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Wills and Trusts

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Terms

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Power to transmit property at death. Right v. Privilege
o Governmental power to regulate: not a constitutionally protected right
 Irving Trust Co. v. Day (1942)
o Government cannot abrogate completely:
 Hodel v. Irving (1987page 3): Escheat provision of Indian Land Consolidation Act was overly broad and unconstitutional
• Virtually abrogated the right to transfer at death
o Taking under 5th Amendment
• Statute was not well drafted to achieve its stated goals b/c it applied even when permitting transfer to heirs would have resulted in increased consolidation of the property (goal of statute)
Public policy arguments for right to transmit property at death
o Pro:
 Avoids free-for-all and vulture behavior upon death of decedent
• Encourages family to love, serve and protect their elders
 Encourages and rewards a life of hard work
 Consistent with and promotes family ties
 Encourages accumulation of wealth for old age and to give to family
o Con:
 Perpetuates economic disparity and discrimination and constitutes an unearned windfall to those who have wealthy relatives
 Recipients may be less productive if know they will get inheritance
 Rebuttal: inter vivos investments in human capital (health, education, culture and connections) probably account more for disparity in opportunities and wealth than inherited wealth
o Academic v. public opinion:
 Academics: favor inheritance taxesinherently fairer than other taxes
 Public: opposes inheritance taxesignorance and hopes for wealth
o Historical compromisepermit but tax: can transfer at death but subject to estate tax
o Modern trend: phased-in elimination of estate tax
Definition of dead hand control. Support and Against
• Definition: Decedent conditions a gift to a beneficiary upon a beneficiary behaving in a certain way.
o Support: It is decedent’s property and beneficiary has no right to receive property.
o Against: Circumstances change and deceased donor can no longer have the capacity or flexibility to take changing circumstances into consideration in structuring gifts.
 Some conditions are overly contrary to fundamental rights
Valid dead hand control conditions
Valid unless violate public policy, or judicial enforcement of condition would constitute state action violating constitutionally protected fundamental rights. Courts are reluctant to hold conditional gifts as contrary to public policy.
Invalid dead hand control conditions
o Absolute restraints on marriage: Void if condition on beneficiary not marrying anyone (at least as to first marriages)
 Exception—partial restraint: partial restrictions imposing only reasonable restrictions are valid (fact sensitive)look to age of beneficiary and time frame of restriction
 Exception—temporal/religion requirement:
• Shapira v. Union National Bank (1974page 21): gift conditioned on a beneficiary marrying within a particular class or religion in a particular time period constitutes only a partial restraint on marriage, which is reasonable and valid and not against public policy.
• Religion requirement: Invalid if require B to remain faithful to a particular religion
o Encouraging separation and/or divorce: Void if require B to separate/divorce
 Depends on decedent’s dominant intent: to encourage separation/divorce or merely to provide support in event of separation/divorce
o Promoting family strife: Void if condition upon family members having strife with each other
o Property destruction directive: Invalid b/c destruction of property at death carries with it no meaningful economic cost for the decedent and deprives society of the opportunity to determine the best use of the property.
Remedy for invalid dead hand control conditions
Critical variable is whether there is a gift-over clause that provides where gift is to go if condition/restriction is not satisfied.
 If condition is found void as against public policy court likely to give to B in gift-over clause
 If no gift-over clausecondition will be struck and main B gets property
Probate property v. nonprobate property
⬢ Probate property: Passes under will or under intestacy if die without a will
⬢ Non-probate property: Passes at death by virtue of a contract or of the title in which the property is held. Decedent has to take affirmative steps for property to qualify.
o Joint tenancy with a right of survivorship
o Life insurance plan and other Payable on death (POD) contracts
o Legal life estates and remainders
o Inter vivos trusts
Jurisdiction of probate process
 Primary: probate court in county where decedent was domiciled at time of deathjurisdiction over personal property and real property in jurisdiction
 Ancillary: if owned real property in different jurisdiction from domicile
• Local creditors where real property is located receive notice
• Compliance with jurisdiction’s recording system
Personal representatives
Appointed to take charge of the probate process.
• The person often names an executor in their will.
• An administrator is appointed by the court in the absence of a person being named in the will
• Powers: some Js require probate court supervision and authorization while others are more lenient
 If the testator had a requirement in the will (such as in the Shapira case) usually the executor holds the property until the requirement has been met
• Duties:
 Collect the assets of the testator
 Give notice to testator’s creditors  The creditors then file claims
 Pay off creditor’s with estates assets
 Pay taxes out of estate
 Figure out who the heirs are
 Decree of distributiontitle document in the public record
Guardians
o Guardian ad litem: Appointed by the court to represent unborn or minor beneficiaries of an estate, whether or not the minors/unborn/disabled are actually going to get anything.
o Guardian of the estate: Property is distributed to hold for the benefit of the minor until the minor reaches the age of authority. If the person is a disabled person then this guardian holds until the disability is gone (perhaps for life).
o Guardian of the person: in charge of handling the rearing of the minors or handling the living arrangements of the disabled person.
 Education, housing, clothing, medical care, etc.
Universal Succession
title to decedent’s property passes to the appropriate heirs or residuary devisees automatically and by operation of law without need for personal representative or probate.
Transfer of title
o Furniture: show title by possession.
o Savings account: Wife just needs death certificate.
o Joint checking account: no problem
o Pension plan: Like a life insurance policyjust needs a death certificate
o Government bonds: Only death certificate required b/c created a right of survivorship
o Life insurance policy: death certificate
o Car: Spouse can go to the DMV and get the title transferred to him/her.
Interest of expected heir
Expectancy interest b/c owner has no heirs until death
o Can enter into transactions about the expected benefits
 Release expected interest in exchange for a lifetime interest right now
 Cannot assign interest in estate b/c not a property interest
§ 6400. Property subject to intestacy provisions
Property in estate not disposed of by will passes intestate.
o §6401 is the intestate provisions for different types of property.
Community Property and QCP:
 SS or DP inherits decedent’s ½ of the CP (she already owned the other ½, so she ends up with 100%)
 CP: Acquired during marriage while domiciled in CA§28
• §100 and §6401(a)
• §100(b): H and W may agree in writing to divide CP differently
 QCP: Acquired in separate property state that would have been CP is acquired in CA§66
• §101 and §6401(b)
• §101(b): H and W may agree in writing to divide their QCP differently
Separate Property
§6401(c): acquired before marriage or by gift
⬢ 100%: No issue, parent, brother, sister, or issue of deceased sibling
⬢ 1/2 of estate: One child or issue of deceased child OR no issue but parent(s) or their issue
⬢ 1/3 of estate: More than one child; one child and issue of deceased child; issue of two or more deceased children.
§240. Division into equal shares
Property divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living
Inherit in this order of priority: §6402
⬢ Issue
⬢ Parents
⬢ Issue of parents (siblings)
⬢ Grandparents
⬢ Issue of grandparents
⬢ Issue of a predeceased spouse or domestic partner
⬢ Next of kin
⬢ Parents of a predeceased spouse or former DP (former in-laws)
⬢ Escheat
Professional Responsibility Tort v. Contract theory
⬢ Tort theory: have to prove negligence
⬢ Contract theory: have to show privity of contract
Common Law Approach to PR
A-C relationship construed narrowly to protect attorneys from malpractice claims from frustrated people who didn’t take under estate plan.
o Tortno duty: A owes duty only to client, not to intended beneficiaries
o Contractno privity: A is in privity only with other party to the contract. Third party beneficiary contracts are not recognized.
Majority MT approach to PR
A-C relationship construed broadly such that intended beneficiaries have standing to sue the T’s attorney for malpractice.
o Tortduty: Duty extends to intended beneficiaries based on reasonable foreseeability of injury if fails to exercise due care.
o Contractprivity: Nonparty can such for breach of contract if qualifies as a third party beneficiary. Intended B under will is 3rd party B.
o Simpson v. Calivas (1994page 49)
 Son claimed A was negligent in administering estate.
