T&E STUDY CHAPTER 1-6 Flashcards

Question

UPC 2-121 - Surrogacy

Answer 1

says that in the absence of court order, a surrogate does not have the requisite parent-child relationship

Answer 2

if the taker killed the decedent, and the killing was felonious and intentional, the taker is treated as having predeceased the decedent

Answer 3

wife convicted of manslaughter of her husband. Vermont had no slayer statute. Court ruled wife must hold money in constructive trust for benefit of the next intestate heir.

Answer 4

Heir or devisee declines to take property (seomtimes to avoid taxes) disclaimant treated as predecesed decedent

Answer 5

Disclaimed inheritance could be gone after for taxes Drye's daughter took money and put it in trust that benefitted Drye Legal title to the money was in the hands of another, who was not subject to the tax lien of the IRS But Drye had exercised dominion over it in allowing it to be transferred Thus it was in fact his property

Answer 6

the ability to know (1) the nature and extent of his or her property, (2) the natural objects of his or her bounty, (3) the nature of the testamentary act he is performing, and (4) how these all relate to constitute a plan for disposing of their property (Cunningham test)

Answer 7

testator is 18 years old and of sound mind.

Answer 8

Testamentary capacity cannot be destroyed by showing a few isolated acts, idiosyncrasies, moral or mental irregularities, or departures from the norm unless they directly bear upon and have influenced the testamentary act.The legal presumption is always in favor of sanity, especially after attestation by subscribing witnesses and it is the duty of the subscribing witnesses to be satisfied of the testator’s sanity before they subscribe the instrument.

Answer 9

A person is mentally capable to make a will if she has sufficient intellect to enable her to have a decided and rational desire as to the disposition of her property.

Answer 10

a false perception of reality that the testator adheres to against all reason and evidence to the contrary. Jurisdictions are split on how to handle

Answer 11

Majority: if a rational person could not reach the same conclusion under the circumstances, the belief is an insane delusion Minority: if there is any factual basis to support the belief, the belief is not an insane delusion.

Answer 12

(rich kid shoots himself leaves holographic will) To sustain a cause of action, the insane delusion must actually materially affect the will.

Answer 13

a person intentionally misrepresents a fact to the testator to induce the testator to execute a will (or amend a provision or revoke a will) in reliance on the misrepresentation.

Answer 14

intentionally misrepresents the nature of the document (either completely or in part) the testator is signing.

Answer 15

intentionally misrepresents the nature of the document (either completely or in part) the testator is signing.

Answer 16

occurs where another substitutes his or her intent for the testators intent; where there is coercion (typically mental or emotional, not physical).

Answer 17

Testator had told friends she did not like the relatives she cut out of the will. Thus, there was extrinsic evidence that the will matched her intentions. Rule: Even where the presumption of undue influence might exist, it may be overcome if independent evidence of testator’s intent matching that in the will exists (such as verbal statements by testator that she didn’t get along with a disinherited party).

Answer 18

Rule of statement: where a wrong doer performs, or threatens to perform a wrongful act that coerces the donor into making a donative transfer he would not have otherwise made. Transfers procured by duress are invalid.

Answer 19

Mary Sheldon Lyon left her estate to defendant, Father Divine, a leader of a religious group. Plaintiffs, the testator’s first cousins sought to have a constructive trust imposed on the defendant’s gift on grounds that the defendant defrauded and unduly influenced Lyon. The plaintiffs claim that Lyon expressed a desire on several occasions to include them as beneficiaries in her will, but the defendants killed the her before the will could be executed. When an heir or devisee under a will prevents the testator from making a will or deed in favor of another, by fraud, duress, or undue influence, such heir or devisee will be deemed a trustee over the gift in favor of the intended beneficiary.

Answer 20

Innocent heirs who benefit from duress are also barred from collecting.

Answer 21

Plaintiff still has to prove fraud or undue influence. Requires (1) an expectancy, (2) a reasonable certainty that the expectancy would have been realized but for the interference; (3) intentional interference with the expectancy; (4) tortious conduct involved with the interference (such as fraud or undue influence, and (5) damages. Advantages include (1) punitive damages available, and (2) standard statute of limitation, not the shortened probate period.

Answer 22

The brother, the decedent's only heir-at-law, alleged that the decedent named him in her will as her personal representative and sole beneficiary. She was later hospitalized and, after her release, moved in with the caretaker. Alleged the caretaker used undue influence to convince the decedent to name caretaker as personal representative and sole beneficiary. Caretaker didn’t call brother about death until after will had been executed

Answer 23

Says if a beneficiary under the instrument sues to contest the instrument, he loses whatever he would take under the instrument Are often construed narrowly, but are frequently held valid Majority/UPC Approach does not enforce such clauses if there is “probable cause” to support the challenge Minority approach does not enforce, regardless of good cause, if claim is one for forgery, revocation, or misconduct by someone who was active in procuring the will

Answer 24

Assuming an individual has the testamentary capacity, the next requirement for a valid will is that it is properly executed. This is a function of two variables: The jurisdiction Wills Formalities Act and how strictly the court requires compliance with those formalities.

