Part 1: general trusts & estates policies

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Should People be Able to Decide What Happens to Property After Death?

    1. YES: Encourage Gratuitous Transfers of Wealth

      1. (1) Preserves Legitimacy – Integrity of court to find just results (public wants right to decide)

        1. John Locke: Natural Law- right to dispose of one’s estate emanates from natural law- long custom are creates of civil laws

        2. Society acknowledges a connection between our lives and property. This may be partly why we give so much respect to the desires of the dead expressed through their wills

      2. (2) Efficiency: Incentive to keep working and accumulate wealth during life

        1. Hirsch & Wang- Qualitative Dead Hand: Testators have a natural right to bequeath – can do with wealth what they please

        2. Serves the public interest by promoting creation of wealth (jobs to run estate)

      3. (3) Utilitarian: Allowing people freedom of testation encourages them to take care of the elders, those who benefit from the estate to provide services that otherwise would be provided by society

        1. Life Cycle Hypothesis (Sherman): Devises are accidental. Risk adversity and uncertainty about one’s own future needs and date of death

    2. NO: State Should get Wealth upon Death

      1. (1) Wealth Disparity: Accumulation may lead to wealth-based oligarchy (need social advancmnt)

      2. (2) Fairness: Unfair for people who didn’t make the money to inherit it at expense of the public

      3. (3) Don’t Want Dynasty Trusts: Statutes preventing lengthy dead hand control in RAP

        1. C/L rule invalidates fut. interests that may vest beyond perpetuities period

          1. No more than 21 years after death of last identifiable living person at time interest was created (only violating part removed; rest is still valid)

          2. Void interest: cut it right out of trust, create a resulting trust back to settlor's estate

        2. Some states have adopted the Uniform Statutory RAP (provides 90 year window)

          1. Uses a wait-and-see rule, look at real life to see if interest vests within 90-yr period

          2. If it has not vested, USRAP allows trust reformation to make an ultimate distribution to the principal of the trust in the way that most closely represents the intent of the settlor

          3. Good Practice: In a well drafted trust with serial interests, lawyers will include a Perpetuity Savings Clause for what courts should do with an interest if a court deems an interest to not vest within the time of lives in being plus 21 years.

What is the Lawyer’s Role in Trust and Estate Planning?

  1. Lawyer’s role is mostly a planner- to help the client achieve their objectives

  2. Lawyer’s role is as a counselor (but only with compete information can you be an effective client counselor) Ask: What facts are important for drafting purposes?

  1. MR 1.6: Can’t reveal information relating to the representation of the client unless client consents

  2. MR 1.7: Can’t represent client if it’s a conflict of interest – repping one is directly adverse to other

  3. A fiduciary relationship exists when one has a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith. (Hotz v. Minyard – car dealership)

  1. Holding: Dobson was Judy’s attorney, he had an ongoing fiduciary relationship with her, so he had a duty not to misrepresent the contents of the first will.

  2. Good Practice: Sign a letter saying no secrets, and withdraw if you do

          1. But screwed if you withdraw, so give them time to fix, or family meeting

  1. Majority: Attorney who drafts document owes intended beneficiaries a duty of reasonable care.

      1. Most states don’t have a privity bar and would have allowed grandkids to sue in Barcello

      2. Whether a D owes a duty to the P depends on: Risk, foreseeability, and the likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury, and the consequences of placing the burden on D

  2. Minority: Attorney preparing estate documents owes a duty only to his client (testator) not to third parties benefited by the estate plan. (Barcello v. Elliott – no will signatures, grandkids screwed)

  1. Holding: Because attorney did not represent beneficiaries, he owed no professional duty to them. When a will is declared invalid, questions about what the testator wanted, so can’t hold attorney responsible as it might have been deceased’s’ intent to invalidate will

  2. Only 5 states uphold the privity bar found by majority opinion

  3. Policy For: Attorneys are the cheapest cost avoider. No privity bar efficiently allocates risk to the person responsible for drafting it – nobody else is in a better position to prevent negligence (cheapest cost avoider)

  4. Policy Against: Need to have limits on the AC relationship and liability to suit, don’t encourage frivolous malpractice suits by disgruntled beneficiaries



    1. UPC §2-502(a): Wills must be (1) in writing, (2) signed by testator or someone else with the testator’s presence and direction, (3) either by two other individuals after testator (or acknowledged by a notary)

      1. (b) Anything else is valid as a holographic will whether or not witnessed/ signed

      2. (c) Intent that a document be a will can be established by extrinsic evidence

      3. A will is an ambulatory instrument, it has no legal effect until the testator’s death, irrevocable then

      4. UPC §2-506: COL: Valid if executed in compliance with 2-205 or 2-503 or if it complies with the law (1) at time and place where executed, or (2) testator’s domicile at time of execution or death

    2. (1) Legal Capacity: UPC § 2-501 —an individual at least 18 y.o. to make a will.

