ESSAY ROADMAP: TRUSTS

The topic of Trusts can be divided into the following areas:

Creation (Validity)—know the elements of a valid trust

Characterization—know the types of trusts and their characteristics
Interpretation—know how to interpret trust terms (children as beneficiaries, beneficiary protection from
creditors, and future interests)
Modification and Termination—know how and when a trust may be modified or terminated
Trust Administration—know how principal and income are allocated, the duties of a trustee, and the
remedies for a breach

Note on applicable law: The MEE recognizes answers applying the Uniform Trust Code (UTC), adopted
in a majority of states; the UTC position is noted below if it differs from the traditional rule.

I. GENERALLY: A trust is a fiduciary relationship wherein one (trustee) is given legal title/interest by the
creator (settlor) to hold and protect the property for the benefit of another (beneficiary) who takes the
equitable title/interest and therefore possesses the power to enforce the trust.

A. TYPES: Express trusts are private or charitable; implied trusts are resulting or constructive.

B. REVOCABILITY
1. Majority—trusts are presumed to be irrevocable
2. UTC—trusts are presumed to be revocable

II. ELEMENTS OF A PRIVATE EXPRESS TRUST

A. SETTLOR (S)—creator of the trust; must have capacity the same as for making a will

B. TRUSTEE (T)—must have capacity to acquire and hold property as well as administer the trust
1. Designation: The court will appoint a trustee if one is not designated, or if the trustee dies,
resigns, etc.
2. Merger: If the same person is both the sole trustee and sole beneficiary, then the trust will
terminate; a settlor can make himself the trustee, however
3. Removal: A trustee can be removed by the court (VII.F.) or by the settlor on several grounds
(conflict of interest, breach of trust); the beneficiaries can remove T only if the trust provides

C. INTENT—S must intend to make a gift in trust; look for words of trust, e.g., “for the benefit of”
1. Manifestation of intent may be oral, in writing, or through conduct (delivery); a writing is
required if created in a will (Statute of Wills) or the subject matter is land (Statute of Frauds)
2. Ambiguous language—precatory words such as “hope” or “desire” are insufficient; precatory
language will suffice if accompanied by specific instructions to another, and failure to impose
a trust would result in an unnatural disposition of donor’s property or enforcing a trust would
be consistent with a history of support between the donor and beneficiary
 Example: S’ will leaves $50,000 to X with the “wish he will take care of my sister Y.” Treat
as precatory language with no trust created (outright gift to X), unless facts show S left
nothing to Y (an heir), and S had been supporting Y (history).
3. Timing
Present intent required to create a trust, manifested before or during the transfer of
property
For an immediate trust—a promise to create a trust in the future is unenforceable unless
it is supported by consideration or the intent is manifested anew upon transfer

D. TRUST PROPERTY (“corpus” or “res”)—presently identifiable and not a mere expectancy, unless
it qualifies as a pour-over devise from a will (see III.A.2.)

E. VALID TRUST PURPOSE—cannot be illegal or against public policy

F. ASCERTAINABLE BENEFICIARIES
1. Identifiable—must be presently identifiable or (UTC) capable of being identified by the time
the beneficiaries receive their interest
2. Exceptions—class gifts, unborn children, and charitable trusts

III. TYPES

A. EXPRESS
1. Inter Vivos (living trust)—lifetime transfers in trust
Declaration of trust—S declares herself trustee and is paid income during her life with
the property going to the beneficiaries at her death; if real property, it must be in writing
Deed of trust—S creates a trust and is not the trustee; delivery of the deed and transfer
of the deed or property to T is required; must always be in writing
Revocable—can be revocable or irrevocable
2. Pour-over gift from will—a will directs property be distributed to a trust upon the happening
of an event; allows probate to be avoided because it is funded by the will
The trust must be in writing and identified in the will
The trust may be revocable but if it is revoked, the pour-over provision fails
3. Testamentary—created according to the terms of a will; funded independently of the will
In the terms of the will—the terms of the will can include language creating a trust
Incorporation by reference—trust terms are in a separate document that is properly
incorporated by reference into a will (see Essay Roadmap for Wills)
Secret Trust—what appears to be an outright gift in a will is actually based upon a
promise by the devisee (trustee) to the testator (settlor) to hold the property for another’s
benefit
Burden of proof is clear and convincing evidence
Remedy is a constructive trust to avoid unjust enrichment to the secret trustee
Semi-Secret Trust—a will directs a gift be held in trust without naming a beneficiary
Common law—prevents extrinsic evidence to prove the trust so the gift fails
Remedy is a resulting trust in favor of the testator’s heirs; modern trend would impose
a constructive trust in favor of the intended beneficiary, if known