Answer 25

In most states you are barred from bringing a wll contest claim until the testator has died.- person who executes will has best evidence of intent and is dead

Answer 26

Ritualistic - impress upon testator the finality of the act of executing a will Evidentiary - provide satisfactory evidence the document reflects testator's wishes Protective - protect testator's intent and will from fraudulent claims Channeling - Encourage individuals to consult an attorney and standardize wills to decrease administrative cost and burden on the probate court

Answer 27

Three basic requirements are (1) a writing that is (2) signed by testator and (3) witnessed. Jurisdictions add in a variety of other requirements (and have different requirements for those listed above.) A typical common law Wills Act can look like this: (1) a writing (2) signed (3) at the foot or end thereof (4) by the testator, (5) or by another (6) in his presence (7) and by his direction, (8) such signature made of acknowledge (9) by the testator (10) in the presence (11) of two or more witnesses (12) present at the same time (13) and such witnesses shall attest [sign] (14) and shall subscribe [sign at the end of] the will (15) in the presence of the testator. b) Historically (common law) courts have required STRICT compliance by the testator on each statutory requirement, regardless of how clear his intent was. "The Strict Compliance Rule"

Answer 28

had witnesses sign his will at a dinner party. But the testator had previously signed. Court acknowledged the testators intent was clear, but threw it out because the testator did not sign in front of the witnesses.

Answer 29

Will was signed by various bank employees, some in front of the testator, others not. None of them saw him sign. Court throughout for strict compliance. The dissent argued that there was no evidence of fraud. Coercion, or undue influence and that substantial compliance with will requirements should be enough.

Answer 30

Anything the testator intends to be his signature is his signature, even an X. In most states, another can sign for the testator as long as the signature is made in the testator’s presence and at his direction. If the testator begins to sign, and is interrupted, the partial signature does not count as a signature in most states. (Taylor v. Holt)

Answer 31

a man typed out his name in cursive in front of witnesses, printed it out, and they signed. Tenn. Court held that it was OK.

Answer 32

Most jdx require the testator to sign or acknowledge his signature in the presence of two witnesses present at the same time. The witness must sign the will and know they are signing the will in most jdx.

Answer 33

almost all jdx require that one party must perform in the presence of another party (testator has to sign in presence of witnesses, and vice-a-versa_ Traditional Line of sight approach, party must be able to see the act being performed Modern approach, party has to understand through the totality of the circumstances that the act is being performed. UPC 2-502 – abolish requirement that witnesses sign in the presence of testator. Only “presence requirement is for the testator to sign or acknowledge in front of the witnesses.

Answer 34

some courts hold there is an implicit order of signing requirement (testator before witnesses). Modern trend requires that all sign in one transaction (no one can leave the room while someone else is signing). UPC 2-502 says it has to be after, but also contains a “harmless error clause”

Answer 35

If a gift is typed or hand written below the signatures it depends on jdx. Some states require all signatures subscribe the will (a new gift would require new signatures underneath).

Answer 36

at common law, witnesses have to sign right after the testator does. Modern trend is that they have to sign in a reasonable amount of time of the testator. Reasonable amount of time is up for debate, but in general the witness has to sign while they can still remember that the execution summary was valid. Can even sign after death of testator if it is reasonable amount of time.

Answer 37

if one of the two witnesses will take under the will, the have a conflict of interest. At early common law, the whole will was void. Today jdxs vary their approaches.

Answer 38

Some void the entire gift to the witness Others purge the interested witness of the “excess” interest that he or she would take if the will were valid Others only say that the interested witness creates rebuttable presumption of wrong doing on the part of the interested witness. UPC calls to abolish this rule as it does more harm than good. (Estate of Morea)

Answer 39

Two of the three witnesses took under the will. Found a loop hole to allow one of those to take what his share would be through intestacy… making him a disinterested party.

Answer 40

Where two testators with the same testamentary scheme (typically husband and wife) mistakenly sign each other’s wills, the traditional common law approach is that the wills are invalid. Some courts try to save the wills under the misdescription doctrine, where all incorrect reference struck. Under the modern trend, the will may be probated under scriveners error. (Pavlinko's Estate)

Answer 41

Ukrainian speakers. Court ruled invalid. Could not use the misdescription doctrine because of specific references (names not brother/husband etc.)

Answer 42

Do in office of drafter. Ensure you know whose attorney you are – you are drafting to represent interest of testator. Beforehand, discuss privately with testator: Check spellings and addresses of beneficiaries. Chance for attorney to ensure to his own satisfaction that testator is actually competent. Then – gather all relevant people together: Testator Notary Two or three disinterested witnesses Drafter of will No one else should be there. Drafter asks testator three questions Is this your will? Have you read it and do you understand it? Does it dispose of your property in accordance with your wishes? Have testator verbally ask witnesses to be witnesses. Testator signs or initials each page, then signs at end. Witnesses read attestation clause. Each witness signs at bottom. Witnesses execute self-proving affidavit (separate document – sworn statement).

Answer 43

Overview: tries to facilitate the execution of attested wills by reducing the number of statutory requirements and/or by reducing the degree of compliance required.

Answer 44

Witness present at the same time – under the UPC, the witness need not be present at the same time; the testator can sign or acknowledge in front of witnesses separately. Acknowledgement: under the UPC the testator can either acknowledge the signature or the will in front of another. Conscious presence: expressly provides that where another signs for the testator, the conscious presence approach applies to the requirement that the party signing the testator’s presence and at his direction. Writing below signature: UPC does not require the signature subscribe the will. Delayed Attestation: need to sign within a reasonable period of time.