    3. (2) Testamentary Capacity & Intent: UPC § 2-501—testator must be of “sound mind”

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

      2. 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: At the time the will is EXECUTED or REVOKED

    4. (3) Compliance with statutory formalities: Policy Functions served by Statute of Wills Formalities

      1. (1) Protective (make it be in the presence of certain trusted people, witness decrease criminals, reduces fraud or undue influence),

      2. (2) Ritual (formality, ensure careful reflection)

      3. (3) Evidentiary (hard copy is more legitimate, creates a record for probate if challenged),

      4. (4) Channeling (promotes uniformity, easier access to the courts to know what kind of document it is, what’s required to go through probate, efficient)

      5. Statute of Frauds: No action brought on any agreement not performed within a space of 1 year unless the agreement is in writing, signed by the party to be charged

      6. Same requirements for wills to be in writing – tried to codify common practices among estate planners (person in a K is still alive and can explain, but in a will, they’re not around anymore)


  1. Nuncupative Wills: Declared orally as opposed to in writing – allowed in very specific circumstances

    1. Common when people weren’t literate – speak will aloud before witnesses/court

    2. Few states recognize and they limit amount that can be transferred (usually soldiers, sea)

  2. Notarial Wills: Written will, signed by testator and attested to by a public notary

    1. As seen in UPC § 2-502(a)(3)(b): common in Europe partly because public notaries have a better legal status than in the US

  3. A Holographic Will: Handwritten doc has less chance of forgery, enhanced assurance of authenticity

    1. But sometimes creates problems –litigation, fraud, discovery of holographic wills after probate

    2. Historical part of rural life where a dying T may not be able to find two disinterested witnesses

    3. Type 1: Written, Signed and Dated: (9 states retain this rule for holographic will)

      1. Absolutely everything has to be in the testator’s handwriting

    4. Type 2: UPC “Material Provisions”: (7 have adopted this 1969 UPC approach)

      1. UPC §2-502(b): A will not complying with §2-502(a) is valid as a holographic will, whether or not witnessed, if signature and material portions of doc are in testator's handwriting

      2. Important provisions have to be in testator’s handwriting including dispositive language (“I leave my residue to __”) and indication of testator’s intent

      3. But then issue because material provisions were not handwritten with form wills

    5. Type 3:Material Portions: Some statutes require the entire holographic document be in testator’s handwriting, dated and signed (material provisions in testator’s handwriting), issue with form wills

      1. UPC 1990 version designed to validate a holographic will that has typed boilerplate form

      2. Court considers extrinsic evidence to determine whether document has testamentary intent

      3. Can look at type portion to show testamentary intent, and look at meaning of handwritten language in light of the form provisions

    6. A document is a codicil instead of a will if it amends a portion of the estate not the whole thing – holographic if it doesn’t have every necessary element to be valid. (Estate of Charles Kuralt)

      1. Holding: Sufficient evidence to find that the June 1997 letter expressed Kuralt’s intent to effect a posthumous transfer of his Montana property

        1. “Dear Pat” letter a holographic codicil, not will because only devised part of estate

    7. Courts split on whether holographic will may incorporate by reference something typed. (Easter Sunday Will) Fraud? No channeling function, more evidentiary function having handwriting on the same page as the typed doc – prevents someone from typing something up and stapling it together

  4. Formal Attested Will: Most common kind (95% of wills). Requires:

    1. (1) IN WRITING: Unlikely that audio, video, or digital will would satisfy writing requirement

        1. But see: Nevada says digital wills can be valid, but proponent must prove by clear and convincing evidence that the digital file is the only file of the will that exists


      1. Any mark representing their consent or by proxy if proxy signs at testator’s request and in their presence (focus on intent: what is closest thing to honoring the decedent’s intentions?)

      2. Taylor v. Holt: Can even have a computer generated signature

        1. UPC eliminated “at the end” requirement of signing wills

      3. Publication – act of letting witnesses know that it’s a will that the testator signed

        1. Usually orally – “this is my will and I want you to sign it as witnesses” but some states require you to publish your intention and the witnesses (required in NY)

      4. Starting in 19th century, courts required signature to be at will's end (UPC doesn’t)


      1. Most require that wills be attested- witnessed by a minimum number of competent witnesses

        1. Requires witnesses to sign in the presence of testator – not “conscious presence” to be down the hall (Morris v. West) – strict interpretation of rules, found invalid for probate

        2. CL: An interested witness was struck from will (might make the will fail entirely)

        3. Modern Majority: Void the gift to the interested witness but save the will and still allow the witness to serve as a witness.

