Part 1: general trusts & estates policies


Partial Revocation by Physical Act



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Partial Revocation by Physical Act: The UPC permits partial revocation by physical act (majority), while some states prohibit partial revocation (minority) – worried about fraud

  1. Majority: Most jurisdictions allow partial revocation but do NOT allow a T to directly change or modify (as opposed to revoke) a provision for a devisee by physical act.

  • If testator possessed the will until death, and it can’t be found after death, then there is a presumption that testator destroyed the will with intent to revoke. (Henson-Hammer)

    1. Strength of presumption depends on control decedent had over place where it was kept, and who else had access to the will (here – the daughter was suspect, wanted intestate)

    2. Daughter doesn’t take advantage of presumption – only in effect when testator is the only one with access to the will, so since she had access presumption was overcome

      1. So classified as a “lost will” – probated as long as terms can be shown with sufficient definiteness (here photocopy is enough for probate)

      2. Revoked v. Lost Will: Necessary to have revocatory intent to revoke it, but if you’re disorganized and throw it away, might just be a “lost will”

  • METHOD #3: Revocation by Operation of Law:

    1. Like divorce, omitted kids – court automatically thinks your intention must have changed

      1. Applies to interests/benefits created in a will AND those created by other “governing instruments”; applies to trust and non-probate transfers (life insurance, pensions)

    2. Modern UPC §2-804: Revocation of Probate/Non-Probate Transfers by Divorce

      1. Revokes any revocable disposition of property made to a former spouse, or nominating of a divorced individual’s former spouse or their relatives from any representative capacities (but nullified if they remarry or if divorce is invalid)

        1. Egelhoff v. Egelhoff: (Federal pensions beneficiary contracts are binding regardless of divorce, but may be different under state law if they adopt UPC)

    3. Pre- 1990 UPC§ 2-508: Revocation by Change of Circumstances

      1. Except under §2-804, a change of circumstances does not revoke a will or any part of it

        1. Revocation by divorce only applies to interests/benefits created in a will.


    When Would You Be Prevented From Revoking A Will?

    1. UPC §2-514: Contracts Concerning Succession

    2. A contract about disposition may be established only by showing: (i) the material provisions of a contract, (ii) express reference in a will to a contract and extrinsic evidence proving terms of the contract, and (iii) writing signed by decedent evidencing contract

    1. Joint Will: Courts frequently find contract obligations when parties execute joint wills

    2. Mutual Wills: Joint will made at the same time and the wills are basically mirror images

    1. Some jurisdictions say that it provides evidence of the existence of a K (not all!)

    1. Garrett v. Read: H&W had same will, H died, wife rewrote – disinherited husbands kids

    1. Holding: Original will was both a will and a K. Was revocable as a will, but enforceable as a K. To establish that reciprocal wills were executed under an agreement, court didn’t need express contractual provision, used extrinsic evidence from drafting attorney, and inferred from plural pronouns, joinder and consent language – a constructive trust was a proper remedy

    1. Good Practice: What if she had won the lottery after? Need to draft provisions about wealth accumulated: Have to do something special and particularized to them – want to decrease litigation (maybe draft a specific contractual agreement into the mirror wills)



    1. A Previous Will Was Revived

      1. Revocation of last will doesn’t reinstate prior will – reinstatement requires formalities and intent that aren’t present in destroying final will

        1. Steps: (1) Have Valid Will #1, (2) Revoked by Valid Will #2, (3) Will #2 Revoked

      2. Restricted Revival: Will #1 comes back to life if it is re-executed with proper formalities or if it’s republished by codicil (codicil adopted that refers back to Will #1)

        1. Majority: Will #2 legally revokes Will #1 when Will #2 is executed

          1. BUT will #1 is revived when Will #2 revoked if testator so intends

        2. Minority Non-UPC: Revoked will cannot be revived unless re-executed with testamentary formalities or republished by being referred to in a later duly executed testamentary writing




      1. UPC §2-509: Revival of a Revoked Will:

        1. (a) WHOLLY REVOKED: If subsequent will that revoked previous will is later physically revoked under §2-507(a)(2), the previous will remains revoked unless it is revived (as shown that the testator intended previous will to take effect as executed (at that time or later)

        2. (b) PARTLY REVOKED: But a later will that partly revokes a previous will does revive the portion of the previous will unless it is evident that the testator didn’t want the previous portion to take effect (so presumption that it reinstates unless overcome)

        3. (c) WHOLLY OR PARTLY REVOKED: If a later will that revoked a previous will is also revoked by a later will (now 3 wills) – the previous will remains revoked unless it’s part is revived. The previous will is revived to the extent that it appears from the terms of the later will that the testator intended the previous will to take effect.