B. CHARITABLE—a trust created for a charitable purpose benefiting the community

1. Elements:
Charitable purpose—advancement of health, education, religion, government, relief of
poverty, or other purpose benefiting the community at large or a particular segment
Large class of unidentifiable beneficiaries—the beneficiaries must be
ascertainable, such as the community at large or a segment of unidentifiable members
2. Not subject to RAP—the rule against perpetuities does not apply to charitable trusts

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 3. Doctrine (“as near as possible”)—always tested when charitable trust is an issue
Allows the court to modify the terms of a charitable trust when it cannot be performed as
written, so long as consistent with settlor’s intent; UTC allows even if intent unknown
The court will seek a similar charitable purpose if the original purpose becomes illegal,
impracticable or impossible to perform
4. Enforced by the Attorney General; UTC also allows the settlor to enforce

C. HONORARY—an honorary trust is one without a charitable purpose and without a private
beneficiary to enforce the trust (e.g., to care for a pet or tend to a grave)
1. The trustee is on her honor to administer the terms
2. RAP applies (UTC limits honorary trusts to 21 years)

IV. TRUST SUBSTITUTES (not true trusts but function in a similar manner)

A. TOTTEN TRUST—a fully revocable designation on a bank account where the depositor is named
“trustee” for one or more named beneficiaries and retains control through her lifetime

B. UTMA (Uniform Transfers to Minors Act)—account for a minor managed by custodian

C. LIFE INSURANCE TRUST—policy paid at death; okay even though not funded until settlor dies

V. PROTECTION OF BENEFICIARY’S INTEREST (Trigger fact: A creditor of the beneficiary is

attempting to reach the beneficiary’s interest)

A. GENERALLY: The beneficiary’s interest (right to receive income or principal) is freely transferable
unless limited by law or the trust. Certain devices put a restraint on alienation. Once the property
is distributed to the beneficiary however, there can be no restraint on alienability.
1. Two types of distribution:
Mandatory (the terms dictate payments); or
Discretionary (T controls whether or when to apply payments of income/principal).
2. When and who to pay:
Until the T exercises her discretion, the beneficiary’s interest cannot be reached;
Once T makes payment, if she has notice of a creditor assignment/attachment, T must pay
the creditor (absent a spendthrift provision).

B. SUPPORT TRUST—directs the trustee to pay income/principal as necessary to support the

beneficiary; creditors who provide necessities (health, education, support) can reach the assets

C. SPENDTHRIFT TRUST—restricts the beneficiary’s power to transfer his equitable interest;

creditors cannot reach the assets until the property has been paid out to the beneficiary
1. Exceptions—claims for child/spousal support or for necessities and holders of tax liens
2. Limitation—cannot be reached in bankruptcy proceedings or if an employee pension

VI. FUTURE INTERESTS—If a grantor retains a future interest, it is a reversion, possibility of reverter,
or a right of entry; if a beneficiary is given a future interest, it is a remainder or an executory interest

A. TYPES
1. Remainders—if possession goes to a 3P after a life estate, the 3P takes a remainder
Vested (preferred)—ascertained grantee with no condition precedent; can possess as
soon as the preceding estate ends (e.g., disclaimer, see below)
Class Gifts (vested subject to open)—full class unknown but one or more members are
vested

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 Subject to RAP
Rule of Convenience—closes the class when any member is entitled to possess
Contingent—unascertained grantee or is subject to a condition precedent
Vests once conditions precedent satisfied
Destructibility—at C/L, destroyed if it failed to vest before or at the time the prior
estate ended; modern trend: not destroyed and it converts to executory interest
2. Possibility of reverter—follows a fee simple determinable
3. Right of entry—follows a fee simple subject to a condition subsequent
4. Executory interest—when someone other than grantor holds an interest followed by a
vested remainder subject to divestment or a fee simple subject to an executory limitation

B. DISCLAIMER—a beneficiary may disclaim his interest (usually for tax purposes)
1. C/L (renunciation) allowed anytime
2. By statute in most states, a disclaimer is valid if it is in writing and executed within nine months
after the future interest would become indefeasibly vested (e.g., for a revocable or
testamentary trust, when the settlor dies)
The beneficiary will be treated as having predeceased
When the income beneficiary disclaims, the principal becomes immediately distributable to
the remainder beneficiaries

C. RULE AGAINST PERPETUITIES (RAP)

1. Applies to class gifts (not yet closed), contingent remainders, and executory interests
2. Rule: No interest in property is valid unless it must vest, if at all, within 21 years after some
life in being at the creation of the interest
3. Modern trend: Courts will “wait and see” if it actually vests within perpetuities period