      2. Good Candidate: Witnesses who can be found easily, won’t die first, and who can testify at the testator’s death, reputable in the community and who won’t inherit from intestate statute

      3. Attestation Clause: Boilerplate stating the will formalities have been satisfied (witnesses sign)

        1. Makes witnesses be more aware of what they’re signing – then are bound to it

        2. Not required by states, but creates a presumption that it’s valid in court

      4. Timing: Under UPC §2-502: ok if post-death signature is still within “reasonable time”

    4. (“4”) – EXECUTION CEREMONY (not part of strict requirements)

        1. Minimum Requirements: (1) will in final form (numbered, bound) with attestation clauses and self-proving affidavit if authorized, (2) two witnesses present, or three if risk of contest (drafter can be a witness) – law enforcement personnel good witnesses

        2. One room with drafter and the client (review pages, introduce witnesses)

        3. Sign only one document (ask “is this your will? Do you want it to be executed, etc.?”)

        4. As testator to read the “testimonium clause” out loud (makes you see how competent they are), then count the number of pages, initial each one, then testator signs


  1. Integration Doctrine: Allows you to integrate multiple pages as a part of one single will

    1. All pieces of paper which are present at the execution and which the testator intended to be part of the will are a part of the will (stapler) – testator should sign or initial each page of their will

  2. Incorporation by Reference: Will which disposes of property in accordance with an uncontested document will be considered valid if: (1) The writing was in existence when a will is executed, (2) the language of the will manifests this intent to incorporate the document, and (3) it describes the writing in sufficient detail to identify it (UPC §2-510) (for all kinds of property)

    1. For personal property: Can look at separate doc as long as the writing is (1) signed by testator and (2) described items and devisee with reasonable certainty (UPC §2-513, modern but minority)

      1. Allows tangibles to be executed after the execution of the will, can change it after too

    2. Incorporation by Reference can apply to incorporate language or instruments that have never been validly executed OR prior validly executed wills (like her diary /memo in Clark v. Greenhagle)

  3. Republication by Codicil: A properly executed will may incorporate by reference into its provisions any document not so executed and witnessed whether the paper refereed to is a list or memorandum if: (1) it was in existence at the time will was executed, (2) and it is identified by clear and satisfactory proof

    1. A codicil is a testamentary instrument in compliance with SOW that modifies, or revokes a will

      1. Testator’s intention prevails provided that it is consistent with the rules of law

      2. Codicil and Will are treated as One Will (date of execution is date testator executed codicil)

    2. Clark v. Greenhagle: Personal property list modified over the years (“Ginny Clark farm picture”)

      1. Holding: The will is treated as if it was re-executed at the time of the last codicil, so since the last codicil was in 1980, the notebook was “in existence” when the “will” was executed

        1. Judicial activism of them trying to do the right thing

  4. Facts of Independent Significance: Escape mechanism from strict elements of incorporation by reference

    1. UPC §2-512: Events of Independent Significance: A will may dispose of property by reference to acts and events that have significance apart from their effect upon the will’s dispositions, and are used to describe (1) who the will’s beneficiaries are, or (2) what property beneficiaries will receive

        1. Legislators were worried about potential for fraud

    2. What events may have changed the disposition of the testator’s estate after execution of the will?

        1. Independent: Execution/revocation of another person’s will, (UPC §2-512) making a trust

          1. A named beneficiary dying, the birth of a child, marriage

          2. Referring to a brokerage account (point is to make money)

          3. Referring to lists of people (who works there, membership in something else)

          4. Referring to a security box (point is for safekeeping)

        2. Not Independent: Put in a place with no purpose other than to differentiate disposition

          1. Physical placement of assets (like in a drawer, high chance of fraud)

            1. No reason for property in the envelope except to dispose of it under the will

          2. Memorandum prepared in future about disposition of an estate

          3. List written by testator (not list of something else – high chance of fraud)

    3. In Re Tipler’s Will: Claimed holographic codicil was unenforceable because it referred do a doc not yet in existence (H didn’t make his will until after W’s codicil), BUT a holographic will leaving an estate to persons named as ben’s under H’s will would contain all material provisions in Testatrix’ handwriting, and thus is valid as a holographic codicil even though the specific identity of the ben’s is contained in another document were not in her handwriting, and it happened after

        1. Holding: Mr. Tipler’s will had an independent significance of distributing his estate and was not written with the intention of distributing Mrs. Tipler’s estate


  1. ADEMPTION: A devisee has been adeemed by testator’s disposal of specifically devised property

  1. Where property can’t be properly transferred to beneficiaries because testator no longer owns it

        1. No desire for them to get the value of property – just specific property not equivalent value

  2. ADEMPTION BY EXTINCTION: Only applies to specific gifts (not general or residuary)

        1. If Specifically Devised Item Is Not in Testator’s Estate at time of his death:

        2. Identity Theory of Ademption: Specific gift is adeemed unless the item can be specifically identified as part of the estate at the time of the testator’s death.

