Table of Contents

Article I. INTESTATE SUCCESSION...................................................2

Section 1.01...................................................................................Generally
Section
Section
Section
Section
Section
Section

2
1.02...................................................Spousal Intestate Succession
2
1.03....................................Descendants and Intestate Succession
2
1.04................................Other Relatives and Intestate Succession
3
1.05...................................................Altering Intestate Succession
4
1.06.....................................................................Defining spouse
6
1.07..............................................................Defining descendant
8

Article II.WILLS...........................................................................11
Section 2.01...................................................Formalities for Attested Wills
11
Section 2.02...............................................Formalities for Unattested Wills
13
Section 2.03.........................................................................................Intent
13
Section 2.04.....................................................................................Capacity
14
Section 2.05........................................................................ Undue Influence
15
Section 2.06..........................................................................................Fraud
15
Section 2.07...................................................................................Remedies
16
Section 2.08.......Unattested Documents: when can a will incorporate by
reference? 16
Section 2.09...............................................................Representation Issues
17
Section 2.10.................................... Revocation by Subsequent Instrument
17
Section 2.11......................................................................Revocation by Act
17
Section 2.12................................Revocation by Changes in Circumstances
18
Section 2.13.......................................................................................Revival
18
Section 2.14................................................Dependent Relative Revocation
19
Section 2.15..................................................Lapse and Anti-lapse Statutes
20
Section 2.16..Will Substitutes: Creation, Revocation, and Subsidiary Law
of Wills
22
Section 2.17...................................................................Protecting Spouses
24

Section 2.18............................................Protecting Other Family Members

26

Article III.TRUSTS.......................................................................26
Section 3.01............................................ Private Trusts and their elements
26
Section 3.02........................................................................Parties to Trusts
27
Section 3.03...........................................................................Trustee Duties
28
Section 3.04....................................................Beneficiary Rights on a Trust
28
Section 3.05................................................ Trust Restraints on Alienability
30
Section 3.06..........................................Trust Termination and Modification
30
Section 3.07.......................................................................Charitable Trusts
31
Section 3.08.......................................................................................Cy Pres
32
Section 3.09.....................................Enforcing Charitable Trust Obligations
32

Article IV.Recap..........................................................................33

Article I.
Section I.1

INTESTATE SUCCESSION

Generally

(a) In effect when no will or an ineffective will; factors considered:

(i) Fairness to family members, vulnerable parties (dependents)
(ii) Fairness to creditors
(iii) Intentfairness to the decedents intent

(iv)
(v)
(vi)
(vii)

Equity and proportionality

Want to keep system legitimate and instill perception of fairness
Want a productive owner of property (real property)
Remember: tension between administrability of an estate from probate and the fairness
issue
(b) Cases
(i) Shelley v. Kramer, p.12
(ii) Shapira v. Union National Bank, p.14
1) Control of assets given to decedent v. living
2) Donative intent trumps; if restriction still leaves large pool then will prob be enforced
3) Court held that restriction on will only given to sons if they married w/in7 years of
testators death to jewish women whose parents are both jewish was VALID
4) Dead hand control: should states allow these types of restrictions?
a) Want to encourage people to make wills - n/ enforcing would undermine the
attraction of making a will; encourage planning b/c indivs know their own business
best, will have the best ideas about how to transfer their assets to achieve the best
outcome
b) People try to maximize their assets more if they know that it'll stay w/in their
families - encourage accumulation of property

Section I.2

Spousal Intestate Succession

(a) UPC Provisions

(i) 2-102 Intestate share taken by decedents surviving spouse
1) Entire estate if no descendants or parents survive decedent, or decedent and spouse
share all children
2) 300k + balance if decedents parent survives decedent
3) 225k + balance if decedent and spouse share all kids and kids still living who are
not descendants of decedent
4) 150k + balance if one + decedents descendants are not spouses descendants
(ii) policy considerations for parent share: protect some assets if spouse remarries; no kids;
if young wealth may be attributable to parents. ONCE there are DESCENDANTS, no
share for parents
(b) Conduit Theory of Spousal Share: surviving spouse will be a conduit for
property to eventually go to shared descendants.

Section I.3

Descendants and Intestate Succession

(a) Intestate distribution regimes, p.33

(i) STRICT PER STIRPES

1) Start at next generation down even if all dead. Most traditional way to distribute
property
(ii) UPC PER STIRPES [aka per capita w representation]
1) By the stock
2) First cut: at next generation down w/ at least 1 living descendant.
3) Step 1: set up primary shares with ea surviving child OR predeceased with children
4) Step 2: for each primary share, keep that share within the childs family. So if 4
grandkids, 1 c share as much as 1 grandchild from 1 c
5) Step 3: fairness is divided at child level and then, like column down generations
6) If one of the children survives parent, child gets 1/3 and GC gets none
(iii) PER CAPITA at Each Generation [NY]
1) First cut: living generation, then even by generation. allocate primary shares at
generation with at least one surviving descendants
2) Horizontal equality
3) Take only when representation needed, if ancestor repd then descendant does not
take.
(b) UPC Provisions
(i) 2-103 Share of Heirs other than Surviving Spouse
1) after distributed to spouse or if no surviving spouse
2) (a)(2) if no surviving descendant, to decedents parents or parent
3) (a)(3) if no surviving descendant, no parents, then to siblings
4) (a)(4) if no surviving descendant, no parents, no siblings, then to grandparents then to
aunts/uncles/cousins
a) (A):half to paternal gp or descendants taking by rep; (B): half to maternal gp or
descendants by rep.
5) (a)(5) if none of the others, then to stepkidsvery last resort
(ii) 2-106
1) once 103(a)(4) kicks in, use 106(c) to distribute look for closest descendant to
deceased grandparent
(iii) 2-709

1) (b) per capita at each generation: property divided into as many equal shares as there
are surviving descendants in the generation nearest the designated ancestor which
contains one or more surviving descendants; and deceased descendants in same
general who left surviving descendants. Each surviving descendant is allocated 1
share. Remaining shares combined and divided in same manner among descendants
2) (c) Per stirpes: property divided into as many equal shares as there are surviving
children of designated ancestor and deceased children who left surviving descendants.
Each surviving child is allocated 1 share. Desceased childrens share divded in the
same manner w subdivision repeating at each succeeding generation until property
fully allocated among descendants.
(c) Guardianship
(i) What about when distributing assets and minors are in the picture?
1) Minors have a conservatorship or guardian appointed to manage their property for
them
2) Problem with guardianship is that it is burdensome and creates lots of costs in name of
protecting minor (trusts are easier and better way to plan)
3) Always advise clients to name a guardian for their minor child

Section I.4

Other Relatives and Intestate Succession

(a) Classes of other relatives

(i) Ancestors: parents, grandparents
(ii) Collaterals: siblings, cousins, aunts, uncles
(b) Parentelic system
(i) A parentela= an ancestor and that ancestors surviving descendants.
(ii) Favors ancestors over collateralselderly parents often look to kids for support
sibling contemporary likely to have more earning potentialeven if not true, intestacy
assumes that if decedent wanted something specific would have written a will.
(iii) UPC goes to 3rd parentela first (GP and descendants)
(c) UPC Provisions
(i) 2-103Share of Heirs Other than Surviving Spouse
1) (a) Any part of the intestate estate not passing to a decedents surviving spouse under
2-102, or the entire intestate estate if there is no surviving spouse, passes in the
following order to the individuals who survive the decedent:
a) (1) to decedents descendants by representation;
b) (2) if there is no surviving descendant, to the decedents parents equally if both
survive, or to the surviving parent if only one survives;
c) (3) if there is no surviving descendant or parent, to the descendants of the decedents
parents or either of them by representation;
i) Allows both full- and half-blood siblings to take as descendants of decedent's
parents - either of them means could be descendants of just one parent
d) (4) if there is no surviving descendant, parent, or descendant of a parent, but the
decedent is survived on both the paternal and maternal sides by one or more
grandparents or descendants of grandparents:
i) (A) half to the decedents paternal grandparents...

ii)
iii)

(B) half to the decedents maternal grandparents...

Resembles per stirpes system - b/c as long as there are any surviving descendants,
will distribute equally to each side, rather than looking at where the surviving ones
are and then pushing it down through generations
Concern that when dealing w/ GPs there isn't necessarily equal representation; n/ a
situation where we're looking at all the descendants of a single person but looking
at two families

iv)
a.

Policy preference of preserving family harmony than abandoning per stirpes

system

2) (b) If there is no taker under (a), but the decedent has:

a) (1) one deceased spouse who has one or more descendants who survive the decedent,
the estate or part thereof passes to that spouses descendants by representation; OR
b) (2) more than one deceased spouse who has one or more descendants who survive
the decedent, an equal share of the estate or part thereof passes to each set of
descendants by representation.
c) Situation where decedent has NO blood relationship or adoption w/ this person - it's
the child of ONLY the pre-deceasing spouse
i) Decedent's step-children: step-children of a marriage that ended in the death of
spouse, not from divorce

Section I.5

Altering Intestate Succession

(a) UPC Provisions

(i) 2-1106--renunciation
a) (3) If the instrument doesnt contain a provision [for how to distribute if someone
disclaims - in that case, would follow will], the following rules apply:
i) (A) If disclaimant isnt an indiv, the interest passes as if disclaimant did not exist
ii) (B) If disclaimant is an indiv, except as provided in (C) & (D), interest passes as if
the disclaimant had died immediately before the time of distribution
a.