D. CHILDREN AS TRUST BENEFICIARIES

1. Gifts to surviving children (Trigger fact: Inter vivos trust specifies beneficiaries as the
settlor’s “surviving children” after an intermediary interest in another for a term of years)
C/L—“surviving” is measured at settlor’s death
UPC/majority—“surviving” is measured at the end of the prior intermediary interest; if a
child who survives the settlor but then predeceases the time of distribution has surviving
issue, that issue receives the share to which the parent would have been entitled had the
parent been alive at the time of distribution (i.e., a substitute gift)
2. Gifts to issue/descendants (Trigger fact: Gift to issue but issue predeceases grantor)
Majority—anti-lapse statutes do not apply to nonprobate gifts, so the gift fails
UPC—has an anti-lapse provision for trusts creating a substitute gift in the descendants of
the deceased issue, even if there is language to the contrary, e.g., “to my issue who are
living”
3. Adopted children—treated the same as a biological child for purpose of a trust
C/L—adopted children do not qualify as beneficiaries in written instruments
UPC—presumes “children” includes adopted children absent contrary intent; adopted
person is included in a class gift per rules for intestate succession

VII. MODIFICATION OR TERMINATION

A. GENERALLY: A trust will terminate when its purpose has been fulfilled or by consent if all
beneficiaries and the trustee agree.

B. UNFULFILLED MATERIAL PURPOSE ( doctrine)—if the settlor dies and all beneficiaries
agree to terminate, the trustee can block termination if contrary to a material trust purpose (e.g.,
support trust, spendthrift trust, age-dependent trust, trust with a future interest)

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 C. BY THE SETTLOR—S can modify or terminate if provided in the trust or if all beneficiaries agree

D. BY THE COURT—the court can modify or terminate if the purpose is frustrated, impossible, illegal;
a mere change in circumstances will not suffice unless the trust purpose is frustrated

E. BY THE TRUSTEE—acting alone, T cannot modify or terminate unless the trust terms provide

F. RESIGNATION OR REMOVAL OF TRUSTEE (Trigger fact: beneficiaries don’t get along with
T or T doesn’t get along with co-Ts)
1. Resignation
A T may resign on 30 days’ notice to the beneficiaries, S (if living), and any co-Ts, or with
court approval
2. Removal
Unless the terms otherwise provide, neither S nor the beneficiaries have the right to
remove T
The court can remove T if the trustee becomes incapable or materially breaches a duty, a
conflict of interest or serious conflict with the beneficiaries arises, or for poor performance
The trustee can resign if the settlor is still alive with written notice to beneficiaries (and
co-trustees)

VIII. PRINCIPAL AND INCOME ALLOCATIONS—assets must be allocated as principal or income

A. C/L gave income to the lifetime beneficiary and the principal to the remainder holder

B. MODERN RULE (UPAIA)—focus is on total return; T may re-characterize and re-allocate between
principal and income to fulfill trust purposes, so long as allocations are fair and reasonable
1. Factors to balance:
Intent of settlor and terms of trust;
Nature, duration, and purpose of the trust;
Identities and circumstances of the beneficiaries;
Anticipated effect of economic conditions; and
Anticipated tax consequences.
2. Income examples: Interest from a loan or bank account, stock dividends, rent from a lease
3. Principal examples: Capital gains, life insurance proceeds, stock split, sale of trust asset

C. ALLOCATION OF RECEIPTS—traditional accounting rules apply; generally, amounts received in

exchange for trust property = principal, amounts received for the use of trust property = income.

D. ALLOCATION OF EXPENSES—accounting costs, compensation to T and to advisors split 50-50

1. Income expenses—ordinary expenses and insurance premiums
2. Principal expenses—payments on debt going to the principal, estate taxes

IX. TRUST ADMINISTRATION AND DUTIES

Approach:

Spot issues by looking at the action verbs (e.g., T deposited, T invested, T borrowed)
Was the conduct of T authorized by the trust or law?
If YES, did T perform with the required standard of care? (e.g., prudently, in good faith, special skills)

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 A. GENERALLY: A trustee has a fiduciary duty to administer the trust in the best interests of the
beneficiaries; a breach might result in personal liability for the trustee.
1. Multiple trustees—two trustees must agree, but if there are three or more trustees, a
majority agreement will suffice
2. Third Party liability—a 3P who deals with a T in breach of her duty is protected from liability
if the 3P had no knowledge, acted in good faith, and gave valuable consideration

B. POWERS
1. Express—T has the powers set forth in the trust and often a power to revoke or modify
2. Implied—T has the implied power to contract, sell, lease, or transfer trust property and those
powers necessary to act as a reasonably prudent person in managing the trust