 Lower court: common law approachdismissed son’s claim
 Higher court: modern trend.
• The reasonably foreseeable harm to the intended beneficiaries, if reasonable care was not exercised, justified extending duty of care to intended Bs.
Compromise MR approach to PR
Includes intended Bs identified in will
Alternative grounds for finding duty
A may owe duty of care to 3rd parties if A has ongoing A-C relationship with 3rd party and 3rd party had “special confidence” in attorney. Hotz v. Minyard (1991)CONFLICTS OF INTEREST
Cohabitants
generally not qualified as spouses
Common Law marriage
If meet requirements of CL marriage, have inheritance rights of married couple.
Domestic Partners
§37have filed a Declaration of DP with Secretary of State
• All of the rights, benefits and liabilities given to spouses are given to domestic partners (for separate property)
o Doesn’t affect federal law benefits
o Not meant to modify any part of the CA constitution b/c of the Defense of Marriage Act
• Same sex couples and opposite sex couples over age 62 (who don’t get married b/c would lesson SS income)
o Estate of Gardiner (2002eRes)
 Transsexual living as a woman not considered spouse of deceased husband.
 Considered male and marriage is invalid
Putative spouses
Marriage was void/voidableSpouses if at least one party reasonably believed in good faith that marriage was valid.
Separated
Still qualify as spouses
Abandonment
Sometimes abandoning spouse may be disqualified
CL Simultaneous Death Act
Prove by preponderance of evidence that survived
⬢ Criticisms:
o High costs of litigation
o Unfairness (all property on one side of family)
o Encourages unseemly behavior (suing family)
Uniform Simultaneous Death Act
If no sufficient evidence as to who survived whom, the party claiming right treated as if predeceased.
⬢ Treats each person as if she/he had survived the other and then divide up the property accordingly (§103)
⬢ Janus v. Tarasewicz (1985page 68)
o H and W both took poison Tylenol accidentally.
o Court found sufficient evidence that W survived H
⬢ Determining time of death:
o CL: Death = irreversible cessation of circulatory and respiratory functions (problemartificial life support)
o Modern trend: Death = brain dead
Statute changes since Janus
o §220: If title to property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be distributed as if that person had survived the other.
 §222: If right to property is conditional upon surviving and it can’t be proventreated as if predeceased
 §223: Joint tenantsif can’t prove survival, treated 1/2 as if one JT had survived and 1/2 as if the other JT had survived.
 §224: Life insuranceIf can’t prove survival treat as if B predeceased. If policy is CP or QCP of insured and spouse of insured w/ no alternative B, proceeds are distributed as CP.
• UPC §6403120-hour approach: Most recent USDA version says same.
o Have to actually and legally survive spouse
 Actually: still alive after spouse is dead
 Legally: survive for at least 120 hours
Half-bloods
 CL: Only whole-blooded relatives inherited.
 UPC and MT: Half-bloods are the same as whole-bloods.
 MT minority: Some states permit WB to take more than HB.
General Adoption rule
§6451: APs step into shoes of NPs.
 P-C relationship btwn NP and child is severed
Stepparent adoption exception
 Does not affect P-C relationship (or inheritance rights) btwn child and NP parent married to adopting stepparent.
 Two-way relationship and inheritance rights
 Does not completely sever the P-C relationship with the NP of the same gender as the adopting stepparent.
• NP loses right to inherit from or through child
o Has to consent to adoption
• Child retains right to inherit from and through NP of same gender as adopting stepparent
o No say in adoption
Adoption after death of parent
 Doesn’t sever the relationship with either NP. Kids can still adopt through NPs, but not vice-versa (whole blood brothers and sisters can still inherit from child)
• §6451(b): neither a NP or a relative of a NP parent inherits from or through the AC unless:
o (1) NP and child lived together at any time as P and C, or NP was married to or cohabiting with the other NP at the time the person was conceived and died before the person's birth.
o (2) Adoption was by spouse of either of the NPs or after the death of either of the NPs.
• §6451(d): When family of NP can adopt from child
o If H dies and his W (not NP of child) adopts child, H’s family can inherit from child
Hall v. Vallandingham (1988)
• H dies. W remarries and H2 adopts kids. Can kids inherit from H’s relatives?
• Court: Applied general rule so kids were cut-off.
• Under modern/UPC trend: Kids can still inherit from and through the NP of same gender as adopting SP.
• CA: Kids would have been entitled to inherit b/c adoption took place after the death of their natural father. But natural family would not be able to inherit from the child.
Adult Adoptions
o Minary v. Citizens Fidelity Bank & Trust Co. (1967page 89)
 H’s adoption of W was solely to qualify the W as an heir entitled to take from a remote ancestor’s estate.
• Adoption was valid but considered a subterfuge that thwarted the remote ancestor’s intent and was not permitted.
 CA: §21115 Adoptee can take intestate but not through class gifts unless lived while a minor as a regular member of the household of the AP or specified relatives of the parent.
Equitable Adoptions
§6455
o Promise to adopt child but fail to complete paperwork.
o Equity treats child as child of AP for purposes of distributing AP’s intestate property.
 Child can inherit from, but not through the AP
 AP cannot inherit from or through child
 Does not affect child’s relationship or inheritance rights with NPs
Traditional Requirements for Equitable Adoptions
based in contract
 Agreement btwn NPs and APs to adopt child (written, oral or implied)
 NPs fully perform by giving up custody of child
 Child fully performs by moving in and living with APs
 APs partially perform by taking child in and raising as their own
 APs die intestate.
MT for Equitable Adoptions
 O’Neal v. Wilkes (1994page 94)
• No equitable adoption b/c aunt lacked legal custody and authority to enter into the agreement with APsfocused on contract law
• Dissent: Look to what ought to be done under fairness and justice
Stepchildren and foster children will be treated as NC IF:
§6454:
o The relationship began in child’s minority AND
o It continued through the parties’ lifetimes AND
o It is established by C&C evidence that child would have been adopted but for a legal barrier (e.g., NP doesn’t consent)
Posthumous Children
§249.5
o Basic rule: If conceived before person’s death but born after considered kids of the decedent for inheritance purposes
o Presumption: Any children born within 300 days after death of father is the child of the father (just for spouses)
 Can go beyond 300 days under certain cases
Child conceived AFTER the death of the parent:
 Woodward v. Commissioner of Social Security (Mass., 2002page 102)
• Kids conceived with H’s sperm after H’s death.
• H’s kids? Based on the intestate succession statute of the state.
• Concerns: Interests of kids, state’s interests in the orderly administration of estates, reproductive rights of genetic parent
 §249.5:
• Require written consent, signed by decedent and dated
• Person is designated by the decedent to control the use of the genetic material
• Person has to give notice of intent to get pregnant within 4 months and must get pregnant within two years of death of decedent
Surrogate Motherhood
English rule: surrogacy parents are the natural parents and legal parents and have this right until they agree to give up the child to the adopting parents (who made the contract for getting the child)
Nonmarital Children
o Marital status of parents is irrelevant
o Have to prove the P-C relationship though for inheritance rights
o §7630 of Family Code:
 Presumed P-C relationship where there is a marriage
 Disqualified marriage: child born or w/in 300 days is treated as the child
 Presumed P-C relationship where have taken the child into home and has held out the child as being his child
o If no presumed relationship and you want to make a claim after death of parent then you have to fall w/in §6453
 Court order entered during lifetime establishing paternity
 C & C evidence that held out child as his own
 Impossible for the parent to hold out the hold as his own (not aware that the child was born)
o These are the only ways to show P-C relationship
o Inheritance from a non-marital child:
 §6452: Have to show that the parent or relative acknowledged the child and that the parent or relative provided to the support of the child
Per Stirpes
Old English approach,
o Strict: Always make the first division of decedent’s property at first generation of descendants, whether there any live takers or not; the dropping shares then drop by bloodline. Shares only given to bloodlines of dead parties survived by issue
 §246: if you say “to my issue per stirpes” or “to my issue by right of representation” it will require the strict English per stirpes system
o Modern: Go to level with the first living takers and set aside 1 share for each living member of that generation§240
 §245: if you say something contradictory in a gift, it will produce a §240 distribution
Per capita with representation
aka Per capitasame as modern per stirpes
o Make the first division of the decedent’s property at the first generation where there is a live taker; the dropping shares then drop by bloodline.
o Criticism: With both PS and PCpotential for descendants of equal degree to the decedent to take unequally.