Only the disclaimed interest passes

iii)

2)
(i)
(ii)
(iii)
1)
2)

(C) if by law or under the instrument, the descendants of the disclaimant would
share in the disclaimed interest by any method of representation had the disclaimant
died before the time of distribution, the disclaimed interest passes only to the
descendants of the disclaimant who survive the time of distribution
NOTE: in disclaimer only the interest disclaimed passes; NOT the estate if disclaim
looks like per stirpes
(b) Contractual agreements
Can K around statutes provided all relevant parties agree
Policy: drafting trying to figure out what most people would want but if actual heirs
think alt preferable, probate courts will allow
Problems:
Getting agreement from all successors can be a challenge
Limits potpeople will put up obstacles b/c dont want to take less

3) Minors and incompetent personsraise issues of guardianship. Here, K situation

serious problem.
4) Taxation: primary motivator; possibility of double taxation (estate + gift)
(c) Disclaimers
(i) In the US we do not have to take the money allocated to us. If those among the living
wish to reorganize, they can do so but there will be taxation
(ii) Qualified Disclaimer:
1) We will act as if distribution never happenedthen tax according to what happens
after the disclaimer (because sometimes people would try to manipulate to avoid
taxation or paying creditors)
a) Requirements:
i) Must be in writing;
ii) Executed quickly (w/in 9 mo);
iii) Person who disclaimed cannot thereafter assert any control or enjoyment over the
property
(iii) Why use a disclaimer?
1) Avoid tax;
2) Another relative may need $ more;
3) Not going to be able to enjoy it b/c of creditors;
4) Personal feuds/dislike grantor
5) Avoid complicationsdont want to take care of property, etc.;
(d) Advancement
(i) Means what it sounds like; take off the $$ received in life but there must be a clear
intent anything unclear or implied will not be counted as advanced
(ii) Advancements valued as of date of advancement (2-109(b))
(iii) Advancement must be in writing, cealring indicating the nature of the inter vivos gift
(2-109(a))
(e) Negative Wills
(i) Carries over into the intestacy system. If someone doesnt manage to cover all assets in
will, a negative will statement of intent not to transfer to sally jane will carry over.
Named person will be excluded from intestacy distribution
(f) Cases
(i) Waring v. Loring, p.56

1) Court holds that a negative will is not clear enough expression of intention to block
intestacy going to wife
2) Stmt saying provisions go to wife instead of statutory rights is not a negative will; maj
says that statutory rights do not include intestacy rights and therefore she can take
from intestacy.

Section I.6

Defining spouse

(a) Consider
(i) Donative intent
(ii) Financial interdependency
(iii) Emotional support
(iv) Vulnerability of surviving spouse
(v) Aministrability and efficiency in the intestate system ; universal application
(b) IF a spouse, take. If not, no. Status determination under UPC
(c) UPC Provisions
(i) 2-802effect of divorce, annulment, and decree of separation
1) (a) An indiv who is divorced from the decedent or whose marriage to the decedent has
been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he
[or she] is married to the decedent at the time of death. A decree of separation that
does not terminate the status of H & W is not a divorce
a) An exclusion definition
2) (b) A surviving spouse doesnt include:
a) (1) an individual who obtains or consents to a final decree or judgment of divorce
from the decedent or an annulment of their marriage, which decree or judgment isnt
recognized as valid in this state, unless subsequently they participate in a marriage
ceremony purporting to marry each other to the other or live together as H & W;
i) Good faith idea - if people believe in good faith that they are divorced, they'll be
treated as divorced in this situation
ii) Idea/intent of the statute is that if people have a decree that they believe is good &
then act based on that decree, will allow people to rely on that (for both 1 & 2)
iii) Issue of remarriage arises in elective share statutes - b/c UPC elective shares are
determined in part by how long the parties were married, & if there are two
marriages, those periods will be added together
iv) Annulment acts in the same way as a divorce
v) Need a final order/decree (Holmes case, below - had none)
b) (2) an individual who, following an invalid decree or judgment of divorce or
annulment obtained by the decedent, participates in a marriage ceremony w/ a 3rd
indiv; or
c) (3) an indiv who was a party to a valid proceeding concluded by an order purporting
to terminate all marital rights
(ii)

(d) Cases
(i) Holmes v. Fentress, p.61
1) Neff left everything to Geissinger, will invalidated. Q of whether G takes under
intestacy b/c held themselves out as divorced but divorce was ineffective. G does take
under intestacy;
2) Could take under UPC, too, b/c no decree. Under 2-802(b) the almost-divorce
situations require having some final order or statement from the court; here, H&W
made a petition to the court but there was no decree
3)
(ii) In re Quarg, p.66 [contract approach to partnership]
1) Court upholds contract between deceased and second partner. K language: I be your
life partner and in return I get access to your assets
2) Considerations: interest in marital property by virtue of mutual efforts during
relationship contributing to creation, acquisition, and preservation of such property
3) Broad ruling for people in this situation
4) Criticisms for using contract approach a) Any requirement of an express contract runs into the problem of people having to opt
into it - will tilt who is protected in favor of more wealthy & more sophisticated
parties (in terms of law & financial transactions) - biasing effect
b) Disrespectful to treat these relationships like business arrangements/financial
transactions - family relationships have status protection b/c wont inquire into
relationships (will just get rights based on that status)
5)
(e) Classifications of partnerships
(i) Putative spouse
1) Any person who has co-habited with another to whom he is not legally married in the
good faith belief that he was married to that person; there was a ceremonial marriage
but something defective
(ii) Common law spouses
1) No ceremonial marriage: just decided to be married. Act married. Generally, must hold
yourself out, but cannot be common law married if you say you are not married and
are just living together. [NY accepts]
(iii) Same sex partners
1) Unsettled area. Some have to rely on the K arrangement.
2) Four main approaches:
a) Spousal status is the only kind of status of this type - only available to opposite-sex
partners; have to rely on wills and K arrangements.
b) Spouse is the only category of this type - but available to everyone, opposite &
same-sex partners

c)
i)
ii)
iii)
d)
i)

Civil unions - a new status but w/ all the same rights & responsibilities of the spouse
status, just called something different (trying for a middle ground)
Once someone achieves the status of being a member of a civil union, they will get
all the same rights/responsibilities of spouses
Members of a civil union - under UPC - would be treated exactly as spouses
get intestacy rightsvarious limitations
Reciprocal beneficiaries - adopting a new status (in other states called "domestic
partners"). Formal (n/ functional) - ie, must be formalized w/ license, state's
authority, etc. - no question into the relationship
W/ that status, couple is entitled to a set of rights/responsibilities that are NOT
exactly the same as the ones for spouses

Section I.7

Defining descendant

(a) When interpreting a doc, look at intent first and then look at intestacy
definitions
(b) UPC provisions
(i) 2-114 Parent barred from inheriting in certain circumstances
1) (a) A parent is barred from inheriting from or through a child of the parent if:
a) (1) the parents parental rights were terminated and the parent-child relationship was
not judicially reestablished; or
b) (2) the child died before reaching 18 & there is clear and convincing evidence that
immed before the childs death the parental rights of the parent could have been
terminated under state law on the basis of nonsupport, abandonment, abuse, neglect,
or other actions or inactions of the parent towards the child
i) States differ on the grounds that will bar a parent from inhering - but always some
kind of parental misconduct. High standard of proof (b/c controversial)
2)
(ii) 2-117 No distinction based on marital status
(iii) 2-118 adoptee and adoptees adoptive parent or parents
1) adopted children take from their adoptive parents; creates a legal parent-child
relationship
(iv) 2-119 Relationship between Adoptee and Genetic Parents
(v) 2-120 Child conceived by assisted reproduction other than child born to gestational
carrier
1) no potential relationship between child and donor only. Egg or sperm donor is not the
relative.
2) Presumptions: husband of birth mother = father; birth cert, whoever is on that is the
parent.
3) Posthumous child, conceived using decedents frozen sperm: have to show, by clear
and convincing evidence, that decedent intended the child to be his.
(vi) 2-121 Child born to gestational carrier:

10

1) if surrogate who is also genetic mother of child, that person is a potential parent (of
last resort)
(vii) 2-705 Class gifts construed to accord with intestate succession
1) should people other than those whose assets are at stake be able to determine who are
takers?
2) (f) adoptee not considered child of adoptive parent unless
i) adoption took place before adoptee reached 18 years of age; adoptive parent was
adoptees step or foster parent; or adoptive parent functioned as parent before
adoptee reached 18
(c) Classifications
(i) Clear genetic children born of wedlock-(2-117)
(ii) Adopted children (2-118; 2-119)
1) Once adopted, treated as biological child.
2) Once adopted, can no longer inherit from or through biological parents (In re
Donnelly)
a) Some wiggle room when biological parent remarries after other bio parents death
and new spouse adopts. (2-119)
3) Equitable adoptionlooks at where children are foster or step children and parents
wanted to adopt but defective somehow (not in upc)
4) stranger to the adoption doctrine: when talking about gift to testators own children,
adoptive children will be included. But when talking about gift from testator to
testators brother, what about the brothers kids?
a) Interpretive rule: if no other info about intent of donor, going to assume if a sranger
to adoption then didnt meant to include adoptive children in class gift.
b) Generally rejected today. Overtaken by 705(f)
(iii) Nonmarital children
1) All children take from and through parents under intestacy
2) More about evidence than intestacyeasy to prove matrilineal but hard to prove
patrilineal if a nonmarital child
3) Uniform Parentage Act:
i) Sets up a series of presumptions that can be used to conclude a person is the father,
based on marriage to the mother at the time of the child's birth, married to the
mother during the period of gestation/child's birth, H agrees to be named on the
birth cert., etc.
ii) Can be rebutted but after some time period, the presumptions are irrebuttable
iii) Relies heavily on genetic testing & refusal to submit to a genetic test can be used to
determine paternity against the person that refuses.
b)
(iv) Assisted reproduction children (2-120; 2-121)

11

1) Always ask who intended to serve as the parent

2) Possible parents: people who raised them, genetic parent, gestational carrier
3) Under UPC 2 classes:
a) Children of Assisted Repro that had a gestational carrier (2-121)
i) Potential parent if all else fails
b) Children of assisted repro who did not have a gestational carrier (2-120)
i) Egg donor or sperm donor never a potential parent
(v) Afterborn heirs?
1) 2-104
2) Must be conceived while decedent still alive but born after decedents death.
(d) Cases
(i) Estates of Donnelly, p.74 [intestacy from birth family after adoption]
1) Decedent left all to wife, who predeceased, now intestacy. Decedents son died and
surviving spouse remarried. New husband adopted decedents granddaughter.
Granddaughter could not inherit through biological father because she could not
inherit from her biological father either.
2) Court says: once give up ability to take from biological father, give up ability to take
through bio father. A lawfully adopted child shall not be considered an heir of his
natural parent
3) Takeaway: know UPC
(ii) Ohio Citiens Bank v. Mills, p.89 [stranger to the adoption doctrine]
1) Stranger to the adoption doctrine says adopted kids can inherit from but not through
adoptive parents b/c the stranger to the adoption did not intend for the adoptee to take
2) Stranger to the adoption doctrine applies to trusts and wills created before statute
abrogating the doctrine (the statute that places adopted children on same footing with
natural children)
3) Law at time of execution of trust or will is the law that applies, even if law overturned
at time of disbursement.
4) Stranger to the adoption doctrine does not apply anywhere!
(iii) In re Martin B, p.101 [class gift; assisted repro]
1) Grantor set up trust for his descendants. Question is whether children of grandchild
who left his sperm on ice are included in the class gift? Sperm put on ice before
grantor died and after trust created.
2) Court said that the controlling factor is the grantors intent as gleaned from a reading
of the trust agreements. Grantor intended for all members of bloodline to take.
3) Considerations:
a) General rule is that a posthumous child can take if conceived before disposition is
effective. Not effective here b/c child not conceived but there was a clear intent to
form a p-c relationship
b) Unless circumstances indicate otherwise, if person intended to act as parent then
children should be considered in the classhere clear intent was available

12

Article II.