C. DUTIES
1. Duty of care (subjective standard)—T must administer the trust in good faith, in accordance
with its terms, and in the best interests of the beneficiaries
Discretion limited—T’s discretionary decisions may be challenged if T failed to exercise
good judgment; decisions based solely on personal reasons may be set aside
Special skills—T held to a heightened standard and must use his special skills
2. Duty of loyalty (objective standard)—no fraud or bad faith is required for a breach
Self-dealing—T cannot do the following:
Buy or sell trust assets for himself;
Transfer property between trusts;
Borrow funds from or make loans to the trust;
Use trust assets to secure a personal loan;
Engage in prohibited transactions with friends or relatives; or
Otherwise act for personal gain through the trustee position
No further inquiry—if T engages in self-dealing, the court will not inquire further
into T’s motives because it is a per se breach of duty
Exception—even if the terms or the beneficiaries authorize self-dealing, the
transaction must be fair and reasonable; otherwise T will be in breach
Conflict of interest—a conflict that is not self-dealing will be reviewed to analyze if T
acted reasonably and in good faith
3. Delegation—Modern law allows T to delegate duties if it is unreasonable to expect T to
perform the task (e.g., investment strategies) but T must oversee the decision-making
4. Investments—most states follow the Uniform Prudent Investor Act
Prudent Investor Rule—T has a duty to invest and manage as a prudent investor would
when investing his own property, including utilizing any special skills or expertise he
possesses.
Success is measured by looking at the entire portfolio and its overall return
Breach is determined by many factors based upon facts at the time of the investment
Duty to diversify unless the costs would outweigh the benefits
Duty to make property productive (e.g., pursue claims, act timely, get insurance, etc.)
Duty to earmark funds and not commingle with other trust funds and T’s own property
5. Duty of Impartiality—T must balance the interests of the present and future beneficiaries
by investing property so it produces income while preserving the principal
C/L gave income to the lifetime beneficiary and the principal to the remainder holder
Modern rule requires allocation between principal and income to be balanced and fair
T must sell property and reallocate proceeds as necessary to maintain balance
6. Duty to Inform—T must keep the beneficiaries informed about the trust property (including
any plan to sell a large portion of the assets) and allow access to records and accounts
7. Duty to Account—T must periodically account to the beneficiaries unless waived by S

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 D. REMEDY FOR BREACH
1. Beneficiaries rights:
Remove the trustee
Damages—sue T for lost profits or interests; gains from a breach may not offset loss
Ratify—beneficiaries may consent to T’s actions, waive the breach and keep the profits
Tracing—may force T to sue 3P to trace and recover property in the hands of a 3P who
is not a bona fide purchaser
2. Third-party rights: T may be personally liable in contract or tort to a 3P but can seek
indemnity if T was acting within the course of and scope of her duties
3. Co-trustee liability: Liable unless no knowledge and could not have prevented the breach
4. Successor trustee liability: A successor trustee is not liable unless she knew or should have
known of the prior trustee’s breach and did nothing to correct the problem

X. REMEDIAL TRUSTS—imposed by law; requires the trustee to convey the property

A. RESULTING—to avoid unjust enrichment, the trustee is required to convey the property to the
settlor under one of the following circumstances:
1. Purchase money resulting trust—property is titled in another’s name who is not the
purchaser, and they are not close family nor is there intent to make a gift or loan
2. Failure of an express trust—presumes intent of S is for T to convey back to S
3. Incomplete disposition of trust assets—leftover after trust fulfilled goes back to S

B. CONSTRUCTIVE—an equitable remedy to avoid unjust enrichment caused by wrongful conduct

1. Wrongful conduct caused settlor to convey property:
Homicide, theft, conversion
Fraud, undue influence
Breach of fiduciary duty
2. Must prove by clear and convincing evidence
3. If the subject matter has been transferred to a third party (not a BFP), the beneficiary may
trace the property and recover the property, its proceeds, or other property received

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 ESSAY ROADMAP: WILLS AND DECEDENTS’ ESTATES
This outline tracks the Uniform Probate Code (UPC) rules and, when applicable, other significant views.

General approach to Wills:

Step 1: Determine whether there is any non-probate property (e.g., will substitute) such as a deed, trust,
joint tenancy property, or payable on death (POD) account or policy.
Step 2: Determine whether there is a valid will to distribute the remaining (probate) property.
Step 3: If there is no will, the will is invalid, or the will does not dispose of all property, apply the rules of
intestate succession.

I. INTESTACY

Vocabulary: Heirs (persons entitled to property) take by descent (inherit) from the intestate decedent
(the one who dies without a will); the issue (also called descendants) are the lineal descendants (children,
grandchildren, great-grandchildren) of the decedent.

