married Spouse) intestate share is less than the spouses Forced Share under 2201, it is part of (counts against) the elective share. If this 2301 intestate share is
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Downloaded From OutlineDepot.com greater than the elective share, the spouse will receive this intestate share even if the spouse elects to abide by the terms of the will. -The after married spouse can take from either the After Married Protection or the Forced Share whichever gives her/him more.
If the will left everything to the children what protection would the SS get under the statute? 2301 would leave the SS w/ NOTHING! However, the SS is not out of luck Forced Share & Allowances. Bennett: Althea and John are married. Althea had 4 children from her prior marriage (they are Johns stepchildren). John and Althea had 4 children together. Johns will left everything to Althea but if she were to predecease him then everything is divided b/t the 8 children ( to biological children and to stepchildren). Althea died and John married Blanch and then John died. Issue: Who takes the children, stepchildren, or SS?
Analysis 2301 Testator Marries SS AFTER Executing the Will: (1) We have an After Married Spouse Blanch married John after the will was executed. (2) Did the will leave anything to the Children of the Testator who were NOT the SS children and who were born before the Testator married the SS? YES! Under the terms of the will Johns biological children were entitled to of the estate. Johns stepchildren get NOTHING! Distributable estate $132k - $66 = $66k left over. Intestate SS formula 100 + . There is not a $100k left therefore, Blanch gets it all (66k) step kids get nothing.
WAIVER OF RIGHTS BY SPOUSE 2205 SS can waive right to a share under: (1) Intestate Succession (2) Homestead Allowance (3) Family Allowance (4) Exempt Property (5) Right of Election Forced Share (6) Dower These items can be fully or partially waived & can be signed either B/4 or after a marriage. Waiver is usually a pre-nuptial or post-nuptial agreement. Requirements for a Valid Wavier to be Enforceable: (1) It must be a WRITTEN K or agreement (2) SIGNED by the party waiving their rights (3) After a FAIR & FULL DISCLOSURE. Rinvelt: The agreement must be fair, equitable, and reasonable under the circumstances. There can be no
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Downloaded From OutlineDepot.com duress. You must fully disclose the assets that are being waived. If not a person can challenge the waiver. If a Ct finds that there was not a fair & full disclosure they may determine that the post/pre nuptial agreement is not valid at all OR that the agreement is not valid to what was not disclosed. EVERYTHING!: The term WAIVER OF ALL RIGHTS means you are waiving
EXCEPT you can NOT waive a will Not yet executed b/c you dont know what you are getting and you dont know what you are waiving. OMMITED CHILD TESTACY 2302 A child that is alive at the time the will is written but, intentionally omitted the child is out of luck no Forced Share.
PERTERMITTED CHILD/HEIR: Is a child that is not intentionally omitted (left out by
mistake). In some jurisdictions the child will receive and intestate share. This is not a MI rule.
2302 After Born After Adopted Child (1) If a testator fails to provide in his or her will for a child of the testator BORN OR ADOPTED AFTER the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as provided in 1 of the following: The statue protects the children who were born after the will was executed. The 1st thing to determine is whether any child was alive at the time the will was executed. (a) If the testator had NO CHILD LIVING when he or she executed the will, an omitted after-born or after-adopted child received a share in the estate equal in value to that which the child would have received had the testator dies intestate, UNLESS the will devised all or substantially all of the estate to the other PARENT of the omitted child and that other parent survives the testator and is entitled to take under the will. If no children are alive when the will was executed the after born child has a right to what he/she would take under intestacy UNLESS the estate was left to the other parent & the parent survives the T and is entitled to take.
Ex: T executes a will in 1997. T is married and has a child in 2002. Will says
all to spouse. We have an after-born child. The child does not get any protection under 2301(a) No Child Living During Execution of Will The will left everything to the other Parent, therefore the child gets nothing.
PP: Is that the other parent will take care of the child. Ex: What if b/4 the testator died there was a divorce? Now the other parent will
not be entitled to take under the will (lang in statute). Now the child can take the intestate share.
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Downloaded From OutlineDepot.com (b) If the testator had 1 OR MORE CHILDREN LIVING when the will was executed, and the will devised property or an interest in property to 1 or more of the THEN-LIVING CHILDREN, an omitted after-born or after-adopted child is entitled to share in the testators estate SUBJECT to the following: 1 or more children are alive when the will is executed.
That an omitted after-born or after-adopted child ONLY receives a share of the Ts estate IF THE WILL DEVISED PROPERTY TO 1 OR MORE OF THE CHILDREN LIVING AT THE TIME THE WILL WAS EXECUTED; if NOT, the omitted after-born or after-adopted child receives NOTHING. Where going to look at how much there is and had T given an equal share to each of the kids how much would each kid receive. We are not going to expand the amount to go to the children we will just re-divide it. EXAMPLE: W executed a will in 1982, she and her H had two sons, A & B.
The will left $10,000 to each son with the remainder to H. In 1988 W and H had twin daughters, C & D. W died in 1997, everyone else is still alive. W never executed another will and she didnt change her first
one.
Distributable Estate = $150,000.

At time of will $20,000 was going to sons Divide $20,000 by # of children (4) So each child gets $5,000 and the remainder to H.
(2)
Situations in which 2302(1) will NOT apply: (a) Omission was intentional. (b) Testator provided for the omitted after-born or after-adopted child by transfer outside of the will and the intent that the transfer be a substitute for a testamentary provision.
PROFESSIONAL DUTIES & LAWYER LIABILITY Attys are held liable for negligence to T and could also be held liable to the Intended Beneficiaries named in the will. Some states look at extrinsic evidence to determine what the estate plan (will) was. MI only looks at the 4 corners of the estate document. Bullis: Atty Malpractice Bernadette died w/ a will she had 3 children. Daughter, Virginia, is suing Bernadettes Atty for malpractice. The will and trust were executed simultaneously. The will was to give Virginia the home & cottage and the condo to Charles. The trust (is a will substitute- property in the trust no longer belongs to the decedent) said that property was to be divided equally b/t the 3 children. Atty had Bernadette execute the deeds for the homes to go into the trust therefore the 3 homes were not part of the probate estate not controlled by the will. Court: Look to 4 corners of the document (will) but can look outside the will in order to review the intent of the testator - Rare that the courts will look outside of the will (extrinsic evidence).
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PERMISSIBLE USES OF EXTRINSIC EVIDENCE The most reliable evidence is the Will. Cts are reluctant to look at extrinsic evidence outside of the will. However, there are times when extrinsic evidence is important and cts will allow it in when there is Misdescription or Ambiguity in the will or when challenging the will. Permissible Uses Extrinsic Evidence: When Challenging a Will (1) Demonstrate or rebut proper execution (2) Demonstrate lack of testamentary capacity (3) Demonstrate lack of testamentary intent (4) Demonstrate the existence of undue influence, fraud, mistake, duress or revocation (5) Demonstrate the existence of an ambiguity (6) Clear up an ambiguity (may include evidence of testator's own statements as to his intent) (7) Demonstrate testator's intent as to the effect of a writing (will? revocation? revival?) (8) Rebut a presumed intent (may include evidence of testator's own statements as to his intent) (9) Rebut a presumption other than intent.
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Misdescription: Inaccurate description in the will. T leaves my property located at 445 Barry Street in Lansing to A. Ts property in Lansing is located at 445 Barry Street in Haslett. T leaves 10K to friend Janice Klein. T has no friend named Janice Klein, but has a friend named Janet Klein. 2 Types of Ambiguities: (1) Latent Ambiguity: You can NOT tell by looking at the document that there is any problem. Atty has to inform the judge and they have to clear it up. T leaves $10 K to friend Janice Klein. Janice Klein is a friend, but so is Janet Klein T leaves $10 K to nephew Jeff. T has two nephews named Jeff. T leaves $10 K to nephew Rob in New York City. T has a nephew Roy in New York City and a nephew Rob in Boston. (1) Patent Ambiguity: This is when the ambiguity is clear. T leaves all personal property to Sheila in one clause, and leaves "all my personal and real property to Leon in another clause."
Lawson: Patent Ambiguity We have a holographic will T wrote it herself. Will stated House and Contents to Sister. There was a no residuary clause Nell would get to take everything under intestacy. The word CONTENTS is ambiguous. This becomes and issue b/c there was a box of stocks and bounds found in the house. Does the term contents, include or not include the stocks and bonds. When it comes to rules of construction 1st rule is that there is a presumption against intestacy cts will construe a will in a way to avoid intestacy b/c the Cts want to follow the testators intent but only where this can be reasonably done. 2nd rule whats paramount is to ascertain and give effect of the testator intent. What did she mean by Contents: If they are not included in the house they go through intestacy. On the other hand we have to honor the decedents intent. Precedent of other cases says that the word contents does NOT include stocks or bounds found in the house. WILLS OVERVIEW Whats the definition of a Will?: (1) A valid will is Enforceable (complies w/ statutory requirements) (2) (3) (4) Declaration (in writing can NOT be oral, signed by the T) Of the Testator Testamentary Intent On how to Distribute the Estate.
1108(b) Will: includes, but is not limited to, a codicil and a testamentary instrument that appoints a personal representative, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to the decedents property that is passing by intestate.
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Downloaded From OutlineDepot.com TESTAMENTARY INTENT
Testamentary Intent: Includes 2 concepts (1) The written document is intended by the signer to be his will. (2) The plan of distribution contained in the document is what the signer intended to have
happen to his estate assets. 2502 Execution Requirements of a Formal Will (1) FORMAL WILL 2502(1): A will is valid only if it is ALL of the following: (a) In WRITTING it can NOT be oral (b) SIGNED by the testator or a person signs the testators name in the testators CONSCIOUS PRESCENSE and by the testators DIRECTION. Conscious Presence: Can be signed by someone else. Conscious presence means that the T has to be aware of what he is doing & cognizant that a person is signing at Ts direction. T does NOT have to see whats going on he just has to realize that this person is signing. (mere telephone contact is NOT enough conscious presence). Physical disability or illiteracy are instances where a person would have to sign on Ts behalf. (c) SIGNED BY 2 WITNESSES, each of whom signed WITHIN A REASONABLE TIME after they witnessed either: (i) The signing of the will OR (ii) Testators acknowledgement of the signature OR (iii) Acknowledgement of the will
2 W can see T actually signing the will, or T acknowledging hey this is my