          1. Church v. Morgan: Wrote will, then changed to higher yield account, then died

            1. Can’t use extrinsic evidence to show the reasons why the money was transferred to another account because the will is unambiguous on its face

            2. Holding: There was no ambiguity, but just series of stupid mistakes in transferring money around after will execution – person gets screwed

            3. Notes: Could counter by saying “all of the funds” in account meant as of the time when the will was signed/validated, OR that language followed by the account name raises an ambiguity, can get extrinsic evidence before the court

        3. Intent Theory of Ademption: Courts allow extrinsic evidence to show the testator’s true intent as to whether a specific gift should be treated as adeemed

          1. Good Practice: If unsure of theory, attorneys should get clients to avoid specific gifts to the extent possible – no problems with ademption, or just make clients super aware that if they dispose of those assets then they must change the will accordingly

        1. UPC §2-606: Non-Ademption of Specific Devises:

          1. (a) Specific devisee has the right to specifically devised property in estate AND:

          2. If a testator involuntarily had property taken away from them, and they haven’t been fully compensated (like condemnation proceeding), even though the beneficiary can’t receive the specific property, they are entitled to the cash value of that asset

            1. This UPC code addresses indebtedness going the other way where someone owes something to the beneficiary (like T transfers interest in fire insurance payout after the house which they specifically dvised burns down), OR

            2. (4) Any real property or tangible property owned at death which testator acquired as a replacement for specifically devised property, or

          3. Some inquiry into the testator’s intent, away from identity theory and into intent

            1. (5) A pecuniary devise equal to the value (at the date of disposition) of other specifically devised property disposed of during testator’s lifetime

            2. ONLY IF (6) Ademption would be inconsistent with testator’s manifested plan of distribution (so reduces specific devisee’s rights)

          4. (b) If specifically devised property is sold/condemned/insurance or recovery for injury is levied against it, specific devisee has the right to a general pecuniary devise equal to the net sale price, amount of the unpaid loan/insurance proceed/recovery

            1. Doesn’t create a loophole out of ademption for Church v. Morgan situation

          5. (d): Section (b) doesn’t apply if after the sale/mortgage/recovery, it was adjudicated that testator’s incapacity ceased and testator survived adjudication for at least 1 year

  1. Ademption by Satisfaction: Satisfaction is the failure of a non-specific testamentary gift because the testator has already transferred the property to the beneficiary between time of the Will execution and testator’s death. Does Not Apply to Specific Devises.

          1. Ademption – Just need to have the non-existence of the asset (no writing)

          2. Ademption by Satisfaction – Need intent that it counts against inheritance (writing)

        1. Common Law: Presumption against satisfaction UNLESS the beneficiary claiming no ademption by satisfaction was testator’s child (in which case presumption of satisfaction)

        2. Modern UPC: Presumption against satisfaction can be overcome by written evidence

          1. UPC §2-609: Property given during testator’s lifetime is treated as a satisfaction of devise if: (i) The will provides for deduction of the gift, or

          2. (ii) The testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or its value is to be deducted from value of devise or

          3. (iii) Devisee acknowledges in writing that gift satisfies devise or is to be deducted

        3. (b) For partial satisfaction: value gift at time gift given or at testator’s death, whichever first

        4. (c) If devisee fails to survive the testator, gift is treated as a full or partial satisfaction of the devise under §2-603/4 unless testator’s contemporaneous writing provides otherwise

WHAT IF THERE IS NOT Enough Money in the Estate to Follow the Will?

  1. Then the Estate Must Abate. Abatement rules determine the order of priority among various devisees when the value of the estate is insufficient to satisfy all of the devises in the will.

    1. UPC §3-902: (a) Shares of distributes abate without any preference or priority between real and personal property in the order of: property not disposed of in the will  residuary devises  general devises  specific devises.

        1. (b) But exception if the will has a different abatement order rule (this is just default)

          1. Or if the testamentary plan would be defeated by the usual order of abatement, shares of the distributes abate as may be necessary to give effect to the intention of the testator

    2. If everyone is in the same class, but have to sell some property to satisfy creditors, what do you do?

        1. Abatement within each classification is proportional. If one recipient’s property is sold, then other beneficiaries have to reimburse the seller for the proportional amount they lost in sale

    3. People with higher priority gifts less likely to suffer loss from abatement issues

        1. First to Abate: Residuary: Gifts setting that everything else is given to one

        2. Second to Abate: General: Gifts stated in dollar amounts (“I give $20k to Bob”)

          1. Demonstrative Devise: Somewhere between general and specific

            1. “I give all of my real property to Z” (Probably specific but open to argument)

        1. Last to Abate: Specific: Explicit gifts (“I give my Monet painting to Darla”)

          1. Normally tangible personal property, but can be a specific gift of land “I give Joe my residence on Main Street” or “I give Marty my bank account at Liberty Loan”

          2. **Look out for Security Interests in Property**

    1. In Re Estate of Potter: Daughter (“my house on Main Street), son (“1/2 of cash value of house”)

        1. Step 1: Classify the gifts, but don’t look at the testator’s intent, look at the words of the will,

        2. Step 2: Then abate from the priority given to the classes (Daughter’s specific > son’s general)

    2. Good Practice: Ask about intent, can draft an equal abatement clause: “It is my desire under the will to treat my Z and X equally, so if any abatement is required, I direct my executor to abate gifs to my Z and X on an equal basis even if that means items of property must be sold.”