Answer 45

Substantial compliance: holds that a will was properly executed as long as (1) there is clear and convincing evidence that the testator intended the document to be his will and (2) there is clear and convincing evidence that the testator substantially complied with the Wills Act formalities.

Answer 46

will declared invalid after a witness signed the avidavit instead of the will. UPC 2-504 would allow one attestation to apply to both (only a minority of jdx adopted.)

Answer 47

Halls signed a draft on the advice of their attorney that it would act as a will until the final version was signed. Destroeyd all previous wills. Montana Ct. applied the “harmless error” doctrine finding a clear intent of the testator.

Answer 48

holds that the will was properly executed as long as there is clear and convincing evidence that the testator intended the document to be his will.Pros: give flexibility to find testators intent. Con: lose the bright line rules found with Strict compliance… more open to fraud… judicial interpretation.

Answer 49

Pursuant to the 2008 revisions to the UPC, a will is valid if signed by two witnesses OR a notary. Only a couple states have adopted. If prepared without a lawyer, a court may allow a notarized document to be probated because it shows the testator tried to make it official.

Answer 50

Only about half the states recognize holographic wills (mostly in the south and west) UPC 2-502 recognizes holographic wills Holographic wills need not be witnessed, but (1) there must be a writing, (2) the writing has to be in the testator’s handwriting (either completely or at least the material provisions depending on jdx, To off-set the requirement of witnesses Some jdx require the entire thing to be handwritten, thus any printed material would make the will invalid UPC 2-503(b) requires only the material provisions be handwritten (In Re Kimmels Estate) (3) the writing must be signed by the testator, and Most, but not all, states do not require the signature to be at the end. (4) the writing must express testamentary intent. To prevent drafts, idle thoughts from being probated. Words like “save this” or that mention importance after death suffice. Strict compliance requires testamtneary intent be clear through handwriting. “white out” all printed material, and see if the intent is there. UPC 2-502(c) allows intent to be formed through handwritten and non-handwritten material. (Estate of Gonzalez) Some jdx also require (5) the writing to be dated. UPC 2-502

Answer 51

A letter containing many spelling errors and discussing family matters and the weather, but at the end described valuable papers to go to specific individuals. It was only signed ‘father.’

Answer 52

filled out a commercial will form.; Showed it to family, but told them he was going to write it cleanly on a second will form. They signed the second will form as witnesses, and he died before filling out the second form. The court allowed the printed words to be incorporated in intent analysis and ruled it a valid holographic will. (UPC approach)

Answer 53

On the one hand, not requiring a witness should put more emphasis on the other elements. On the other hand, it is supposed to be a tool for a lay person to convey their property without having to deal with lawyers. (In Re Estate of Kuralt)

Answer 54

Kauralt handwrote a letter to his mistress saying “I’ll have a lawyer visit the hospital to be sure you inherit the place in Montana’ Court focused on the word inherit and the desire to honor testator’s intent. Found to be a holographic codicil.

Answer 55

A validly executed will (attested or holographic) can be revoked (1) by act, (2) by writing (if the writing qualifies as a will, (3) by presumption, or (4) by operation of law.

Answer 56

A testator can revoke a will by act id (1) the act is destructive in nature (tearing burning, scratching out, etc.) and (2) the testator intended to revoke with the act performed. Someone else can do the destruction as long as it is in the testators presence and at his direction. At common law, the act has to affect at least some of the words of the will. The modern trend says it just has to effect some of the will. Some jdx do not allow for partial revocation by act.

Answer 57

A testator can revoke a will by writing if the writing qualifies as a will. A subsequent will revoke a prior will either expressly or implicitly (through inconsistencies) and either in whole or in part (in which case it is a codicil Codicil – a will that merely amends and/or supplements an existing will and that does not completely replace an existing will is called a codicil. Revocation by inconsistency – new will makes all or parts of old will inconsistent. (Thompson v. Royall) (IN Re Estate of Stoker - pee case)

Answer 58

wrote null and void on will (to keep as memento), and signed it in front of lawyer and witness. Not considered revoked by court because the writing did not constitute a new will.

Answer 59

Facts One will written in 1997 (peed all over it) Next will written in 2005 2005 will was handwritten, but not by the decedent Instead the 2005 will was written at his direction and signed by him (because the decedent was dyslexic) Issue: Can a handwritten document not properly executed be considered valid if it can be shown to reflect the testator’s will? Rule: So long as there is evidence to show the decedent intended the document to be his last will and testament, it may be validly treated as such. (Harmless Error Rule)

Answer 60

if the will was last in the testators possession, and cannot be found after his death, a presumption arises that the testator revoked the will (by act). The presumption can be rebutted if proponents prove by a preponderance of the evidence a more plausible explanation exists for why the will cannot be found. If successful , the will is not revoked, and under the lost will doctrine, the will can be probated if its terms can be established by clear and convincing evidence.