Per capita at each generation
UPC/§247: Make first division of decedent’s property at the first generation where there is a live taker; dropping shares drop by pooling—combine them and distribute them equally among the eligible takers at the next generation
o Benefit: ensures that all descendants who are equally related to the decedent take equally.
Approaches for distribution of property to collateral relatives:
⬢ Parantelic approach: Goes out by collateral lines until there is a line in which there is a live taker. Property is distributed to relatives in that parentelic line.
⬢ Degree of relationship approach: Count degrees of relationship. Those relatives of closer degree take over those of more remote degree.
⬢ Degree of relationship with a parentelic tiebreaker approach: If multiple takers at lowest degree of relationship, those in close parentelic lines take to the exclusion of those in more remote lines.
Advancements
• Lifetime gifts from Ps to childrenPs may intend that distributions upon their death will be equalized by taking gift into consideration.
o Not required to give back any inter vivos gifts that exceed equal share upon distribution
• CA: Adopted UPC §2-109no presumption for advancement
o Writing required to prove advancement:
• Donor: must be made contemporaneously with inter vivos gift
• Donee: can be made at any time
o Donee predeceases:
• Don’t take the advancement into account in determining how much goes to the donee’s children unless writing expressly provides so
• Children will take as lineal descendants by representation and do not diminish the share of the grandchildren unless the writing at the time of the advancement specifies.
Guardianship & Conservatorship of Minors:
⬢ Expensive: have to go annually to court to make an accounting
⬢ Alternative:
o Custodianship: Transfers the property to someone to take care of it for the child (Uniform Transfers to Minors Act)
⬢ CA: If less than $10,000 being transferred at the time of death then you can set this up after death.
o Trust: Can be tailored to the needs and desires (good for large estates)
Homicide
Where a party who otherwise is entitled to take from a decedent kills the decedent, the equitable principle that one should not profit from one’s own wrongdoing argues against permitting the killer from taking.
o In re Estate of Mahoney (1966page 126): Adopted constructive trust approach to the issue to ensure that the killer did not profit from her own wrongdoing by getting H’s intestate share.
o CA Slayer Statute, §250: Don’t get the money if convicted of murder.
 W/o conviction: Must show in civil court by a preponderance of the evidence that they feloniously and intentionally killed the decedent, even if they are acquitted criminally.
• Manslaughter: voluntary is intentional, involuntary is not
• Self-defense: not felonious
• Assisted suicide: I&F. But, spouse will keep ½ of CP.
Remedy for Homicide
 CA:
• Testate: Treat killer as if he predeceased T and do not apply anti-lapse statute (if there is a gift to killer, killer’s issues are not substituted)
o Children only take if given separate gift under will
• Intestate: killer not treated as predeceased so kids don’t take
 UPC: treats killer as if he/she disclaimed property, which permits killer’s issue to take killer’s share under anti-lapse and per stirpes/per capita doctrines if they would otherwise qualify
o Joint Tenancy, §251: Murder turns JT property into tenancy in common
Elder abuse
§259Involves acts that amount to physical abuse, neglect, or fiduciary abuse of the decedent while he or she was an elder or dependent adult.
o In re Estate of Lowrie (2004Eres)
 Allowed granddaughter to have standing to sue in order to maintain purposes of the statute (to protect elders from abuse).
Disclaimer
o Voluntarily getting rid of an interest in an estate without tax consequences
 Treats you as if you predeceased the donor.
 Benefits: Redistribute property, avoid gift tax consequences, avoid creditors
• Federal government as creditor:
o Troy v. Hart (1997page 136):
 Against public policy to permit Medicaid recipient to disclaim his/her interest and continue to receive public aid.
 Although disclaimer was valid, disclaimed property was subject to government’s claims for reimbursement
o Common Law: Had no choice; if you passed on inheritance it was a taxable gift
o §282: B is not treated as having predeceased. So, get their share, which they can gift to their gifts (with tax consequences)
 Still count advancement against share to B’s children.
 Also count debts
 Don’t change generational level at which shares are calculated
o Federal tax claims: Drye v. United States (1999page 134)
 Disclaimer does not work against federal tax claims
Testamentary capacity
§6100
o At time of execution, T must:
 Be at least age 18 (unless married or emancipated)
 Of sound mind: §6100.5(a)(1)
• Must have ability to know: (no actual knowledge needed)
o Nature and extent of his property
o Natural objects of his bounty (beneficiaries)
o Nature of testamentary act he is performing
 Conservator may make a will for conservatee
o If no capacity, entire will is invalid.
 Exception: If testator had a prior valid will, you can apply DDR.
o Contractual capacity > Testamentary capacity > marriage capacity
 CC: state will not have to support T if gives away too much.
 MC: Right to marry is a fundamental right and is thus accorded special status that limits the state’s ability to regulate it.
o Declared incompetent and put under a conservator does not necessarily mean the person has no capacity to execute a will thereafter.
Rationale for testamentary capacity requirement
 Will should only be given effect if it represents T’s true desires
 Mentally incompetent man is not defined as a “person”
 Respect for the lawreasoned process
 Protect people from themselves
 Protects decedent’s family: Expectations of inheritance
In re Estate of Wright
1. Burden of proof is on person claiming no TC.
2. Court: w/o proof that T was insane or suffered from delusionsno proof of testamentary incapacity.
⬢ TC cannot be destroyed by showing isolated mental irregularities unless they directly bore on and influenced the testamentary act.
Insane Delusion
§6100.5(a)(2)
o False sense of reality to which a person adheres despite all evidence to the contrary
o Majority view: Rational person test
o Minority view: Any factual basis to support testthen not ID
o Causation:
1. Majority: but for the ID, the T would have done different disposition
2. Minority: requires only that ID might have affected disposition
o In re Strittmater, (1947p. 149)
1. Can be competent but still lose capacity b/c of an insane delusion
o In re Honigman, (1960p. 150)
1. At time of will execution decedent was suffering from an unwarranted and insane delusion that appellant was unfaithful to him, which condition affected the disposition made in the will Obsession
2. Had general mental competence
3. Court: rational person testclearly established by a preponderance of the competent evidencesufficient to find ID
⬢ Causation: but for test may not be satisfied b/c could have given to other relatives b/c they were poor and she was rich
o Court followed might have affected test & found causation
o Consequences of finding an insane delusion:
1. Just that part of the will gets kicked out, and the part of that gift goes to the residuary devisee (or if none, intestate).
Undue Influence
Makes a will ineffective §6104
o Can be established 3 ways:
1. Prima facie case
2. Presumption
3. Statutory
Prima facie case for undue influence
1. 4 elements:
• T is susceptible to undue influence
• The wrongdoer had access to T
• He actively participated in influencing the T to make his will this way
• Causation: And an unnatural devise results.
o Lipper v. Weslow (1963page 162)
 Found 1st three but couldn’t prove causation
2. NOTE – mere ‘nagging’ is not enough.
A rebuttable presumption of undue influence arises when:
1. A confidential relationship exists between testator and the wrongdoer.
⬢ Attorney-client
⬢ Doctor-patient
⬢ Priest-penitent
⬢ Guardian-ward
⬢ Trustee-beneficiary
⬢ Or ANYTIME there is a relationship of trust (even friends)
2. Active participation/got bulk of estate
3. Unnatural result/weakened intellect
Estate of Lakatosh: (1994)
⬢ Presumption of undue influence b/c of confidential relationship (power of attorney), got bulk of estate and T had weakened intellect
In re Kaufmann’s Will (1964)
B was financial adviser for T and moved in with T to take care of establishment (sexual relationship with T).
⬢ Court: B had exploited his arrangement with the testator to advance his own selfish interests.