signature or hey this is my will. (2) HOLOGRAPHIC WILL 2502(2): A will that does not comply with (1) is valid as a holographic will, whether or not witnessed, if it is DATED, and if the testators SIGNATURE and the documents MATERIAL PORTIONS are in the TESTATORS HANDWRITING.
Does NOT require witnesses but must be dated, signed by testator and a material portion must appear in testators handwriting Remember it can only be signed by the testator
A CODICL to a will is an addition to a will. It explains, modifies, adds to, subtracts from qualifies,
alters, restrains or revokes provisions in an existing will. Ex: A codicil to a will could be valid if it is an original valid written will and the changes are made as a holographic will = it is still valid as long as the changes meet the specified requirements.
A REPUBLICATION / REAFFIRMATION: Statement that the T reaffirms the substance of a will stating all conditions remain the same as written indicates that this is what she intends to be her will.
You must SIGN AND DATE next to changes. EXECUTION REQUIARMENTS & CONDITIONAL WILLS
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In Re Bem: Conditional Wills Joseph (father) writes a holographic will -If I dont Survive. He has 3 kids Rosemary is to receive $1k under the will which is less than if the assets passed through intestacy. She argues that the will was conditional b/c the condition precedent in the will was her dad dying on his bus trip which did not occur. Therefore, the will is not effective and his estate passes through intestacy all kids get 1/3. Issue: Whether the T intended to state a true condition OR only a reason for the wills execution? Court: Test Ct applies is Clear and Ambiguous Language. The Ct found that the will was not conditional b/c Joseph dying on the trips was not a condition precedent that had to occur in order for the will to be enforceable. Nothing passes through intestacy. The trips were Josephs reason/inducement for making a will. Cts will try to avoid intestacy if possible. COURTS DISPENSING POWER HARMLESS ERROR RULE This rule can save the will if there is an error. The court uses its dispensing power/discretion to enforce a document if the court believes it was intended to be a will and treats it as if it was in compliance w/ the statute (only for purposes for letting the document in, not to fix the problems). 2503 (1) Although a document or writing added upon a document (codicil) was not executed in compliance w/ 2502 the document or writing is treated as if it had been executed in compliance w/ that section if the proponent of the document or writing establishes by CLEAR AND CONVINCING EVIEDECE that the decedent intended the document or writing to constitute any of the following:
Proponent (person in favor of document) has a burden of proof. If they want the noncomplying writing to be let in they have to convince the court by Clear & Convincing Evidence that T intended the writing to act as a will, codicil, revocation or, alteration. (a) (b) (c) The decedents will A partial or complete revocation of the decedents will An addition to or an alteration of the decedents will
(d) A partial or complete revival of the decedents formerly revoked will or of a formerly revoked portion of the decedents will.
Skydancer: Will is Missing Ts Signature T was shot and killed. There was no signature on the will. Therefore our 2 options will be testacy or intestacy. Ts boyfriend argued that he was a common law husband and the will is valid therefore everything will go to him. However, Mom argued that it was an invalid will b/c the Ts signature was missing Mom would take everything under intestacy. Boyfriend argues that even though it didnt meet the execution requirements we should honor the Ts intent. However, boyfriend has the burden of proving clear and convincing evidence which he didnt. Court: Testators signature did NOT appear on the will; Ct did NOT allow the will to be admitted would NOT use its dispensing powers b/c w/out Ts signature the will is invalid. A signature is the best proof of intent.
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Downloaded From OutlineDepot.com Hall: Witnesss Signatures are Missing Husband and Wife have joint and mutual wills. Both had an original will however, Wife tears it up at Husbands direction will is revoked. There was another document that was a draft of a new will. Both H & W signed the draft, atty notarized, but there was NO witnesss signature which the statute requires. Wife argues Harmless Error the burden is on her to present Clear and Convincing Evidence that it was the intent of the T to have this as the will. Court: Missing witnesses signature; Ct used its dispensing powers to ADMIT the will b/c of sufficient extrinsic evidence (other documents, attys testimony).
(1)
Witness Competence 2505 (1) An individual generally competent to be a WITNESS may act as a witness to a will. No Age Requirement A W can be a minor but the younger the W gets there are more questions about competence.
They have to be competent at the time the will is executed to understand what they are seeing and explaining what they saw.
If they become incompetent b/t the time they witnessed and the death of the T this
has no effect on the will. Interested Witness 2505 (2) (2) The signing of a will by an INTERESTED WITNESS does NOT invalidate the will or any provision of it. A devisee is a witness this does NOT invalidate the will but it may cause problems such as undue influence and affect intent and reliability. Notary as Witness Gearhardt: Notary can be Counted as a Witness Decedent is Mary, at the time she executed the will she was at the hospital. She executed the document and left the residue to one of her children. However, there was other children who did not get anything and they are mad. Son challenges the execution of the will claiming that the notary of republic can NOT qualify as a W. Court: If there is only 2 witnesses and the notary is one of them. Majority of Jurisdictions will allow a notary to be a witness.
Majority including MI says that Notary signature can also be a Witness signature.
Minority says no.
(1) a will.
WHO CAN MAKE A WILL 2501 If you are 18 yrs or older and you are of SOUND MIND then you can make
(1) Testamentary Capacity TWO WAYS TO ANALYZE SOUND MIND: (2) Insanity Glimer: Factors to Determine Testamentary Capacity
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Downloaded From OutlineDepot.com Mary is the deceased she had a sister Rosa Belle. Mary executed a will that was properly executed. Marys other siblings are challenging the will to determine if she was mentally competent at the time the will was executed. This is an issue b/c Mary was seeking to have a committee appointed to protect her assets. On the very day that the Ct appointed the committee to handle her property she executed her will. The ct found that she could take care of herself (competent as a person) but not her property. The test for handling property is a higher standard then making a will. Testamentary Capacity (Intellectual Ability to Understand) 4 Part Test
(1) Capable of recollecting their property (doesnt have to be extremely detailed). (2) Knows the natural objects (natural recipients) of their bounty (assets) (who will
normally take under intestacy).
(3) Must know the business they are engaging in (known that they are making and signing a
will).
(4) Forming a plan of distribution. Hypo: Women who cant plug in fridge b/c misdemeanors are inside. She wants you to leave
money to her niece would you have a problem executing the will? You have to have delusion + impact on the will. The women might sound off but her delusion is not impacting the will she wants to leave everything to niece. If women wanted to leave entire estate to a society to prevent misdemeanors in fridge then you could NOT execute her will. Insanity aka Insane Delusion Mistake vs. Insane Delusion: Insane Delusion + Impact on Will: Must have a nexus (connection) w/ the ability to draft a will/distribute the estate (You must be able to show an effect or connection w/ the will.) T has wrong idea w/ no reason for believing it. It goes against all evidence and facts.
Mistake: Rational basis for the incorrect belief/wrong information T just has wrong idea. The Ct is NOT likely to use its equitable powers to correct the mistake. Hargrove: Insane Delusions H was divorced and left everything in his estate to the widow of his former business partner. H did not believe the kids from his prior marriage were his. If he had a reason for believing it, it was just a mistake. His wife told him the kids werent his in the affidavit. Wife denies this when she is on the stand. Court: Delusion is insanity, where one persistently believes, supposed facts, which have no real existence, except in his perverted imagination and against all evidence and probability, and conducts himself however, logically, upon assumption of their existence.
WILL CHALLENGES When someone probates a will, they present to the Ct and give notice to the heirs and devisees so they can go to ct and contest that they are entitled to take. There is a period of time to object. Theres a hearing to determine whether the will should be admitted. (1) 3407 Challenges to a will are heard by the court BEFORE the will gets admitted.
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Downloaded From OutlineDepot.com (a) A petitioner who wants to establish intestacy has the burden of establishing proof of death, venue, and heirship (b) A proponent (wants the will) has the burden of establishing proof of due execution in all cases and if the proponent is also a petitioner then they have to prove death and venue (c) A contestant (challenges the will) of a will has the burden of establishing lack of testamentary intent/capacity, undue influence, fraud, duress, mistake, or revocation (d) they have the initial burden of proof A party has the ultimate burden of persuasion if
UNDUE INFLUENCE Swenson: Undue Influence Factors Grace died; she has 2 daughters Jane and Betty. Cora is not related. Will #1 left all to Jane and Betty. Will #2 $5 to Jane; rest to Betty. Will #3 leaves all to Cora (caregiver).Daughters raise 2 challenges: (1) Grace lacked testamentary capacity & (2) Grace was unduly influenced by Cora.
(1)
closeness)
Undue Influence Analysis YOU MUST FIND THAT THERE IS A CONFIDENTIAL RELATIONSHIP (Contact of
This more than being friends there has to be a close enough relationship that there is an influence which could be based on power, trust, dependency, or accessibility (influencer has access to the Testator) T gives up his free-will.
(2)
YOU MUST FIND THAT THERE WAS A SUSPICIOUS CIRCUMSTANCE
Prima Facie Case for Undue Influence Factors (1) Participation by the Beneficiary in Preparation of the Will Cora urged her to make a will.
(2) (3)
Secrecy & Haste No family members knew about the will.
Change in the Attitude Towards Others Not involved w/ other family members, discrepancy in wills.
(5) (6) (7)
(4) Independent Advice Cora did NOT allow her to get disinterested advice. Unnatural or Unjust Gift Cora new her for only 3 months. Changes in Plan She changed he plan of how she would dispose her property. Susceptibility to Influence She was dependent on Cora.
CONFIDENTIAL RELATIONSHIP + SUSPICISOUS CIRCUMSTANCE = UNDUE INFLUENCE (and Lack of Testamentary Capacity are often argued together).
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Note: After the Prima Facie case is established The burden then shift to the proponent for them to show that there was a good reason for why the will said what it did. Karmery: MI Undue Influence Factors (1) The existence of a confidential or fiduciary relationship b/t the G/or and a fiduciary (2) The fiduciary or an interest which he represents benefits from a transaction (3) Fiduciary had an opportunity to influence the G/ors decision in that transaction. Court: Being married doesnt overcome a presumption that there may be undue influence. MISTAKE MISTAKE: There is NO INTENTIONAL MISLEADING of the T. T has wrong information. There is no bad actor. The courts are less likely to use equitable powers to correct mistakes. 2 Types of Mistakes:
(1)
Mistake in the Inducement: Mistaken belief about facts OUTSIDE of the will that motivated the T to execute it as he did. Mistake about matter of facts or law which effects the Ts will
(2)
Mistake in the Execution: Mistaken belief about the DOCUMENT ITSELF What the document says or doesnt say. The legal effect if has. Dalk: Mistake in the Execution Decedent honestly believed that when she left her attys office she believed to have executed her will. However, she did not sign the will. This was a mistake in the execution the will is NOT valid b/c there is no signature. Decedent forgot to sign b/c she was signing a lot of documents. There was a duplicate original (copy of the original) that she signed. Court: Found the will to be invalid the assets were distributed through intestacy. Remember Cts dont fix mistakes. Pavlinko: Mistake in the Execution Foreign H & W signed each others wills & they were honestly mistaken; they believed they had signed their own will. Court: This was a mistake the Ct did NOT act and the assets passed through intestacy. This type of case is why the harmless error statute was developed, but this Jurisdiction didnt have one, so the court did not probate the will.
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FRAUD FRAUD: There is a bad actor that has INTENTIONALLY MISLEAD the T knowing at the time that it was incorrect information. It was done w/ the intent to influence the T and the T relied on the misrepresentation of information when he made his will.
(1)
TESTATOR HAS WRONG INFORMATION + THERE IS A BAD GUY
2 Types of Fraud: Fraud in the Inducement: T knows contents of the will, but is deceived about facts OUTSIDE of the will that directly relate to provisions of the will. When bad guy lied about facts and it prompts T to prepare the will in a certain way.
(2) Fraud in the Execution: T is fraudulently misled about the contents or nature of the
DOCUMENT he signs. When bad guy lied about the content of your will.
(1) (2) (3) (4) (5) (6)
Elements to Prove a Fraud Roblin Misrepresentation Statements are Known to be False by the party who makes them They are Material (relates in some significant way to the plan of distribution) Made with the Intent to Deceive T T is In Fact Deceived T Acts in Reliance on the statements when he writes his will
Remedy: Mistake: If mistake results in something included in the will rarely will the Ct strike that provision. If mistake results in something being omitted, to bad, Cts will not insert language into a will. Mistake Cts are not likely to act. Fraud: Fraud cts will want to do justice b/c there has been a bad actor, who has intentionally misled the T. The Cts will try to fashion a remedy which is close to what the Ct believes is the T intent. This may involve striking a devise included b/c of the fraud. Or it may involve using a Constructive Trust share passes to the omitted person.
IN TERROREM CLAUSE aka NO CONTEST CLAUSE 2518 This is like a no contest clause designed to discourage frivolous challenges You challenge my will, you lose whatever you couldve gotten. A provision in a will that penalizes an interested person for contesting a will is unenforceable IF probable cause exist for instiuting the proceedings Cts do NOT want to turn away legitimate cases = In Terrorem Clause is will NOT be effective. If the challenge is frivolous Then In Terrorem Clause penalizes an interested person for contesting a will that is enforceable and good and the person who challenges the will for forfits their rights under the will. SETTLEMENT OF WILL CONTEST 3914
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This allows settlements for will challenges grants parties to alter the interest, shares, or amounts to which they are entitled to under the will or under intestacy. (1) Written Agreement (2) Executed by ALL Interested Parties (3) The Court has to Approve the Agreement REVOKING A WILL - 2507 Revocation Revocatory Act Intent to Revoke Subsequent Will
Expressly or Inconsistency "I revoke all prior wills' Replacement or Supplement
A Testator can revoke a will or part of a will by either of the following acts: (a) Execution of a SUBSEQUENT WILL that revokes the previous will or part of it EXPRESSELY OR BY INCONSISTENCY. It MUST meet the same requirements for execution of a will 2502. Expressely: I hearby revoke all prior wills. Any language to this effect (b) Performance of a REVOCATORY ACT ON THE WILL with the intent to revoke the will or part of it. Revocatory Acts burning, tearing, obliterating, canceling on the will or destroying the will MUST be done w/ the INTENT AND FOR THE PURPOSE OF REVOKING the will or part of the will OR if another individual performed the act in the testators conscious presence and by the testators direction.
Canceling: Any mark with intent to cancel (does not have to be signed next to cancel mark, UNLIKE a codicil, where addition or change must be signed and dated) Can be crossing out XXXXXXX over name(s) Squiggle lines Straight lines Writing void next to devise Obliterating: Covering up actual words so you can NOT read it. Destroying: Pouring acid or burning the will.
2507 (2): When a subsequent will does NOT expressly revoke. 2 WAYS TO LOOK AT INCONSISTENCIES:
WHAT EFFECT DOES IT HAVE ON WILL #1? YOU MAKE PRESUMPTIONS BY LOOKING AT THE EVIDENCE TO FIGURE OUT WHAT WAS INTENDED
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Downloaded From OutlineDepot.com How do you decide whether will #2 is meant to replace or supplement? It has to meet will requirements. 2507 (3): REPLACEMENT If Will #2 makes a complete disposition (gives everything away) of the testators estate (acts as a whole new will) and revokes will #1.
If 2nd Will does NOT expressly revoke but it is inconsistent w/ 1st Will, then we will presume and look at it as a replacement (revoke). Also, we presume it is a replacement if the subsequent will makes a complete distribution of the testators estate. 2507 (4): SUPPLEMENT does NOT make a complete disposition of the testators estate. Additions to the prior will (codicil). They can be read together.
If the subsequent will does NOT make a complete disposition of the testators estate
then we presume that he intended to supplement the previous will rather than replace.
A subsequent will needs to conform to requirements of a will (holographic or formal)