Answer 61

multiple copies of a properly executed will If revoked by act or writing, all copies are revoked. JDX split on how to handle the loss of the copy taken home by testator. (Harrison v. Bird)

Answer 62

duplicate wills. Testator called and said she wanted to revoke. Attorney tore up the will in front of a witness and sent it to her. Court found that act did not revoke all other wills (but because the torn up will was the only one that could be found, the will was revoked by presumption)

Answer 63

Jurisdictions split over whether partial revocation by physical act is permitted Concerns about partial revocation by physical act Increases potential for fraud New gifts are created by partial revocation (meaning gifts should be made via the Wills Act) Jurisdictions that do not recognize Ignore act in question Give effect to the will as written Modern Trend/UPC UPC § 2-507 Majority Permit revoked gift to fall to the residuary or increase the residuary, but the partial revocation cannot increase a gift outside of the residuary Minority New gift (as the result of the revoked gift) must pass via intestacy

Answer 64

Even if revoked, if the testator (1) revoked in whole or in part, (2) based upon a mistake, and (3) the testator would not have revoked but for the mistake, the revocation will not be given effect under dependent relative revocation. The courts appear to also require (4) the mistake must be set forth in the revoking instrument and be beyond the testators knowledge, or (5) there must be a failed alternative scheme (typically an attempt at a new will that failed.

Answer 65

(a) A partial or complete revocation of a will is presumptively ineffective if the testator made the 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. (b) The presumption established in subsection (a) is rebutted if allowing the revocation to remain in effect would be more consistent with the testator’s probable intention. Most courts, with rare exception hold that DRR applies only: (1) If there is an alternative plan of disposition that fails, or (2) If the mistake is recited in the terms of the revoking instrument or, possibly, is established by clear and convincing evidence. Alternative plan of disposition is usually in the form of another will, either duly or defectively executed. This limits what extrinsic evidence can be introduced.

Answer 66

Assuming that a testator validly executes will #1, and thereafter validly executes will #2 which expressly or implicitly revokes will #1, and thereafter validly revokes will #2 intending to give effect to will #1, the jdx are split over what the testator must do to revive #1.

Answer 67

Will #1 is not revoked unless Will #2 remains in effect until testator’s death

Answer 68

Revoked will cannot be revived unless reexecuted with testamentary formalities or republished by being referred to in a later duly executed testamentary writing

Answer 69

Will #2 legally revokes Will #1 when Will #2 is executed, but Will #1 is revived when Will #2 revoked if testator so intends

Answer 70

UPC § 2-509 Previous Will Wholly Revoked by Subsequent Will: Presumption that previous will remains revoked Previous Will Partly Revoked by Subsequent Will: Presumption that previous will is revived

Answer 71

Revival of a will. Alburn executed two wills in her lifetime and destroyed the second will. Neither of the wills made any provisions to certain next-of-kin. Alburn’s niece, a beneficiary under her first will filed for probate and Alburn’s heirs at law appealed the decision. t a testator wants her first will to stand after revoking the second will where she (1) told her sister-in-law that she wanted her first will to stand , (2) took no steps to make another will after revoking the second will, and (3) there was no evidence negating the facts showing she intended to revive her first will

Answer 72

If testator executes will and subsequently marries, SS receives her intestate share regardless of the terms o/t Will

Answer 73

Most states provide that all provisions in favor o/t former spouse in a will executed during the marriage to the former spouse are void

Answer 74

(b) [Revocation Upon Divorce.] Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage: (1) revokes any revocable (i) disposition or appointment of property made by a divorced individual to his [or her] former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or on a relative of the divorced individual's former spouse, and (iii) nomination in a governing instrument, nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and (2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of the former spouses into equal tenancies in common. . . . (d) [Effect of Revocation.] Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. . . . (f) [No Revocation for Other Change of Circumstances.] No change of circumstances other than as described in this section and in Section 2-803 [dealing with homicide] effects a revocation.

Answer 75

If will executed prior to child’s birth or adoption, many states provide a forced share o/t deceased parent’s estate for the omitted child....same with prettermitted spouse

Answer 76

Handful of doctrines that define the scope of the will and permit intent not expressed in the will.

Answer 77

those pieces of paper physically present when the will is executed and that the testator intends to be part of the will constitute pages of the will (In Re Estate of Rigsby)

Answer 78

Facts Husband found holographic will in drawer One page was clear about intent Other page was not attached, did not reference the second page, and the second page contradicted the first Rule: Additional pages will be admitted as part of the same document when it is made clearly apparent that the testator intended that together they would constitute his or her last will and testament.

Answer 79

a codicil has the effect of reexecuting, republishing, and redating the underlying will. But if redating appears inconsistent with testators intent, the court doesn’t need to do it.

Answer 80

Testator revokes first will by a second will Testator then executes a codicil to the first will If the first will is republished, the second will is revoked by implication (“squeezed out”) This applies only if updating the will carries out the testator’s intent

Answer 81

a document not executed by Wills Act formalities may be incorporated by reference and given effect along with the will provided (1) the will expresses the intent to incorporate the document, (2) the describes the document with reasonable certainty, and (3) the document was in existence when the will was executed (courts apply this requirement strictly) UPC 2-510 (Simon v. Grayson, Clark v, Greenhalge, Johnson v. Johnson)

Answer 82

left $4,000 “to be paid by them as directed by me in a letter that will be found in my effects and which will be addressed to my executors.”

Answer 83

Left all tangible property except those listed in a yet to be written memorandum.

Answer 84

all typed, except handwritten on the bottom.

Answer 85

Whether or not provisions relating to holographic wills apply, a will may refer to a written state or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admitted under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devises with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s 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.