Estate of Williams, 2001, Cal.
Housekeeper/lover attempted to get big disposition in will
• Was held invalid due to UI b/c she got him to revoke his trust leaving to relatives and leave everything to her
• Trial court focused on §259 elder abuse (treat her as if she predeceased) but upper court said it didn’t matter b/c of UI
Consequences of finding undue influence (by prima facie case or by presumption):
1. That part is invalid, rest of the will is valid.
⬢ Invalid part to residuary clause and if not, goes intestate.
Statutory Undue Influence
1. We presume undue influence if there is a gift to: §21350
⬢ Drafters of the instrument; or
⬢ Relatives of drafters (or lives with or works for drafter), or
⬢ Person who is in a fiduciary relationship with the T and who transcribes the instrument or causes it to be transcribed.
Statutory Undue Influence rules do not apply if: §21351
• The transferor is related to, married to, or lives with the drafter; or
• An independent lawyer examines the will.
o Liable for not informing of this requirement?
 Osornio v. Weingarten: (2004)
• Lawyer who drafted without getting a certificate of independent review.
• Owed a duty to non-client for not advising client to seek independent counsel.
• It has been approved by a court after full disclosure.
• If court determines based on clear and convincing evidence that fraud or undue influence was not at work.
o Cannot be used by drafter (needs independent certificate unless it is a large estate gifting a small amount)
In re Will of Moses
(1969): bequest to attorneys
⬢ Due to the A-C relationship between the T and the B, a special presumption of UI arose even those he did not draft the will.
Estate of Shinkle
(2002)
⬢ Ombudsman arranged estate planner for T. Trust left O as successor trustee. No advice for independent review.
⬢ Court: Even after O was transferred he remained a care custodian under §21350(a)(6).
o Prohibited from benefiting from the trust without undue influence being found
In re Conservatorship of Davidson
(2003)
⬢ Trust B had been friend of T for years and cared for T.
⬢ Court found gift valid under §21350 b/c B was rendering services based on personal relationship with Tso not considered a care custodian.
Consequences of finding statutory undue influence:
The devisee gets what he would have got under intestate succession – but NO MORE.
Elements of fraud
o Elements:
1. There must be a representation;
2. Of material fact;
3. Known to be false by the wrongdoer;
4. For the purpose of inducing action or inaction; and
5. In fact induces the action or inaction desired.
Fraud in the execution
1. T doesn’t realize what he’s signing is a will.
2. Will is invalid – apply DDR if possible
Fraud in the inducement
1. T is told a lie in order to get him to make his will a certain way.
• Example: T is going to leave $$$ to charity. T’s son tells him that charity is under investigation for cheating the elderly. So T doesn’t leave the money to charity.
2. Result: Will good, but the fraudulently altered part is invalid, gift goes to residuary or intestate
• OR court can probate the will as is but create a constructive trust in favor of whoever was really supposed to get the money.
Puckett v. Krida
(1994): fraud and undue influence
Duress
o Undue influence that is overtly coercive.
o Latham v. Father Devine (1949page 189)
1. Will left all to FD, who used duress to prevent T from changing will
2. Court: If complaint was proved Ps were entitled to a constructive trust ordered Bs under will to transfer property to Ps
o Need wrongdoing to get a constructive trust
Tortious Interference with Expectancy
o 5 factors needed:
1. Existence of an expectancy
2. Reasonable certainty that the expectancy would have been realized but for the interference
3. Intentional interference with that expectancy
4. Tortious conduct involved with the interference
5. Damages
Marshall v. Marshall
(2002)
⬢ If a donor intends to give a gift to a donee during his lifetime, but is thwarted by the residual beneficiary of the donor's estate, equity demands that the heir not benefit from his wrongful conduct.
⬢ Damages to widow: amount that the deceased intended to give her. .
Deterring Challenge
 No contest clause: If B contests will, B loses whatever would get under will.
o Valid and will be strictly enforced unless contest is based on will was revoked or was a forgery (it won’t be enforced against you then)
o Can contest a gift to the attorney without worrying about losing your share
 Inter vivos trusts
 Explanatory statement
Requirements for will execution
§6110
1)Writing: can’t be oral
2)Signed by testator
 “X” is okay if testator is illiterate.
 A third person, in testator’s presence and at testator’s direction (if he’s incapacitated).
 By a conservator pursuant to a court order
3)Intended as the testator’s will
4)Signed by two witnesses Must BOTH simultaneously be present for either:
• The testator actually signing OR
• The testator acknowledging his signature.
 Must also both understand that what they are signing IS A WILL.
In re Groffman
(1968) strict compliance approach
⬢ Will was invalid b/c witnesses were not present at the same time when they witnessed his signature and his acknowledgement of the willsame result in CA
Stevens v. Casdorph:
(1998) West Virginia statute
• Will was invalid b/c witnesses did not sign in the presence of the T or in the presence of each other
• Differs from CA: In CA witnesses do not have to sign in the presence of each other or in the testator’s presence.
o Just have to be together when the testator signs and acknowledges the will to them.
Presence
: two lines of authority
⬢ English: line of sighthave to actually see the person in the act of signing
⬢ Conscious presence test: everyone is aware of what is happening and they can hear/see each other
Signed after death
Estate of Sauressig (Cal., 2004eRes)
• A person who satisfied requirements of §6110 as a witness to the execution of a will can fulfill the signature requirement after the T’s death.
• No supreme court decision on this in CA: But allowed to sign after death if no suspicious circumstances
Consequences of finding an interested witness
o Will is still valid.
o BUT unless there are two other disinterested witnesses, there is a rebuttable presumption of undue influence. §6112
 Rebuts the presumption  everything fine.
 Can’t rebut  only takes as much as she would have gotten via intestacy.
o The presumption of wrongdoing is inapplicable if witness/beneficiary is taking only in a fiduciary capacity (i.e. as trustee – so they don’t really “have” the money).
Purging approach
conflict of interest only to extent he stands to take more under the will than he would otherwise and purges him only of his excess interest.
o Estate of Parsons (1980page 211)
 Court: Disclaimer is not effective to disinterest an interested witness b/c disclaimer is not retroactive and witness needs to be disinterested when will is executed.
• Applied purging approach
 Amendment or codicil to will fixes things (purges), disclaimer does not.
Choice of law
§6113
⬢ A will can be probated in California IF:
o It complies with CA formalities
o It complies w/formalities of the state where executed
o It complies w/formalities of the state where T was domiciled when will was executed.
Swapped wills
• Couples have mirror wills and they accidentally sign the wrong ones.
• General rule: Will is invalid
o In re Pavlinko’s Estate (PA, 1959page 220)
• Modern trend: more concerned with T’s intent than Wills Act formalities
o In re Snide (N.Y., 1981page 223): Treated execution scenario as one big execution ceremony and probated the two wills as one.
 §6111.5: Can use extrinsic evidence to show that something is intended to be a will or to clarify the meaning
Curative Doctrines
⬢ Traditional rule: strict compliance with Wills Act formalities
⬢ Modern trend: Dispense with formalities if there is C & C evidence that the T intended the document to be his will

1)Substantial Compliance test
2)Dispensing power/harmless error
Susbtantial Compliance test
 Looks to both intent of T and if will substantially complies
 In re Will of Ranney (N.J., 1991page 226)
• Witnesses signed self proving affidavit instead of the will
o Attestation Clause: Witnesses shows that will complied with wills formalities in execution
o Self Proving Affidavit: Witnesses make a statement under oath to a notary public as to the facts of the will execution
• Strict compliance: will was not properly executed
• Court adopted substantial compliance doctrineremanded
Dispensing power/harmless error:
UPC §2-503
 Just looks to the intent of the testator
 In re Estate of Hall (Mont., 2002page 231)
• T clearly intended it to be his will: After executing joint will, T directed the wife to destroy the original will (acts of revocation of the original will)
Conditional Wills
§6105
⬢ Where the validity is made conditional by its own terms.
o Example: This will controls if I die while on my trip to Europe in August 2005.