          1. Will #1 (validly executed) is either wholly or partly revoked by Will #2

            1. Then Will #2 is revoked by Will #3 (a subsequent instrument)

            2. SO Will #1 only revived if within the terms of Will #3 (no automatic revival)

      2. Dependent Relative Revocation (DRR):

        1. If a testator purports to revoke will upon a mistaken assumption of law or fact, the revocation is ineffective if testator would not have revoked the existing will if knew they knew the truth

          1. Policy: If there is no valid revival, then look to DRR as escape tool to follow T’s intent, assuming that T would rather have the old will than for estate to pass through intestacy

            1. So say Will 2 is closer to what they had wanted

          2. (1) Valid revocation  (2) Revocation was based on a mistake that new document could be given legal effect  (3) Provide good evidence of testator’s actual intent

        2. Oliva-Foster v. Oliva: Will #1 left life insurance to wife, then wrote Will #2, wife gets life insurance, then H told W to tear up Will #1, Will #2 was invalid for lack of witnesses (true)

          1. Holding: Will #1 wasn’t revoked by subsequent instrument, because “Will #2” in 2002 doesn’t count – but Will #1 is revoked by W tearing it up at H’s direction

          2. DRR applies –intended the old will to be destroyed and new will to take its place, intent he wanted Will #1 to apply (and both wills leave insurance to W, so same result really)

          3. Will #1 is revoked on condition that will #2 is valid, condition isn’t satisfied, so the condition of will #1 isn’t impacted

    1. Testator Didn’t Have the Capacity to Make It

      1. Policy for Requiring Standard: Protect family members’ expectations of inheritance, protect their true intent, (lost when they get old or lose their mind), want to improve legitimacy of courts

      2. Incapacity: Capacity is a question of fact for jury - determined at time the will was executed

        1. UPC §2-503: Person executing will has to be “of sound mind” (legal, not medical standard)

          1. Capacity is sufficient if testator is able to: (1) know the nature of the business they’re conducting (making a will), (2) recollect the property to dispose of (the natural objects of their bounty), (3) scope of their property, and (4) put them together in a coherent plan

        2. The burden to prove no capacity falls on the contestant (otherwise capacity is presumed)

          1. Can you still have capacity if you have Alzheimer’s? Courts say yes.

        3. Good Practice: Maybe don’t make a will now, wait until they recover (stroke, withdrawal)

          1. Lawyer must exercise their own judgment – if they clearly lack testamentary capacity, obligated to not draft a will (but err on the side of exercising testamentary freedom) – no need to hire a doctor – close calls can be decided in court (suspicious if you get a doc?)

            1. Err on the side of finding testamentary capacity (try to effectuate their desires)

          2. Barnes v. Marshall: Will with $½ M estate left $5 to only heir, off meds/Jesus/President

            1. Holding: Sufficient evidence he lacked testamentary capacity as seen in his eccentricities. Forgetfulness isn’t evidence of incapacity or unsound mind BUT HERE, the stories go beyond “eccentricities” and are sufficient evidence of unsound mind – plus strong medical testimony that he was unsound

        4. Insane Delusion: A testator’s insane delusion will invalidate the will for lack of capacity if the delusion produced the disposition made in the will. (Dougherty v. Rubenstein)

          1. Testator must have a belief that: (1) no similarly situated person with access to the same facts could believe, and (2) THEN a causal link between insane delusion, and the dispositive plan you want thrown out

            1. His will must have been a consequence of this insane delusion – if they have an insane delusion, but it doesn’t impact disposition in the will, will is valid

          2. Policy: Can you allow disinheritance if they acknowledge why they’re disinheriting someone, and it’s a mean but logical reason?