A. SPOUSE—must be legally married to decedent at death; separation insufficient to change status

Who survived the decedent (D)? Intestate Share

Spouse + shared descendants or Spouse + no one Spouse takes 100%

Spouse + parent Spouse takes $300k + 75%

Spouse + shared descendants + issue of D Spouse takes $225k + 50%

Spouse + issue of D Spouse takes $150k + 50%

B. ISSUE
1. Defined: Issue is based upon a parent-child relationship and includes the lineal descendants
(e.g., children, grandchildren, and great-grandchildren).
2. Adopted children—including stepchildren, are treated the same as biological children; UPC
also allows adoptee to inherit from the other natural parent
3. After-born children—one conceived before but born within 280 days of husband’s death is
presumed to be the issue of husband; time limit is 300 days under Uniform Parentage Act
4. Children born out of wedlock—inherit if paternity is proven or adjudicated, the father
subsequently married the mother, or the father held the child out as his own
5. Calculating their share
Per capita with representation—divide the property equally at the first generation with
a living member who survived D; for those at that level who did not survive D, their share
goes to their issue who survived D (if there are issue)
 Per stirpes—divide the property into the total number of children who survive or leave
issue who survive; the issue take in equal portions the share their deceased ancestor would
have taken if living
Per capita at each generation (UPC)—divide the property into as many equal shares
as there are members of the nearest generation of issue who survive the decedent and
include deceased members of that generation with issue who survive D

C. NO SPOUSE OR ISSUE (UPC)—the estate will pass to parents who survive, or if none, to
descendants of D’s parents (e.g., siblings of D), or if none, to grandparents

D. NO HEIRS—if the D dies without heirs, the property will escheat to the state

E. SURVIVAL (Trigger fact: an heir dies at or near the same time as the testator)
120 hour rule (UPC) requires clear and convincing evidence the heir survived D by 120 hours;
without sufficient proof, the heir will be treated as having predeceased D

II. EXECUTION

Vocabulary tip: A decedent who dies with a will is the testator (T) who devises (disposes of real property)
to a devisee (recipient of real property) and who bequests (disposes of personal property) to a legatee
(recipient of money or personal property). In modern usage, a “devise” can be of real or personal property.

A. FORMALITIES (intent + writing + signature + witnesses = attested will); a handwritten will can
qualify as an attested will, if the formalities are met
1. Signed writing
Signed with intent by the testator (T) or by someone in his presence and at his direction;
the signature need not be formal (e.g., “X” is okay) so long the mark is as intended as a
signature
Signature must be at the end to be valid, or (UPC) can be anywhere on the instrument
2. Intent—testator must intend the instrument to function as her will
3. Capacity—testator must be 18 or older and of sound mind (and see E.4. below)
4. Witnessed—the will must be signed in the joint presence of, and attested to by, at least two
witnesses; the UPC does not require the witnesses be present when each other signs, but each
must sign within a reasonable time after witnessing T sign or acknowledge the will
Presence is either “line of sight” or “conscious presence” (majority); UPC applies the
“conscious presence” rule only when someone signs on behalf of T
Interested witness (Trigger fact: One of the witnesses is also a beneficiary)
Effect on validity—at C/L the will was invalid; UPC/majority: the will is valid;
Witness’ share (analyze the validity of the gift to the witness)
If there are two other disinterested witnesses or under UPC, the gift is not affected
If there are not two other disinterested witnesses (in non-UPC states):
a. The gift will stand if the witness is an intestate heir
b. If the witness is not an intestate heir, the gift will be “purged” beyond the
amount that would be her intestate share (purge theory)

Tip: If the will is contested on grounds of fraud or undue influence, the existence of an interested witness
creates a rebuttable presumption the testator was subject to undue influence. Analyze whether the witness
would otherwise be entitled to an intestate share to rebut the presumption. While the UPC has abolished
the interested witness doctrine, applying the UPC rule should not prevent a discussion of the issue so the
grader will know you otherwise understand the rule and concept.

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B. HOLOGRAPHIC WILLS (intent + handwritten + signature = holographic will)
1. Requirements—must be entirely in the handwriting of the testator and signed, though some
states also require it be dated; UPC: only “material provisions” must be in handwriting
2. Intent—it must be clear the document was intended as T’s will (e.g., “I bequeath”); UPC:
words of intent need not be in T’s handwriting and can be shown by extrinsic evidence

C. CODICILS—a testamentary addition to a will, executed with the same formalities as a will
1. Effect—a valid codicil republishes the will as of the date of the codicil
2. Holographic codicil to an attested will is valid as is an attested codicil to a holographic will
3. Lined out words—can trigger codicil issue if the testator wrote in additional words as an
attempt to modify the will; the lined out words should be evaluated under revocation (below)

D. SUBSTANTIAL COMPLIANCE—under UPC’s “harmless error” doctrine, a document that

substantially complies with the formality requirements will be recognized as valid, if shown by clear
and convincing evidence the testator intended it to constitute a will, codicil, revocation (whole or
partial), or revival of a revoked will

E. SUBSTITUTES (Nonprobate Transfers)

1. Rule: An inter vivos transfer of property will avoid probate and is therefore a will substitute.
2. Types—joint tenancy property, revocable trust, pour-over trust, insurance policy, payable on
death (POD) account