⬢ Probated only if the condition happens.
Elements of Holographic Wills
§6111: Don’t require witnesses
• Elements:
o Can be signed anywhere on the will
o Material provisions must be in T’s own handwriting. (New UPC says material portions)
 The “material provisions” are:
• the gifts made, and
• The beneficiaries’ names.
Testamentary intent of HWs
o In a holographic will, a statement of testamentary intent (“This is my last will”) need not be on the face of the will and in testator’s handwriting.
What if letter says that intends to give gift?
• Kimmel’s Estate (Penn., 1924page 237)
o Letter from father to son was deemed a HW b/c it was in father’s handwriting and shows father’s intent to give a gift at death
o Court held that the letter was testamentary.
• Estate of Kuralt (2000page 245)
o Letter expressed testamentary intent
o Written in expectation of death (died 2 weeks later)
o Used term "inherit"reflected intent
o Court: letter was a codicil to the formal will b/c made a specific bequest of property and it did not purport to bequeath the entirety of the estate.
o Can look at extrinsic evidence (previous gift of adjacent property, long relationship)
What if testator signs and executes a writing that lists just the names of people and next to each name, an asset that testator owns?
Extrinsic evidence is admissible to determine testator’s testamentary intentThird generation statute.
What if testator writes a series of letters?
The series of letters can constitute one will under integration.
What if the testamentary intent (“this is my last will and testament”) is part of a commercially printed form will?
• CPC expressly states that this is OK.
• Estate of Mulkins: Arizonafound testamentary intent
o First generation will statute
o If you can just look at the handwriting portion and standing alone, it stands as a will, then it is ok.
• Estate of Johnson: Arizonano testamentary intent
o Handwriting portion didn’t adequately show testamentary intentdid not follow UPC so did not allow only material provisions to be in handwriting
• Estate of Muder: Arizonafound testamentary intent
o Can look at preprinted words when T used them
Signing a donor card stating intent to give estate to charity
• Estate of Southworth (1996eRes)
o Court: Neither the card nor the handwriting (evinced a future, not present, testamentary intent) substantially complied with the requirements §6111
 Not a valid holographic will.
Date on HW
o A date is not required.
o BUT lack of a date can create a problem with:
 Inconsistent wills; and
 Capacity.
o Problem of lack of dates and inconsistent wills:
 If an undated holograph is inconsistent with the provisions of another will, the undated holograph is invalid to the extent of the inconsistency—unless the undated holograph’s time of execution is established to be after the date of execution of the other will. §6111(b)(1)
• What if there are two undated holographs?
• If you can’t establish which one came last, neither holograph is probated to the extent of the inconsistency.
Problem of lack of dates and capacity
If a holograph is undated, and if it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the holograph is invalid—unless it is established that it was executed at a time when the testator had testamentary capacity.
First generation statute
Has to be entirely in the handwriting of the testator and dated and signature
Second generation statute
Material provisions and signature in handwriting
Third generation statute
material provisions and extrinsic evidence allowed
o Estate of Brenner (1999eRes)
 §6111.5: Extrinsic evidence should be considered
 Considered extrinsic evidence in the form of photocopies of the testator's handwritten dispositions to determine whether a valid holographic will was created.
What is the best thing you can do if a person is about to die and doesn’t have a will?
• Tell client to make a holograph
o Take a blank piece of paper
o Start out with “I intend this to be my will.”
• Safer than using a pre-printed form
o Don’t put any stamps or stickers on it
o If you are married or have children, be sure to put them in your will. You can just say “I am married to X and Y, Z and L are my children.”
Revocation of Wills
§6120
⬢ Can be revoked:
o By subsequent written instrument §6120(a)
o By act (being burned, torn, canceled, obliterated, or destroyed) with the intent and for the purpose of revoking it §6120(b)
o By presumption
o By operation of laws
Revocation by subsequent written instrument
o Manner of Revoking
 Express: Will #2 expressly says “I revoke all previous wills”
 Implied: Will #2 totally disposes of all of T’s estate, so there is nothing left for #1 to act on.
o Revival
 When T makes Will #1, revokes it via Will #2, then destroys Will #2 – is Will #1 automatically revived?
• NO – unless T manifests the intent to do so.
• Oral statements of intent are OK.
• Estate of Auburn (Wisc., 1963page 264)
o T revoked Will #2 in mistaken belief that it would revive Will #1.
o Because of clear intent of T, court allowed DRR to save Will #2.
 Can’t revive Will #2 w/o re-executing it
o CA: §6123 Can revive earlier will if it is evident from circumstances of revocation of second will or subsequent declarations that she intended the first will to take effect
o Codicil: If the second will is really just a codicil, it only revokes the first will to extent that it covers testator’s disposition of property
 Revocation of Codicils
• Codicil only revoked  rest of will still good, codicil gone.
• Will only revoked  Presumption that codicil was intended to be revoked also.
Revocation by physical act
o Elements for Revocation by Physical Act (3 elements):
1)Will must be burned, torn, scribbled out, destroyed or erased.
2)Testator must have the simultaneous intent to revoke.
• If testator accidentally destroys his will, thereafter finds out about it and says, “That’s okay because I wanted to revoke it anyway,” the will is not revoked.
3)Must be done either by testator, or by some one in testator’s presence and at his direction.
Cancellation
 Cancellation: crossing out or lining through.
• CanNOT be used to increase a gift.
o Example: I leave my farm to X and Y  Y is crossed out. X still takes ½ of the farm. Other ½ goes to the residuaries.
• Writing “null and void” on the will is a valid cancellation.
• Thompson v. Royall (1934page 255)
o Attorney wrote “null and void” on back of will.
o Did not qualify as a revocation by writing b/c notation did not qualify as valid will (not witnessed and not holographic b/c material provisions not in T’s handwriting)
o Did not qualify as revocation by act b/c the handwriting did not touch any of the written portions of the will as required under the traditional common law approach
o Modern trend: Could probably be saved under dispensing power or substantial compliance doctrines
Interlineations
writing btwn the lines.
• If will is typed but then handwritten interlineations, do we have a valid will w/holographic codicil? NO b/c the material provisions will not all be in handwriting. PLUS the original gift would be revoked!
o BUT if original gift was to give less (so attempted change was to increase gift)  apply DDR and use original gift.
o BUT if original gift was to give more (so attempted change was to decrease))  do NOT apply DDR, and entire gift is revoked! Devisee gets NOTHING.
• Compare – if initial will was holographic, change would be OK because then the material provisions would be in T’s handwriting.
Revocation by presumption
o Duplicate wills §6121
 Where both are signed in original handwriting.
 If one of the wills is revoked by a physical act, any duplicates are revoked as a matter of law.
 Lauermann v. Superior Court (2005eRes)
• Could only find photocopypresumption is that client revoked original will if original will was last seen in T’s possession and can’t be found after death
o Mutilated will
 When a will is found in a mutilated condition, and was last seen in T’s possession, there is a presumption that T intended to physically revoke it.
 Harrison v. Bird (1993page 253)
• Will torn up by lawyer w/o T present
• Rebuttable presumption that T revoked will when will was last known to be in the possession of the T and after death cannot find willsame as CA §6124
Revocation by Operation of Law:
1)Omitted or pretermitted spouse
2)Omitted Spouse or Registered Domestic Partner
3)Final Dissolution of Marriage or Domestic Partnership
Omitted or pretermitted child
§21620
⬢ Child born or adopted after the testamentary was made, not provided for in the will or in an inter vivos trust.
o §6570: old statute only mentions will
Codicil executed to bring will up to date
 Azcunce v. Estate of Azcunce (Fla. 1991page 475)
• Will executed before birth of child.