          3. Dougherty v. Rubenstein: Old alcoholic, son put in home after hospitalized, neighbor moved him out, thought son was stealing, cut son out of will, son sued estate

            1. Being able to care for yourself independently for 6 years is not proof of testamentary capacity, but he wasn’t insane because this wasn’t unfounded

            2. Belief that son moved him into home was real, so he could have been disinherited from resentment, not from an illusion, so maybe thinking son stole was an insane delusion, but it didn’t cause the disinheritance

      3. Undue Influence: Where free will of testator is overcome by someone else’s desires

        1. Argument: Intent of the influencer is substituted for the intent of the influence, written will does not reflect the testator’s true intent (usually involves a threat or manipulation)

          1. DO NOT need lack of capacity for undue influence (but often go together)

        2. Presumption that person contesting the will has the burden to prove undue influence, but if they can show: (1) the existence of a confidential relationship between the testator and the person charged with influencing testator, and (2) suspicious circumstances in the creation of the estate plan where dominant party receives a benefit, then burden shifts to a presumption of undue influence – person saying will valid has to prove otherwise

          1. DeLapp v. Pratt: Normal will, then changed leaving whole farm to the son

          2. Step 1: Was there a confidential relationship?

            1. Normally confidential parent-child relationships only when: (1) There is a fiduciary relationship (like if a kid were overseeing assets), or (2) if there is reliance (testator relies on person who is charged with influencing)

            2. Dominant subservient: If the influencor is dominant to the influencee because of their superior knowledge (like doctor, lawyer, tries to advise older parent)

          3. Step 2: Were there suspicious circumstances?

            1. Consider whether there was: (1) Secrecy of will’s existence, (2) testator’s advanced age, (3) lack of independent advice in will’s preparation, (3) testator’s illiteracy or blindness, (4) the unjust or unnatural nature of will’s terms, (4) testator being in emotionally distraught state, (5) discrepancies between will and testator’s expressed intentions, (6) fraud or duress toward testator

        3. Good Practice: Could have used family meeting – so they were all aware that she wanted Arthur to get the farm, OR have her evaluated by a shrink

          1. But only get a certification by a shrink if it’s questionable whether she’s normal or not

          2. Its bad to put extrinsic evidence of testator’s direct dispositive intent? But the extrinsic evidence is meant to address her capacity – not directed at resolving the ambiguity

        4. As an attorney, don’t draft the will if you know you’re getting more than other siblings

          1. Some jurisdictions void any gift to drafting attorney regardless of evidence

          2. Many jurisdictions presume undue influence if drafting attorney benefits

          3. Presumption can be rebutted by proof of obtaining independent counsel

            1. MR 1.8: May breach if you draft a relative’s will and you’re a beneficiary and don’t inform them that they should get an independent attorney



      1. Contesting the Will

        1. No-Contest Clause: States that a beneficiary who challenges the will has their gift under the estate is voided (so have to give them something in the will for the provision to apply)

          1. But if they lose, then beneficiary doesn’t get anything, so have to give them a big chunk to pay them off enough not to contest the will

        2. Good Practice: Have testator write letter saying why/how they’re structuring estate plan

          1. Start planning before he got sick – living with it a long time shows his intent

          2. Policy: Does this increase litigation where the No-Contest clause tries to prevent it?)

        3. Majority: If a will contest fails, the no-contest clause is enforceable and the will contestants lose what they would have received under the will had they not contested it

        4. Minority: UPC §3-905: A will provision penalizing an interested person for contesting the will or instituting proceedings is unenforceable if probable cause exists for the proceeding

          1. Probable Cause: RST 3d §8.5 "probable cause exists if: A reasonable person would believe that there was a substantial likelihood that the will contest would succeed."

        5. Seward Johnson: Old man married younger girl, kids wealthy, multiple will revisions, left increasing amounts to wife, gave nothing to kids, younger wife gets all

        6. Holding: Will valid, but H should have brought in another lawyer who doesn’t have such a close relationship with the wife (she was drafter, executor of estate and trustee, big fees)

          1. Could have used a no-contest clause – but would have had to pay them off basically




    1. The Surviving Spouse Wants to Elect Instead

      1. Most separate property states protect surviving spouses from disinheritance by creating a statutory right to a fixed share of the inheritance

        1. Policies For: Society wants to encourage a partnership theory of marriage, don’t want to have one spouse accumulate all the assets while the other is responsible for domestic affairs

        2. Policies Against: Posner- Inefficient to negotiate what happens if you breakup

      2. Common Law States: Treat property as individually owned unless husband and wife took title as tenants in common (Separate property, as opposed to “community” property)

        1. Elective share descends from C/L interests of dower and curtesy (which were life interests) = early approach to elective share in U.S. was to treat elective share as a support interest. Over time, we've moved toward viewing the policy support for elective share as marital partnership