WILLS

Section II.1 Formalities for Attested Wills

(a) UPC provisions
(i) 2-502execution of wills [governs]
1) (a)(1) in writing
i) what constitutes in writing? (email, computer doc) but probably signature and
attestation requirements hard to meet. No video wills.
2) (a)(2) signed by testator or in testators presence and by testators direction
a) UPC will accept unattested wills NY will not
3) (a)(3)(A) signed by at least 2 [credible] individuals each o whom signed within a
reasonable time after individual witnessed either signing of will or testators
acknowledgement of that signature
(ii) 2-503harmless error
1) even if not in compliance w 502, will be treated as valid if est by clear and convincing
evidence that testator meant the doc to constitute will, partial revocation of will,
addition/alteration of will, or partial/complete revival from formerly revoked will
(b) Elements:
(i) Must be in writing
(ii) Orientation of witnesses
1) Everyone in same room and visible to each other
(iii) Disinterested witnesses
1) Only VT still requires 3, notary counts as 2.
2) Treatment of breach of disinterested varies between statessome states invalidate
entire will, some states only void bequests to that witness
3) UPC 2-505 says there is no effect if witness is an interested party
(iv) Publication
1) There is a declaration at the ceremony regarding the testators intent, competency, fact
that will, signature is testators, in the presence of the witnesses

13

(v)
1)
2)
(vi)
1)
(vii)
1)
(viii)
1)
(ix)
1)
(i)
(ii)
(iii)
1)
2)
3)
4)
(i)
(ii)
(iii)

Signature of testator
Dated and signed at the bottom as witnesses watch
In NY, must be at the end of the will b/c anything after signature will be ignored
Attestation
Each witness should read aloud the attestation clause and sign and date
Integration
Staple the pages together
Self-proving affidavit
Affidavit witnesses signed when signed will that declare that saw all the formalities
complied with; creates presumption that formalities complied with
Notarization
UPC says that notarization is sufficient to fulfill the attestation requirement; but notary
alone does not meet attestation unless states adopted upc 2008 amendments.
(c) Reasons for formalities
Evidentiary; cautionary; protective; channeling
Lawyer supervising who fucks up can be liable to intended divisees
Policy discussion:
Achieving donative intent - but in some of these cases, donative intent doesn't seem to
be actuated
Protecting vulnerable parties
Fairness - treating people fairly in a way that makes sense based on a lay person's view
& not undermining the legitimacy of the legal structure. Formalities may create
problems for unsophisticated parties - make it seem that the law is unfair
Need something administrable - a system that provides good evidence of someone's
intention; the formalities serve a good purpose here
(d) Regimes
Strict Compliance: mckellar; follows everything from 502
Substantial Compliance: convincing attempt to comply such that the will is trustworthy
(small defect)
Harmless Error: upc 503. Can dispense with formalities if there is a doc and clear and
convincing evidence that the decedent intended doc to be will; irrelevant whether treid
to meet formalities
(e) Cases

14

(i) Estate of McKellar, p.114 [signature requirement]

1) Strict compliance with signature requirement
2) Will not properly executed when no witnesses saw McKellar sign nor did they hear
her mention it
3) Takeaways:
a) Persons name written in his or her own handwriting is NOT necessarily a signature
if testators name is not written in freestanding form, there should be other evidence
that testator adopted doc as his will.
b) Execution of will is a statutory privilege not a constitutional or common law right.
While intent of testator is most important, courts first have to look at statutory
requirements.
c) Attesting witness must know document being signed is the testators last will and
testament
4) Under Harmless Errorwould be executed as valid b/c of McKellars intent. She
wrote doc, called in witnesses, thought it was her will.
5) Under Substantial Compliancewould be executed as valid b/c knew she was
supposed to sign and signed in wrong place.
(ii) Estate of Peters, p.122 [Attestation requirement]
1) Strict compliance with attestation requirement
2) Will not valid when Marie left all to Conrad and then to Joseph. M and C both dead,
now J appeals. Will not signed by witness who saw Conrad acknowledge will or
witness who saw Conrad sign. Someone signed as notary. Witnesses signed 18 mo
after Conrad.
3) Takeaways:
a) Witnessing requirement means dual acts of observation and signatureboth events
need to occur contemporaneously or within close succession; witnesses must sign
w/in reasonable time of observation
b) Purpose of witnessing is to prevent fraud or mistake
c) Court reasoned that substantial compliance ignoring formalities oversteps judiciary
(iii) Stevens v. Casdorph, p.128 [witness]
1) Strict compliance with presence meaning witness requirement
2) Will was not valid when witnesses did not see testator sign nor did they see the other
witnesses sign. Witnesses were all employees in a bank and walked the will over to
each other. Which was not in compliance with state statute.
3) The UPC does not require witnesses sign in presence of testator or presence of each
other but does require witness to witness testators act of signing OR testators act of
acknowledging it is his will/sig
4) 2-505 says a witness can be interested party without disqualifying the will/devises
(iv) Estate of Hall, p.134 [Notary Attestation]
1) Harmless error applied to have notary satisfy attestation requirement
2) Joint will was valid when no attesting witnesses and instead notarized + signature of
testator and testators wife.

15

3) Takeaways:
a) If 2 people do not properly witness doc, 2-503 allows doc to still be treated as if it
had been when clear andn convincing evidence that decedent intended as will.
b) UPC auths notarized wills in writing, signed by testator , and notarized= valid
execution b/c notarys principal duty is to verify identity of person signing doc
c) Policy consideration: public thinks of notaries as officially legal so ease of access

Section II.2 Formalities for Unattested Wills

(a) Types: Noncupative (oral) and Holographic (written)
(i) Holographic Will
1) Made in the handwriting of the testator; material provisions
2) Common issues: identity not verified; issue of thoughtfulness put incould be hasty;
how much written in hand
a) Prevention of fraud - if the will is entirely in testators handwriting, allow it, b/c its
harder to forge someone's handwriting for an entire long document
b) Intent - having an entire document written by the testator provides a good indication
of intent (although issues are raised b/c w/ attested wills, going through the
ceremony of getting witnesses - that also evinces intent)
3) Not allowed in NY. To manage probate case load and to simplify interpretation of
unsophisticated parties.
(b) UPC Provisions
(i) 2-502-holographic will and extrinsic evidence
1) (b) will not satisfying execution requirements is valid as a holographic will whether or
not witness IF signature and material portions of doc are in testators handwriting
2) (c) extrinsic evidence can come in to show intent
(ii) Requirements: handwritten and signed issue arises around question of how much
needs to be handwritten
(c) Cases
(i) Estate of Black, p.141 [validity of holographic will//handwriting]
1) Substantial compliance case
2) Holographic will as valid when testator use a preprinted form and also handwrote
residuary devises but used designated blanks for dates etc.
3) Court said that the primary legislative purpose of holographic will was to prevent
fraud; the statute in Cali only reqd written, dated, and signed by hand of testator and
printed matter no incd would not be considered
4) Takeaways:
a) Intent was the most important thing.

16

b) Favor will regime over intestacygoal of interpretation was to avoid intestacy

(ii) After Black, 2nd gen holographic statutes required material provisions in testators
handwriting
(iii) 3rd gen holographic statutes allow extrinsic evidence under 2-502(c)
(d) Policy considerations
(i) For:
1) makes writing a will more accessible for people who cant afford attorneys
2) lack of formalities does not indicate lack of serious treatment of writing will
(ii) Against:
1) dont want people dashing of wills without evidence of clear thinking and deliberate
decision making
2) Technology/legibility
3) People without resources dont need to make wills

Section II.3 Intent

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

(a) With express statement of testamentary intent, presumption and can

overcome but only with a high evidentiary burden
(b) UPC Provision
2-502(c)extrinsic evidence.
(c) Cases
Estate of Kuralt, p.148 [extrinsic evidence to glean intent//Tv guy]
Extrinsic Evidence was considered to determine testators intent of codicil
Kuralt wrote a letter in hospital to mistress stating lawyer would make sure mistress
would inherit MT property. Mistress then claims this is codicil and wife argues the
letter lacks testamentary intent
Takeaway: extrinsic evidence admitted only where there is some ambiguity about
intent
Can further intent to look at extrinsic evidence but intent not always captured in a
document
If intent is left in doubt, must be arrived at by considering all circumstances
HOWEVER extrinsic evidence cannot manufacture testamentary intent where
doc contains no indication
Harmless error inapplicable b/c issue is intent and that is substance of will.