• Will was republished by codicil and redated will to after child’s birth so child was not omitted child
Omitted issue of deceased child
 In re Estate of Laura (NH 1997page 481)
• NH statute: every child or issue of a child who is not named or referred to in a will
• Affirmative disinheritance of child is enough to bar grandchildren from claiming as omitted issue
• CA: only covers kids
 Estate of Treloar (NH 2004page 483)
• Reference to spouse of child in will is not enough to prevent grandchildren from being considered omitted issue
Result of omitted child issue
Child takes an intestate share by abating other gifts.
o Same as if T failed to provide for child b/c thought child was dead or was unaware of birth§21622
o Child gets share in same manner as omitted spouse§21623
Exceptions to pretermitted child statute
§21621
• Intent to disinherit appears on the will itself (“I have no children, but if I ever do, they are to take nothing.”)
o Missouri view: intention has to appear on will
 CA uses this ownbut intention can appear on any testamentary documents
o Massachusetts view: can be shown by extrinsic evidence
• T provided for the child by transfer outside of the will.
• T had one or more children when he made the will, and devised most of his estate to the parent of the omitted child.
International Family Maintenance Statutes
⬢ Lambeff v. Farmers Co-operative Executors & Trustees Ltd (1991page 469)
o Judge can redo plan based on what he thinks should happen
Omitted Spouse or Registered Domestic Partner
• Surviving spouse married T after execution of testamentary instruments, and not provided for therein or in a revocable trust.
o §6560: old statute only mentions wills
• Result: Omitted spouse takes intestate share, and other gifts must be abated.
o Intestate share (§21610): ½ share of CP and ½ of QCP of decedent, Share of SP not exceeding ½
o Abated (§21612): How to omitted spouse’s share
 First taken from estate not disposed of by will
 Taken from other Bs in proportion to the value of their gifts
Exceptions to the omitted spouse issue
§21611
• Intent to disinherit appears on the face (“I’m not married, but if I ever marry, my spouse is to take nothing.”)
o Estate of Shannon (Cal., 1990page 462)
 General disinheritance clause was not specific enough to disinherit W married 2 years after will and insufficient evidence that CHP fund was in lieu of receiving under will
 W got pretermitted spouse’s share of estate
• T provided for the spouse by transfer outside of the will with the intention that the transfer be in lieu of a testamentary gift.
• Omitted spouse signed a waiver.
o Waiver must be in writing,
o W/ full disclosure by testator of testator’s finances; and
o Independent counsel for the waiving spouse.
 EVEN IF there is no disclosure by T or independent counsel by the waiving spouse, the waiver still is enforceable if:
• the waiving spouse had or should have had knowledge of the testator’s finances, OR
• if the waiver was in fact fair.
Final Dissolution of Marriage or Domestic Partnership:
 Annulments/divorces automatically revoke a devise to that spouse.
• §6122: Applying to will
• §6122.1: Same for domestic partners
 Legal separation does NOT count.
 BUT it’s reinstated if the will is unchanged and the testator remarries the former spouse.
 These rules do not apply if the will expressly states otherwiseaffirmative evidence
 Result: Property passes as if ex-spouse predeceased T.
• Relative of ex-spouse could still take under will (not under UPC though)
 §5600: Applies same rule to non-probate transfersAllows you to show by C&C evidence that the T intended to preserve the transfer to former spouse
• Only applies to things that were not irrevocable
• Joint tenancies severed
• Insurance policies surviveprotect minor children
§21105
Mistake
Mistake in content
a. Mistake as to the actual language of the will.
b. Mistake in omission: words are accidentally left out.
i. Example: Testator’s will states, “Blackacre to John.” But testator actually wanted Blackacre to go to “John and Mary.”
ii. No remedy is given: Mary’s name is not added. Courts do not want to rewrite wills!
c. BUT Mistake in addition: words are accidentally added.
i. Example: Testator wants to execute a will that says, “Blackacre to John,” but the will actually reads, “Blackacre to John and Mary.” This is an accidental addition.
ii. Remedy may be given -- The court may strike out Mary’s name
1. Courts are more likely to delete than add to will.
iii. Estate of Gibbs (Wis., 1961page 374)
1. Made bequest to Robert J. Krause instead of Robert W. Krausewrong address too
2. Court disregarded middle initial and addressnot important to determining disposition
Mistake in execution
a. The testator signs the wrong document.
b. First situation: Testator mistakenly signs his will believing it is a non-testamentary instrument.
i. Result – no intent  no will
c. Second situation: Reciprocal wills or mutual wills, where Husband’s will leaves everything to wife, and vice versa. Husband mistakenly signs Wife’s will and Wife mistakenly signs Husband’s will. Husband dies.
i. Result – usually the court will reform the will in this unique situation, especially if the parties are married or DPs.
Scrivener's Error
extrinsic evidence allowed where there is clear and convincing evidence of such error and its effect upon T’s intent
i. Erickson v. Erickson (Conn. 1998page 374)
1. T executed will two days before marriage.
2. Under state’s lawif T gets married after will execution, marriage automatically revokes will unless will expressly provides for marriage
3. Adopted scrivener’s error doctrine to allow admittance of evidence to prove T’s intent
Mistake in inducement
a. A particular gift is made or not made on the basis of testator’s erroneous beliefs.
i. Testator would have left X $1000, but he thinks X is dead, but X is actually alive.
b. Result: person left out is SOL, UNLESS what T would have done appears on the face of the will.
i. Testator’s will reads: “I leave X nothing because he’s dead, but if he were alive I would leave him $1000.”
Mistake in description (ambiguity)
a. The will is confusingly ambiguous.
b. Examples:
i. “I leave my house to my cousin X.” T has 2 cousins named X.
1. EquivocationLatent: extrinsic evidence allowed
a. Personal usage exception
ii. “I leave my beach-house to X.” Testator has 2 beach houses.
iii. “I leave my beach house to X.” T does not own a beach house.
1. Misdescriptionlatent: extrinsic evidence allowed
2. Arnheiter v. Arnheiter (1956page 372)
a. T gave wrong address for her property
b. Court struck out street number and just left it as her “undivided interest on Harrison street”
CL ambiguity rule
Plain meaning rule
i. Mahoney v. Grainger (Mass., 1933page 366)
1. Mistakenly have to “heirs at law” believing first cousins were closest heirs when aunt was
a. Next of kin statute so aunt takes all
2. Court: “heirs at law” was not ambiguous
a. Extrinsic evidence not admissible to establish meaning for phrase “heirs at law” that was inconsistent with plain meaning.
ii. Allow extrinsic evidence to prove latent but not patent ambiguity
1. Latent: not apparent from face of will
2. Patent: apparent from face of will.
MT ambiguity rule
Admit parol evidence for any type of ambiguity to determine what testator’s intent was. Substantial compliance.
i. Disregards latent v. patent distinction
ii. Admissible evidence: Only extrinsic evidence that is consistent with one of the possible reasonable interpretations of the ambiguity is admissible
1. Estate of Russell (Cal. 1968page 388)
a. Fact that B was a dog was a latent ambiguity that could be proved with extrinsic evidence if under CL or MT.
b. However, fact that T would have preferred everything go to other B instead of ½ going intestate was not a reasonable interpretation from the face of the will.
Mistake in the Validity of a Subsequent Testamentary Instrument-->DRR
b. The basis of DRR:
i. Testator executes Will #1,
ii. Then executes Will #2 and
iii. Subsequently revokes Will #1, thinking that Will #2 effectuates his intent.
iv. BUT Will #2 is either invalid or fails to effectuate T’s intent.
v. DRR allows the court to ignore the revocation of Will #1 on the grounds that testator revoked Will #1 because testator mistakenly believed Will #2 effectuated his intent.
Rule for DRR
i. T revokes her will, or a portion thereof,
ii. in the mistaken belief that a substantially identical will or codicil effectuates her intent,
iii. then, the revocation of will #1 is deemed conditional on will #2 effectuating testator’s intent.
iv. If it doesn’t, it’s as if will #1 was never revoked.

d. If Will #1 was revoked by physical act by being destroyed (thus, Will #1 no longer exists), Will #1 can still be probated under California’s lost will provisions:
i. Can be probated if at least one witness testifies as to the terms of the will.
e. BUT!! Remember that Will #1 and Will #2 must be substantially the same.