      3. Elective Share Statutes: Permitted surviving souse to elect to take a statutory percentage

        1. Sometimes a wife can waive her husband’s will and take same portion of the property that she would have taken had he died intestate – the statutes do not apply to property husband conveyed during his lifetime and which wasn’t part of his estate at death

          1. Can be claimed in cases where there was either a will or intestacy

            1. There must be MARRIAGE at time of death – surviving spouse has to file an election with the probate court to claim it (6-9 months)

            2. UPC §2-212(a): Surviving spouse is living when petition filed for elective share

        2. However, in order for there to be an equitable determination of what constitutes the deceased spouse’s “estate,” courts sometimes look to “illusory transfers” or to intent to defraud the marriage by leaving the surviving spouse an artificially low remaining estate

          1. Intent to Defraud: Whether transfer was made with consideration or was a gift, size of transfer as % of total estate, time between transfer and death, relations between husband and wife during transfer, source from where property came, whether transfer was illusory, whether wife was otherwise adequately provided for

        3. Sullivan v. Burkin: $15k through probate to wife, but $85k in trust, wife wanted trust

          1. The trust was not testamentary in character – not included as estate assets

          2. All property that goes through the probate system AND any property that the decedent “gave away” but retained an interest in such that the transfer is really more testamentary than inter vivos. IF the transfer was “illusory”  gift is still valid, BUT the property in question is included in the decedent’s estate subject to the elective share

            1. No inquiry into motive/whether transfer was in bad faith):

        4. Neuman v. Door: 80 y.o. married a 40 y.o. she moved out, too hard to divorce

          1. Holding: This act was a fraud on the marriage- intent to defraud the wife of the share she is entitled to under the marriage statute

        5. Approach 2: Use UPC either Pre-1990 or 2008




    STEP 1:

    Calculate the Net Probate Estate

    (Same)


    UPC §2-204: Augmented estate (created in 1969) includes:

    • Assets owned by decedent directly, and other interests that H transferred during his life, but retained ownership control over or gave it away so close to death that we say it was owned at death

      • Reduced by funeral/administration expenses, homestead allowances, family allowances, exempt property, and enforceable creditor claims

    STEP 2:

    Calculate Non-Probate Transfers by Decedent NOT Surviving Spouse

    (Same)


    • Add transfers from decedent TO OTHERS over which:

      • Over which: Decedent retained the right to possession/income, or decedent retained the power to revoke, consume, or invade the principal;

      • Property transferred into joint tenancy (but not with surviving spouse)

      • Any property transferred by the decedent within two years of death, to the extent the transfer exceeded $3,000 per donee per year;

    STEP 3:

    Calculate Non-Probate Transfers by Decedent to the Surviving Spouse

    (difference in whether or not to add in surviving spouse’s own assets)


    • 1969 DEAD MAN  SPOUSE:

      • Property transferred to surviving spouse during decedent’s life

      • Property received by surviving spouse at decedent’s life

      • Life insurance proceeds, trust payouts, pension payments

    • EXCLUDES the surviving spouse’s property/SS’s transfers to others during marriage that kept strings of ownership

    • EXCLUDES life insurance payments to a third party

    • 2010 DEAD MAN  SPOUSE:

      • Life insurance, etc.

    • Add in Surviving Spouse’s Assets and surviving spouse’s non-probate transfers

    • INCLUDES life insurance payments to third parties

    • INCLUDES the surviving spouse’s property at decedent’s death and SS’s lifetime transfers during marriage to others that kept strings of ownership (charged against the elective share)

    STEP 4:

    Compute value of surviving spouse’s “augmented estate”

    • §2-203(a):

    • Net Probate + Transfers

    = Augmented Estate

    • Net Probate + Transfers

    = Augmented Estate

    STEP 5:

    Compute “marital property portion” of augmented estate

    • Surviving Spouse gets 1/3 of the augmented estate

    • §2-203(b): Multiply augmented estate by % that is keyed to length of marriage

    • They have been married for __ years so (_%), so gets $X = marital portion

    • Then you could elect to get 50% of the marital portion

    FINAL STEP

    Determine if disposition for spouse is sufficient for elective share

    • Did the surviving spouse’s disposition make up enough to satisfy the elective share?

    • If not, abate from other dispositions to satisfy the pool

      • Allocated ratably from each transfer

    • Lifetime gifts don’t have to be included because already presumed to be included in the surviving spouse’s amount

    • But include non-probate transfers to others besides surviving spouse

    • Numbers aren’t even, but same as pro-rata calculation


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