Section II.4 Capacity

17

(a) Age Capacity: bright line rule. Usually 18 years

(b) Mental Capacity: testator must be able to (not actual knowledge, just
capability; applies to wills and revocable trusts but higher burden than
irrevocable trusts/gifts)
(i) Know nature/extent of property
(ii) Know natural objects of his bounty (who takes under intestacy)
(iii) Know disposition he is making
(iv) Understand how all the element interrelate
(c) UPC provisions
(i) 2-501who can make a will
1) 18 and of sound mind.
(ii) 5-411reqd court approval?
(d) Types of incapacity
(i) Lucid interval: mentally incompetent part of the time with lucid intervals can make will
valid if written in that interval
(ii) Insane delusion: belief testator adheres to against all evidence and reasonmust have
no foundation in fact
(e) Cases
(i) Fletcher v. DeLoach, p.157 [capacity in unnatural bequest]
1) Will invalidated (capacity is a jury q, court looked at sufficiency of evidence) based on
evidence of unnatural bequestsall went to one child and none to other 2.
2) Consider:
a) Depression, disorientation, change in appearance, reasonableness of unnatural
bequest
b) Reasonableness of the testamentary scheme; no financial disparity btn kids so it was
not reasonable to leave all to 1court said this was the real problemthe
unequal/unnatural distribution.
c) Prof said more frequent to invalidate will when unnatural bequest and no financial
disparitywhen invalidated all kids take equally.
(ii) Lucero v. Lucero, p.160 [lucid moment case]
1) Child favored in previous will fought new will, citing incapacity. Evidence supported
lucid intervalshe recognized people, remembered details of trade, and new will
treated children equally.
(f) Patterns in capacity cases
(i) More frequent that an unnatural bequest (read: not to descendant or all to one and none
to siblings) will be invalidated

18

Section II.5 Undue Influence

(i)
1)
(ii)
(i)
1)
2)
3)
(ii)
1)
2)
3)
4)
5)
6)
7)
8)
(i)
1)
2)

(a) If a confidential relationship and at least 1 suspicious circumstance, then

presumption of undue influence created (rebuttable by )
(b) UPC provisions
2-517Penalty Clause for Contest
Provision cutting bene out of will if contests disbursements.
Restatement 8.3
(c) Factors
Confidential relationship between testator and undue influencer
Fiduciary (testator and hired professional, Q of law)
Reliant (family, special trusting relationship, confidence, Q of fact)more about
confidences
Dominant-subservient (testator sub to influence, Q of fact)more about fear
Suspicious circumstances surrounding will (only need 1)
Donor in weakened conditionphysically, mentally, or both
Influencer heavily involved in preparation of will
Lack of independent advice obtained
New will prepared in secrecy and haste
Attitude toward others has changed y reason of relationship with influencer
Discrepancy between new and previous wills
Continuity of purpose in former versions now departs
Unnatural, unjust, or unfair
(d) Cases
Lipper v. Weslow, p.167
Confidential relationship: fiduciary (son wrote the will) AND reliant (lives next door,
has key)
Suspicious circumstances: change in disposition (used to give to all 3); procurement
(favors son who wrote will); unnatural bequest (leave unequally to 2 not all 3); secrecy
(not read to mother after written)

19

3) But for causationbut for the undue influence would she still have taken the actions
she did?
(e) Vulnerability of Estate Plans
(i) Unmarried cohabiters
(ii) Surviving spouse, but not spouse producing descendants
(iii) In terrorem/No contest clause (if you bring a contest, you forfeit devise) (2-517)
1) Automatically makes it look suspicious. Works best with a complex plan where parties
may fight each other. Many courts find unenforceable but in NY upheld.
(f) Attorneys Professional Responsibilities
(i) Cannot name self as bene in will lawyer is drafting; unless a close, familiar relationship
exists

Section II.6 Fraud

(i)
(i)
1)
2)

(a) Can be in execution or inducement

(b) UPC provisions
2-517no contest clause
(c) Cases
Latham v. Father Divine, p.176
Allegation that killed testator to prevent her from changing her will
Court says constructive trust can arise from this situation if it is true; father divine
would have to pay damages to harmed descendants.

Section II.7 Remedies

(a) Constructive Trust
(i) Court treats the property that defendant receives as if the defendant was holding it in
trust for the plaintiff. Prevents unjust enrichment. (usually only for fraud)
(b) Tortintentional interference with an inheritance
(i) Damage remedy. Only available if claim could not have been asserted as part of
proceedings to admit will into probate
(ii) Can seek consequential and punitive damages

Section II.8 Unattested Documents: Incorporation

(a) Incorporation by Reference: when can a will refer to doc that does not have
the formalities and the doc can still be used to distribute assets?

20

(i) Doc must be in existence at time of will AND the will must reference the doc. Many
courts will refuse to incorporate even if excellent evidence that the doc was in existence
b/c not mentioned in a will.
(ii) NY does not allow at all. BUT can allow exhibits as part of will?
(b) Acts of Independent Significance: all jurisdictions give effect to devises
that identify the property or the devisee by reference to acts and facts
that have independent significance (2-513)
(i) Restatement: Meaning of a dispositive or other provision in a will may be supplied or
affected by an external circumstance referred to in the will, unless the external
circumstance has no significance apart from its effect upon the will
1) For ex. - devise to my partners at the time of my death - doesnt undermine
formalities b/c those are determined independently of the will
(ii) If people are not specifically named in the will, there will be independent events that
determine who can take under the devise
(iii) Dont want the doctrine to provide a work-around will formalities - doctrine is trying to
prevent writings or acts by testators that will only affect terms in the will, and nothing
else in the world
(iv) Accepted by every jurisdiction
(v) UPC - a statutory exception to the common law doctrine: see 2-513
(c)
(d) UPC provisions
(i) 2-502: holographic will argument would be that the letter was intended as a will in
itself. More difficult to prove than harmless error
1) will is holographic if material provisions are in testators handwriting and signed by
testator.
(ii) 2-503: harmless error argument would be that letter intended b clear and convincing
evidence to be an amendment/codicil
(iii) 2-510Incorporation by reference
(iv) 2-512: independent significance
1) a will can dispose of property by reference to acts and events BUT acts must have
independent significance; if no significance other than testamentary transfer, invalid.
(v) 2-513: Separate Writing
1) A will may refer to written statement or list to dispose of items of tangible personal
property not otherwise specifically disposed of by the will. The writing must be signed
by testator and describe items to be distributed with particularity
2) does not need to be witness or handwritten; in practice only for less valuable things
no money
a) Older version reqd handwritten but no signature; new version reqs signature only
3) The writing may be referred to as one to be in existence at the time of the testators
death; it may be prepared before or after the execution of the will; it may be altered by
the testator after its preparation; and it may be a writing that has no significance apart
from its effect on the dispositions made by the will.
4)
(e) Cases

21

(i) Simon v. Grayson, p.184

1) Letter allowed to be included by reference because it was in existence at the time of
the execution and it was sufficiently identified in the will
2) Will references a 3/25/33 letter but there is no letter. There is only a 7/3 letter. The 7/3
is in the same place and addressed to the same people but references different
paragraphs in the will.
3) Codicil executed 11/25letter in existence at time of codicil. Republication by codicil
is an amendment to a will SO with the codicil and the republication, as if entire will
executed 11/25!
(f) Policy considerations
(i) Allows for greater privacy---do not have to spell out, can provide privacy from
witnesses, spouse, attorney
(ii) Allows for convenienceif an estate plan is very complex, can be simpler for the
testator

Section II.9 Codicils

Section II.10 Representation Issues
(a) Problem arises when one spouse has a secret from the other and they write
their will together
(b)

Section II.11 Revocation by Subsequent Instrument

(i)
1)
2)
3)
4)

(i)
1)
2)
3)

(a) Will can revoke will. Whether holographic or traditional.

(b) UPC provisions
2-507revocation by writing or act
Subsequent will revokes previous will; the only instrument to revoke a will is a will;
New will should expressly state intent to revoke, but can also revoke by inconsistency
in which case the later valid will takes precedence.
(c)testator presumed to replace if complete dispositionrebutted only w clear and
convincing evidence
(d)Subsequent will presumed to supplement rather than replace if subsequent will does
not make complete disposition of testators estatepresumption must be rebutted by
clear and convincing evidence
(c) Cases
Gilbert v. Gilbert, p.201 [is new doc a codicil or a superseding will?]
Pay stub acts as codicil when it did not contain an express revocation clause and only
distributed part of the residuary
Card and pay stub with conflicting but complementary statements; court allowed all in
and tried to piece together.
Takeaway: unwilling to get rid of will when interpretation justified which rest meant
the money in the safe.

22

4) Residuary clause (catchall) deals with a complete disposition=--incomplete disposition

does not revoke prior will.

Section II.12 Revocation by Act

(a) Generally, acts demonstrate a clear intent to revoke.
1) Hard to predict because courts will do strict and substantial compliance; harmless
error does not apply to revocatory acts.
(b) UPC provisions
(i) 2-507revocation by writing or by act
1) (a)(2) by performing a revocatory act on the will, if testator performed act with intent
and for purpose of revoking will.
2) Revocatory act = burning, tearing, canceling, obliterating, or destroying the will or any
part of it.
3) Destruction act does not have to touch any words
(c) Cases
(i) Kronauge v. Stocklein, p.205 [writing in margin]
1) Strict compliance with cancellation
2) Will was not revoked by act when testator wrote in the margins but her handwriting
did not touch any of the text of the document.
3) The intent of the testator was not questioned, but she executed improperly.
4) Departure from UPC. Not a holographic will b/c no signature.
(ii) Estate of Tolin, p.208 [destroying a copy]
1) Will 1 left to Adair and will left to Broward instead of Adair. Court found that
revocatory act to a copy of a codicil was not sufficient to revoke by act, even though
testator thought it was the original.
2) In this case, the court created a constructive trust for Adairs benefit, but that is a
somewhat rare outcome.
(iii) Estate of May, p.211 [revocation rebuttal]
1) Ripped will is found. No one knows why it is ripped.
2) RULE Mutilated will carries the presumption that any mutilation is a revocation and
can be rebutted.
3) In this case, evidence rebutted by testimony that he wanted to uphold that will and that
he was slob
4) harmless error does not apply

Section II.13 Revocation by Changes in Circumstances

23

(i)
(ii)
1)
(i)
1)
2)

(a) Dissolution of marriage is a change in circumstances that revokes a will

whereas a marriage is not a change in circumstances that revokes a will
(b) UPC provisions
2-803: homicideblocks a devise in an otherwise valid will
2-804: revocation by divorceif you go through process to diver ce you mean to
remove them from your will. (upc says all nonprobate transfers as well, NY does not)
can get around the presumption of disclaimer ex or ex-family by stating that it is my
intention this will survive
(c) Cases
Estate of Spencer, p.222
Example of antiquated marriage changing circumstances case no longer the law
Man remarried so his previous will became invalidated and his kids from 1st marriage
SOL