Answer 86

A will may refer to an act or event that is to occur outside of the will and that act or event may control either who takes under the will or how much one takes, as long as the referenced acts has its own significance independent of the its effect upon the will. UPC 2-512

Answer 87

1) Contract Law Applies -Law of wills doesn’t apply - Must sue under law of contract and prove a valid contract 2) If Will Doesn’t Comply With Contract -Different Judicial Treatment Will is probated, but contract B has a contractual remedy for breach of K, i.e., contract B receives award equal to the value o/t prop. which was to come to her under the Contractual Will Ct. may order specific performance, i.e., force D’s successors to transfer prop. to the contract B in accordance w/ the Contractual Will Ct. may impose constructive trust 3) Contracts to Make a Will Many states subject to Statute of Frauds, and therefore K must be in writing 4) Contracts Not to Revoke a Will Common Scenario H&W execute a joint will or mutual wills Joint Will One instrument executed by two persons as the Will of both When one testator dies, instrument is probated as testator’s Will. When other testator dies, instru. is again probated as other testator’s Will WARNING—uncommon, and shouldn’t be used! Mutual Will Separate wills of two or more persons that contain similar or reciprocal (mirrorimage) provisions Joint and Mutual Will Refers to a joint Will in which respective testators make similar or reciprocal provisions No Legal Consequences to Any of the Above Wills Unless Executed Pursuant to a Contract Not to Revoke Breach Contract not to revoke a Will is breached if—after K becomes binding—a party dies leaving a Will that doesn’t comply w/ the K

Answer 88

The starting assumption is the will itself is the best evidence of the testators intent.

Answer 89

Extrinsic evidence is only admissible if there is a latent ambiguity, but not it the ambiguity is patent (ambiguous on its face. Cannot be used to counter show a plain meaning is not what the testator intended.

Answer 90

admit extrinsic evidence to help construe the will, and maybe even reform the will, anytime there is clear and convincing evidence (1) that the will contains a mistake, and (2) its effect upon the testators intent.

Answer 91

: under modern trend, if there is clear and convincing evidence of a scrivener’s error, and clear and convincing evidence of its effect upon the testators intent, extrinsic evidence is admissible to establish and to correct the error.

Answer 92

Francis butterfeld executed a document that purported to be his will that would leave everything Fleming. But he told his attorney that the will was fake and only using it to get Fleming to sleep with him. Statement was allowed in because it showed he lacked testamentary intent.

Answer 93

testator wanted to leave her residuary clause to her 25 first cousins, who she believed to be her closest heirs. In the will, sued the term “heirs at law” which turned out to be her aunt. Court wouldn’t allow extrinsic evidence because “heirs at law” is not an ambiguous term.

Answer 94

Misdescription doctrine. directed executor to sell interest in 304 Harrison ave property, when in fact she owned a share of 317 Harrison Ave. Court allowed extrinsic evidence.

Answer 95

Robert J. Krause case - Courts should receive evidence tending to show that a mistake has been made when details such as the middle initials, street addresses and the like are involved in identification of will bequests and devises. The court should disregard the details when the proof establishes to the highest degree of certainty that a mistake was made.

Answer 96

Scrivener’s error. Lawyers let testator execute a will two days before his wedding in which it named his fiancé, but made no mention of the wedding. Once married, the will is revoked because it made no mention of the marriage. Wife was able to use Scriveners error.

Answer 97

court may reform terms of governing instrument, even if unambiguous, to conform the terms to the transferors intention if it is proved by clear and convincing evidence what the transferors intent

Answer 98

Residuary Clause only stated that the residuary part of the estate should be given - such a reformation may be made via extrinsic evidence if the evidence is clear and convincing.

Answer 99

If the beneficiary predeceases the testator, the gift is said to lapse and will fail.

Answer 100

failed general and specific gifts fall to the residuary (if there is one) or to intestacy. Failed residuary gifts will go either to intestacy (common law) or to the other residuary takers (modern trend). (Estate of Russel)

Answer 101

(failed gifts) Left everything I own real and personal to Chester and Roxy. Roxy was a dog, so the gift failed. “No residue of a residue” (common law) applied and Rox’s portion went to intestacy.

Answer 102

Can save a gift that otherwise would fail. Provides that (1) when there is a lapse, and (2) the predeceased beneficiary meets the requisite degree of relationship to testator (depends on jdx), and (3) the predeceased beneficiary has issue who survive the testator, then the gift will go to the issue of the predeceased beneficiary (4) as long as the will does not express an intent that anti-lapse should not be applied.

Answer 103

predecesased spouses. UPC says the degree of relationship must be a grandparent or a lineal descendant of a grandparent. 1990 amendment to include step-children.

Answer 104

To Hazel Brennan if she survives me. Question is if “if she survives me” constitutes an express contrary intent to the application of the anti-lapse.

Answer 105

statement that the testator wanted her interest in a farm to revert back to her husbands side of the family. Left to 2 nephews by name in will. Question of if it is a class gift, court said no.

Answer 106

JDXs are split one which doctrine goes first. Modern trend is to apply anti-lapse first

Answer 107

INTENDS TO GIVE A SPECIFIC ITEM. LOOK FOR "MY"

Answer 108

A GENERAL GIFT FROM A SPECIFIC SOURCE (TREATED AS GENERAL GIFT)

Answer 109

A GIFT OF PECUNIARY VALUE

Answer 110

A GIFT OF ALL THE TESTATORS PROPERTY THAT HAS NOT BEEN GENRALLY OR SPECIFICALLY GIVEN AWAY

Answer 111

if a specific gift is made and the item is not in the testators possession at time of death

Answer 112

presumption against revocation arises, and the beneficiary is entitled to any replacement property the testator owns at the time of death, or if non, the monetary equivalent.