  1. Do Liens Abate? (Normally involved in the class of specific gifts)

    1. A lien is a security interest in property, which has to be attached to specific items of property

    2. Common Law: When a will made a specific disposition of property subjected to alien, the devisee took free and clear (estate pays mortgage) –unless contrary to testator’s intent under the will

    3. Today’s Default Rule: Rebuttable presumption that specific devisee takes subject to a mortgage lien unless testator’s contrary intent appears from the will or surrounding circumstances

        1. Some banks have a provision requiring the loan to be paid off if the property is transferred

          1. Banks can’t legally force repayment of inherited properties in sale, buyer assumes debt

        2. “Just Debts” provision – will’s direction that executor pay testator’s “just debts” isn’t enough to express an intention that the estate pay off the underlying mortgage


  1. INTESTATE – Look at who was close to parents (grandparents, then siblings, then close friends)

  2. WITH A WILL – Can appoint guardian, or conservator of minor’s estate, or create a trust in their name

    1. Guardian of the Person: Appointment of guardian of minor children

      1. Usually have alternate choices – if nobody contests person chosen under the will, then appointed

        1. PHRASE: “If it becomes necessary that a guardian be appointed for any of my children, the following people are guardians, in this order”

    2. Conservator of the Minor’s Estate: What to do with child’s inherited property?

      1. Property guardianship – more expensive, conservator picked by will or court appointed

        1. Supervised by court, unless child/guardian makes direct complaint to the court about handling of property, only intervention is annual filing of transaction accounting

        2. PHRASE: “I nominate Z as conservator of the estate X and guardian of the property of such child if appointment becomes necessary”

    3. Trust for Beneficiary Under 21: If this will distributes property to a beneficiary who has not attained the age of 21 years, then such distribution is to be held in trust by (trustee) to distribute for the benefit of such beneficiary’s expenses as his discretion deems appropriate to pay for support –

      1. Short Form Trust: (Created in supplement pg 38)

        1. Payments made for support, educational and medical expenses

      2. Full Trust: Best for significant property, more detailed provisions

        1. Can specify more clearly the kinds of distributions to be made (like what type of school?)

  3. BY STATUTE – Can set aside property for orphans

    1. Custodian under Uniform Gifts to Minors Act (18) / UTMA (21): Alternative to putting it in the will

        1. Statutory way of setting aside – Provides simple trust where custodian manages property for minor child and can spend money for kid’s use or benefit

        2. Custodian instead of a conservator – ultimate distribution at different ages


  1. Void Devises- If testator devised to a person who was dead at the time of will drafting and executing

  1. Different than a lapsed devise (died between will execution and testator’s death)

        1. Some jurisdictions’ antilapse statute applies to both

  1. If the beneficiary dies after will execution, then the gift lapses, unless an anti-lapse statute applies

      1. If it lapses: Goes into your residuary

      2. If anti-lapse applies: Goes to the devise’s recipient’s descendants

      3. Cure: Use multi-generational language unless testator wants to exclude issue of deceased

      4. Automatic Cancellations: If after will execution, testator and stepchild’s parent divorce, devise to stepchild is revoked – so antilapse statute would NOT save the revoked devise

  2. Common Law: If a devisee dies before the testator, the law assumes the testator wouldn’t have wanted devised property to pass to devisee’s descendants or heirs so the gift just disappeared - lapsed

    1. No orbit at common law, and no override language

    2. However, most jurisdictions (except LA) have an “anti-lapse” statute that gives the devise to the children of deceased instead of reverting back to the testator’s estate. Most anti-lapse statutes protect a gift only if it’s made to someone who is of close relation to the testator – anti- lapse statute won’t apply to reincarnate gift if too far out of “orbit” (orbit distance varies by state, escheat line?)