Section II.14 Revival

(a) need valid w1, then valid w2 revokes w1, then later have w2 revoked.
triggers revival question: does w1 spring back to life or remain revoked?
(b) Regimes
(i) Common law: automatic revivalevery will potentially able to go back to but not
actually auto
(ii) Ecclesiatical: only concern is intent. Cant say always or never revival.
(iii) Antirevival: revocation only by instrument
(iv) NY does not allow revival
(c) UPC provisions
(i) 2-509revival of revoked will
1) only deals with will 1 revoked by instrument (will 2) and then that instrument revoked.
If will 1 was revoked by act, no presumptions in effect
2) (a)deals with 2nd will wholly revoking 1st will, then 2nd will revoked by act
a) presumption: will 1 remains revoked unless it is revived by rebuttal
3) (b)deals with 2nd will partially revoking 1st will, then 2nd will revoked by act
(codicil)
a) presumption: partially revoked passages of will1 are revived unless a rebuttal made
that testator did not want to revive
4) (c)deals with 3rd will that revoked 2nd will which revoked 1st will (in whole or part),
then 2nd will revoked by will 3 (by instrument)

24

a) presumption: is against revival. Will 1 remains revoked to the extent that the
revocation of the 2nd willshows revocation included revival. Most likely, instructions
in 3rd will give info about what to reoke and what to revive. Wont need to revive 1
b/c have terms in will3
(d) Cases
(i) Estate of Boysen, p.228
1) Will 1 leaves farm to sun but on condition he pays isster; will 2 leaves farm to son on
condition he pays worth of estate. Will 2 expressly revokes all prior wills. When
testator finds will 1, tears up will 2is will 1 revived?
a) Presumption is that it is not revived but there may be enough evidence to do so.
b) Court orders lower court on remand to consider (1) did testator know will 1 in
existence? (2) did testator know nature or extent of property/disposition made by will
1? (3) did testator disclose intent to make disposition which earlier will directs? If all
answers yes then revived.
(ii) Boysen aftermath
1) UPC 2-509 comments reject the Boysen questionsintend rebuttal to be more general
inquiry

Section II.15 Dependent Relative Revocation

(a) Restatement says:
(i) partial or complete revocation is presumptively ineffective if testator made revocation
1) in connection with an attempt to achieve a dispositive objective that fails under
applicable law or
2) because of a false assumption of law, or because of a false belief about an objective
fact, that is either recited in the revoking instrument or established by clear and
convincing evidence
(ii) the presumption established under (a) is rebutted if allowing the revocation to remain in
effect would be more consistent w testators probable intention
(b) Gives court the power to say that the revocation is conditioned on revival
of older will
(c) Applies where testator revokes will but fails to put substitute in place
question is whether revoked will 1 would serve intent better
(i) its a second best approach: lets court create an escape valve where better alternative
of enforcing revoked will than intestacy
(d) Cases
(i) Callahans Estate, p.233 [ineffective revocation]
1) Testator revoked will 2 with intent to revive will 1 but dies before complete; court
enforces revoked will2because its revocation was dependent on the revival of will 1,
which never happened therefore will 2 never revoked
2) RULE: Where testator executes will 1, then revokes by execution of will 2 which fails
to become effective, the revocation of will 1 is treated as relative and dependent on
efficiency of will 2 which was intended to be substituted.
a) Revocation of will 1 dependent on validity of will 2, and will 2 invalid so will 1
stands.
(ii) Estate of Patten, p.236 [clear and convincing evidence burden//ineffective replacement]
1) No immediate intent to replace the will destroyed therefore no DRR; DRR cannot
apply b/c too different

25

2) Testator must intent that the destruction of the old will is dependent on validity of the
new willmust be proved by substantial evidence of probative value
3) in this case, no evidence that revocation of will 2 depended on the validity of will1
therefore not DRR. Intestacy takes over.
a) Note: under UPC could have probated will 2.
(iii) Schneider v. Harrington, p.239 [partial revocation]
1) f: testator wanted to make changes so marked up will crossing out a, a claims crossedout provisions do not take effect
2) court wants to accept cross-outs as partial revocation but filling in new info doesnt
meet formalities, so will standards as originally drawn
3) cancellations only effective if substitutions valid, which they are not
4) also no residuary clause this would result in partial intestacy
a) fiction of conditional intent closest to reality in this type of case

Section II.16 Lapse and Anti-lapse Statutes

(i)
(ii)
(iii)
(i)
(ii)
(iii)
(iv)
1)
(v)
1)
2)

(a) Lawyers may and possibly msut reach out to their clients to inform them
of laws or circumstances changing the distribution of their estates. This
is a pretty significant loophole to genl PR rule against solicitation.
(b) Types of devises
Specific: a testamentary disposition of a specifically identified asset (e.g. family farm
or diamond ring
General: a testamentary disposition, usually of a specified amount of money or quantity
of property, that is payable from general assets o the estate
Residuary: a testamentary disposition of property of testators net probate estate not
disposed y a specific, general, or demonstrative devise (aka leftovers)
(c) Types of changes
Ademption: specific devise adeemed (aka rendered ineffective) if testator no longer
owns the specifically devised property at deathyou cannot give away something you
dont own
Abatement: when testator dies and estate does not include enough assets to pay for all
the devisesall devises except specific devises are reduced. All other devises reduced.
Accessions/Accretions: when estate of class of takers grows after testator writes will;
can have enlargement of specific devise (e.g. stock splits, specific devisees gets benefits
of the extra shares)
Set-off/satisfaction: similar to concept of advancement in intestacy. Provision in will
providing devise to indiv was given during the life of the testator.
There must be a written expression of intent to satisfy devise by interv vivos gift
Lapse:
When beneficiary dies between execution and probatedead people cant own
property so have to figure out what to do with their devise
Makes for a lot of complexity you can end up having partially intestate estates, and it
can also defeat testators intention. Think about who the takers would be children,
grandchildren, e.g. We would think, and the drafters of the UPC though, that the
testator would prefer to have their predeceased takers descendants take than for it to
go through intestacy.

26

3) Antilapse statutes started to come into force to correct the harshness of the common
law rule of lapse.
4) Typically, courts will look for general intent; residuary; then to intestacy
(d) Advent of anti-lapse statutes
(i) Remedial in nature. Tends to preserve equality of treatment among different lines of
succession.
(ii) Beneficiary Must survive testator by 120 hours
(iii) Intestacy is last resorttry to save from that.
(iv) Will allow predeceaseds descendants to take by representation
(v) If there is language providing for a back-up, that alternative devise trumps the antilapse
provision.
(e) UPC provisions
(i) 2-601-scope. In absence of a finding of a contrary intention, rules of construction in
this part control the construction of a will.
1) Policy: testator probable would have made had he thought about it/produces result
closest to testators probable intention; applies to relatives of testator
(ii) 2-603-Antilapse Statute
1) These dont prevent lapse its still not possible to give property to dead people.
2) (b): What kind of takers will the antilapse apply to?
a) Grandparent, a descendant of a grandparent, or a stepchild of either the testator or the
donor of a power of appointment.
b) Holder of a power of appointment is someone who gets not actual property, but the
right to devise property (sometimes they may devise to themselves, sometimes they
must give it to others).
c) NB: The antilapse statute does not apply to create a substitute gift for a spouse.
Why?
i) Part of the rationale behind the antilapse statute is that people arent thinking
through the possibility of predeceasing descendants. So spouses arent included
because they likely either (a) draft their wills together, or (b) be contemplating that
one of them will predecease the other. If it were to apply to spouses, it could defeat
ii) If we put in place a substitute gift to the descendants of a surviving spouse, then
property could go to unshared descendants of a spouse this could possibly defeat
donative intent.
3) UPC Anti-lapse [2-603(b)(1)]
a) T $40K to A, residue to B. A and B are Ts children.
i) A predeceases leaving child (A, Jr.), $40K goes to A, Jr.
ii) A and B predeceases, only B with surviving descendants. Residue goes to Bs
descendants.
iii) Idea: because A and B are testators children, the statute assumes that rather than
having all of the assets go through intestacy that the testator would rather have a
substitute gift go to his or her own descendants.

27

b) T $40K to A, residue to B and C. A, B and C are Ts children.

i) A and B predecease, only B with surviving descendants. Under the anti-lapse rule,
Bs portion of the residue goes to Bs surviving descendants.
4) UPC Class Gifts [2-603(b)(2)]
a) T my boat, the Jupiter, to my grandchildren. (T has grandchildren: F, G, H, & I. G
predeceases, leaving child K).
i) Common law: Upon Gs lapse, the Jupiter is shared by: F, H, and I.
ii) UPC Anti-lapse: Upon Gs lapse, the Jupiter is shared by F, H, I, and K.
a.

BUT: Multi-generational classes get no substitute gifts.

5)
(i)
1)
2)
3)

(f) Cases
Ruotolo v. Tietjen, p.280
Antilapse statute enacted to prevent operation of lapse and unintended disinheritance.
Statute is remedial and receive liberal construction. Any doubts recolved in favor of its
operation.
Therefore, works of survivorship such as if she survives me alone do not constitute a
provision in the will for the contingency of the death of a bene and are insufficient to
negate operation of antilapse statute.
As a result, devise to dead relative does not lapse, but instead descends to her issue.