F. WILL CONTESTS (Trigger fact: Claimant attacks the will’s validity as not reflecting the testator’s
intent)
1. Time limit—a will contest must be filed within six months after a will is admitted to probate
2. Standing
Yes: Beneficiaries under the current or prior will have standing to contest the will.
No: Creditors, spouses of beneficiaries under prior wills and pretermitted heirs cannot
contest a will.
3. No contest clause—enforceable unless the claimant has probable cause (majority/UPC)
4. Grounds:
Lacked capacity—(look for when, why, what, who, and how); claimant must show, at
the time (when)T made the will, T lacked the ability to know the following:
Nature of the act (why);
Nature and character of his property (what);
Natural objects of his bounty (who); and
The plan of the attempted disposition (how)
Insane delusion—operated under a belief not based in fact or reason
Test—a rational person in T’s situation could not have reached the same conclusion
Causation required—but for the insane delusion, T would not have disposed of the
property in the same manner
Undue influence—all or part of the will may be invalidated if subject to undue influence
Burden of proof—claimant must show the elements below with direct evidence:
Exertion of influence by another;
The effect of which was to overpower the mind and will of T; and
But for the influence, T would not have made the will.
Presumption arises when one who is in a confidential relationship with T
participates in the will’s execution and receives an unnatural gift; recipient must
overcome presumption by proving the will was not a product of his influence
Elements:
Susceptibility (T susceptible to influence);
Motive (the influencer had reason to benefit);
Opportunity (the influencer had the opportunity to influence); and

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 Causation (the will would not have been executed but for the influence).
Effect if proven—the influencer will be treated as having predeceased T
Fraud—all or part of the will may be invalidated if T subject to fraud
Elements: Must prove the elements existed at the time the will was executed:
Misrepresentation—by the beneficiary with intent to deceive T and with a
purpose to influence T’s will
Causation—but for the misrepresentation, the will would not have been made
Types—in the inducement (makes a different will than she would have had she
known the facts) or in the execution (as to the character or contents of the will)

III. REVOCATION

A. GENERALLY: A will may be revoked in whole or in part; revocation of a will revokes its codicils,
however revocation of a codicil does not revoke the underlying will.

B. METHODS
1. Subsequent instrument—a later will can expressly revoke a prior will or impliedly revoke a
prior will by inconsistent terms
Multiple wills—the later will controls; read the two wills together to the extent possible,
however the later will controls to the extent it is inconsistent with the prior will

Tip: To distinguish a codicil from a new will, look for a residuary clause. A will typically has a residuary
clause whereas a mere codicil will not.

2. Physical act—T commits a physical act (tearing, burning, lining out) with intent to revoke, or
(by proxy) a third party acting on behalf of T does so at T’s direction and in T’s presence
Lost Wills—a will not found at T’s death will create a presumption it was revoked by
physical act
Burden is on the proponent to establish the existence of a will by clear and convincing
evidence
Evidence—duplicate originals may be used, however duplicate copies will not be
admitted
Destruction of a copy—revocation of a duplicate original revokes all copies, but
destruction of an unexecuted copy does not serve as a revocation of all copies
3. Operation of law—a subsequent divorce revokes any provision in favor of the prior spouse;
UPC also invalidates any gift to the prior spouse’s relatives

C. REVIVAL BY REPUBLICATION—modern (UPC) approach focuses on the T’s intent and applies
a hybrid approach that depends on two considerations: (i) whether the second will is revoked by
act or by another, later will; and (ii) if the second will is revoked by an act, whether the first will
was wholly or partially revoked by that second will

D. DEPENDENT RELATIVE REVOCATION (DRR)

1. Rule: A will or portion that is revoked on a mistaken basis of law or fact can be revived.
2. Test: But for the mistake would T have revoked? If no, revive the revoked will or provision.
3. Partial—can apply to a partial revocation so long as reviving the revoked gift honors T’s intent
because of the similarity between the new and revoked gift

Interlineation example: T creates a valid attested will giving “$1,000 to X” but subsequently decides to
amend the will by lining out “$1,000” and writing in “$5,000, signed T.” Possible issues:

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Revocation by physical act (lining out with intent to revoke the gift of $1000)
Holographic codicil (attempted by writing in new gift, but it is not valid—lacks material terms)
Substantial compliance—harmless error doctrine will validate the codicil if there is clear and convincing
evidence T intended it to be a valid codicil; if no such intent, continue…
DRR (new gift of $5,000 was made based on a mistake of law regarding how to modify the will, and but
for the mistake T would not have revoked the original gift)
Conclusion: The original gift can be revived under DRR because it would honor T’s intent more to give X
$1,000 instead of nothing (key fact as to T’s intent: T attempted to the gift to X).

IV. INTERPRETATION

A. TESTATOR’S INTENT—give the words their plain meaning unless the will states otherwise; the
will consists of all pages present at the time of execution that are intended to make up the will

B. INCORPORATION BY REFERENCE—a will may incorporate an extrinsic document

1. Rule: The document must have existed at the time the will was executed, was intended by T
to be incorporated, and is sufficiently described in the will to permit its identification.
2. UPC exception: A list of tangible personal property can be made after the will’s execution.