both documents are probated together and if there is a direct inconsistency (cant do both) the 2nd will wins Trumps will #1.
If there are 2 cash devises to the same person the statutes make NO presumptions
the Ct will decides what to do on an ad hoc basis (look at extrinsic evidence to demonstrate the intent of the T).
Missing Wills WHAT HAPPENS WHEN YOU CANT FIND A MISSING WILL? (LOST WILL) Presumption is that the Will was Revoked: (1) That there was a will executed. (2) It was last seen in the T possession. (3) If these two facts are shown then the presumption is there that the testator destroyed the will for the purpose of revocation
How do you rebut the presumption?: If you can rebut the presumption, the will is not considered Revoked but is considered Lost [Extrinsic Evidence] Look at the testators statements, expression of content of the will prior to death; statements that Testator had a will & liked it. Who was in control, possession of the will? Will was not in the Ts possession (maybe someone else revoked the will or it is lost). Condition of Ts other important papers? SO IF DETERMINED LOST, THEN THE CT. WILL LOOK AT EVIDENCE TO SEE WHAT THE T INTENDED YOU HAVE TO PROVE THE CONTENTS OF THE WILL! Goodwin: Effects of Photocopy How do you prove the Contents of Missing Will Granddaughter used the photocopy of a will as evidence of what the will said she is trying to prove contents. We accept that the will was lost. Now we have to prove the contents. A photocopy is only evidence of the contents it is NOT used as a will itself. Court: A photocopy of a will can NOT be admitted as an original will in the probate process. The Ct can NOT probate the photocopy of a will b/c it needs Ts signature. Even if it has a copy of the signature.
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If you only have a photocopy then it CANNOT be admitted as a will But you can use the photocopy as evidence that there was a will and it was lost and you
rebutted the presumption that it was revoked.
REVOCATION BY OPERATION OF LAW (1) DIVORCE REVOCATION BY OPERATION OF LAW (2) SLAYER STATUTE 2508 Change in circumstances does NOT revoke a will or part of it. 2 Exceptions to 2508: Changes that will automatically be a revocation of a devise
2803 Slayer Statute If there devisee feloniously and intentionally kills the decedent they forfeit all the benefits in respect to the decedents estate and the killer is treated as if they disclaimed. Automatically revokes the devise to the killer. 2807 Divorce Revokes devises to former spouse & the in-laws that came into the marriage. A Ct order also severs the property interest from Tenancy by Entirety Tenants in Common. DEPENDENT RELATIVE REVOCATION (PRESUMED CONDITIONAL REVOCATION) Doctrine where the Ct presumes a certain intent Presumes a conditional revocation. Its purpose is to revive, resurrect a revoked will. So the person who is using it, is the person who would have gotten the devise if the will was not revoked. If the document is effective and the condition occurs then the will is revoked. If the document is effective and the condition does NOT occur then the will is NOT revoked.
TYPICAL FACT PATTERN: (Carter)
(1) (2)
T has an effective will? IF YES then
T effectively revokes the will or a provision of it with the intent of replacing it. Revocation can be by a revocatory act or by a subsequent will which expressly revokes. IF YES then
(3)
Testator attempts to execute a replacement for the will or provision, which T has revoked. IF YES then
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(4)
The attempted replacement of the revoked will fails to meet the statutory requirements (no harmless error) of an enforceable declaration of testamentary intent. IF YES then
(5)
Facts exist where the court can conclude that the revocation of the first will was dependent on the effectiveness of the replacement.
The devisee whose devise was revoked seems to be out of luck wants to convince the Ct that when the T did the revocation there was a condition attached to the revocation Dependent Relative Revocation. Devisee wants to convince the Ct that when the T revoked he did so ONLY on the condition that the attempted replacement would be valid T did not want to totally revoke.
STEPS:
Issue #1 Is there an effective will? (2502 Execution of a Will Requirements)
Issue #2 Was the wills provision effectively revoked? Yes How? (2507 Revoking Requirements). Issue #3 Is there an attempted new will or new provision? Yes Effective? (2502 Execution of Will Requirements) Issue #4 If the attempted new will or provision is not effective, can harmless error save the replacement? (2503 Harmless Error Rules) If Yes, what is the remedy? The replacement will or provision is valid, and will be operative. If No, then go to Issue 5.
Issue #5 Will the court invokes the equitable doctrine of Dependent Relative Revocation to revive the revoked will or provision? The court looks at EXTRINSIC EVIDENCE to find conditional revocation (to find intent). The answer depends on whether there is evidence to show that the revocation of the first will had a condition or was dependant on the new will or provision. (1) will no matter what? Does it appear that the testator revoked the
(2) Does it appear that the testator would have wanted the revoked will to remain valid if the attempted replacement fails?
If the court uses the doctrine of dependant relative revocation, what is