  3. Good Practice: Lawyer needs to talk with client about various contingencies

    1. Spell out the plan carefully to avoid any ambiguity in phrasing, name alternative/ substitute takers

  4. Pre-1990 UPC §2-605: (Majority)

    1. Orbit: Saves gifts to devisees who are grandparents and lineal descendants of testator’s grandparents (aunts, uncles, nephews, nieces)

    2. Mere words of survivorship ARE ENOUGH to override anti-lapse statute

        1. Issue of deceased beneficiary takes the devise by representation

  5. Post-1990 UPC §2-603: (Minority)

    1. Orbit: Saves gifts to grandparents and descendants of grandparents And Step Kids

        1. Or the donor of a power of appointment exercised by the T’s will

    2. Mere words of survivorship ARE NOT ENOUGH to override anti-lapse statute

        1. Insert an express "alternative devise" under UPC §2-603(b)(4), or OR under (b)(3) provide additional evidence that shows a sufficient indication of intent around anti-lapse statute

        2. Morse v. Sharkey: “50% thereof to my brothers and sister that survive me, share and share alike, or to survivors thereof”

          1. Enough signs of intent to override the anti-lapse statute because of its duplicative nature, but the 50% that goes to “H’s relatives” doesn’t apply to anti-lapse statute because not within the protective orbit

    3. UPC §2-603(b)(4): Alternative Gift: Names an alternate taker to receive the gift intesad of the devise passing to the deceased person’s heirs

      1. Alternative taker is valid if that person is allowed to take under the will (no contest)

      2. Substitute gift- when the anti-lapse statute does apply, and the gift goes to your kids

          1. Substitute gift is superseded by the alternative taker

  6. Lapse of Specific & General Devise: If a specific or general devise to a beneficiary lapses, property passes into the residue of the testator’s estate

    1. Ex: $50k to D, and the remainder of my estate to X,” but then D dies, $50k goes to X in residuary

  7. Lapse of Residuary Devise: If testator devises the residue of her estate to one person and that lapses, residue passes by intestate succession

    1. Old: If two residue recipients, and one dies, the other gets the fraction of the residue which they would have split, rest by intestate succession (if both die, goes through intestacy)

    2. Modern: If two residue recipients and one dies, remaining survivor gets all (no intestacy), but if both residuary beneficiaries die, then through intestacy

  8. Lapse of Class Gifts: Disposition to individually named beneficiaries, which form a natural class

    1. If individuals are named, it is to be treated as a gift to the individuals absent clear and convincing intent to create a class gift (Not a class gift “To my bowling partners, Bob and Joe”)

    2. Common Law: If testator devises to a class, the remaining class splits evenly the amount that would have gone to a devisee of the class if they hadn’t predeceased the testator

      1. The C/L rule would exclude the deceased class member's issue

    3. Upc §2-603(b)(2): If it is a class gift (but not to issue, descendants, or heirs or relatives/family) then a substitute gift is created in the surviving descendants of a deceased devisee

      1. Property devisee would have gotten is passed along to their issue by representation

    4. If they compete, anti-lapse rule trumps class gifts (If class is within the orbit):

      1. "I give $100,000 to be divided among my brothers"

      2. Class gift would tell us to shift the gift from going from 5 to 4 people, if one of class members died before testator, BUT applying the anti-lapse rule, brothers are in the protective orbit, so anti-lapse trumps and dead brother’s issue inherits his 1/5 share

      3. But if there were words of survivorship, or alternate takers, those would trump


  1. Courts might be selective about the formality requirement if they feel that someone is being taken advantage of, or someone is being wrongly disinherited, but being flexible incentivizes attorneys from being careful, might do statutory minimum and ultimately increase litigation overall

    1. Good Practice: Lawyer should know state statutory requirements, be totally compliant


  1. YES: If there is an intention to make a statutorily invalid will stand as the final version, extrinsic evidence can be allowed to show testator’s intent. (Estate of Hall)

    1. Joint Will (invalid for lack of witnesses), specifically invalidated former wills, and H instructed W to tear up the Original Will – so extrinsic evidence shows intent to make Joint Will binding

    2. Holding: Need two witnesses to watch the testator sign, but if not, can still be valid if the circumstances show that the decedent intended the doc to be the will

  2. (1) Harmless Error/Dispensing Power: Even though a document wasn’t executed in compliance with UPC §2-502, treated as if it was if it establishes by clear and convincing evidence what testator wanted

    1. Dispensing power is a mechanism for assuring the testator 's wishes are given full effect, despite lapses by the lawyer, or by an uncounseled testator. Dispensing power will eliminate many instances in which courts have frustrated T's intent by rigidly adhering to statutory formalities

  3. (2) Substantial Compliance Doctrine: Judicially created, will that has less than the strict statutory formality requirements can be admitted if it has testator’s testamentary intent and sufficiently conforms to formalities so that the underlying purposes of the formalities are served

    1. Too ironic to insist on literal compliance if it invalidates what testator intended – frustrates the whole purpose of formalities (but how to prove intent?)