C. ACTS OF INDEPENDENT SIGNIFICANCE—T disposes of property according to an act or event

that is unrelated to the will (including a future act) e.g., “to my niece’s spouse at my death”

D. RESIDUE
1. Common Law: A failed gift will fall to the residue; if the residue is left to two or more persons,
one of whom predeceases T, the deceased beneficiary’s portion will pass by intestate
succession
2. UPC: If the residue is left to two or more persons, one or more of whom predeceases T and
anti-lapse will not save it, the deceased beneficiary’s portion will pass to the surviving residuary
legatees

E. AMBIGUITY—courts are reluctant to disturb the plain meaning of a will regardless of mistake;
in the event of an ambiguity, most courts allow extrinsic evidence to clarify testator’s intent

V. CHANGES IN PEOPLE OR PROPERTY

A. LAPSE AND ANTI-LAPSE (Trigger fact: a beneficiary dies before the testator)
1. Common Law—a gift in the will to a beneficiary who predeceases T will lapse and fall to the
residue; if there is no residuary clause, the gift will pass through intestate succession
2. Anti-Lapse Statutes operate to save the gift when a beneficiary dies before T
Rule:
If the predeceasing beneficiary is a relative of T (most states require that the
beneficiary was a grandparent, descendant of a grandparent, or a stepchild of T);
Who dies leaving issue;
The issue will take the predeceased beneficiary’s share.
UPC also applies the statute to non-probate transfers.
3. Class Gift—if there is a gift to a class and a class member predeceases the testator, the
surviving class members will take unless the anti-lapse statute applies to save the share for
the issue of the deceased class member

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TYPES OF DEVISES:
Specific—a gift of a specific item of property satisfied only with the specific item of property (e.g., “my
coin collection to A”)
General—a gift of property (usually cash) satisfied from general assets (e.g., “$10,000 to A”)
Demonstrative—a gift of property or money to be paid from a designated fund (e.g., “$10,000 to be paid
from the USA bank account”)
Residuary—a gift of the leftover assets in the estate (e.g., “…and the rest and residue of my property to
A”)

B. ADEMPTION (Trigger fact: the subject matter of a specific bequest no longer exists at T’s death)

1. Rule: A specific bequest of property that is no longer part of T’s estate at death adeems.
Identity theory (C/L)—the gift is extinct and the specific beneficiary takes nothing
Intent theory (UPC)—a specific bequest will adeem only if consistent with T’s intent
Beneficiary entitlement—even if a gift adeems, the beneficiary is entitled to any
derivative benefit, e.g. an unpaid condemnation award, property from foreclosure on
a devised note, replacement property for the bequest, or an outstanding balance due
related to the extinct property; if none of these exceptions apply, the beneficiary can
get the money equivalent if consistent with T’s intent
2. No exoneration of liens—the specific devisee of encumbered property takes subject to the
mortgage unless T specifically directs otherwise; a general directive to pay debts will not suffice
to exonerate a lien

C. SATISFACTION—T satisfies a devise in whole or part by an inter vivos transfer

1. Intent—T must intend for the gift to adeem and be satisfied prior to his death
2. In writing (UPC)—T’s intent must be evidenced in a contemporaneous writing or the devisee
must acknowledge the gift in writing
3. Comparable to the doctrine of advancements (below) under intestate succession

D. INCREASE IN SECURITIES (Trigger fact: stock split, cash or stock dividend)

Issue: Whether the devisee is entitled to the increase in securities (dividends or distributions)
Analytical approach:
When were the shares of stock or cash distributed—before or after death?
Is the bequest general or specific?
Is the increase from a stock split or merger?
Is the increase cash or stock dividends?

1. Pre-death: Whether the beneficiary is entitled to the increase depends upon the jurisdiction
Common Law—beneficiary of a general bequest is not entitled to any dividends or shares
issued before death; a beneficiary of a specific bequest (number of shares is specified) is
entitled to additional shares from a stock split or merger but is not entitled to cash or stock
dividends (i.e., stock split yes, dividends no)
UPC—specific or general beneficiary is entitled to any additional shares paid as a stock
dividend or resulting from a stock split but is not entitled to a cash dividend

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 2. Post-death: Any increase (cash or stock dividends, or shares produced by a stock split) post-
death goes to the specific beneficiary; a general beneficiary will only receive earned interest
beginning one year after T’s death