Section II.17 Will Substitutes: Creation, Revocation, and Subsidiary Law of Wills
(i)
1)
2)
(ii)
(iii)
(iv)
(v)

(a) Types of substitutes

Probate v. non probate discussion, generally.
Non-probate assets transferred at moment of decedents death without assistance of the
courts (like contract)-these forms also described as will substitutes; perfect will subs
also preserve power of further decedent to change distribution until death
Consider, to what extent do these will subs get treated like will and to what extent are
they governed by their own rules
Joint accounts: bank, brokerage, retirement, pension, etc. (need to look at specifics b/c
vary by state and institution)
Life insurance: transfers at death, holder has right to change bene, still 3rdP to
administer and give parameters
Revocable trusts: exact service of wills. Settlor is one w assets and plans estate, upon
death remainder goes to whoever.
Common law joint tenancy: imperfect will sub. At least 2 owners are co-owners and
have rights of survivorship; once joint tenancy created cannot rescind. Can get rid of
right of survivorship but cannot take back their share.
(b) Analysis approach: I know rule for x with wills, what about with nonprobate? (e.g. revocation, creation, etc.)
(c) UPC provisions

28

(i) 2-804revocation of probate and nonprobate transfers by divorce; no revocation by

other changes in circumstances
(ii) UTC 602revocation or amendment of revocable trust
1) Sets up presumption that trsuts are revocable UNLESS settlor expressly states the trsut
is irrevocable.
(iii) 2-603--Antilapse
(iv) 2-706Life insurance; Retirement Plan; Account w POD Designation; Transfer-onDeath Registration; Deceased Bene
1) attempts to provide best practice for intermediaries; encourages legislatures to adopt
this protection for contractual alternatives akin to antilapse
(v) 2-707Survivorship with Respect to Future Interests under Terms of Trust; Sub
Takers
1) provides for antilapse protection similar to wills in revocable trsuts;
(d) Cases
(i) Mathias v. Fantine, p.290 [revocable trusts] and Farkas v. Williams, p.291 [revocable
trusts]
1)
2) Revocable self-declared trust and revocable 3rdP trust. There must be a present
transfer for a revocable trust to be created. Have to be valid as an inter vivos trsansfer
or not valid
a) Revocable trusts do not meet formalities of wills
3) Mathias court said: idea of present transfer illusory b/c no present trust without present
transfer.
4) Farkas court said: inter vivos transfer valid when written. b/c transfer is the remainder
not the life estate. Bene did not have power to manage asset until after Settlors death
5) Takeaway: Today, universally, these types of trusts are valid inter vivos trusts
(ii) Estate and Trust of Pilafas, p.305 [trust revocation]
1) Will and trust executed together; in order to revoke trust had to deliver in writing an
amendment or revocation to trustee, no such delivery occurred but cannot find the
trust.
2) With will, when last known location in testators possession nand cannot be found,
considered revoked (unless rebutted)SAME FOR TRUSTS
(iii) Metlife v. Johnson, p.311 [GE life insurance case]
1) Substantial compliance
2) Johnson wants to change life insurance policy beneficiary from ex wife to illegitimate
kids. Johnson fills out the form wrong: Checks box for the policy he thinks he has but
it is not the right one; says separated from wife even though actually divorce; listed
mothers address instead of own
3) Met Life says: when you check the wrong box, it goes to the wrong people Mildred
the beneficiary, but Johnson had changed it. GE acknowledged receipt of beneficiary
change but not actually reflected in records. Met Life never told him the change form
was invalid
4) Things in this case:

29

a) What will be sufficient to make a beneficiary change

b) Choice of law question first: state or fed law? Preemption question.
c) b/c life insurance is benefit policy relevant to ERISA but does not actually address
benefit
d) no choice to follow whatever state law is but must follow fed common law.
e) Phoenix case rule: substantial compliance. Intent articulated + attempt to undertake
change by taking similar positive action
5) How substantial does compliance need to be? positive action v. similar positive action.
a) Test applied here is substantial compliance, even though the state rule is strict
compliance. b/c employee benefit discussed.
6) The new beneficiaries get the life insurance policy
7) I know what the rule is for wills, what about will substitutes?
a) Complicated by this case. In contractual will substitutes, can know what the rule is
for wills or even on that type of contract but may not be the rule if this particular
contractual will substitute implicates ERISA difference btn employee benefit v. set
up on own, different rules accordingly
8) Revocation by divorce statutes generally apply to wills. Do revocation by divorce
statutes talking about wills carry over to will substitutes?
a) The policy definitely overlaps. 2-804, addresses any governing instrument: all
wills and will substitutes HOWEVER w/ life insurance policies, difficult to adopt b/c
whole selling point I efficiency and quick payouts and divorce complicates ability for
co to follow promise
(iv) Clymer v. Mayo, p.316 [pour over trusts]
1) Clymer executed will and created pour-over trust at once, but put nothing in the pour
over trust, would receive funds when will disbursed.
2) Rule: will invalidates lifetime trust to busband. Pour over trust works as a will in
functions, but court only applies holding to revocable pour over trusts funded entirely
at time of decedents deathdoes not apply to revocable trusts funded at inception
(e) Powers of attorney
(i) Options for when clients who lose capacity/ cannot make own decisions
1) Regular power of attorney: give to friend if you cant be there on a certain date
power to sign for your
2) Durable power of attorney: allows person to continue to act on your behalf even if you
lose capacity to do socan sign until atty hears of death; must check w banks to see if
they have their own durable power of atty forms
3) Custodial trust: set aside money to take care of principle
4) Long term health care insurance: provides funds to pay for health care expenses.
Sometimes can be coordinated to fund/re-up a custodial trust and can be disbursed by
durable power of atty, but depends on policy
(f) Policy considerations
(i) If we know trusts are valid, why do we care?
1) Creditors. Revocable trust going to transfer to 3rdP who is not subj to creditors reach.

30

2) RULE: even though trust is revocable, creditors cannot reach underlying property in a
trust UNLESS trust was set up to defeat those creditors. (aka cannot create a trust once
you know the creditor is looming)

Section II.18 Protecting Spouses

(a) Elective Shares
(i) elective share / force share: right granted to surviving spouse by giving right to take
share of predeceasing spouses property regardless of what will says
(ii) forced: predeceasing spouse forced to give surviving spouse this share
(iii) elective: surviving spouse doesnt have to take
1) rationale: theyve gone through marriage together, so surviving spouse really has some
kind of entitlement to some assets
(b) partnership theory of marriage: in it together in acquiring assets
(c) community property: all property that either party to marriage earns
during term of marriage is property of both spouses [elective share
unnecessary here]
(i) separate property states support the community property rational through elective share
(ii) conventional elective share: gives set fraction of decedents property [generally 1/3]
also provides for minimum larger of either 50k or 1/3rd
(iii) problem: late in life marriages where youre still entitled to 1/3rd despite lateness of
marriage
(d) UPC provisions
(i) 2-202sliding scale
1) sliding scale based on number of years marries reaches % of augmented estate
a) longer youre in marriage = greater likelihood that assets shared
b) to protect need, supplemental amount [less than one year] = 50k
c) once you reach 15 years, surviving spouse entitled to 50% of marriage assets
d) determined by total length of marriage includes previous marriages to same person
(ii) 2-203augmented estate
1) number representing assets of both spouses, brings in both probate and non-probate
assets, plus surviving spouses assets
2) trying to get at same figure as community property states
3) brings in: net probate estate, decedents non-probate transfers to others, and surviving
spouses property / non-probate transfers to others
(iii) 2-204: decedents net probate estate: everything in decedents name at death

31

(iv) 2-205: decedents non-probate transfers to other than surviving spouse

1) including property-based will substitutes [revocable trust], contractually based will
substitutes as long as they provide for someone else
(v) 2-206: decedents non-probate transfers to surviving spouse
1) Dont want to benefit spouse too much if shes getting by non-probate already
(vi) 2-207: surviving spouses property anything owned at decedents death / controlled
through non-probate transfers
(vii) 2-209: composing elective share amount
1) Reduce by amount that would go to surviving spouse anyway
2) Then take account of assets surviving spouse already owns
3) So: reduce elective share by amount of surviving spouses own assets at special rate
[elective share % X 2]
(e) Three outcomes
(i) 1. Perfect equilibrium surviving spouse taken care of just to degree elective share
requires
(ii) 2. Gap estate will write check, all other beneficiaries take equal hit
(iii) 3. Surviving spouse has more cannot elect
(f) Non-probate assets
(i) upc draws non-probate assets into augmented estate but under conventional elective
share, common law doctrines used to avoid fraud
(ii) fraudulent intent test: strikes down transfers of assets into will substitutes if surviving
spouse can prove that transfer made w/ intent to defraud
(iii) illusory transfer: where transferor retains control before and after death
1) newman: where no retained life interest / power to revoke as well as power of trustees
does not qualify as trust at all
2) [no longer good law in ny]
(g) Policy considerations

Section II.19 Protecting Other Family Members

(a) Pre-nups
(i) Some states do K law

32

(b) Pretermitted Children Statutes

(i) Omitted children from will b/c born after willby mistake. Provide for child to take
when not included in will.
(ii) In NY 2 options for unintentional: no children living or a child living but not the one
named in the will.
(c) UPC provisions
(i) 2-302Omitted Children
1) If omitted child provided for in nonprobate transfers, then not entitled to pretermitted
statute
2) (a) takes intestacy share, which may be 0 if other parent takes all under will.
3) If nothing provided for living children, then nothing for laterborn child.
(d) Cases
(i) Azcunce v. Estate of Azcunce, p.386
1) Testator republishes a will and usually not thinking about all the shit at once
2) Will executed before P born; codicil addressing one thing but not her inclusion in will
executed after her birthentire will treated as republished and excluded her.
3) Does UPC help her?
a) No, b/c she is still not omitted child
b) Only can help you if in category of omitted child
c) Only way for court to help her would be to invalidate the codicil
d) Privity issue if patricia sued, would have to be estate but then estate has interest in
not giving to her
4) Could they ignore republication?
a) Court says no.
b) textbook says yes: extrinsic evidence of intent should be considered
i) simon v grayson (inc by ref)
ii) repub by condicil is about intent
iii) uniformly reviled for its decision but disagreement over whether courts hands were
tied or not
5)

33

Article III.

TRUSTS

Section III.1 Private Trusts and their elements

(a) Types of trusts:
(i) Modern 3rdP trust: D to T in trust for D for life, then in trust for Ds children
1) T= trustee, Ts interest = legal fee simple; D=bene; ds interest=equitable life estate;
Ds kids=benes
(ii) Self-declared trust: D to D in trust for D and then for Ds children.
(iii) Honorary trust: statutory exception to definite bene rule for certain types of trust where
will not disrupt anything (searight)
(b) Elements of a trust
(i) Intentmust be specific
(ii) Res/corpus (assets)
(iii) Trustee
(iv) At least 1 bene, who is not the trustee
(c) Cases
(i) Brainard, p.403 [corpus/res]
1) Dude created trust on conjecture of market.
2) RULE: Property must be identifiable. Before trust created. If money not earned yet
cannot put it into trust.
3) Policy: res is cautionary function; too easy otherwise
(ii) Farmers Loan and Trust v. Winthrop, p.421 [intent]
1) RULE: There must be an express intent to create a trust

34

i)

Even if intent is clear, it must be expressed clearly in the language.