Answer 113

follows identity approach but creates an exception when the property was transferred involuntarily by testator.

Answer 114

irrebuttable presumption that the gift is considered revoked

Answer 115

If the testator gives more gifts than he has assets, the doctrine of abatement says residuary gifts should be reduced first, then general gifts, then specific gifts. Some state allow exceptions if the order clearly does not meet the testators intentions.

Answer 116

More control over estate; fewer fees; avoid tax; avoid elective share; more time efficient; and privacy.

Answer 117

The Trustee holds legal title. The beneficiaries hold equitable title. Even if the trust is revocable and the settlor is the life beneficiary, there is no need to transfer legal title upon the death of the settlor. The property places in the trust inter vivos passes pursuant to the terms of the trust and is nonprobate property.

Answer 118

Common law: all are irrevocable unless it says it is revocable. If it defines how to revoke it, that is the only method allowed to revoke it. If not, any method that demonstrates intent is fine. Modern trend and UTC, all are revocable requires an explicit statement saying it is irrevocable. Method also requires a specific mention that this is the only method of revocation, otherwise, any method is fine. -Farkas v. Williams; Moon v. Leisekar; Patterson; Clymer; State St. Bank & Street Company

Answer 119

When a life tenant’s interest is extinguished, creditors have no right to reach the property. However, under the modern trend, where the settlor is the life beneficiary of a revocable trust, creditors of the settlor can reach the property in the trust, even after his death.

Answer 120

Even though the settlor retains the power to revoke the trust and appoints himself as trustee, if the benficiary obtains any interest in the trust before the settlor dies, a valid inter vivos trust may have been formed.

Answer 121

A contingent beneficiary of a revocable trust has no legally enforceable interest while the settlor of the trust is alive and the trust remains revocable.

Answer 122

Modern trend. No mention of revocability.

Answer 123

Where a person places property in trust and reserves the right to amend and revoke and direct disposition of principal and income, the settlor's creditors, after his death, may reach all assets of the trust subjected to those powers

Answer 124

A state statute that terminates a spouse's interest in another spouses will also applies to a revocable pout-over trust that is funded entirely by the will of the deceased spouse.

Answer 125

Common law: Only life insurance contract is only OK contract with Payable-on-death (POD) Modern Trend: expands the life-insurance non-probate exception to include all third party beneficiary contracts.

Answer 126

Three possible intents when setting up a multiple party account: (1) a true joint tenancy, (2) an agency account, and (3) a POD account Common Law: POD intent is invalid Modern Trend: Presumption of intervivos gift and a right of survivorship.

Answer 127

Trust Amendments After Execution o/t Will—Will can incorporate by reference a trust instrument in existence at time Will is executed, but cannot incorporate trust amendments made after Will is executed

Answer 128

Will may dispose of property. by referring to some act that has significance apart from disposing of probate assets—in this case, an inter vivos trust that disposes of assets transferred to the trust during life

Answer 129

The pour over clause is valid as long as (1) the will refers to the trust, (2) the trust terms are set forth in a separate writing other than the will, and (3) the settlor signed the trust instrument prior to or concurrently with the execution of the will.

Answer 130

Right is extinguished at death, and the shares of the remaining joint tenants are recalculated.

Answer 131

Creator of the trust

Answer 132

the party whom the settlor transfers the trust property, the trustee holds legal title to the trustproperty and manages the property for the duration of the trust

Answer 133

the parties who hold the equitable interest in the trust (typically bifurcatred over time); the parties to whom the trustee owes a fiduciary duty

Answer 134

Trust generally cannot exist without property (res). Res does not have to be land or substantial amount of money—can be small or an interest in any type of property. Any property interest that is transferable can be put in a trust

Answer 135

A promiste to make a gift is not a decleration of trust. Requires intent to make a trust, property and ascertainable beneficiaries.

Answer 136

An expectation or hope of receiving property in they future or an interest that has not come into existance or has ceased to exist.

Answer 137

Private trust must have one or more ascertainable beneficiaries to whom the trustee owes fiduciary duties and who can call the trustee to account (UTC § 402(a)(3)) Stems from the principle that a private trust must be for the benefit of the beneficiaries But the beneficiaries do not have to be ascertained when the trust is created—only ascertainable Thus, interests of unborn children can be protected But if at the time the trust becomes active, the beneficiaries are too indefinite to be ascertainable—the attempted trust will fail for want of an ascertainable beneficiary

Answer 138

A settlor left certain property in trust to “my friends, as they, my trustees, shall select.” He also wrote, “Each of my trustees is competent by reason of familiarity with the property, my wishes and friendships, to wisely distribute some portion at least of said property. A power differs from a trust in that it is not imperative and leaves the act to be done at the will of the donee of the power. A private trust, unlike a public trust, must have an identifiable beneficiary or class of beneficiaries indicated in the will who are capable of coming into court and claiming the benefit of the bequest.

Answer 139

a charitable trust (which must be for a charitable purpose)

Answer 140

allowing for pets

Answer 141

Searight executed a will and gave his dog Trixie to Hand. He also gave Hand $1,000 for the purpose of taking care of the dog. She was instructed to use 75 cents of the $1,000 per day for the dog. The value of Trixie was $5.00. Hand accepted Trixie and the $1,000 to care for her. Rule: A valid honorary trust may exist where the donor gives another a dog for the purpose of caring for the dog. A bequest does not violate the rule against perpetuities where the donor sets a portion of a limited amount of money to be used every day that amounts to a time that does not exceed the limit under the rule. A gift of a dog is a proper honorary trust because the donor expressed a desire that the beneficiary care for the dog and the beneficiary is willing to carry out the testator’s wishes. Gifts to dogs are valid if (1) the testator gives the dog for the purpose of providing care for the dog, and (2) the beneficiary accepts the gift.