LaCroix v. Senecal (Conn., 1953page 260)
i. Executed codicil to correct name but invalid b/c of interested witnesspurging statute would take effect and B would not get
ii. Provisions are identical in substance and she simply didn’t foresee that there would be any problems with the codicil.
iii. DRR allowed original will to stay valid
iv. CA: no longer has a purging statuteif there is an interested witness, it creates a presumption of undue influence which can be overcome
Mistake Regarding Living Children (Pretermission)
a. A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in ANY testamentary instrument or inter vivos trust.
i. A pretermitted child takes an intestate share of the estate (including any inter vivos trust).
b. A child born or adopted before all testamentary instruments are executed and not provided for in any instrument is not pretermitted and is SOL.
i. This is true even if he was only born before b/c a later codicil republished the will!
ii. BUT the only reason the child was not provided for in the will is because testator erroneously thought the child to be dead or not existent—i.e. testator made a mistake.
Integration
a. All the integrated documents are what make up the will.
b. Two elements required for papers to be integrated:
i. T intended that they be part of the will AND
ii. The documents were actually, physically present at the time of execution.
c. Proving integration: 2 different ways:
i. Pages physically connected (i.e. staple)
ii. Logical connection – last word on p. 1 only makes sense w/ the first word on p. 2.
Incorporation by Reference
a. A non-integrated part of the will is included and admitted into probate.
b. Elements to incorporation by reference:
i. Writing must have been in existence when the will was executed,
ii. It must be clearly identified in the will; and
iii. T must have intended to incorporate the document into the will.
c. You can incorporate by reference an invalid deed, an invalid contract, or even an invalid will of the testator or of a third person – because all we care about is its meaning for the will.
Clark v. Greenhalge
Mass, 1991
i. Language of will was broad enough to include both memorandum and the notebook, and will described notebook with reasonable certainty.
ii. In existence at time will was executed b/c the codicils redated will.
Johnson v. Johnson
Okla, 1955
i. Can holographic will give effect to testamentary intent in invalid will?
ii. Can’t use republication by codicil b/c can’t republish invalid will.
iii. Can’t be integrated b/c general rule is that typed material cannot be integrated into holographic will (violates handwriting requirement)
iv. Incorporation: holographic will can incorporate invalid will by reference
1. In existence, intent and identification (“This will shall be complete”)
Republication by Codicil
a. Executing a codicil automatically redates the underlying will.
i. Expressly
ii. Implicitly: courts presume the T intended to redate the will
1. Exception: if redating will would be counterproductive to T’s wishes and it is apparent that it is not what T intended
b. Applied only when it would further the intent of the T.
c. Usefulness:
i. Allows will to dispose of property owned at time of codicilthough now can dispose of all property owned at death
ii. Curative powers: If the previous will’s problems do not affect its validity in whole (interested witnesses, undue influence claim to part of will, etc.)May be cured by republication by codicil.
1. As long as problem is not present when codicil is executed, codicil’s execution is deemed to reexecute the will.
iii. Omission: if a T has a will and then gets married and dies, SS is entitled to an intestate share of the estate even though will leaves her nothing
d. Can’t be codicil if no previous existing valid will (will just be its own will)
i. But may be able to give effect to testamentary wishes in previous invalid will through incorporation by reference
Facts of Independent Significance
e. Who a beneficiary is, or what gift is given, may be given meaning by facts of significance independent from T’s will.
i. Example: When I die, all my property to the church I belong to at death.
1. Here, church is a fact of independent significance – T isn’t a member of the church just for purposes of writing his will. He goes because he likes them.
f. Test for independent significance – would the fact exist absent the will?
i. If so, we admit parol evidence to find out the fact.
ii. Example: if leaving money to people listed in brother’s willhas independent significance (disposition of brother’s property)
Contracts to make a will
a. Many states require such contracts to be in writing (not CA)
Contracts not to make a will
a. The will by itself is never a contract and can be revoked anytime T feels like it.
b. BUT if T for some reason makes a contract to leave D something in his will, then changes the will, he will be in breach of contract and D can sue T’s estate.

d. Cause of action for this type of breach of contract does not accrue until T dies – because you never know if T was going to change the will before he died!
i. BUT the cause of action accrues during decedent’s lifetime if the decedent is engaging in conduct which would be a fraud on the promisee.
1. Example: T enters into a contract to sell something that is supposed to be devised to A. A may be able to get an injunction to stop the sale.
Four alternative ways for a contract to not revoke or a contract to make a will:
21700
i. The will or other instrument (e.g. a trust) states the material provisions of the contract.
1. Will states “In consideration for the $5K A gave me, I have promised to devise Blackacre to A, and so hereby devise.”
ii. There is an express reference in the will to a K.
1. Here, the terms of the contract may be established by extrinsic evidence, including oral testimony – even if there are SOF issues
iii. There is a writing, signed by T, evidencing a K.
iv. There is clear and convincing evidence of an agreement that is enforceable via promissory estoppel.
1. Can either be between T and claimant, or T and some third party for claimant’s benefit.
Joint and Mutual Wills
i. Joint Will
1. Where both wills are on one document.
a. Provisions do not have to be reciprocal.
b. When the first person dies the will is probated, and then when the second person dies it is probated again.
ii. Mutual Wills or Reciprocal wills
1. These are separate wills that may be reciprocal.
iii. These do NOT automatically create a presumption of a contract not to revoke or to change the will.
iv. BUT it may be evidence of a contract in conjunction w/other factors.
If there is a contract to revoke in a joint/mutual will:
1. All property acquired before and after death of spouse is affected
2. SS has life estate in property subject to contract not to revoke
3. Beneficiaries of a K not to revoke do not have to survive to take.
4. Remarriage: Does it violate the contract not to revoke?
a. Majority: yescontract not to revoke Bs become creditors and can claim before surviving spouse beneficiaries
b. Minority: nocontracts that discourage or restrain the right to marry are void as against public policy so SS takes first.
i. Via v. Putnam (Fla. 1995page 290)
1. H remarried and W2 claimed spousal protections right in her property. Kids claimed marriage breached K and they should be creditors.
2. Court adopted minority approachspousal protection trumped claims of creditors claiming under contract not to revoke
LIFE INSURANCE/POD CLAUSES: CL
§5000
Common law: only life insurance contracts get to avoid wills formalities
 Wilhoit v. Peoples Life Insurance Co. (1955page )
• Agreement between T and life insurance company was merely a deposit agreement with a POD clause and thus was invalid b/c it did not qualify as a life insurance policy and did not comply with wills formalities.
• So property went to person in will, not in LI agreement.
MT for Life insurance/POD clauses
Applies to any and all contracts and instruments with POD clauses (employment contracts, promissory notes, deposit agreements, pension plans, retirement accounts, etc.)
 Estate of Hillowitz (N.Y., 1968page )
• Express POD clause that provided upon H’s death his share of the club was to go to his W.
• Valid will substitute under modern trend
LI/POD
o Revocable: Person who creates POD clause can revoke it.
o Survival: Have to survive for insurance.
 §5000: no survival requirement for POD clauses
o Very little effect on a person during his life
o Courts initially validated it b/c transfers a remainder interest to beneficiary
 T transfers property to insurance company, who holds it for T during lifetime and then at death to B.
 Present transfer of a future interest in the property
 Older life insurance policy: B got a vested interest, not a contingent interest
• Now the interest is contingent (on surviving insured, etc.)
o Courts don’t worry about life insurance anymore
 Very popular, seldom subject to fraud/abuse, not usually taken out under undue influence
 So life insurance doesn’t really protections provided by Statute of Wills.
Superwills
will that is permitted to change terms of will substitute
 Where allowed, generally have to show intent to change will substitute
 General rule: Not allowed for public policy reasons
 Cook v. Equitable Life Assurance Society (Ind., 1981page )
• T tried to change insurance policy with a superwill.
• Court didn’t allow ithad to comply with terms of insurance policy for how policy beneficiary could be changed
 §5600: B designations in favor of former spouses are revoked by divorce.
