Wills + Trusts

Question 1

Valid Trust

Answer 1

a. Settlor w/ Intent  (i.e., to create the trust NOW, not
some time in the future)
b. Delivery of specific trust property
c. An ascertainable Beneficiary 
d. Active duties imposed on the trustee 
e. A proper trust purpose; and
f. A trustee

Question 2

Trustee Duties

Answer 2

1. The duty of loyalty
2. The duty to act as a prudent Investor
   - reasonable caution, skill, and diversify investments
3. The duty of care

Question 3

Cy pres doctrine - Trusts

Answer 3

Applies to charitable trusts.
- The court can choose an alternative charity (close to original charitable purpose) when the original charitable purpose is impossible or impracticable.

Question 4

Trust Purpose can NOT be

Answer 4

Illegal, Fraudulent ~or~
Against public policy
(a) Designed to encourage divorce
(b) Prevent Marriage

Question 5

Trustee can NOT self deal in Trust assets even in good faith =

Answer 5

Duty of Loyalty - even if fair price

assets returned or damages

Question 6

Valid Will

Answer 6

A. Capacity
B Intent (intent to be his will)
C. Formalities
1. Signed Writing - by testator or in presence at direction
2. Signed by 2 witnesses (doesn’t have to be before testator) - can be interested party

Question 7

Undue Influence Will

Answer 7

• such influence overcame free will
• caused him to do something otherwise wouldn’t have
  » Will be VOID < <

Presumed if-

1. Confidential relationship
2. Suspicious Circumstances

Question 8

Will Fraud

Answer 8

1. In the Inducement
2. In the Execution
   » VOID

Question 9

Revoke Will

Answer 9

• Physical Act
• Executing Subsequent Will
• Divorce (unless intent to continue)

Question 10

Once Will revoked -

Answer 10

Stays dead unless

• republish
• codicil
• other clear evidence

Question 11

Lost Will

Answer 11

In possession = destroyed

Not in possession = no presumption

Question 12

Will Copy

Answer 12

Executed - effective

- destroyed = destroy all = revoked

Question 13

Will Children

Answer 13

Adopted = loses any relationship with his natural parents /treated as the natural-born child of the adoptive parents / inherit from them

Out of Wedlock = child of mother for inheritance Intestate
- Child of his father if
> paternity is sufficiently est. by
(1) the parents marry each other ~or~
(2) during the lifetime of the child, the father openly holds out the child

Question 14

Incorporation by Reference - refers to a document in Will

Answer 14

1. Existence at the time
2. Intent
3. Identification of Doc

Question 15

Will - personal property lists

Answer 15

Recognized if signed / ID Property / ID Beneficiary

Question 16

Will Abatement -

Answer 16

Not enough in estate to pay out
- Residuary > General > Specific
(Least to Most - pro-rated)

Question 17

Codicil to Will

Answer 17

• Signed by the testator and
• 2 Attesting Witnesses

> Harmless Error Rule =
- Alteration will be valid even if it does not comply with the required formalities if … clear and convincing evidence that the testator intended it to be part of will