2) Magic words: the right, title, and interest of the grantor in the securities and other
property due or to become due from US trust co as trustee under the will
3) NB: today court could have created a constructive trust to prevent unjust enrichment
(although not strong case b/c no fraud)
(iii) Colton v. Colton, p.425
1) Everything to wife in will then recommended care and protection to sister and mother.
Wife take with obligation or without obligation?
a) Court says trust created based on circumstances of settlor dying
(d) UTC
(i) 401Methods for Creating a Trust; Trust may be created by
1) Transfer of property to another person as trustee during settlors lifetime or by will or
other disposition taking effect upon settlors death;
2) Declaration by owner of property that owner holds identifiable prop as trustee; OR
3) Exercise of a power of appointment in favor of a trustee
(ii) 402Requirements for Creation; Trust created ONLY if
1) Settlor has capacity to create a trust;
2) Settlor indicates an intention to create the trust;
3) Trust has definite bene or is
a) A charitable trust;
b) Trust for the care of an animal 408; OR
c) Trust for noncharitable purpose, 409
4) Trustee has duties to perform; AND
5) Same person is not the sole trustee and sole bene
6) (b) Bene if definite if can be ascertained now or in the future, subject to any applicable
RAP
7) (c) Power in trustee to select a bene from an indefinite class is valid. If power is
exercised within/ a reasonable time, power fails and property subject to power passes
to person who would have taken prop had the power not been conferred
(iii) 404Trust Purposes
1) Trust may be created only to the extent its purposes are lawful, not contrary to public
policy, and possible to achieve. A trust and its terms must be for the benefit of its
benes.

35

Section III.2 Parties to Trusts

(a) Generally
(i) Settlor can be trustee (self-declared trust)
(ii) Settlor can be bene, but cannot be the only bene
(iii) Requirements
1) Need to be definite bene.
2) Often problems with indefinite benes, unborn benes, honorary trust for benes that
cannot enforce trusts (petS)
(b) Bene classes
(i) Definite Beneficiaries: Alive and can be identified
1) S gives 1M to T in trsut for D
2) S gives 1M to T in trust for Ds first born child (D alive but childness)
3) S gives 1M to T in trust for Ds kids (D alive but childless)
(ii) Unborn/unascertained beneficiaries
1) A bene will be definite if ascertained now; in the futute in complainace w rule against
perpetuities
a) If language of trust is: S to T in trsut for Ds first born child, and D is alive but has no
child, then you have an unborn/unascertained bene BUT will be born within RAP so
ok
(iii) Indefinite Beneficiary
1) Income to A for life, remainder in corpus to Gs friends
2) Income to A for life, remainderi n corpus to Gs friend as A shall select
a) A has power of appointment, if A exercise power has to figure out who Gs friends
are
3) Income to A for life, remainder in corpus to Gs friends as A shall select
a) Cant mandate trustee service
4) mandatory v. discretionary power of appointment, important because of different tests
for validity
a) if holder of power is trustee: mandatory in that terms obligate trustee to exercise
power by virtue of being trustee
i) test: need to be able to identify all potential members of class to judge if trustees
choice is in keeping w/ fiduciary obligations [strict]

36

b) if holder not trustee: discretionary

i) test: courts need to be able to identify at least one member of class [lenient]
5)
(c) Cases
(i) Adams v. Adams, p.426 [defective delivery; transfer of equitable title]
1) Trustee tried to pretend didnt know he was trustee to invalidate trust.
2) Court said: trustee does not have to consent in order to a trust to be valid; court will
appoint a new trustee. Unjust enrichment issue int his casemay not be as easy in the
future.
(ii) Searight: trsut vests trustee w discretionary power of appt w right to decide whether to
provide for dog.
(d) UTC Provisions
(i) 402Requirements for Creation; Trust created ONLY if
1) Settlor has capacity to create a trust;
2) Settlor indicates an intention to create the trust;
3) Trust has definite bene or is
a) A charitable trust;
b) Trust for the care of an animal 408; OR
c) Trust for noncharitable purpose, 409
4) Trustee has duties to perform; AND
5) Same person is not the sole trustee and sole bene
6) (b) Bene if definite if can be ascertained now or in the future, subject to any applicable
RAP
7) (c) Power in trustee to select a bene from an indefinite class is valid. If power is
exercised within/ a reasonable time, power fails and property subject to power passes
to person who would have taken prop had the power not been conferred

Section III.3 Trustee Duties

(a) Generally
(i) Duty to inform and account
1) Keep books so benes know whats going on

37

(ii) Duty of Loyalty

1) Most exacting requirement. Loyal to interests of the bene. Cannot self-deal even if
terms are beter or fairere than arms length. Settlor can limit duty and bring back down
to corp standards.
(iii) Duty of Prudence
1) Akin to the duty of care. Obligation to actin the way a prudent person would act with
respect to own transactions with investment decisions etc
(iv) Duty of Impartiality
1) Trustee cannot favor one bene or set of benes over another. Must treat all benes
equally
(b) Cases
(i) Denns v. RI Hospital Trust, p.473 [duty of impartiality]
1) Trustee cannot favor life tenants over remaindermen
2) Here, trustee sold building for less than it was worth at time of the creation of trust;
therefore he was personally liable for the damanes
3) the damages were the prince then-price now.
(c) UTC provisions
(i) 802Duty of Loyalty
1) Trustee shall administer trust solely in interests of bene; provides for all sorts of
possible conflicts.
(ii) 803--Impartiality
1) if a trust has two or more benes, the trustee shall act impartially in investing,
managing, and distributing the trust property, giving due regard to the bene respective
interests
(iii) 804Prudent Administration
1) trustee shall administer the trust as a prudent person would, by considering the
purposes, terms, distributional requirements, and other circumstances of the trust.
Trustee shall exercise reasonable care, skill, and caution

Section III.4 Beneficiary Rights on a Trust

(a) Types of trust
(i) Discretionary Trust: trustee has discretion to decide what amounts be paidcan be
completely open from income or principle ro can be limited
1) Attractive because do not have to make hard decisions up front; trustee can ask for
more or less money based on amount of discretion
2) Court cannot compel trustee to pay creditors
(ii) Support Trust: trustee must give at least $x to beneficiaries for support, every day needs,
and education etc.

38

1) Only if no statement of discretion?

2) Benes can compel greater distributions if standard not being met
3) Station of life idea: whatever level of living was before settlors death, continues after
death
(iii) Spendthrift Trust: provision imposes restraint on alienation of equitable interest,
nullifies any attempt to assign interest and ant attempted attachment of benes interest
by bene creditors
1) If discretionary trust includes ST clause, do not have to worry about support clause;
benes cannot break trust
2) NY makes ST protection default for trsuts allowing bene to only receive income
(b) UTC
(i) Any trust that gives trustee discretion (whether or not for support) only subject oreview
if an alleged abuse of discretion
(ii) 502: ST provision only enforceable if it bars both voluntary and involuntary transfers
of bene interest
1) donor trying to protect ST need to protect them from themselves also allows for equal
treatment between creditors
(c) Cases
(i) Broadway National Bank v. Adams, p.497 [ST clause]
1) Enforceable against creditors when free from interference/becontrol of beneficiarys
creditors
2) Policy: settlor can dispose of trsut as he wishes; intent should be carried ut unless
against public policy but onus on creditors to do due diligence before lending
(ii) Hurley v. Hurley, p.506. [preferred creditors-EXCEPTION]
1) Example of public policy exception to ST
2) Not enforced re: child supportspecial type of debt
(iii) Sligh v. First National Bank, p.510 [tort creditors-EXCEPTION]
1) Tort creditors for intentional/gross negligence claims able to reach trustee
2) Policy:
a) someone is going to become pauper either trust beneficiary or tort victim, and
victim has already suffered enough
b) no opportunity to check up on ss background
c) trust as set up supports negligent behavior: evidence that m knew of this and may
have tried to protect income from this situation
3)

39

(d) Policy considerations

(i)
1)
2)
3)
4)
(ii)
1)

For:
tax base: will encourage people to go out of state
donative intent: undermines function of trust
creditors better to bear risk since they can do their homework
people will just turn to other methods less reachable by creditors
Against:
efficiency: creditors will be able to get $ anyway, no reason to let this legal obstacle
get in the way
2) drives up cost of credit: research / enforcement
3) encourages spinelessness: allows people to be their worst selves, encourages
aristocracy
4) differential treatment between inherited and earned wealth
(iii)

Section III.5 Trust Restraints on Alienability

(a) Self-settled spendthrift trusts
(i) Traditionally, ST trusts are unenforceable when settlor is bene b/c no reason to allow
someone to protect their own assets
(ii) Off Shore Asset protection trust (APT)
1) Irrevocable trust settled in anti-creditor jurisdiction, settlor chooses that locale and US
courts lack personal jdx
2) Protector:
a) Careful about rights given to protector to keep in place delicate balance of settlors
worries of empowering protector with discretion and protecting assets
b) Auth to appoint new trustee. Best practice if settlor is not protector
3) Trustee in foreign jdx
a) Natural person.
b) Settlor should not be co-trustee b/c then no personal jurisdiction bar
c) Sometimes will be co-trustee and will insert provision that automatically terminates
settlor as trustee if any claim made against trust by a creditor.