Answer 142

Transferee is not under a legal obligation to carry out the settlor’s stated purpose (precatory trust) But if the transferee declines or neglects to do so, he holds the property in a resulting trust, and the property reverts to the settlor or settlor’s estate Cannot offend the Rule Against Perpetuities But pets are not validating lives

Answer 143

Most states have statutes allowing for pet animals and perpetual maintenance of a grave Under most provisions, such trusts are allowed, but the court may reduce the amount of trust property if it is excessive

Answer 144

(1) intent by settlor to create the trust, (2) the trust must be funded, (3) the trust must have ascertainable beneficiaries, and sometimes (4) the terms of the trust must be in writing if the trust property includes real property or testamentary trust.

Answer 145

The intent to create a trust requires one party to transfer property to a second party for the benefit of a third. The same party can wear one or more hats as long as he is not the sole trustee and sole benefiary.

Answer 146

If someone other than the settlor is the trustee, the expression of the intent to create the trust, along with the terms of the trust, is called a deed of trust.

Answer 147

An assertion by a property owner that he or she holds the property or estate for the benefit of another person, or for particular designated objectives.

Answer 148

the specific term “in trust” does not need to be used to create a trust, it is a sufficient that a settlor have intent and that a transferee hold property for the benefit of somebody else

Answer 149

failure of trust - Yahuda owned an extensive library that she promised to give to a university in Jerusalem, but never delivered before her death. An imperfect gift due to lack of delivery may not be turned into a trust without an express manifestation of intent (But on remand, found to be a constructive gift).

Answer 150

Trust is presumptively revocable unless it says explicitly that it is irrevocable.

Answer 151

Preserves flexibility in distributions over time Trustee can be given discretion over when, to whom, and in what amount to make a distribution Trustee must exercise discretion in good faith This provides for asset protection A creditor of a beneficiary cannot go after the beneficiary’s interest in a discretionary trust Beneficiary cannot voluntarily alienate his interest in the trust

Answer 152

Under traditional law, a creditor of a beneficiary of a pure discretionary trust has no recourse against that beneficiary’s interest Beneficiary cannot voluntarily alienate his beneficiary interest Theory was that the beneficiary did not have a property interest to attack or convey and that the beneficiary couldn’t himself force the trustee to pay—though actually he/she could

Answer 153

Creditors cannot force a trustee to make a distribution to the beneficiary—but can get a court order saying money cannot be sent to the beneficiary until the creditor is paid (UTC § 501 endorses this approach)—Hamilton Doctrine

Answer 154

Under traditional law—a beneficiary cannot alienate his interest An ordinary creditor also couldn’t reach the beneficiary’s interest under traditional law A trustee can decline to make payments if he/she determines the beneficiary doesn’t need them

Answer 155

Often combines discretion with a distribution standard | Generally claims by creditors are foreclosed

Answer 156

Increasingly—laws allow creditors of beneficiaries to go after discretionary and support trusts

Answer 157

A beneficiary of a spendthrift trust cannot voluntarily alienate his/her interest Creditors of a beneficiary cannot attack the interest—even where beneficiary is entitled to mandatory distributions Creditors cannot obtain court orders interfering with payment to beneficiary by trustee At traditional law—to be a spendthrift trust, there had to be a spendthrift clause in the trust instrument Courts recognized spendthrift trusts as protecting the settlors right to free disposition

Answer 158

a) A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest. (b) A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift trust," or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest. (c) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in this [article], a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary.

Answer 159

a) In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another State. (b) Even if a trust contains a spendthrift provision, a beneficiary's child, spouse, or former spouse who has a judgment or court order against: 1) the beneficiary for support or maintenance, or 2) a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust, may obtain from a court an order attaching present or future distributions to or for the benefit of the beneficiary. 3) A spendthrift provision is unenforceable against a claim of this State or the United States to the extent a statute of this State or federal law so provides. (c) A claimant against which a spendthrift provision cannot be enforced may obtain from a court an order attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the award to such relief as is appropriate under the circumstances.

Answer 160

pp. 698-9 Facts A beneficiary of a support trust was found liable for several sexual assault charges and also faced criminal charges for sexually assaulting his own son. The plaintiff in the civil sexual assault charge case (mother of the child assaulted) sought to attach the defendant’s interest in the trust to satisfy the judgment of $551,286.25. Rule: A statute that bars creditors from claiming an interest to a beneficiary’s trust does not make an exception for tort creditors.The purpose of support and maintenance trust may still be fulfilled while the beneficiary is incarcerated and after he is released.The statute that bars creditors from making a claim against a beneficiary’s trust interest does not make an exception for tort creditors. Where the legislature has made specific exemptions, the law must presume that no other exceptions were intended.