the remedy? Revive the revoked will because the revocation was dependant on a condition which failed.
Carter: Tipton had a valid will. She was dissatisfied w/ her will and wanted to meet w/ her atty to make a new will. When she died the executor of the estate found an attempted codicil and the original will. There were cancellation marks on the original will revocatory acts while the will was in her possession. If the Ct finds that 1st
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Downloaded From OutlineDepot.com will is revoked and the 2nd will is not valid this means that the property will go through intestacy. Devisee argues DRR so the 1st will could be allowed in Court: The evidence was sufficient to rebut the presumption of revocation evidence shows that the revocation was conditional and the condition did not occur will is valid. LaCroix: T had a valid will that splits the residue; to Aurea and to Nelson. She executes a codicil that expressly revokes this provision. However, there is a problem w/ the codicil b/c Aureas husband was a witness thereby revoking the devise to Aurea. The intestate takers are saying that this should now go to them. Aurea argues DRR. Court: The T wouldnt have revoked if she knew that the new will (codicil) wont work.
REVIVAL OF A REVOKED WILL REVIVING A WILL This is the situation THE ISSUE IS: Will #1 is validly executed. Will #2 is validly executed (subsequent will) that revokes Will # 1. Then by a revocatory act will # 2 is ripped up (so by doing this does he revise the revocation of will #1?) IS WILL #1 REVIVED OR STILL REVOKED?
REVIVAL OF A REVOKED WILL 3 SCENARIOS: 2509: Ask - When will #2 is revoked what happens to will #1? In the first two scenarios will # 2 is revoked by a revocatory act. The third scenario deals when will #1 is revoked by will # 2 then will #2 is revoked by will # 3.
Scenario # 1 2509(1): IF Will # 2 (subsequent will) wholly revoked Will # 1 and then Will # 2 is revoked by a revocatory act (i.e. rip up) then the presumption is that Will # 1 remains revoked UNLESS
It is evident from the circumstances of the revocation of Will #2 (Ct will look at extrinsic evidence at the
time T revoked will #2) or from the testators contemporary or subsequent statements that the testator intended Will #1 to take effect as executed.
Ex: T executes a will in 1987 (Will # 1). In 2001, T executes a will (Will #2) that states I expressly revoke all prior wills. In 2003, T tears up Will # 2 (revocatory act), with the intent to revoke. Scenario # 2 2509(2):
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IF Will # 2 is partly revoked by a revocatory act. The presumption is that revoked part of Will # 1 is revived UNLESS
It is evident from the circumstances of the revocation of Will #2 (Ct will look at extrinsic evidence at the
time T revoked will #2) or from the testators contemporary or subsequent statements that the testator intended Will #1 to take effect as executed.
Ex: T executes a valid will in 1993 (Will #1). In 2000, T executes a valid codicil (Will # 2) that states I expressly revoke the gift to David. The rest of my 1993 will remains effective as executed. In 2005, T destroys Will # 2 with the intent to revoke. Scenario # 3 2509(3): IF Will #2 revoked Will #1 in whole or in part later revoked by Will #3, Will #1 remains revoked in whole or in part UNLESS.
Its revoked part is revived. The court will ONLY look at Will # 3 to determine if Will # 1 is revived. (The court will NOT look at extrinsic evidence to show intent.) Ex: T executes a valid will in 1967 (Will # 1). In 1999, T executes a valid will (Will # 2) that states, I hereby revoke all prior wills. In 2004, T executes a document according to the formalities of 2502(1) that states only, I hereby revoke my 1999 will. I want my first will to come back.
REPUBLICATION BY CODICIL A codicil is a document intended to alter, revoke, amend a will The codicil is intended to supplement the testators will so the will and document are read together
If you execute a codicil to a previously revoked will then by doing that you can revive the revoked will
If you republish something by executing a codicil then you reaffirm the will. A codicil is interpreted as a reaffirmation of the will and we interpret the will as if it were executed on the date of the codicil.
Changes that occur b/t the time the original will was executed and the time the codicil was executed may be effected. We are going to reinterpret the will as if it was executed on the date of the codicil. Hypo: T in 1999 Will has the following devise:
I leave all the land I own in CA on the date of this will to Allen. At the time of the will T owned 10 acres in Bakersfield. In 2000 T buys 2 acres of oceanfront property in LaJolla. If T dies in 2001 all Allen would get is land in Bakersfield. In 2005, T executes a valid codicil,.
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T dies a week later. So we interpret the will as if it was executed on the date of the
codicil We republished the will on that date. So Allen would get both LaJolla and Bakerfield. Hypo: What about the after-born child? T executed a will in 2001. At the time he was married to Brenda, and they had a son named Joshua. The will left $20,000 to Joshua, and the rest to Brenda. In 2003, another son, Evan, was born to T and Brenda. In 2004, T executed a codicil to his will. The codicil added a $5,000 devise to Ts alma mater, Cooley. T died in 2005. Evan would not get anything.
When the testator executes a codicil to his will whether the codicil expressly republishes it or not we presume that it is republished.
CLASSIFICATION OF DEVISES BEFORE YOU CAN CONSTRUE THE WILL YOU NEED TO KNOW THE KIND OF DEVISES
THERE ARE 4 KINDS OF DEVISES:
(1) SPECIFIC DEVISE (2) DEMONSTRATIVE DEVISE (3) GENERAL DEVISE (4) RESIDUARY DEVISE
(1) SPECIFIC DEVISE Specifically identified piece of property The intent of the testator is that devisee gets a specific item. Example: To Melanie my pearl and diamond necklace (2) GENERAL DEVISE The testator is giving value. The most common is a cash devise. The testators intent is that the devisee is to get a value that is not linked to any specific asset. The value is always the value as of the date of the testators death Example: To Melanie $10,000; To Rose the value of 10 shares of Apple computer stock (so can be satisfied by any of the Ts assets) (3) DEMONSTRATIVE DEVISE
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Downloaded From OutlineDepot.com This is a hybrid of specific and general devise general amt of $ from a specific source. The testator gives value, BUT it is tied to a specific source (It comes from estate assets) Example: To Rose, $10,000 from my HSBC checking account Example: To Angie I leave $10k from my fifth/third bank account. Demonstrative Devise is treated as a specific devise to the extent that the specific source can cover it. Any short fall is treated as a general devise. (4) RESIDUARY DEVISE Residuary is what is left. The idea is whatever happens to be left over. Example: To Duane the rest of my estate, or All my estate to Dennis. YOU NEED TO KNOW THESE TYPES OF DEVISES SO YOU KNOW WHERE ASSETS WILL GO. THE ISSUE BECOMES: In what order will these assets be used up? So we look to Abatement ABATEMENT 3902 ABATEMENT: Is the order in which estate assets are used up to satisfy priority claims and devises under a will.
(a)
(b) (c) (d)
3902(1): Tells us the order we pay in order to abate in which we use up the assts of estate: Property not disposed of by will (intestacy) Residuary devise General devise Specific devise (2): A general devise charged on specific property (demonstrative devise) is a specific devise to the extent of the value of that specific property (Ex: To P $10,000 out of my bank account.) The order of distribution will be opposite of abatement. Demonstrative Devise Hypos Hypo: To Angie $10k from my fifth/third bank account. Personal Rep will look at bank account - $15k is in the bank account. Intent of T is, is that Angie is to get $10k. So when the PR is giving out specific devises. The $10k will be treated as a specific devise. Now we will have $5k left over to go into the pot to satisfy general devises. Hypo: What if the 5th/3rd bank account only has $8k. The $8k is treated as a specific devise and goes to Angie. Angie is $2k short this $2k will come from the other assets that remain in the estate. Now Angie has to wait in line with the general devisees to take her $2k.
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MATTERS OF INCLUSION ASK: IS THERE ANYTHING OUTSIDE OF THE WILL THAT CAN CONTROL DISTRIBUTION? Contract Incorporation By Reference List of Tangible Property Facts of Independent Significance WHAT CAN BE BROUGHT IN TO AFFECT AN ESTATE? CONTRACT TO MAKE A WILL You can have a contract regarding a will Contracts are usually ENTERED INTO IN 2 SITUATIONS:
(1)
The testator wants care or services so he agrees with someone that if you take care of me I will leave you something. (McKim) McKim: Kim died intestate. Testator says that if you take care of me I will leave you $100k + House. Court: Ct did NOT enforce the deal. In order to establish the K it has to be in writing. 2 Requirements:
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Downloaded From OutlineDepot.com (1) K has to be in writing described in will or referenced in the will (Ct will look at outside evidence), or a writing that manifest the agreement. (2) Implied in Law and Implied in Fact these are equitable solutions/remedies. -There was a martial type of relationship and no one would believe that she expected payment. Recap: (1) You have to establish that a K existed it must be in writing & (2) If you can NOT establish a K you may be able to get an equitable remedy. Show that you acted in reliance and provided services that normally a person would pay for. You have to demonstrate to the Ct that there was an expectation of payment.
(2)
Joint or Mutual Will: Joint Will is one document signed by both parties. Mutual Will is two, separately executed documents that are mirror images of one another displaying the same testamentary plan that are signed by both parties. Example: Hs Will: All to W. If she predeceases me, all to A&B. Ws Will: All to H. If he predeceases me, all to A&B.
?
be revoked?
ISSUE: A will can always be revoked up until death but can the K
A K may be unilaterally rescinded and changed by either party when both are alive. BUT once one of them dies then the other party is locked into the contract (irrevocable) and if he revokes then he is in breach. OConnor: Breaching Party is Survivor - Anyone may revoke a will while both are alive, but once someone dies, it binds the other, but if the person revokes, then its a breach of K subject to litigation. Rigby: Breaching Party is the Decedent - H + W made mutual wills, but W ends up changing hers & dies. Court said that they will hold the wife to her agreement if husband gave some level of consideration.
2514 Elements to Prove a K (1) A contract to make a will or devise, not to revoke a will or devise, or to die intestate may be established only by 1 or more of the following: (a) Provisions of a will stating material provisions of the contract. (b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract. (c) A writing signed by the decedent evidencing the contract. (2) The execution of a joint will or mutual wills does NOT create a presumption of a contract not to revoke the will or wills. Incorporation by Reference 2510 A process for giving testamentary effect to documents that are not physically a part of the executed will.
Example: In an outside letter it states To Rose $50,000 and in the will it states, I leave $50,000 according to the letter to be incorporated.
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REQUIREMENTS FOR A DOCUMENT TO BE INCORPORATED: (2510) (1) The document must be in writing (2) The document must exist at the time the will was executed (3) The document must be sufficiently described so we can identify it (4) The will must manifest the intent to incorporate the document **You MUST meet ALL 4 for the outside document to be incorporated** Bryan: T left an additional $50k to his wife stating that a sealed letter would tell her what to do w/ the $ (it was to go to Bryan a political activist); this is not a sufficient description of the document that he wishes to incorporate; it could be one of may sealed letters it was NOT sufficiently described.
List of Tangible Personal Property 2513 You can write a list of devise of items of tangible personal property (NO cash gifts) at a
later date. It does NOT have to exist at the time of the execution of the will. It can be in existence at the time of the testators death. If the outside list is to be given effect it MUST be referenced in the will (manifest Ts intent). 2513: Is the rule breaker; these are the requirements that are put on the list: (1) The list does NOT have to meet the requirements of a holographic will (2) The will must reference the written statement or list to dispose of items (3) The list contains items that are NOT specifically devised in will. (4) Items can NOT be money, stocks or bonds that OR items specifically devised in the will (only tangible things you can hold). (5) The writing (list) must either be in the T Handwriting OR (6) Signed by testator at the end (7) Must describe the items & devisees with reasonable certainty Rule Breaker (8) It may be prepared before or after the execution of the will (9) It can be changed after it was prepared FACTS OF INDEPENDENT SIGNIFIGANCE 2512 A doctrine that gives testamentary effect to facts or circumstances that are not a part of the executed will. 2512: A will may dispose of property by reference to acts and events that have significance apart from their effect. Does it have independent, non-testamentary significance? Is it caused by something other than the will? You are relying on an outside fact. You CANNOT admit the paper that is written on as an outside source. It can occur before or after the wills execution OR before or after Ts death Ex: I leave to $1,000 to the person who is the doorman at the Ritz Carlton in Dearborn, Michigan on the day I die.
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The devise is dependent on another piece of information. You have to go check out who is the doorman at the Ritz in Deerborn this is an outside fact you can not fill in the check until you have this fact. Next is the identity of the doorman. Is doorman only employed for the will to give him $1,000? Or is there other reason why the doorman is employed at the Ritz? Yes doorman may need a job, hotel needs a doorman (these facts have nothing to do w/the distribution of the estate).
Ex: I leave the value of a share of GM stock on the day I die to Frank Jones. We know who Frank is but we dont know how much to write the check for. We have to go outside the will and find out certain facts. Ex: To Alice an amount of money I will write on a piece of paper and keep in my desk. Personal Rep goes to desk and finds paper that says to Alice $50. The devise is dependent on something other than the will - outside of the will. There is no other reason for the note to exist besides giving Alice $ - this does not meet the rule. Tipler: Mrs. Gladys will left everything to her husband James on contingency that he survives her. She later executed a codicil stating that if her husband predeceased her, she wanted her estate to be distributed according to his will. James wrote his will later on, leaving everything to his blood relatives. James died before Gladys. Issue: Are we going to follow the codicil and give everything to James blood relatives? Yes Court: Incorporation by reference does not apply here b/c the document (her husbands will) did not exist when she wrote her will. But the Ct applies events of independent significance b/c James will has an independent significance of distributing his estate and was NOT written w/ the intention of distributing Mrs. Tiplers estate. Intergration What pieces of paper make up a will? What other documents or facts are part of the estate plan? What pieces of paper comprise the actual will? So what practical things do you do? Initial each page, make sure page numbers are at the bottom of page, and staple the pages together that make up the will.
WHEN THERE IS A CHANGE B/W TIME OF EXECUTION & TIME T DIES
CHANGE IN CIRCUMSTANCES: HOW DO WE CONSTRUE THE WILL WHERE CHANGES HAVE OCCURRED ON PROPERTY?
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Downloaded From OutlineDepot.com Ademption When something adeems it is done away with. This is a method of construing a will when the property isnt there any more.
ADEMPTION BY EXTINCTION: A change that is a reduction or elimination of the assets.
It relates ONLY to SPEIFIC DEVISED ASSETS. Its the nullification of a bequest of property b/c its no longer in the Ts estate at the time of death. So you start out w/ a Specific Devise and the item is no longer in the estate when T dies. Either the assets are substantially diminished or eliminated. So the devises go away b/c the assets went away. Identity Theory: If the devised item is NOT in the estate at the time of Ts death, it can NOT pass to the devisee. The focus is on the actual existence or nonexistence of the devised property. The Cts dont care what the T intended. Either it is in the estate or not. If NOT the devisee is out of luck. Wasserman: Fred died and made an inter-vivos trust. Drapkin is the settler gave property to trustee and benefits go to beneficiary. W was supposed to get an Apt building, but when the trust was executed the apt building was already sold and she never transferred the property into the trust the specific devise is no longer in the estate. We do not have the property in the trust but the $ from the sale went into the trust. W claims that the T clearly intended to give her the $ (specific devise). Court: The Ct held that the gift was adeemed by the T b/4 she died so the beneficiary gets nothing. The Ct applied the common law rule that says if the item does NOT exist in the Ts estate then in essence the devise has been revoked. Ademption by extinction ONLY applies to specific devises. CL did not look at intent. Under CL Cts do NOT look to intent. This only applies to specific devises.
Non-Ademption 2606 Non-Ademption Statues telling the devisee here is what you get. Statue flips Wasserman over. Statute looks at the T INTENT. A specific devisee has a right to the specifically devised property in the Ts estate at death and all of the following: (a) (f) which focuses on the Ts intent Value will be determined as of date of death. So if this statute existed for Ws case, she wouldve gotten the value of the building.
ADEMPTION BY SATISFACTION: This is the T estate version of advancements. The devise is