40

4) Duress clause:
a) Trustee directed to ignore any directions received from settlor or protector under
duress
b) Linked to auto-termination. Triggered by a settlor or protector who is under duress
(aka court order directing compliance)
5) Flight provision
a) Trustee authd to change site of trust if claim against trust threatens to be successful
b) Virtually guarantees offshore APT will never be subject to creditors claims
(b) Cases
(i) FTC v. Affordable Mediaorder of contempt against settlor as protector. Settlor could
have tried to resigned but would bely his complicity in trying to hide his money.
(ii) In re Lawrencelawrence sent to jail for not sharing assets after 6 years and no sign he
would change mind, civil contempt no longer valid compliance measure so judge
required his release
(c) UTC Provisions
(i) 501Rights of Beneficiarys Creditor or Assignee
1) to the extent a beneficiarys interest is not subject to a ST provision, court may auth a
creditor or assignee of the bene to reach the benes interest by attachment of present or
future distribution to or for the bene of the be or other means court may limit the
award to such relief as is appropriate under the circ
(ii) 502Spendthrift Provision
1) (a) ST provision valid only if it restrains both voluntary and involuntary transfer of a
bene interest
2) (b) A term of trust providing that the interest of a bene is held subject to a ST Trust
or words of similar import is sufficient to restrain both voluntary AND involuntary
transfer of benes interest.
3) (c) Bene may not transfer an interest in a trust in violation of a valid spendthrift
provision and except as otherwise provided, a creditor or assignee of the bene may not
reach the interest or a distribution by trustee before its receipt by the bene
(iii) 503Exceptions to Spendthrift Provision
1) (a) child includes any person for whom an order or judgment for child support has
been entered in this or another state
2) (b) a ST provision is unenforceable against
a) (1) a bene child, spouse, or former spouse who has a judgment or court order against
the bene for support or maintenance
b) (2) a judgment creditor who has provided services for the protection of a benes
interet in the trust
c) (3) a claim of this state or US to the extent a statute of this state or federal law so
provides

Section III.6 Trust Termination and Modification

(a) Who has powersettlor or beneficiary?

41

(b) Reasons
(i) Unforeseen circumstances
(c) Cases
(i) Claflin v. Claflin, p.524 [termination w consent; no violation of material purpose]
1) No termination of trust when all benes did not consent
2) Plaintiff tried to say that the trsut was in violation of the material purpose of the settlor
by postponing enjoyment of trustcourt did not buy it.
(ii) Petition of Wolcott, p.533 [modification]
1) Ok to allow invasion of principal to a limited degree because primary purpose of trust
was to protect widow and living benes all agreed to it however cannot have a straight
up mod w consent b/c there are unborn issue who have to be considered.
2) If trust provided for trustees discretionary power to deviate in certain circumstances,
would avoid this problem.
(d) UTC Provisions
(i) UTC 411Modification or Termination of Noncharitable Irrevocable Trust by
Consent
1) (a) may be modified or terminated upon consent of settlor + all benes
2) (b) may terminate upon consent of all benes if court concludes continuance is not
necessary to achieve any material purpose of the trust; may be modified upon consent
of all benes if court concludes mod is not inconsistent w material purpose of the trust
3) retains consent/material purpose requirement
4) (c) ST provision alone does not presume material purpose
5) (d) upon termination, trustee shall distribute trust property as agreed by benes
6) (e) if not all the benes consent to mod or terminationcan be approved by court IF
a) (1) all benes had consented the trust could have been modified or terminated AND
(2) interests of bene who does not consent will be adequately protected
(ii) UTC 412Modification or Termination Because of Unanticipated Circumstances or
Inabilty to Administer Trust Effectively
1) (a) The court may modify the administrative or dispositive terms of a trust or terminate
the trust if, because of circumstances not anticipated by the settlor, modification or
termination will further the purposes of the trust. To the extent practicable, the
modification must be made in accordance with the settlor's probable intention.
2) [only for admin deviation] (b) The court may modify the administrative terms of a
trust if continuation of the trust on its existing terms would be impracticable or
wasteful or impair the trust's administration.
3) (c) Upon termination of a trust under this section, the trustee shall distribute the trust
property in a manner consistent with the purposes of the trust.

Section III.7 Charitable Trusts

(a) Requirements

42

(i) res
(ii) intent
(iii) trustee: absent trustee can be reappointed
(b) Unique to charitable trusts
(i) Beneficiaries: do not have to be names; instead should be an indefinite class
(ii) Charitable purpose
1) Advancement of education
2) Relief of poverty
3) Advancement of education
4) Promotion of health
5) Promotion of government/municipal
6) Other purposes beneficial to community
(c) Cases
(i) Bob Jones Univ:
1) Engaged in education AND also racially discriminatory admission practices.
Exemption status revoked on basis of viol of 14thA. Not charitable. Contravening
public policy
2) Education is not enough. Additionally cannot contravene public policy.
(ii) Shenandoah Valley National Bank v. Taylor, p.554
1) Court refused to modify trust because did not meet charitable purpose and was in
violation of RAP
a) question about charitable b/c if not actually charity then against the rule against
perpetuities
b) intestacy next of kin challenges as violating RAP and then would get money
c) advancement of education: while the language states the money should be spent in
furtherance of his obtainment of education after out of the hands of the trustee no
enforcement mechanism
d) relief for the poor: no proof of impoverishment and not a poor town. No financial
needs testing set up in trust
e) other purposes for benefit of community: benevolence trust is not enough for a
charitable

Section III.8 Cy Pres

43

(i)
(ii)
(i)
(ii)
1)
2)
(iii)
1)
2)

(a) Doctrine
After determining that specific charitable intent was no longer possible to be fulfilled,
then court has reformation power in line with charitable ends
Distributive deviation
(b) Cases
Polio hypo: charitable trusts created to develop cur for polio, once the vaccine was
invested the trusts became obsolete so money could be used for other medical research
Estate of Buck, p.561
Court did not grant cy pres when SF Foundation (trustee) moved to extend scope of
grant; cited the donative intent
New trustee named instead
Barnes Foundation
Court followed deviation doctrine to allow for a new building to save the paintings

(c) UTC provisions

(i) 405Charitable Purposes; Enforcement
1) (a) a charitable trust may be created for the relief of poverty, the advancement of
education or religion, the promotion of health, governmental or municipal purposes, or
other purposes the achievement of which is beneficial to the community
2) (b) if the terms of a charitable trust do not indicate a particular charitable purposes or
bene, court may select one or more charitable purposes or benes. selection must be
consistent with settlors intention.
3) (c) settlor of a charitable trsut , among others, may maintain a proceeding to enforce
the trust. [does this mean under UPC other interested parties and AG cannot?]
(ii) 413Cy Pres
1) (a)Except as otherwise provided in (b), if particular charitable purpose becomes
unlawful, impracticable, impossible to achieve, or wasteful:
a) (1) trust does not fail, in or whole in part;
b) (2) trust property does not revert to settlor or settlors successors in interest; and
c) (3) court may apply cy pres to modify or terminate the trust by directing that the trust
property be applied or distributed, in whole or in part, in a manner consistent w
charitable purposes of the trust
2) (b) A provision in the terms of a charitable trust that would result in distribution of the
trust property to a noncharitable beneficiary prevails over the power of the court under
sub (a) to apply cy pres to modify or terminate ONLY IF
a) (1) trust property tis to revert to settlor and the settlor is still living OR
b) (2) fewer than 21 years have elapsed since date of trusts creation.

44

Section III.9 Enforcing Charitable Trust Obligations

(a) AG, trustees, and others with a special interest can enforce duties but
hard to get special interest status
(i) To be special interest status: must be more than someone who cares about what the
charity doeshas to be entitled to take assets if trust fails.
(b) Cases
(i) Smithers, p.575 [standing expanded to allow enforcement]
1) Settlor sets up charitable trust to set up an alcohol treatment center. Gave so much $,
set up restrictions so the money could only be for the rehab center
2) Important for charities, even when offered transformational gifts to think really
carefully about how they will use that money
3) Administratrix v hospitaldisagreement over whether the charge was treatment of
alcoholism or alcoholism in the setting of the stand alone building
4) AG position: first AG didnt back Smithers and found that the hospital should sell the
building b/c there was no written acknowledgement of the stand alone out patient
a) Incentive to bring in AG or informally settling disputes: Donor can get redress and
charity can keep name away from bad press; value of confidentiality. Very little case
law. Lots of confidential settlement agreements
5) In this case, Smithers didnt want to solve confidentiallysought to enjoin hospital
from selling the building and court enforce gift restrictions
6) Question: is there standing?
a) Mrs. Smithers, as administratix of donorcan sue
b) [another case says nofar from settled in NYunder UTC once settor is dead no
more standing]
7) Who has better argument? Should they be allowed?
a) Depends on remedy: if break of trust is a remedy, then would have to worry about
conflict. If remedy is specific performance then less worry.
b) Proposed solution: standing when can show AG has not prosecutedproblem with
this approach: cant figure out systematic flags would show ag inaction sufficient to
c) Possibility: gift-over where you say I gift to st lukes provided xyz but if they dont
then betty ford will take the money self-enforcement mechanism but not the most
effective many times 2ndary does not value
8) Can you manufacture your own standing by K?
a) While theyre alive v. dead standard
b) Beneficiaries of charity do not have standing
(c) Policy Considerations
(i) DBR article
1) Financial accountability, mission accountability, internal organizational structure
accountability

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2) Financial accountability is the focus for AGs to protect donors and orgs
a) Why?
i) Financial is the most tangible area to enforcea lot easier to track
ii) Can use the same tools they are used to using
iii) Go after corruption and criminal acts
iv) Difficult for AG to go after charities with rich supporters when an elected official
so the financial shit is black and white
3) Prevention v. reactiondifficult
4) Mission accountability
a) Bedrock. Need money to make it happen and need the mission to support your org to
give you their money
b) Area could be improved, but difficult for AG to enforce and least able to help in
navigating the tension btn original mission and keeping relevant
(ii) Takeaway
1) Charitable activity is a large part of estate plans of many
2) Need to understand to help plan an estate
(d) UTC
(i) UTC 405(c)recognizing enforcement gap
1) Settlor has standing to enforce at least purposes of charitable trust, probably also to
address fiduciary breaches BUT estate of settlor does not have this enforcement power

Article IV.

Recap

Statutory and common law

o Transfer of property at death
Non probate
Probate
o Trust concepts in testamentary
Oriented around major policy gorals
o Donative intent
o Safeguarding families/vulnerable parties
o Maintaining of administerability
o Achieving fairness to maintain legitimacy of system
When approaching a problem: Whats going to serve donative freedom? What else needs
to be considered that may overwhelm that intent?
Consider how they will come up in practice.
Listen and explain under the law

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