VI. PROTECTION OF FAMILY

A. RIGHTS OF SURVIVING SPOUSE

1. Spousal support—spouse is entitled to social security, pension plans, personal property,
homestead exemption, and family allowance
2. Community Property (CP)—if there is no will, the spouse gets the other ½ (decedent’s
share) of the CP; if there is a will, the ½ CP and all separate property of the decedent passes
per the terms of the will
3. Non-CP states’ Elective Share—a spouse may elect to take a share (often 1/3) of the net
probate estate (after expenses and allowances) in lieu of any gift under the will; if an election
is made, the other devises may be abated (see VIII.D.)
Augmented estate (UPC) spouse may take a 50% share of the value of the marital
property portion of the augmented estate, defined as including property acquired before
marriage (unlike CP states) as well as property transferred to the spouse and others
Right to set aside transfers—many states allow the spouse to set aside qualifying inter
vivos transfers made without spousal consent
Waiver—the spouse may waive in writing the right to a forced or elective share only after
fair disclosure of the assets/debts and consultation with independent counsel
4. Omitted spouse—marriage after execution of a will does not invalidate the will, and the
spouse can take the elective or forced share; UPC states provide the spouse automatically with
an intestate share unless the terms of the will indicate the omission was intentional or the
spouse was provided for outside of the will

B. GIFTS TO CHILDREN
1. Advancements—D advances intestate share in whole or part by a lifetime gift
C/L—lifetime gift is treated as satisfying all or part of the child’s intestate share
UPC—requires a contemporaneous writing by D or an acknowledgment by the donee,
indicating the gift was to be considered when determining the heir’s intestate share
2. Omitted Children (Pretermitted Heir) statutes provide for accidentally omitted heirs
Presumption—a child born or adopted after the will is executed who is not provided for
in the will may take an intestate share, because the omission is presumed accidental
Exceptions for when the omitted child statute does not apply:
It appears from the will the omission was intentional;
The testator had other children when the will was executed and left most or all of the
estate to the other parent; or
The testator otherwise provided for the child outside the will with intent it be in lieu of
a testamentary gift.

C. BARS TO SUCCESSION
1. Homicide—one who commits an intentional and felonious killing is treated as having
predeceased the testator, but the killer’s issue are not barred from taking; if there is no murder
conviction, the court may determine by preponderance of the evidence
2. Disclaimer—one who disclaims a gift will be treated as having predeceased the testator; the
disclaimer must be in a signed writing and filed within nine months of D’s death

VII. WILL CONTRACT (contract law governs unless the contract is within the will itself)

A. GENERALLY: Contracts to make a will, make a particular gift, or to revoke a will are recognized.

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 B. REQUIRED PROOF to establish the existence of a contract:
1. The will states the material provisions of the contract;
2. The terms are contained in a signed written contract; or
3. The will makes reference to the contract and extrinsic evidence proves the terms.

C. JOINT WILLS—a single will intended to serve as the will for two or more individuals becomes
irrevocable upon the death of one party; remedy a breach through constructive trust

D. RECIPROCAL WILLS—separate wills with identical provisions; not bound by contract

VIII. PROBATE—to provide an orderly administration of a decedent’s estate

A. JURISDICTION—the county in which D was domiciled at death has jurisdiction over probate

B. ADMINISTRATION—UPC requires a proceeding be brought within three years of death

C. PERSONAL REPRESENTATIVE—either named in the will (executor) or appointed by the court

(administrator)
1. Qualifications—must have capacity to contract and act as a fiduciary
2. Priority—person named in will, surviving spouse who is a devisee, other devisees, surviving
spouse, other heirs, any creditor (45 days after decedent’s death)
3. Duties—notify interested parties, appraise and inventory the assets, satisfy the debts, and
distribute the assets/close the estate

D. ABATEMENT (frequently tested issue)

1. Rule: When the assets of an estate are insufficient to pay its debts and satisfy the devises,
the gifts abate in a specified order, unless the testator otherwise indicates.
2. Order in which to abate assets:
Intestate property
Residuary bequests
General bequests
Specific bequests
3. Priorities:
Abatement within a category is pro-rata
Favor the spouse and relatives over other gifts in the same category
Non-probate property (e.g., insurance policy, payable on death account) does not abate

IX. POWER OF APPOINTMENT

A. GENERALLY: The testator (donor) may select a person (donee) to whom authority is given to
dispose of certain property; the power may be presently exercisable during donee’s lifetime or
testamentary (exercisable only by the donee’s will).

B. TYPES:
1. General—not restricted; can be exercised in favor of the donee, his estate, or his creditors
2. Special—restricted to certain persons or groups; creditors cannot reach absent fraud

X. POWER OF ATTORNEY (principal/agent relationship)

A. GENERALLY: The testator may select a person to whom authority is given to act on T’s behalf

B. TYPES:
1. General—covers all affairs in the event the principal (P) becomes incapacitated

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2. Special—limited to a specific function and duration
3. Advanced Healthcare Directive—becomes effective when and if P becomes incapacitated
Living will—dictates the healthcare to be provided in the event the P is unable to make
those decisions known; the agent’s job is to make sure the directive is enforced
Durable power of attorney for healthcare—appoints an agent to make healthcare
decisions in the event the P is incapacitated

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