• Unless there is clear and convincing evidence that the T wanted to preserve the transfer to the former spouse
• Does not cover a provision in an insurance policy.
o Assume reason for keeping policy: part of agreement, protect kids, etc.
Pension accounts
 Switching from defined benefit plans to defined contribution plans.
• Benefit: gave EE a payout over lifetime that quits when he diedannuitized obligation
o More estate planning b/c meant to be used during lifetime of T
• Contribution: both EE and ER contribute to plan. Less risky for ER than DPB b/c ER is not required to have a certain amount for payout.
 Egelhoff v. Egelhoff (U.S., 2001page 336)
• ERISA expressly preempts state statutes like §5600 to the extent it applies to ERISA plans when the statute directly conflicts with ERISA’s requirements
• Statute also interferes with nationally uniform plan administrationprincipal goal of ERISA
Multiple party bank accounts
 Three types depositor may want:
• Joint Tenancy account: Interest inter vivos and on death
• Convenience/agency account: second party is an agent for depositor. Can access account inter vivos for benefit of depositor. Power of attorney account
o Hard for banks to monitor
• POD account: No interest until death §5301
o Under common law: not valid will substitutes
 Traditionally banks only offered JT accounts
 Extrinsic evidence: allowed to determine depositor’s true intent
• Franklin v. Anna National Bank of Anna (Ill., 1986page )
o Clear and convincing evidence that when T added G’s name to the account he intended an agency account.
o G did not receive any interest in account while T was alive or upon the death.
5301/UPC
presumed that parties own in proportion to their contributions and upon death of any party there is a presume right of survivorship
• §5302: Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent.
o Can’t change B to Totten or POD account w/ will
• Right of survivorship ok without writing. §5304.
Changing terms of multiple accounts, §5303
⬢ Close account and reopening it under different terms.
⬢ Presenting modification agreement to financial institution that is signed by all parties with a present right of withdrawal.
⬢ If specific method provided have to comply with
Totten trusts
Similar to POD bank accounts
⬢ Depositor puts money in account in the name of depositor for benefit of B. Legal titleD. Equitable titleB.
⬢ Revocable, can use express clause in will to change B, survival requirement
⬢ No fiduciary responsibilities or interests during lifetime §5301
Joint tenancies
o Right of survivorship: upon death of one party, his share is extinguished and shares of surviving JTs are recalculated.
o Execution of a will does not turn a JT into a tenancy in common
o JT in bank account: divided based on contributions
o JT in realty: divided equally
o §682.1: can create community property with a right of survivorship
 JT cannot be changed by will so helps in situations where spouse gave away property to someone else
o Tax disadvantages:
 Stepped up basis at death
• CP: both halves of property get stepped up basis when first spouse dies
• JT: Only half of dead spouse gets stepped up.
o So §682.1 provides the best of both worlds:
 Full stepped-up basis and right of survivorship that is unchangeable by will.
o Severance of JT: Turn into TIChave to make a life transfer
Intervivos trusts
o Classic: Settlor, Trustee and Bsall different parties
o Settlor as trustee and life B: still treated as an inter vivos gift to remainder B so no need to transfer title upon settlor’s death
o Revocable trust + settler as life beneficiary: valid will substitute
o Revocable trust + settler as trustee and life B:
 If indistinguishable from a willsubject to wills formalities
 Even a contingent remainder in the 3rd party B is an inter vivos property interest
 Farkas v. Williams (Ill., 1955page 299)
• Even though the trusts were revocable some interest passed inter vivos to Bso was a valid will substitute
• Was considered a trust b/c settler had duties
Revocable trusts
CA presumes all trusts are w/o express provision
 PURPOSE:
• Avoids probate
o High costs, delays, loss of privacy (probate is public), shorter SOL for creditor claims, ancillary probate for property in other jurisdiction, avoid restrictions protecting family remembers, avoiding restrictions on testamentary trusts, choice of law options, less likelihood of successful will contests
• Property management by fiduciary
• Keeps title clearprevent commingling of assets
• No federal tax advantages
• Dealing with incompetency
Particular method expressed:
exclusive method allowed
• In re Estate and Trust of Pilafas (Ariz., 1992page )
o Trust expressly provided that it was revocable by instrument in writing delivered to the trustee.
o Trust couldn’t be revoked by presumption doctrine.
No particular method expressed:
may be exercised in any manner that adequately expresses the intent to revoke.
Creditor's rights
• During life: If you can reach assets so can creditors
• CL: Life estate in trust ends at deathcreditor can’t get.
• MT: To extent settler had right to use and benefit from trust assets during life, creditors have right to them at death.
o State Street Bank & Trust Co. v. Reiser (Mass., 1979page )but go after probate assets first
o CA: treat trust same as willcreditors can reach the assets in a revocable trust after death.
 Probate assets first.
 SOL: creditor’s claims have four months to be filed after notice to creditors is sent out.
Pour over wills
o Will leaves all T’s property to a trust that has already been set up.
o Provide for a unified distribution of property
How to validate this “pour-over provision”:
1) Incorporation by Reference
2) Trust is a fact of independent significance
3) Uniform Testamentary Additions To Trusts Act (UTATA)
Trust is a fact of independent significance
• Must be created inter vivos and have property in it at T’s death.
• Amendments to trust are given effect
• Probate court supervision: Inter vivos trusts not subject to probate court supervision like testamentary trusts.
o So there is a benefit to inter vivos trust
• Use if trust was funded inter vivos
Uniform Testamentary Additions To Trusts Act (UTATA)
• Allows unfunded trusts to be valid wills substitutes
• Only requirement: Terms of trust have to be in writing before the T dies.
• CA follows older version: Can make a valid pour over to an unfunded trust as long as it is a written instrument in existence at the time of the will or contemporaneously.
• Under either statute, it is ok if the document is amended after the will is executed.
• Inter vivos v. testamentary?
o Clymer v. Mayo (Mass., 1985page )
 Unfunded will was valid pour over will under UTATA
 B/c will and trust were treated as one integrated testamentary scheme, the UTATA trust should be treated like a testamentary trust
• So subject to the revocation by operation of law doctrine and automatically revoked upon divorce
Durable power of attorney
survives incompetence
o Cheaper than guardianshipno court or no accounting requirement
o Unlike trusteepower terminated upon principal’s death
 Doesn’t avoid probate
 Agent does not have legal title to the property
o Scope:
 Most states require writing
 If gives broad authority: construed in light of circumstances
• If appears to authorize actions that may be inconsistent with principal’s intentconstrue narrowly to prohibit such actions absent express authorization.
o Franzen v. Norwest Bank Colorado (Colo. 1998page 347)
 Brother w/ DPOA allowed to revoke trust when trust expressly permitted agent to fund, create and/or revoke trusts
Directive regarding healthcare
o Living will: Outline what medical measures should be taken to save you
o Durable power for healthcare: Appoint agent to make healthcare decisions for you after you become incapacitated
 Bush v. Schiavo (Fl., 2004page 354)
• Unconstitutional b/c it allows executive branch to overrule the courts (violates separation of power) and gives executive branch power it shouldn’t have (violates delegation of powers)
o Allowed governor to make a decision w/o considering patient’s wishes
• Found clear and convincing evidence that she would have wanted the life support withheld
o Usually use the standard of substituted judgment standard based on what she would have done
Disposition of the body
o Can’t give client assurances that what they want done will be carried out
 Especially when family has differing views about what should be done
o Availability of organs for transplant
 Here: have to affirmatively consent to organ donationpresumed objection
 Belgium: default rule is for donation and have to say don’t want to donatepresumed consent
o Cryo-preservation:
 Perpetual trust to provide for you until you get reanimatedfund through a LI policy payable to cryo-preservation group
Fleming v. Morrison, 1904
⬢ Lawyer is testifying as witness to the will, not drafter. We always accept extrinsic evidence as to proper execution of will from witness. To see if will was intended to be a will
⬢ Facts: He was using will to get woman to sleep with him.
⬢ Different from other cases b/c not about what the will means but about whether it was even meant to be a will.
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