reduced or goes away b/c it was satisfied during the Ts lifetime. Its an inter vivos gift given to the devisee with the intent that the amount of the gift is to be deducted from the devise. T declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise. 2608 ASK: Are any of the following true?
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Do we have an inter vivos gift? Does the will provide for a deduction of the gift? Is it a contemporaneous writing? Is there an indication that the amount of inter vivos gift is to be deducted from the will? Ademption by Satisfaction APPLIES to ALL types of devisees.
(1) (2) (3) (4)
Ex: Ts will devises the following: To my sister, Lynn, $10,000. The balance to my brother, Jed. A year later, T gave Lynn a check for $7,500 so Lynn could buy a car which she needed for a new job. On the back of the check, T wrote: Deduct from gift in will. Its a valid ademption by satisfaction and Lynn will get $2,500 ($10,000 - $7,500) b/c the check that T gave L was an inter vivos gift, which was contemporaneous writing (written within a year from the will), and it clearly provided and indicated that the amount be deducted from the devise. If Lyn predeceased the T, her descendants would take $2,500. Note we dont have to do hotchpot.
Increase in Securities (Accession) 2605 If a specific devised property increases in value because of its nature, devisee gets its increase; focuses on the companys action (i.e. company merger), NOT the Ts action.
This ONLY applies to SPECIFIC DEVISES
GR: If the change is the result of Co action (merger) the devisee will get the benefit of the result from that action. However, if the benefit is the result of Ts action (buying more stocks) the devisee will NOT get the benefit of the result.
Example: Savings account growing because of interest Problem: To Linda 200 shares of H stock. AT&T merges with H. This company action done on a 2 for 1 basis so T now owns 400 shares of THarbor stock (combined entity). So Linda owns the T-Harbor stock at Testators death: 400 shares.
WHAT HAPPENS IF THE DEVISEE PREDECEASES TESTATOR? HOW IS WILL INTERPRETED AND PROPERTY DISTRIBUTED?
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LAPSE OF TIME:
Under CL if the devisee died before the T, the gift was said to have lapsed, and the devise failed. So, you treat it as if the devise never existed = gift is invalid. When the devise lapses, a specific or general devise fails, then it becomes part of the residue. If the devise that failed was the residue: Residue is like a safety net that catches whatever fails. If the residue is devised to 2 or more the share that fails passes to the other residuary devisee. Ex: Residue to A & B and A died, it would go to B. If no one is there to take then it goes through intestacy. Ex: Residue to A (A predeceased) intestacy
Modern Trend: Now we have ANTI-LAPSE STATUTES (prevents intestacy) where there are provisions that preserve the devise for the devisees descendants substitute gift This saves a devise from lapsing. When a devisee who is a member of the protected group deceases, the devise will be saved.
Alternative Devise: 2601(a) ASK T: What would you like to happen to the specific devise if they should predecease? Ex: T residue is to go to my daughter Samantha (residuary devise), in the event that Samantha should predecease I devise the residue to my brother John (alternative devise). This would be upheld because it shows testators intent. If there is an alternative devise then thats it! IF there is no alternative devise then there is an issue of lapse. The residue can be designated as the alternative devise once it is expressly stated If there is tension between the alternative devise and antilapse then the alternative devise wins Alternative devisee does NOT have to be a member of the protected class Alternative devise will NOT automatically make the residuary devisee the alternative devisee unless the will states to do this.
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REQUIREMENTS FOR LAPSE: 2603 (Lapse
Analysis) ASK:
(1)
Testator?
Did the Devisee Predecease the If No, No Anti-Lapse Issue If Yes, Continue
Did the Ts will provide for an Alternative Devise? If Yes did the alternative devisee survive T and are they eligible to take from T? If yes, Then thats it! Use Alternative Devise If No, Continue (NOTE: words of survivorship, such as to my surviving children, by themselves are not enough to create an alternative devise- EPIC 2603(1)(c))
(2)
(3)
Who is the Predeceased Devisee? Devisee must be a member of the protected class which includes: Testators grandparents Descendants of testators grandparents (includes aunts, cousins, nieces, nephews) OR Ts Step-child THINK: Want to keep it w/in the family. If No, Stop b/c the gift lapses & the Anti-Lapse Statute will NOT apply If Yes, Continue If no, then the anti-lapse provisions will not apply. If the devise was general or specific, the asset that is the subject of the lapsed devise will pass to the residue of the estate (EPIC 2604(1)). If the devise was the residuary devise, then the predeceased devisees share passes to the other residuary devisees, if any (EPIC 2604(2)). If there are no other residuary devisees, then the residue passes by intestacy.
(4) Did the Predeceased Devisee leave surviving descendants? If No, the gift fails Anti-Lapse will Not work. If Yes, the statute will create a substitute gift in the descendants of the
predeceased devisee and they take by representation.
2603(1)(a) Alternative Devise: If the devisee is one of the above and devisee leaves descendants the deceased devisees descendants take the property as a substitute gift for the deceased Descendants will take by representation (only the devisees share) No alternative devisees exist Ex: To my son Dave I leave $50,000, D predeceases T. Dave is survived by 2 children, Edna and Ralph. Analysis: (1) Yes, D predeceased T. (2) No then go to 2603 (3) Yes, Dave is part of the protected group.
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(4)
Yes, D is survived by E and R substitute gift E and R get $25,000 each.
If the will creates an alternative devise, the substitute gift is superseded by the alternative devise ONLY IF an expressly designated devisee of the alternative devise is entitled to take under the will. Ex: Ts will provides this gift, To my sister Carol, my 1995 Porsche. If Carol fails to survive me, I leave my 1995 Porsche to my wife, Aimee. Carol predeceases T, and is survived by Carols daughter, Kelly. Aimee and Kelly survive T. Analysis: (1) Yes, W predeceases T (2) YES, T provided Aimee as the alternative devise. So, she will get the car b/c T expressly designated her to have the car if Carol should predecease T. TRUST Trustee: Legal Title - Ownership Settlor Beneficiaries: Beneficial Title -aka- Equitable Title TRANSFER OF PROPERTY THAT IMPOSES FIDUCIARY DUTIES: Vocabulary Settlor: Creates the trust and transfers property (donor, grantor); has legal and equitable title transfers to Trustee: Gains legal title (NOT full ownership), gains power to manage, invest, control, use it wisely, they have obligation and duties concerning the trust (But they do NOT have the ultimate benefit). Beneficiary: Receives equitable/beneficial title (personal enjoyment or use) Creating in the beneficiary a property right. Income Beneficiary: Beneficiary may only have a right to income or life-estate in the income, or income and principal amt. Remainder Beneficiary (Distributee): Is the person who has the right to ultimate distribution of the assets receiving fee-simple legal title. Res (Principal, Property, Corpus, Estate): Principal Value & the Income Generated Prohibited Trust Provision
2603(1)(d) Alternative Devise Supersedes Substituted Gift:
PROHIBITED TRUSTS AND WILLS PROVISIONS: Conditions placed in wills and trusts
A trust can exist for any purpose unless it is illegal or requires T to commit a criminal or tortuous act, or unless it violates public policy. Conditions that VIOLATE THE LAW will not be enforceable Public policy issues- RESTRAINTS ON MARRIAGE - Conditions that tend to discourage marriage are considered to be restraints on marriage and are disfavored by the courts as violating public policy. Restraints on ANY first marriage: To T, in trust for B, but if B EVER marries, the trust shall terminate and the assets be distributed to D.
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Downloaded From OutlineDepot.com If the condition appears to be intended only to discourage B from ever marrying, it will be seen as a total restraint on marriage. Total restraints violate public policy, and the provision will likely be deemed not valid. If there is evidence that the intent was something else, like support until B marries, then the provision likely will be considered valid. Extrinsic evidence will be considered. Restraints on SOME first marriages: To T, in trust for B, but if B ever marries a German-born person, then the trust shall terminate and the assets be distributed to D. If the condition discourages B from marrying only some people, the condition will be deemed valid if the court feels it imposes reasonable limitations. It will likely be deemed unreasonable if a marriage permitted by the restraint is NOT LIKELY TO OCCUR, or if one prohibited by the restraint is likely to occur.
Restraints on marriage until after attaining designated age: To T, in trust for B, but if B should marry before the age of 25, then the trust shall terminate and the assets be distributed to D. The test is reasonableness.
Restraint on Re-marriage: To T, in trust for S for life or until S remarries. If S ever marries, the trust shall terminate, and the assets be distributed to D. A condition discouraging re-marriage will be deemed valid only if: S the spouse of transferor OR It is reasonable under all the circumstances
Conditions encouraging separation or divorce are viewed unfavorably as violating public policy: To T, in trust for B, if B has divorced C by the date of my death. If B has not divorced C, or at if any time B remarries C, the trust shall terminate and the assets be distributed to D.
Restraints regarding personal habits are generally valid unless they encourage someone to start an unhealthy habit: To T, in trust for B, as long as B smokes 10 cigarettes, but no more, each day. Pour-Over Trust Provision in a will that devisees assets to an already existing Inter-vivos Trust.
A TRUST IS NOT A GIFT OUTRIGHT, BUT A GIFT WITH DUTIES ATTACHED: Transfer of property, with responsibilities and duties, with the intent for a 3P to benefit. WHY DO WE CREATE A TRUST?: (1) To protect the beneficiary from themselves (2) You want the money invested to provide for the beneficiary in the future (3) You might want to provide for an incapacitated person (4) To avoid probate
(1)
THERE ARE TWO TYPES OF TRUSTS: Deals w/ the Time the Trust is Created Inter-Vivos Trust: Creates a trust during settlors lifetime.
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(2)
Testamentary Trust: Trust arises by virtue of a will; So, a valid will affects a testamentary trust because a testamentary trust is contained in a valid will so we look at whether the will is valid. Barnette: Barnette has died and owned a storage business. His primary asset was stocks that represented the ownership of the business.. Barnette created an inter-vivos trust. He declared himself as the owner of trust He transferred the shares of stock to himself as a trustee and the benefits are for Margaret. He attained a right to revoke the trust. Upon Mr. B death Margaret was to become the Trustee and distribute the property to her self. Marital difficulties took place. Trustee: Transferred shares of stock to himself Barnette/ Settlor Beneficiary: Margaret If we have a successfully created Trust the shares of stock will go through NON-Probate. Mr. B does not want his wife to take the stocks and executes a will all to my sons. In order to give the shares of the stock to his sons he has to revoke the trust which he gave himself the power to revoke. By revoking the trust he brings the shares of stock into his own name and they go through probate. Elements of a Trust: (1) COMPETNENT Settlor and Trustee:
(2) Clear and Unequivocal INTENT to Create a Trust: Not giving the
property as an outright gift. Transfer to a Trustee for the benefit of a 3rd party.
(3) Ascertainable TRUST RES: Has to be property in the trust (property