Answer 161

Many commentators believed an exception for tort victims would develop, as they are accidental creditors—but very few, if any, have Judgments for spousal and child support are often recognized as exceptions due to the public policy preference of having spouses and children taken care of and provided for Federal bankruptcy laws also exclude creditors from attaching to spendthrift trusts

Answer 162

Medicaid law distinguishes between self-settled trusts and trusts created by third parties Medicaid generally regards self-settled trusts as making one ineligible for Medicaid Only discretionary trusts are not looked to for Medicaid eligibility

Answer 163

Because of freedom of disposition, generally only two areas for modification or termination of a trust allowed By consent of all beneficiaries if the modification or termination is not contrary to the material purpose of the settlor Changed circumstances not anticipated by the settlor that would defeat or substantially impair the accomplishment of the purposes of the trust

Answer 164

If settlor and beneficiaries consent, an irrevocable trust may be modified or terminated even if the trust contains a spendthrift clause But if settlor is dead—much tougher question about whether beneficiaries can modify or terminate a trust, even when they all agree

Answer 165

A trust cannot be terminated or modified on petition of all the beneficiaries if doing so would be contrary to a material purpose of the doctrine

Answer 166

It is a spendthrift trust The beneficiary is not to receive the principal until attainting a specified age (postponement of enjoyment) It is a discretionary trust It is a trust for support of the beneficiary.

Answer 167

Brown created a trust to be used for the education of the children of his nephew, Woolson S. Brown. After the accomplishment of the educational trust purpose, Brown directed the income of the trust to be used for the care, maintenance, and welfare of his nephew Woolson S. Brown and his wife Rosemary Brown, so that they would be able to live in the style and manner to which they were accustomed. Issue: Whether a trust is a support trust where the trustee must distribute all of the remainder income to specified beneficiaries after the initial purpose of the trust is fulfilled. Rule: A support trust is created where the trustee is directed to spend trust income or principal for the benefit of an individual, but only to the extent necessary to support the individual. An active trust may not be terminated, even with the consent of all the beneficiaries, if a material purpose of the settlor remains to be accomplished. Reasoning: The trustee must pay an amount to the remainder beyond the extent necessary for their support. The trustee must pay the amount of the remainder of the trust income to Woolson and Rosemary Brown as is as needed for them to live in the style and manner to which they are accustomed for the remainder of their lives. The material purpose of a trust that provides for the education of a beneficiary’s children ,and then for the beneficiary and his wife to live in a lifestyle to which they were accustomed, is not satisfied after the beneficiary’s child’s education is complete. The settlor did not merely name successive beneficiaries, but expressed intent to provide for the lifelong income of the beneficiaries. Therefore this the second purpose is material The purpose of a trust will be inferred wherever the settlor has expressed that a distribution be made for a specific purpose, more than just for specific beneficiaries.

Answer 168

(b) A non-charitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A non-charitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust. (c) A spendthrift provision in the terms of the trust is not presumed to constitute a material purpose of the trust. (d) Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the trust property as agreed by the beneficiaries. (e) If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or (b), the modification or termination may be approved by the court if the court is satisfied that: (1) if all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and (2) the interests of a beneficiary who does not consent will be adequately protected.

Answer 169

that the reasons given by the beneficiaries outweigh any conflicting material purpose of the settlor

Answer 170

Must show there was some concern or special regard of the settlor

Answer 171

a court may permit a trustee to deviate from the administrative terms of a trust if compliance would defeat or substantially impair the accomplishment of the purposes of the trust for a reason not anticipated by the settlor

Answer 172

Courts are generally more willing to modify administrative provisions than substantive Increasingly, courts are now willing to allow modification of substantive provisions as well

Answer 173

(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. (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. (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.

Answer 174

Facts The trustee's parents established trusts for the benefit of the trustee, his wife, and the settlors' grandchildren. The trusts provided that the grandchildren would receive the benefits until the age of 35 when the trusts would terminate and the trustee would distribute the principal to the grandchildren. The trustee's daughter suffered from schizophrenia affective disorder and bipolar disorder; she was not expected to live independently for the remainder of her life. The trustee sought to create a “special needs” trust on his daughter's behalf, instead of distributing the trust principal to her. The appellate court determined that the trial court properly found that it possessed the power to modify the trust pursuant to the Trust and Dispute Resolution Act. Issue: Whether the settlor’s desire can be carried out when it is clear from the facts and circumstances that the settlor would have wanted a different result. Rule: To consider changing the terms of the trust, there must be evidence both that material circumstances not anticipated by the settlor have changed and that the will of the settlor may be jeopardized.

Answer 175

Facts Will divided estate into a trust split four ways When those four died—split funds between the Upper Caroline Fire Dept. and the Ladysmith Rescue Squad Spendthrift clause to insulate from creditors of both Shortly before death of last two beneficiaries—Upper Caroline, the trustees, and the beneficiaries moved for a division of the rest of the estate into two equal trusts Also there was a movement to cash out the trust to the beneficiaries that would be theirs and give the new part of the Upper Caroline Trust to Upper Caroline without awaiting beneficiaries’ deaths Upper Caroline essentially “wanted its money now” Rule: A desire to collect now rather than later on a trust is not a material difference unanticipated by a settlor which calls for modification of the trust so as to serve its purpose. Reasoning Settlor could have anticipated and made provisions for it—he didn’t This would not promote the purpose of the trust Can modify a trust just to be more advantageous to a beneficiary

Answer 176

Courts often allow trust to be modified in situations that will make a tax situation easier or correct a drafting error that would lead to tax inefficiency Sometimes can appoint the trust to a new trust with updated laws of a new state—known as decanting—refreshes trusts that become stale over time