    2. In Re Rainey: Testator and witnesses didn’t sign on the attestation clause, just the self-proving clause (isn’t even part of the will), looked at each policy element –valid even tho unsigned, no 2-503

  4. (3) Strict Compliance with Gloss: Hold with strict compliance, but small door for extreme circumstances of minor non-compliance (best rule if state doesn’t completely validate a near-miss rule like §2-503)

    1. Ex: Two wills for a couple- husband signed wife’s and vice versa

    2. This case is so unique, validate this one without undermining the bright line rule

  5. (4) Strict Compliance: Need 100% compliance with the statute

    1. No substantial compliance, no deviation with gloss or policy argument


  1. If testator’s actual thoughts can’t be ascertained directly, then goal of interpretation is to infer from the terms on the page, the testator’s intent the words represent

    1. Interpretive issues arise even when there is no “time gap” (like abatement, ademption and lapse deal with events testator or lawyer didn’t anticipate during will execution)

  2. Method 1: Reading the Wills as a Whole

    1. Reading of the will as a whole might show testator’s meaning even though a particular devise appears ambiguous – don’t look beyond 4 corners of doc (unless an extraordinary circumstance)

    2. Ex: Will says “I leave everything to my daughters Jane and Jane to be divided equally” but rest of will has “daughters Jane and June” (obvious it’s a type-o)

  3. Method 2: Plain Meaning Rule: Courts adopt the “plain meaning” of the words of a will and will prohibit admission of extrinsic evidence unless the terms of the will itself are ambiguous

    1. Construe words according to their technical meaning unless a contrary intent is apparent. Look at the primary and ordinary sense of the word. (Estate of Carroll)

      1. Estate of Carroll: Whether “nieces and nephews” included both side of family

        1. Holding: Primary meaning should control. Niece/nephew just means immediate descendants of the named person’s – not their in-laws.

        2. No contrary intent to use anything other than plain technical/legal meaning of the words, no ambiguity was present in will, so no extrinsic evidence is admissible

      2. But courts differ (same thing, opposite result in Martin v Palmer)

        1. RST (3d) Property: Endorses more liberal approach: Allows Extrinsic evidence to cure, and doesn’t distinguish between patent and latent ambiguities

    1. Evidence of surrounding circumstances are inadmissible to control the construction of the will, or to discern the intent of the testator. (Britt v. Upchurch)

      1. Declarations of testator’s intent are inadmissible to control the construction of his will

      2. Direct declarations of testamentary intent are inadmissible to explain a latent ambiguity, and one can use extrinsic evidence to prove things other than testator’s intent. Use evidence about conveyances to prove no undue influence, or mental capacity


    1. Ambiguity is an uncertainty in meaning that is revealed by the text or by extrinsic evidence other than direct evidence of intention contradicting the plain meaning of the statement. If no doubt exists as to property bequeathed, identity of beneficiary, there is no room for extrinsic evidence.

    2. LATENT: Ambiguity becomes apparent with reference to extrinsic evidence in its application

      1. If you want extrinsic evidence, argue it’s a latent ambiguity (not patent)

      2. A latent ambiguity presents a question of identity and extrinsic evidence can be admitted to identify the person or thing to which the will refers

        1. Direct statements of testator’s intent are generally not admissible, except if used to “solve” an equivocation (leaving it to “Danny” if he has three lover Danny’s), maybe would be allowed if court is clarifying instead of adding to the will

        2. Ex: If testator has 2 daughters but leaves property “to my daughter” but one was disowned after she married outside the faith – introduce extrinsic evidence?

      3. Britt v. Upchurch: Give my daughter my “House at 2615 Cooleemee Street”

        1. The word “residence,” creates a latent ambiguity, and extrinsic evidence is admissible to find testator’s intent – extrinsic evidence used to infer how the property was used, was not a direct statement of what testator meant in his will

    3. PATENT: Ambiguity that is apparent on the face of the will (leaves house to X in one part of the will, but to Z in another – uncertainty on the face of the will)

      1. Once ambiguity is categorized as patent – historically didn’t allow extrinsic evidence, but now more likely to allow extrinsic evidence (but minority trend)

      2. Ex: “I give the variable portion of my estate to X” – what does “variable” mean?

    4. MISTAKE: Mistake if the language of the will has only one meaning but that meaning isn’t the testator’s intent – a word or phrase in the will that doesn’t mean anything

      1. C/L MAJORITY RULE: A court Will Not allow in extrinsic evidence to reform a will to rectify a mistake, instead the provisions are just deleted. (Knupp v. DC)

      2. Knupp: Clause 5 says X passes to person in Clause 3, but nobody listed

        1. Extrinsic evidence can be used only to interpret something written, but not to add something to the will) – most courts follow this mistakes can’t be cured by reformation no matter how strong the extrinsic evidence is

      3. RST§12.1/UPC §2-805: Can revise a mistake (doesn’t matter whether it was the testator or drafting attorney who made it) as long as there is clear and convincing evidence of what the testator intended AND that there was a mistake of fact or law

        1. Allows courts use extrinsic evidence to reform a mistake or omission in the will

        2. Erickson v. Erickson: Reviewing a will where the lawyer improperly listed a group of charitable beneficiaries of the residual estate

        3. Scriviners Errors Rule- If the mistake is caused by the drafter, not the testator, and there is clear and convincing evidence of the nature of the mistake and the testator’s true intent, then extrinsic evidence WILL BE allowed to resolve mistake (even if it means adding language to the will)

      4. Policy: Risks opening the floodgates to litigation b/c allows anyone to claim a mistake

      5. Good Practice: Lawyers aren’t guarantors of their documents – but expected to have reasonable professional competence

        1. Knupp – Lawyer had to agree that there was malpractice (clear case)

        2. Britt – Was “residence” ambiguity something lawyer should have seen?

How Do Courts Address an Ambiguity?