right) & the transfer has to be effectively transferred.
(4) Sufficiently Identifiable BENEFICARIES: If there is not identifiable

beneficiaries but a trust was intended we will have a failure of the beneficial interest the assets will revert back to the settlor or if the settlers dead to their estate. Court: Trust was revoked and the will wins! ELEMENTS OF A TRUST What is Necessary to Create a Trust.
COMPETENT settlor and trustee: Testamentary trust: Same measure of testamentary capacity a for a will If the trust fails then the trust is invalid and the trust assets go back to the estate Hiles: An Testamentary trust will not fail b/c it doesnt name a trustee, the Ct will appoint one. Inter vivos trust: May be a higher level of capacity MUST be capable of entering into a K If an inter vivos trust fails then because they are not a competent settlor then the trust is not valid so the trust assets go back to the settlor
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Downloaded From OutlineDepot.com UNEQUIVOCAL INTENT to create a trust: THINK: If NO intent then intended to be a gift outright. Must be clear and unequivocal that its NOT a gift outright, but a gifted intended for the benefit of another (beneficiary).
Intent to Split Title: CANNOT give a gift outright (when trustee and beneficiary are the same person) then the trust is not valid Haskell: T intended to create a trust and that both gifts were not meant to be gifts outright ($500 general devise) and the (residue) rest to be disposed of as he pleases unidentifiable beneficiary trust fails therefore it will is going to revert to the estate and the assets will go though intestacy. Intent to Impose Fiduciary Duties: (mandatory duties) If there are no duties then the trust fails (considered outright gift) Verbs like -- Distribute, invest etc. are attempts to impose fiduciary duties Words like trust and trustee alone do not impose duties How do you know you have a split title? As long as some part of the legal interest goes to someone DIFFERENT
PROPERTY Must Be Placed In A Trust: Ascertainable TRUST RES (2 ways to place it in a trust) (1) ASK: Whats being transferred? Examples: To S in trust, money from life insurance policy. At this time S has a K right with this insurance policy. So YES he has this K right that he can transfer. To S in trust, the money I expect to get from my Dads estate. NO, there is no ownership right and this would not qualify as an ascertainable trust res.
(2) ASK: Has there been a transfer? By Declaration of Trust: Settlor announces they transfer property to
trust. If S names himself T, its enough to say that theres a trust. By Transfer in Trust: By document or physical transfer of property SO you must know what the trust property is and if its been effectively transferred If there is no property then the trust is not funded so you must fund it or it will fail and revert back to the settlor. Sufficiently Identifiable/Ascertainable BENEFICIARY: Beneficiary must be specifically identified or identifiable. (Unlike
Haskell)
The trust will fail if there is no Identifiable Beneficiary the property will revert back to the decedents estate. Moss: Beneficiary was unidentifiable, but it was ascertainable, b/c the trust was set-up so they knew who S intended the $ to go to.
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Downloaded From OutlineDepot.com SETTLORS RETENTION OF POWER ASK What did the S give up - transfer? Issue arises w/ INTER-VIVOS TRUST Newman: Mr. Newman created a trust for the benefit of his wife to have a life-estate in 1/3 of all property language does away w/ her right of election. 3 days b/4 Mr. died he setup an intervivos trust and transferred to T his entire estate leaving wife w/ nothing b/c nothing is in the probate estate. Court: Mr. retained so much control that it was not even a trust (enjoyment of entire income, right to revoke the trust at his will, not giving authority to the trustee unless the settler approved); it was not a transfer at all, but an Illusory Trust. Settlor makes a trust, names himself trustee and reserves the right to revoke and sell and pocket earnings. Only upon death the person will get the property. Sounds like a testamentary trust (by will). Mr. is really using the trust as a loophole to get around the law. It is an attempt to deprive ones spouse of a statutory forced share of ones estate by transferring property to a 3rd person but retaining substantial power of ownership. Farkas: Settlor Farkas transferred property into a trust naming himself Trustee for the Benefit of Mr. William. Although S retained a lot of power, court held it was NOT an illusory trust; Farkas wasnt trying to avoid responsibility RESULTING TRUST (1) The tool the court uses when the beneficial interest fails for some reason (indefiniteness or no successor named) (2) There is no place for assets to go so it reverts back to the settlor (3) It will go back to the estate and passes through intestacy SPECIAL TRUST PROVISIONS DEALING W/ BENEFIARIES C/ORS Ex: In the trust we have assets (Trust Res) mainly its cash or securities. When we create the trust there is an outflow of the trust to the beneficiary. What the beneficiary has a right to depends on the terms of the trust. (1) Income Beneficiary OR (2) Right to the Income & right to the Corpus or Principal Issue: What if the Beneficiary has C/or that want to collect on the debt. At what point can the Beneficiaries C/ors get at the trust assets?
GR: After Distribution to the Beneficiary. B/c one the $ is paid out to the beneficiary its theirs. Issue: Is there anytime that a C/or can get at the assets PRIOR TO DISTRIBUTION? It depends CREDITOR ACCESS TO TRUST ASSETS PRIOR TO DISTRIBUTION NO Spendthrift- No Discretionary Spendthrift- No Discretionary Spendthrift and Discretionary
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General Creditors Alimony Child Support Creditors providing necessaries
Yes Yes Yes Yes
No* Maybe Yes Yes, if support trust
No No No** No**
* In some jurisdictions, creditors may be able to force mandated payment, or invade trust for assets that should have been paid under the terms of the trust. ** Unless court determines that denying access would defeat the purpose of the trust. HERE ARE 3 TYPES OF SPECIAL TRUST PROVISIONS: 1. Spendthrift Provision 2. Support Provision 3. Discretionary language SPENDTHRIFT PROVISION: Prevents the Beneficiary from assigning the right to the $ b/4 distribution Prevents the C/or from having any rights to the assets b/4 distribution blocks the C/ors so they cant get the $. Spendthrift Language: S, to T $1,000,000 for benefit of B. T shall pay all trust income to B quarterly. No interest in the income or principal of this trust may be voluntarily or involuntarily transferred, anticipated or assigned by B before payment, or delivery of the interest to B by the trustee; nor shall any interest be subject to the claims of creditors. If there is a spendthrift provision the C/ors can NOT get at the assets b/4 distribution and even if the Beneficiary assigns those assets prior to distribution is will be unenforceable. Only time the C/or may get the $ prior to distribution is if the payment hasnt been made to the beneficiary at the time when it was due C/or can say Trustee pay me. MINORITY JURSIDICTION. where it wont work EXCEPTIONS To the enforceability of the Spendthrift Provision
Settlor as Sole Beneficiary: Settlor is the sole beneficiary then we will not let the spendthrift provision win, we are not going to let Settlor get around the law and set up provisions C/ors can get the $$. The Settlor can NOT place property in trust for his own benefit and keep it beyond the reach of C/ors.
Child Support or Alimony: In these situations Beneficiary has a right to the $. Child Support: In all Jxs a spendthrift provision will NOT bar a claim of child support and the C/or can get at the assets b/4 distribution. PP is that children need support.
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Downloaded From OutlineDepot.com Alimony: Jurisdictions are split- A spendthrift provision will not bar a claim of alimony in some jurisdictions. SUPPORT PROVISION: Creditors providing NECESSARIES - Support, Maintenance and Welfare (Food, clothing, and shelter )- It does not have to be SOLELY for support. Plus it only allows Trustee to provide $ to the beneficiary for necessaries. Support Language: To T, $1,000,000 in trust for the benefit of B. T shall use the income for the support, maintenance, and welfare of B. The purpose for creating this type of trust is to use it for care, maintenance, and support and there is a mandatory payment of income for certain purposes. The only creditors who have a claim are those who provided support necessaries. But if the support trust also gives discretion now even the creditors who provided necessaries CANNOT get anything UNLESS they show bad faith. GR: The C/or can get only what the Beneficiary has a right to. Exception: If the Beneficiary is entitled to use the $/income for support, maintenance, and welfare then the C/or can go after any income that hasnt been distributed for support, maintenance, and welfare and can demand payment of the $ even if there is a spendthrift provision.
DISCRETIONARY LANGUAGE: Payment at the discretion of the Trustee. Discretionary Language: To T, $1,000,000 in trust for benefit of B. T shall distribute the income to B quarterly, at Ts discretion. Upon Bs death, T shall distribute the principal and accrued interest, if any, to R. To T, $100,000, for the benefit of B. Trustee shall use the income and principal of this trust at Ts full discretion for education of B.
trust.
The discretion has to be exercised in good faith. Once the trustee has discretion then you have a creditor proof BUT the federal government can break through anything
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The best scenario is to have both a S/T/P and a D/L.
Hypo: W is seriously ill, IF NO D/L, the Dr. could get at the funds. BUT IF there IS a D/L, the Dr. CANNOT get to the $$$. Miller: Although it appeared to be a support trust, the Ct recognized the powerful discretionary language: A trust providing the trustee may pay to the beneficiary so much of the income or principle as the trustee deems proper.
TRUST TERMINATION HOW DOES A TRUST TERMINATEINATE: (1) The trust terminates when there is nothing left; the trust runs out of assets. If the trust terminates because there are no more duties then we say the trust is executed. (2) The principle and the income is distributed in full. (3) Remaindermen are the last people to receive the property from the trust.
7 WAYS A TRUST TERMINATES REMEMBER: Where the assets go depends on how it is terminated.
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(1) The trust can terminate by its own terms: If the trust terminates by its own terms and an
alternative distributee is named then the assets go to alternative distributee and the trust terminates Ex: When S reaches the age of 35, T is to distribute the principal and undistributed accrued income to my daughter B and S.
(2) If there is a failure of beneficial interest: (3) If the settlor retains the rights to revoke the trust then it is terminated and the assets go
back to the settlor. GR: A trust is deemed Irrevocable UNLESS the settlor retains the right to revoke this must be specified.
(4) If the settlor successfully challenges the trust: you use same challenges that you use for a
will fraud, undue influence, lack of testamentary intent, etc. Pernod: Court did not accept settlor challenge b/c attorney proved that he had fully informed mother that she was executing an irrevocable trust.
(5) The settlor is sole beneficiary and seeks to terminate the trust (no one will complain
settlor is the only one) Woodruff: Mrs. W was the settlor sole beneficiary: Even if there is no express provision and she says, I no longer want this trust to exist anymore, the trust will terminate.
GR: If the settlor is the sole beneficiary they have the right to terminate the trust
b/c who is going to complain.
(6) If ALL beneficiaries agree to terminate: Beneficiaries + Settlor agree to terminate. Problem is w/ the word ALL b/c if you have beneficiaries yet to be born then
not ALL of the beneficiaries will be represented.
Underhill: Power of Appointment: Sally Kemper (daughter) shall have power by her last will and testament to devise the same to whomsoever she may seem proper. She has the power to appoint whatever is left to whom she sees fit.
Beneficiaries (mom and daughter) agree to terminate, but the court said NO, b/c
the conclusive presumption is that they may have children and there are potential remaindermen, other beneficiaries.
(7) If there are no other duties to perform (beneficiaries can seek to execute the trust
terminate) or no duties initially placed. Claflin: C got the 1st $10k at 21, but wanted the rest right away instead of waiting at 25, then 30. So he argued that the trustee had no duties to perform and they agreed that he was the only beneficiary to that 1/3. But the court said no b/c of the material purpose doctrine (Claflin doctrine): if a material purpose still exists for the trust (here than trustee must make payments according to age and A must wait). Bellows: Fathers trust: Mom had a duty to use such portions of my said daughters income and principal as may be necessary for my said daughters suitable maintenance. Support Trust. Aunts trust: Did NOT state a purpose, so court allowed execution of the trust, doesnt want to tie up property if there is no purpose.
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Dry Trust aka Naked Trust: No duties to perform beneficiary can seek to
have the rust terminated. MODIFIED HOW IS A TRUST MODIFIED / DEVIATED?
TEST: Whether the S would have approved the change if he had been able to anticipate the circumstances. (1) You can modify the trust if modification is to change administrative responsibilities Changing trustee, changing investment opportunities, different duties
(2) Courts will allow deviation if the purpose of the trust has become illegal; it is
now impossible. Example: Prof. F sets up a trust for her son to have his bar tab paid at age 18, but then the legal drinking age becomes 21. Then the trust is allowed to be modified.
(3) Courts will NOT allow deviation of the value of the trust or modification of
interest if it causes enlargement of the beneficial interest to the beneficiary or there is an invasion into the principle when the trust only provides for income distribution
(4) Adams: Court didnt allow modification b/c it would defeat the trusts purpose.
CHARITABLE TRUST CHARITABLE OR PUBLIC TRUSTS: (1)This is a trust that benefits a large group or community. It must be more of a general benefit to a wide scope of people. Thus, being a fact intensive issue.
(2) Public policy: we like valuable assets to benefit the community, encourage giving and
investing into the community, keep money in the public good so we will allow charitable trusts to break the rules (go into perpetuity)
(3) Acceptable purposes for charitable trusts:

Relief of poverty, Advancement of education or religion, Promotion of health and safety Advancement of a municipal purpose, community Advancement of an idea (i.e. that animal testing is bad) Why do we allow this? Charities are tax exempt entities
(4) CHARITABLE TRUST ANALYSIS:

First get it identified as a charitable trust Dont need to have an ascertainable beneficiary (the whole rap thing doesnt apply here) Can have a indefinite duration Prosecutor (usually the DA) has standing to sue when there is a trustee misbehavior
(5) CY PRES: This allows the court to modify the purpose since it is a public trust
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If it is a private trust (mainly for family, children, and spouses) the test is whether the settlor would approve. In public trusts the test is whether the settlor had the general charitable intent. Was the purpose to be charitable? If yes then the court will be okay to switch to a different purpose.
Doctrine of Equitable Approximation: Allows the trustee to find a new purpose that comes close to the original purpose The court will NOT use Cy Pres if it is for a specific narrow purpose. It MUST be for a general purpose, intent. SO if the trust meet its specific narrow purpose then assets will go back to S Intestate takers will argue that it was specific and Community will argue that the trust had a general purpose or intent. La Fond: Court found narrow intent so heirs were allowed to take. Cy Pres will not change the beneficial interest. It will not expand the trust to include members not originally intended
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Property Owner PO Moment PO Dies Property Owner Dies Non-probate: Property Passes outside of the estate Joint Tenancy Tenancy by Entireties Insur, etc Common Forms of Will Substitutes
Probate: Anything solely owned by the decedent subject to probate process solely owned by decedent decedent share of tenancy in common
Priority: 1st pay priority claims 3805 Total Probate Assets Priority Expenses = Amt available for Distribution.
Distributable Estate: all $ left if sufficient $ is Distributable estate. Total Probate Assets Priority Expenses = Distributable Estate
Testate: testator w/ will
Intestate Succession: Statutes that make presumptions about intent
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Downloaded From OutlineDepot.com Step 1: Property Owner Step 2: Moment Property Owner Dies (3) Probate Estate: Assets that are distributed throughout the probate process Things that go into the estate. These belongings are solely owned by the decedent and have to go through the probate process. Ex: clothes, jewelry, books, a car. Tenants in Common: Has NO SURVIVORSHIP RIGHTS. Also the ownership interests do not have to be equal. If the decedent owns property as T/C the share of the decedents property goes into the estate Inheritable Interest. (2) Non-Probate Estate (outside of the estate): Property passes outside of the estate Joint Tenancy: Where 2 people share individual ownership of property during their lifetime and when one dies the survivor becomes the sole owner Right of Survivor Ship. Tenancy by Entierties: Owned by H & W right of survivorship passes to the surviving spouse. Insurance Etc: Contractual agreement wherein the beneficiary receives a payment upon the death of the owner (owner, insured, beneficiary). These are considered Common Forms of Will Substitutes Step 3: 3805 - Priority (1) Figure out Probate vs. Non-Probate
(2) Total Probate Assets Priority Expenses 3805 = Amt Available for Distribution aka Distributable Estate. Step 4: Distribute the Estate (3) Testate/ Will: Issue of Testacy (4) Non-Testate/No Will: These assets are dealt w/ by state statutes that make presumptions about decedents intent. Presumption is that decedent will want their family to take first. We are looking at statutes that make presumptions. This is b/c there is no will and the statutes (intestate succession statutes) presume what the decedent would want. Intestacy Def 2101: Anything not passed by will passes by intestate succession.
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(a) Cost and expenses of administration

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(iv) Order of filiation establishing paternity (paternity suit)

Process of Division: Identify priority generation:

(3) How many predeceased leaving descendants: Add them up

Remember: (1) If a member of the generation has predeceased leaving

(1) (2) (3) (4) (5)

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Dower Widows Elective Share in Intestate Estate

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OMITTED SPOUSES SHARE

FORCED SHARE T MARRIES SS

AFTER MARRIED SPOUSE T EXECUTES A WILL

PERTERMITTED CHILD/HEIR: Is a child that is not intentionally omitted (left out by

Distributable Estate = $150,000.

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2 W can see T actually signing the will, or T acknowledging hey this is my

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YOU MUST FIND THAT THERE WAS A SUSPICIOUS CIRCUMSTANCE

Secrecy & Haste No family members knew about the will.

(5) (6) (7)

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TESTATOR HAS WRONG INFORMATION + THERE IS A BAD GUY

(1) (2) (3) (4) (5) (6)

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Expressly or Inconsistency "I revoke all prior wills' Replacement or Supplement

A subsequent will needs to conform to requirements of a will (holographic or formal)

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TYPICAL FACT PATTERN: (Carter)

T has an effective will? IF YES then

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Issue #1 Is there an effective will? (2502 Execution of a Will Requirements)

If the court uses the doctrine of dependant relative revocation, what is

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THERE ARE 4 KINDS OF DEVISES:

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WHEN THERE IS A CHANGE B/W TIME OF EXECUTION & TIME T DIES

ADEMPTION BY EXTINCTION: A change that is a reduction or elimination of the assets.

ADEMPTION BY SATISFACTION: This is the T estate version of advancements. The devise is

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(1) (2) (3) (4)

This ONLY applies to SPECIFIC DEVISES

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REQUIREMENTS FOR LAPSE: 2603 (Lapse

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Yes, D is survived by E and R substitute gift E and R get $25,000 each.

2603(1)(d) Alternative Devise Supersedes Substituted Gift:

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(3) Ascertainable TRUST RES: Has to be property in the trust (property

(4) Sufficiently Identifiable BENEFICARIES: If there is not identifiable