    1. Allow Extrinsic Evidence:

      1. Using outside evidence to illuminate meaning of the words testator used in will

      2. Always need some outside information (who is “daughter” in the will?) to distribute

    2. Construe ambiguities by looking at donor’s intent established by a preponderance of the evidence

      1. Policy For Allowing: Sometimes outside evidence is best proof of testator’s intent

        1. Fairness: If it was an attorney’s mistake, can’t penalize the deceased

        2. Intent: Should strive to honor the deceased by getting as close to their intent as possible and the best way is to read the document in light of their outside life

      2. Policy Against Allowing: Too many uncertainties involved in introducing extrinsic data

        1. Statute of Wills: The document should be able to stand alone as testator’s intent

        2. Judicial Economy: Benefit of keeping probate streamlined and straightforward but introduction of extrinsic evidence delays and confuses

        3. Potential for Fraud: Testator likely wanted that document alone to be able to decide disposition of their estate, not some other person speaking later

          1. The will is the only evidence of intent that should be allowed


  1. The Will Violates Public Policy

    1. A will’s provision will not be enforced if it violates public policy. If the provision is found to violate public policy, the violating condition is struck, but the gift remains.

      1. If condition in a will that calls for something illegal, then it per se violates public policy

        1. Provisions attempting to disrupt existing family relationships are typically invalidated

      2. Incentive trusts are allowed, but watch out for unintended consequences (slayer, Ford)

    2. Unconstitutional to restrict marriage by religion. Can’t restrict marriage under 14th A, and can’t discriminate based on religion, state involved because enforcing the provision

      1. Shelly v. Kramer: Deed subject to restrictive covenants allowing sale only to whites, state enforcement was an action under the constitution

    3. A gift conditioned on recipient marrying into a certain class is reasonable. A partial restraint of marriage which imposes only reasonable restrictions is valid, and not contrary to public policy

      1. The right to marry is protected from restrictive state legislation, but this is a restriction on his access to money, not the right to marry whoever he chooses. (Shapira v. Union National)

        1. Rule: From a constitutional standpoint, a testator may restrict a child's inheritance, and because it’s only a partial, not a total restriction, it’s not contrary to public policy. Seven years is adequate time to find someone, and allowed to look from whole Jewish faith

        2. Shapira court distinguishes from Shelley by saying that here, the court is not being asked to enforce any restriction upon Daniel's constitutional right to marry. Rather, it is being asked to enforce the testator's restriction upon his son's inheritance.

  1. The Will Was Revoked or Was Attempted to be Revoked

    1. METHOD #1: Revocation by Subsequent Instrument/ Inconsistency

      1. UPC 2-507(a): Whole or part of will is revoked if testator: (1) expressly revoked prior wills, or (2) revoked it with inconsistency if subsequent will makes a complete disposition of the estate, (3) if subsequent will makes an incomplete disposition, assumed to be a codicil

        1. UPC doesn’t use “codicil” but “subsequent will” to avoid confusion

        2. Revocation of a codicil leaves the will, without the revoked codicil, intact

      2. There must be sufficient testamentary intent to revoke a subsequent will, as proved in the creation of a new will, which disposes of the testator’s estate. (Gushwa v. Hunt)

        1. One can revoke a previous will by a will or a codicil, but you can’t revoke with a document that doesn’t dispose of any property – no sufficient testamentary intent because even though he signed paper with appropriate formalities to make it a will (T and two witnesses signed it), the second document wasn’t a will, because it didn’t dispose any of his property (Gushwa v. Hunt – faxed half the will, edited photocopy)

    2. METHOD #2: Revocation by Physical Act

      1. Good Practice: Inform client that any marks on the will are important so let a lawyer re-draft something don’t just write on it because those markings may make the whole thing invalid

      2. UPC 2-507(a)(2): Whole or part of will is revoked if testator: performed a revocatory act on the will, if the act was preformed with the intent of revoking the whole/part of will, or if someone else did it in the testator’s conscious presence by their direction

        1. Includes: burning, tearing, canceling, obliterating, or destroying will or ANY part of it

      3. CL presumption (rebuttable) that a mark on the will is the testator’s and that it was done with intent to revoke the will (in whole or part).

        1. Revocation by anything other than writing on the actual will itself is invalid. To revoke by a physical act, must be performed “on the will” so a photocopy isn’t enough – need to write on the original copy (Gushwa v. Hunt)

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